The State Of West Bengal vs Ganesh Chandra Samanta And Others
2023 Latest Caselaw 7465 Cal

Calcutta High Court (Appellete Side)

The State Of West Bengal vs Ganesh Chandra Samanta And Others on 29 November, 2023

Author: Soumen Sen

Bench: Soumen Sen

               IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                       APPELLATE SIDE

BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Uday Kumar


                          FMA 802 of 2021

                               WITH

                      I.A. No. CAN 2 of 2021

                   The State of West Bengal
                              Vs.
              Ganesh Chandra Samanta and others



For the Appellant/State             : Mr. S.N. Mookherjee, Ld. AG
                                      Mrs. Kakali Samajpaty, Adv.
                                      Mr. Yash Singhi, Adv.

For the Respondents nos.1 to 15     : Mr. Subrata Ghosh, Adv.

For the Respondent no.16 : Ms. Suchismita Ghosh, Adv.

Mr. Maloy Kumar Seal, Adv.

Hearing Concluded on                : 16th October, 2023

Judgment on                         : 29th November, 2023


      SOUMEN SEN, J:      The appeal is arising out of a judgment

and order dated 6th March, 220 in a writ petition preferred by 15

writ petitioners praying, inter alia, for necessary direction upon the

respondents (the present appellants) to grant scale of Rs.425-1050

with effect from 1st April, 1981 with all consequential benefits

including all allowances and perquisites as are admissible under

the Rules together with all arrears with interest calculated at the

enhanced rate with effect from 1st April, 1981.

2. Briefly stated, the writ petitioners no.1 to 9 are working as

Workshop Instructors in Ram Krishna Mission Silpa Mandir and

the writ petitioners no.10 to 15 are attached to Ram Krishna

Mission Silpa Pith. They were all appointed as Workshop

Instructors. The writ petitioners have claimed benefits on the

principle of Equal pay for equal work as extended to the writ

petitioners in WP 3222(w) 1998 (Sibu Gopal Sadhukhan & Ors.

Vs. State of West Bengal and Ors.).

3. Before 1981 the pay scale of the Workshop Instructors of

Government Polytechnic was Rs.230-425 with higher initial start

at Rs.250 as per ROPA Rules, 1970 whereas for the

Workshop/Mistri Instructors of Government sponsored

Polytechnics, the pay scale was Rs.230-425.

ROPA Rules 1981 was published vide a notification no.5691-

F on 28th July, 1981. The said rule was made under proviso to

Article 309 of the Constitution of India. Under the said Rule the

pay scale of Workshop/Mistri Instructors of Government

Polytechnics prevailing prior to 1981 was increased from Rs.230-

425 to three pay scales according to their qualifications. They are:

i) Rs.425-1050 (Scale No.11) for Diploma Holders.

ii) Rs.380-910 (Scale No.9) for Trade Certificate

Holders.

iii) Rs.340-750 (Scale no.7) for others viz., Non -

diploma holders and non-certificate holders.

These pay scales were recommended by the then Pay

Commission.

4. The appellants on consideration of the recommendations of

the pay commission set up on 16th November, 1977 issued

memoranda no.392-Edn(B) on July 31, 1981 whereby the pay scale

of the Workshop Instructors in State Government Aided

Polytechnics was increased from Rs.230-425 to Rs.360-815. This

was similar to scale no.8 of ROPA Rules 1981.

5. In 1985 after ROPA Rules 1981 came into force a group of

Workshop Instructors filed a writ petition before this Court being

CO No.3021(w) of 1985 (Shib Narayan Chakraborty and 21

others vs. The State of West Bengal) praying for higher scale of

pay of RS.425-1050 (scale no.11) on the ground of equal pay for

equal work. At the relevant time they were in the pay scale of

Rs.340-780 (scale no.7) and Rs.380-910 (scale No.9). The writ

petitioners were Workshop Instructors in Government

Polytechnics.

6. On 22nd January, 1987, The West Bengal Services

(Recruitment to the post of Workshop Instructor/Mistri

Instructor Government and Sponsored Polytechnics in West

Bengal) Rules, 1986 ( in short, "Workshop Instructors Rules,

1986) was issued vide Notification No.21-Edn.(T.E.T)/10R-3/86, by

the Government under the proviso to Article 309 of the

Constitution of India. By the 1987 notification in single scale of

pay of Rs.380-910 (scale no.9 of ROPA 1981) was prescribed for all

Workshop/Mistri Instructors uniformly including the

Government and Government aided polytechnics appointed after

22nd July, 1987, the reason being, the educational qualifications

prescribed for all posts of Workshop Instructors/Mistri

Instructors was the same. However, those Workshop/Mistri

Instructors who were appointed prior to 22nd January, 1987,

would continue to draw pay scales in accordance with their

respective pay scales under ROPA Rules, 1981.

7. On 7th March, 1990 vide memorandum no.33-Edn(B) the

Government as per the recommendations of the Pay Commission

constituted on 30th January, 1987, revised the pay scale and the

revised pay scale was given effect from that date. ("ROPA Rules,

1990").

8. In the said memorandum, the pay scale of Rs.380-910/-

(Scale No.9) was revised as Rs.1260-2610 (Scale no.9).

9. The separate ROPA Rules of 1981 for the Government

sponsored Polytechnics was also revised vide Memorandum

No.33-Edn(B) and the said scale of pay of Rs.360-815/- (Scale

no.8) was revised to Rs.1200/- to 2360/-.

10. In the meantime Shib Narayan Chakraborty (supra)

(C.O.No.3021(W) of 1995) came up for consideration and on 22nd

August, 1990 the rule issued earlier was made absolute ex parte.

11. The writ petitioners in C.O.No.3021(W) of 1985 were

granted the benefits of the revised pay scale of Rs.425 to Rs.1050

and the respondents were directed to give such benefits to the Writ

Petitioners within 3 months of the issuance of the writ.

12. It has been recorded in the order that the State did not make

any appearance before the Hon'ble Court. The said order was

passed without consideration of the Notification dated 22nd

January, 1987. The Department of Technical Education and

Training, Govt. of West Bengal vide Memo No.618-TET (Poly) dated

30th October, 1995 granted revised scale of pay to the writ

petitioners of C.O.No.3021 (W) of 1985 in accordance with order

of the Hon'ble High Court dated 22nd August, 1990 in

C.O.No.3021(W) of 1985 with effect from 1st April, 1984.

13. During 1996 and 1997 on the basis of the decision in

C.O.No.3021(W) of 1985, various petitions were moved before the

State Administrative Tribunal viz., T.S.No.18/1996, 1587/1996,

etc. and O.A.No.1253 of 1997, and others.

14. On 11th April, 1987 the learned State Administrative Tribunal

disposed of TA No.18 of 1996 directing that the petitioners should

receive the benefit of revised pay scale in terms of GO No.618-

TET(Poly) dated 30th October, 1995 from 1st April, 1981. The said

order was passed on concession of the learned advocate for the

State that discrimination was made to the petitioner denying such

benefit and following Shib Narayan Chakraborty (supra). However,

the notification dated 22nd January, 1987 was not placed and

hence not considered.

15. The learned Administrative Tribunal disposed of TA No.1587

of 1996 directing the Director of Technical Education, West Bengal

to consider the case of the petitioner within 60 days from the date

of communication of the order. This time also the tribunal did not

consider the notification dated 27th June, 1987. Subsequently on

7th November, 1997 the learned State Administrative Tribunal

disposed of TA No.19of 1996 whereby the Director of Technical

Education West Bengal was directed to consider the case of the

petitioner within 60 days from the date of communication of the

said order. Like the previous mattes the notification dated 22nd

January, 1987 was not considered. The State Administrative

Tribunal on 12th January, 1998 disposed of OA No.1253 of 1997

directing the Secretary to the Government of West Bengal

Technical Education to allow the benefits of revised pay scale to the

petitioners in terms of G.O. No.618-TET(Poly) dated 30th October

1995 within 60 days from the date of communication of the order.

The Tribunal, however, did not consider the notification dated 22nd

January, 1997 while directing consideration.

16. In 1998 a separate writ petition being no.WP 3222(W) of

1998 (Sibu Gopal Sadhukhan & 21 Ors. Vs. State of West

Bengal & Ors) was filed by the Workshop Instructors/Mistri

Instructors of the Sponsored Polytechnic Institutes claiming

the pay scales of Rs.425-1050 (Scale No11 of ROPA Rules 1981).

17. Pursuant to the recommendation of the Pay Commission

constituted on 27th November, 1995 the Department of Technical

Education and Training revised the scale of pay for the

Government sponsored polytechnics on and from 17th May, 1999.

The revised scale of pay fixed for workshop instructors are as

follows:

a. Workshop instructor (for Diploma Holders) :- Rs.4500-Rs.9700 (Scale No.10)

b. Workshop Instructors (Others) - Rs.4000-Rs.8850 (Scale No.9).

18. The Finance (Audit) Department Government of West Bengal

on 3rd January, 2001 issued a memo no.5-F(Law) in which it was

stated that the 4th Pay Commission after considering the matter of

the Workshop/Mistri Instructors found that there was no merit

in the upgradation of the pay scale from scale no.9 to scale no.10

because as per the Recruitment Rules framed vide notification

dated 22nd Janary, 1987, the qualifications and scale of pay for all

Workshop/Mistri Instructors in Government and Government

sponsored Polytechnics was stipulated to be the same.

19. In pursuance to the recommendations of the 4th Pay

Commission the Governor refixed the pay scale for the post of all

Workshop Instructors/ Mistri Instructors of different

polytechnics under the Technical and Training Department

Government of West Bengal to be scale no.9. However employees

appointed prior to 22nd January, 1987 enjoying scale no.10 would

continue to draw their pay in the revised pay scale no.10 of ROPA

1998.

20. In November, 2001 Workshop Instructors/Mistri

Instructors of the sponsored Technical Institutes filed a writ

petition being WP 18361 (W) of 2001, (Ganesh Ch. Samanta &

Ors vs. State of West Bengal) claiming the pay scale of Rs.425-

1050 (scale no.11 of ROPA Rules 1981). In 2002 an application was

filed by 27 workshop instructors of Government Polytechnics

before the learned Administrative Tribunal being OA No.1228 of

2002 (Dipankar Dey vs. State of West Bengal) claiming similar

benefits of scale no.11.

21. In Sibu Gopal Sadhukhan & Ors (supra), the learned Single

Judge had passed an order on 9th September, 2003 granting higher

pay scale to the petitioners along with arrears within three months.

While disposing of the matter learned Single Judge recorded that in

spite of giving multiple opportunities the State did not file any

affidavit in opposition nor made any appearance before the court.

In view of thereof the notification dated 22nd January, 1987 and

memo dated 3rd January, 2001 were not considered.

22. In OA No.1228 of 2002 (Dipankar Dey (supra)), the learned

State Administrative Tribunal passed an order on 30th July, 2004

accepting the contention of the petitioners and observed that they

are similarly situated with the workshop instructors on the pay

scale of Rs.425-1050 (scale no.11). The Secretary of the

Government of West Bengal Technical Education and Training

Department was directed to allow the same benefits to the

petitioners as had been extended to the petitioners in TA No.18 of

1996 and TA No.1253 of 1997 within a period of four months

from the date of communication of the order.

23. The State being aggrieved by the aforesaid order filed an

appeal in 2005 before the Division Bench of this Court being WPST

No.755 of 2005 (State of West Bengal vs. Dipankar Dey & Ors).

Subsequently the State in 2006 also filed an appeal being MAT

No.4207 of 2006 against the order dated 9th September, 2003

passed in Sibu Gopal Sadhukhan (supra) in WWP No.3222(W) of

1998.

24. The writ petition filed by Ganesh Chandra Samanta & Ors

(supra) in November, 2001 was heard and disposed of by the

Hon'ble Justice Debasish Kar Gupta (former Chief Justice of this

Cout) on 4th September, 2006 directing the State respondent to give

benefits of revised pay of scale of Rs.425-1050 with effect from 1st

April, 1981 to the writ petitions and thereafter in corresponding

scale or scale to which the same has been revised from time to

time. The order also records that the State did not make any

appearance. As a result whereof the notification dated 22nd

January, 1997 and memo dated 3rd January, 2001 were not

considered.

25. The appeal preferred against the order dated 9th September,

2003 in MAT No.4207 of 2006 (State of West Bengal vs. Sibu

Gopal Sadhukhan & Ors) was dismissed by the Division Bench on

22nd August, 2007 on the ground of inordinate delay of 1116 days

in filing the appeal.

26. The State filed an application being CAN No.6273 of 2007

on 23rd July, 2007 for recalling of the judgment dated 4th

September, 2006 passed n WP No.18361(W) of 2001 (Ganesh

Chandra Samanta & Ors.).

27. The writ petitioners nos.1 to 9 of the present petition, namely

Ganesh Chandra Samanta & Ors, in WP 18361(w) of 2001 who

initially joined in the post of workshop instructors in Ram Krishna

Mission Silpa Mandir were given the status of a Government

employee by virtue of memo 3576/TET dated 11th December, 2007.

28. In 2008 the State preferred a Special Leave Petition being

SLP No.83 of 2008 before the Hon'ble Supreme Court against the

order dated 22nd August, 2007 passed in MAT Nno.4207 of 2006.

The Hon'ble Supreme Court dismissed the SLP on 18th January,

2008 and the order of the Hon'ble Division Bench dated 22nd

August, 2007 in MAT No.4207 of 2006 was affirmed. However,

the said order also recorded that the question raised with regard to

the application of wrong notification is left open. The said order

reads:

"The Division Bench of the High Court in an intra Court appeal did not think it fit to condone gross delay of 1116 days. According to the High Court, it was not properly explained and there was no "sufficient cause" to condone the delay. We find no infirmity in the said order. The special leave petition is dismissed.

Learned counsel for the petitioner submitted that even on merits, the learned Single Judge as well as Division Bench were wrong in applying notification which was not applicable to the respondent-employee. In view of the fact that we are dismissing the petition, only on the ground that Division Bench was not wrong to condone the delay, we express no opinion. That question is left open.: (emphasis supplied).

29. The State on 26th March, 2008 filed an application being CAN

No.2796 of 2008 in WP No.18361(w) of 2001 , that is, Ganesh

Chandra Samanta & Ors (supra) praying for appropriate orders

after fresh adjudication on the issue of entitlement of the

respondents in view of the aforesaid order passed by the Hon'ble

Supreme Court on 18th January, 2008 in SLP No.83 of 2008.

Subsequently, on 26th November, 2010 the application for recalling

of the order along with the application for condonation of delay

being CAN 6276 of 2007 and CAN No.6273 of 2007 respectively

filed in WP 18361(w) of 2001 (Ganesh Chandra Samanta) (supra)

were allowed and the order dated 4th September, 2006 was recalled

without any order as to cost. In view of recall of the order dated 4th

September, 2006, the contempt rule issued in WPCRC No.6045 of

2007 in connection with the aforesaid writ petition was discharged.

30. In view of the above order dated 26th November, 2010 passed

in the recalling application being CAN No.6273 of 2007 the

Hon'ble Division Bench on 27th July, 2011 dismissed the appeal

and the connected application being MAT No.488 of 2011 and

CAN No.4905 of 2011 filed by the writ petitioners against the

order of recall.

31. In the instant writ petition the State filed its affidavit-in-

opposition on 4th February, 2013.

32. During pendency of the writ petition the Hon'ble Division

Bench on 26th February, 2013 passed an order in WPST No.7855

of 2005 (State of West Bengal vs. Dipankar Dey & Ors) setting

aside the order dated 30th July, 2004 in OA No.1228 of 2002. The

said order directed the tribunal to consider whether the petitioner

in OA No.1228 of 2002 were entitled to the highest scale of pay as

the workshop instructors appointed on 2nd November, 1987. The

order dated 30th July, 2004 was set aside on the ground that

tribunal did not consider the issue whether the petitioners in OA

No.1228 of 2002 were similarly situated as the workshop

instructors appointed on 2nd November, 1987, however, the

benefits granted would abide by the result of the original

application.

33. The learned Advocate General has submitted that all the

earlier orders on which reliance have been placed were passed

without consideration of the 1987 notification or the memo of 2001

and hence those decisions are per incurium. Moreover in view of the

order of the Supreme Court on 18th January, 2008 in SLP No.83 of

2008 the issue raised in the writ petition are required to be

adjudicated afresh without being influenced by any observation

made in the earlier writ proceeding and the said order cannot

operate as res judicata. It is submitted that after the order of the

Hon'ble Supreme Court on 18th January, 2008 no fresh litigation

has been filed concerning the issue involved in the present writ.

Therefore, there is no impediment on the part of the State of West

Bengal to rely on 1987 notification or the 2001 memo.

34. Mr. Mookerjee submits that the decisions relied upon by the

learned Single Judge are per incurium as they were passed in

ignorance of the notification no.21-Edn(TET)/10R-3/86 dated 21st

January, 1987, that is, the 1987 notification and memo no.5-

F(Law) dated 3rd January 2001, that is, 2001 memo. These

notifications are having the force of the statute or an authority

which governed the relationship of the parties and required to be

considered by the Court concerned in deciding the matter. In view

of the non consideration of the aforesaid rules the earlier decisions

relied upon by the learned Single Judge are per incurium and in

this regard the learned Advocate General has relied upon the

decision of the Hon'ble Supreme Court in Municipal Corporation

of Delhi. V. Gurnam Kaur reported in 1989(1) SCC 101

paragraph 11 and V.Krishna Rao v. Nikhil Super Specialty

Hospital & Ors., reported in 2010(5) SCC 513 paragraphs 54

and 55. Therefore, all the orders alluded to above preceding the

impugned order dated 06.03.2020 are per incurium, as they do not

consider the 1987 notification and 2001 memo, even though the

1987 notification has statutory force. Any order passed by the

State as compliance of all orders of the court such as notification

dated 30.10.1995 cannot stand in the way of the State of West

Bengal relying on the 1987 notification or the 2001 memo and

more so, when the court orders are passed per incurium and were

complied with under the threat of contempt.

35. Merely because State of West Bengal has complied with the

directions in the aforesaid orders, on the threat of contempt

proceedings against them, does not mean that notification dated

22.01.1987 and 03.01.2001 lose statutory force.

36. The respondents cannot claim equal pay for equal work on

the basis of orders that are wholly perverse, and bad in law. It is

settled law that Article 14 of the Constitution of India 1950, is not

meant to perpetuate any illegality nor does it provide for any

negative equality. Therefore, no one can be forced to repeat any

wrong action earlier does not confer a legal right on any person for

similar treatment as observed in Vijay Sing & Ors v. State of U.P.

& Ors., reported in 2004 SCC OnLine All 1856 at paragraphs 92-

96 and State of Haryana & Ors vs. Ram Kumar Mannb reported

in 1997(3) SCC 321 at paragraph 3.

37. Mr. Advocate General has relied upon the decision of the

Hon'ble Supreme Court in Periyar and Pareekanni Rubbers Ltd

vs. State of Kerala reported in 1991 (4) SCC 195 paragraph 19

to argue that any concession made by advocate appearing for the

State Government cannot bind the State unless it is made by the

Advocate General of the State. In view thereof the concessions

recorded in the order dated April 11, 1987 allowing the writ

petitions on the basis of the concessions by the State Advocate

cannot bind the State of West Bengal.

38. It is submitted that all the respondents, barring respondents

no.8 and 13, are entitled to draw pay in accordance with the pay

scale prescribed in 1987 notification and 2001 memo as they all

joined between 1997 and 2000. However, the claims of respondent

nos.8 and 13 are not maintainable at all since they were appointed

between 1974-1975, and filed the WP 18361 (w) of 2001 only in

November, 2001, which is more than 20 years after their

appointment. Their claim is to be rejected on the ground of undue

delay and latches.

39. The Workshop/Mistri Instructors of Government and

Government aided Polytechnics can only be allowed to draw pay in

accordance with the pay scale prescribed in 1987 notification and

2001 memo. The respondents herein barring respondent nos.8 and

13 are only entitled to scale no.9 and not to existing revised scale

no.10.

40. Mr. Subrata Ghosh learned counsel appearing for the

respondent submitted that the writ petition was filed in view of

blatant discrimination and denial of equal pay for equal works as

enshrined in the Constitution, acknowledged and reiterated in

innumerable decisions of the Hon'ble Supreme Court and different

Hon'ble High Courts. The learned counsel has referred to the

judgment passed in Civil Rule No.3021(W) of 1985, TA 18 of 1996,

TA 19 of 1996, TA 1587 of 1996 and OA No.1253 of 1997 and all

other similar matters in which the aforesaid principle was

reiterated.

41. Mr. Ghosh has submitted that denial of equal pay for equal

works has been admitted on behalf of the State appellants in TA 18

of 1996 and TA 19 of 1996. The said decisions are binding on the

appellant. The State cannot at this stage turn around and say that

the said decisions are not binding. Mr. Ghosh has referred to the

affidavit in opposition filed on behalf of the appellants in WP

no.18361(W) of 2001 ( Ganesh Chandra Samanta & Ors v. State

of West Bengal & Ors.) and submits that the writ application was

heard at length and decided on merits. The issue raised in the writ

petition has been dealt with and decided in the judgment under

appeal on consideration of all the objections raised on behalf of the

State as would be evident from paragraphs 11, 12, 13, 14 and 15.

The said paragraphs are reproduced below:

"11. Prior to promulgation of the ROPA Rules, 1981, all the Workshop Instructors attached to the polytechnics owned by the State Government and to the sponsored polytechnics, were enjoying the same scale of pay. Trouble started when ROPA Rules, 1981 were introduced. The said ROPA Rules provided for three different scales of pay in State Government owned polytechnics and two different scales of pay in sponsored polytechnics. Introduction of such different scales of pay gave rise to resentment among the Workshop Instructors and such classification was successfully challenged by various groups of Workshop Instructors.

12. The main contention of the petitioners is that all the Workshop Instructors of different polytechnics (government and sponsored) are doing same or similar nature of work and as such no discrimination can be introduced amongst them. The petitioners doing same type of job cannot be placed in a lower scale of pay than the others on the basis of the settled principles of the proposition 'equal pay for equal work'. Barring a few i.e. the instant writ petitioners, other Workshop Instructors of Government and sponsored polytechnics are getting the scale of Rs.425/-1050/- irrespective of their qualifications and appointment whether prior to 1987 or thereafter. No distinguishing feature among the petitioners herein and the writ petitioners in WP 3222 (W) of 1998 has been brought to the notice of this Court.

13. The claim raised by the petitioners is premised on the ground that their duties and responsibilities are same as the duties and responsibilities of the petitioners in WP 3222 (W) of 1998. In view of such parity, the petitioners are entitled to the

same benefits as extended to the petitioners in WP 3222 (W) of 1998. The parameters as regards such equality stands satisfied and as such the petitioners cannot be denied similar benefit. The differentiation of pay scales for posts having no difference in degree of responsibility, reliability and confidentiality would not fall within the realm of valid classification. The nature of work of the subject posts is the same and not less onerous than the reference posts. The difference among the petitioners and the petitioners in the earlier writ petition as sought to be argued by Mr. Bandyopadhyay is not based on any legitimate foundation.

14. The writ petition being Civil Rule No. 3021 (W) of 1985 was preferred by the Workshop Instructors of Hooghly Institute of Technology and Malda Polytechnic challenging inter alia memoranda dated 12th May, 1983 and 8th July, 1983 issued by the Deputy Secretary, Education Department, Technical Branch Education and Training clarifying on the eligibility of the revised scale of Rs.380-910/- to the Workshop Instructors (Trade Certificate Holders) of the government polytechnics. By an order dated 22nd of August, 1990, the said memoranda were set aside commanding the respondents to give proper benefit to the petitioners as to the revised scale of pay of Rs.425-1050/-. The said order was complied with by State respondents by issuing a government order no.618 - Tet (Poly) S-7195 dated 30th October, 1995. At that juncture the 1986 Rules were in force. Thereafter in the year 1996 the members of different government polytechnics all over the State of West Bengal approached the State Administrative Tribunal for fixation of their pay scale at Rs.425-1050/-. The said applicants were non-diploma holders. Similar benefits as

was given to others by G.O. no.618 - Tet (Poly) dt.30th August, 1995 were extended by an order dated 11th April, 1997 passed in T.A. 18 of 1996 (S.P. Dey and Others -vs- State of West Bengal and Others). The said order was complied with through a memo dated 3rd January, 2001 issued by the Assistant Secretary, Government of Finance (Audit) Department and a memo dated 22nd March, 2001 was issued by the by the Deputy Secretary, Department of Technical Education and Training. In another application being O.A. No. 1228 of 2002 similar benefits were extended by a memo dated 26th February, 2007 issued by the Deputy Secretary, Department of Technical Education and Training and the annexure to the said memo reveals grant of benefits to Instructors engaged after the 1986 Rules came into force and as such the argument that Instructors engaged after commencement of the 1986 Rules are not entitled is not acceptable to this Court. The respondents cannot take different stands in similar applications upon splitting up their defence.

15. Fairness and reasonableness are paramount issues for administrative action. As a model employer the State Government must conduct itself with high probity and candour and cannot act arbitrarily by withholding the benefits as extended to similarly situated incumbents. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly."

42. Mr. Ghosh submits that a decision making reference to a

judgment earlier binding precedent although may not be correct

cannot be said to be per incurium as observed by the Hon'ble

Supreme Court in Central Board of Dawoodi Bohra Community

& Ors vs. State of Maharashtra and Ors., reported in AIR 2005

SC 752 at 755 (pargraph 7).

43. Mr. Ghosh submits that paragraph 9 of the said decisions it

has been clearly stated that the decision ought not to be overruled

if to do so would upset the legitimate expectations of people who

have entered into contracts or settlements or otherwise regulated

their affairs in reliance on the validity of the said decision.

44. It is argued that in the present case the legitimate

expectation of criterion of equal pay for equal works of the writ

petitioners have been well established and proved. Equal pay for

equal works has emerged from interpretation of different provisions

of the Constitution. In the instant case the main ground is that the

duties and responsibilities of the writ petitioners in WP 3222(w) of

1998 (Sibu Gopal Sadhukhan & Ors.) and also of the workshop

instructors attached to the polytechnic owned by the State

Government and sponsored institutions, therefore, the writ

petitioners cannot be treated differently.

45. Mr. Ghosh submits that in a fairly recent decision on pay

parity the Hon'ble Supreme Court in State of Punjab and others

vs. Jagjit Singh & Ors., reported in 2017(1) SCC 148 has

reiterated that it is also applicable to temporary employees

performing the same duties and responsibilities as regular

employees. Mr. Ghosh has referred to paragraphs 42, 56, 57 and

58 of the said judgment to emphasis that the artificial parameters

cannot be applied to deny fruits of labour and an employee

engaged for the same work cannot be paid less performing the

same duties and responsibilities of others similarly situated. In

view of the facts that the writ petitioners have been performing the

same kind of job as the workshop instructors attached to the

polytechnic owned by the State Government and sponsored

institution they cannot be treated differently. It is submitted that

the judgment passed in WP 3222(W) of 1998 on 9th September,

20023 was carried in appeal being MAT 4207 of 2006 by the State

and the appeal was dismissed on the ground of delay on 22nd

August, 2007 against which SLP was taken out by the State and

the SLP was dismissed on 18th January, 2008. The State has

complied with the judgment passed in WP 3222(W) of 1998 on 9th

September, 2003 vide order dated 10th March, 2016. The State

after eight long years complied with the mandate. Now the State

cannot take different stand. In view of the above it is submitted

that the judgment passed in WP No.18361 (w) of 2001 need no

interference and the instant appeal should not be allowed.

46. Mr.Ghosh has referred to the communication of the Director

of Technical Education and Training dated 7th November, 2008 vide

Memo No.3181 TET to the Member Secretary, 5th Pay Commission

recommending revision of pay structure of different categories of

staff under Directorate of Technical Education and Training, West

Bengal. Mr. Ghosh has relied upon the following extract of the

recommendation:

"Department of Technical Education and Training, W.B. runs its public service through two wings - 1. Directorate of Technical Education & Training. 2. Directorate of Industrial Training. While the former imparts technical education in the state through the Government Polytechnic Institutes, the latter does the same through the Government Industrial Training Institutes. Both the Directorates have one post - Workshop Instructor/similar in all respects except scale of pay. The job profile of the Workshop/Instructor irrespective of the Polytechnic or ITI encompasses supervisory works and technical assistance to the students in the workshops training classes. Job responsibility of a Polytechnic instructor is in fact, equal to, if not more, what an ITI instructor is

assigned to. But it is suprising to note that pay scale of the Workshop-Instructor/Instructor in Polytechnics is Rs.4000- 8850/- for the ITI certificate holder and Rs.4500-9700/- for the Engg. Diploma holder but the same for the Workshop- Instructor /Instructor in the ITI is Rs.4500-9700/-. At present almost 85% candidates in the Polytechnics are enjoying the scale of pay of Rs.4500-9700/- through court cases. Recently, a move was made to the department to bring the recruitment qualification for the Workshop-Instructor/Instructor of the Polytechnics at par with what is followed in the Directorate of Industrial Training.

Now the present scale of pay i.e Rs.4000-8850/- admission to a section of Workshop-Instructors/Instructors of the Polytechnics may be elevated to scale of pay i.e. Rs.4500- 9700/- in order to maintain partite in all respects.

J.Laboratory Assistant:

There is another post of Laboratory Assistant which, before ROPA-1981 enjoyed one scale of pay similar to Workshop Instructor and Instructor. In fact the post of Laboratory Assistant in the Polytechnic system was always put in the official hierarchy higher than the post of Workshop Instructor & Instructor. But the scale of pay unfortunately was not mentioned in the ROPA-1981 report. However, with two amendments of the Finance Department that followed ROPA- 1981, scale of pay of Laboratory Assistant was allotted to Rs.340-7509 (Eqv. To Rs.3600-7050).... Two scales below the scale of pay of the workshop-Instructor/Instructor. At present Laboratory Assistants are enjoying the same scale i.e. Rs.3600-7050/-. Department has recently been approached

for framing recruitment qualification for the post of Laboratory Assistant in line with the Directorate of Industrial Training.

We therefore request to allot scale of pay of Rs.4500-9700/- identical to the post of Instructor of Directorate of Industrial Training, W.B. for both the post of Workshop-Instructor /Instructor and Laboratory Assistants of the Polytechnic System."

On the basis of the aforesaid recommendation and having

regard to implementation of earlier orders it is argued, the parity of

pay scale cannot be denied.

47. Mrs. Suchismita Ghosh, learned counsel appearing on behalf

of Ramkrishna Mission Shilpa Mandir and Ramkrishna Mission

Shilpa Pith, has submitted that under the Government sponsored

system vacancies along with corresponding pay scales were to be

approved by the Government, Department of Finance. Pursuant to

the advertisement published by Ramkrishna Mission Shilpa

Mandir, the Selection Committee approved by the Director of

Technical Education and consisting of DTE representatives

interview was conducted of the candidates and on the basis of their

recommendations, appointments were made by the Secretary of

Ramkrishna Mission Silpa Mandir after obtaining finance clearance

from Government. Salaries of all staff were released from

Government Treasury to Shilpa Madir for disbursement. Shilpa

Mandir on receiving the said amount remitted the salaries

according to pay scales, increment etc. to the employees as

advertised and approved by Government in a timely manner.

48. In the meanwhile, Ramkrishna Mission Shilpa Mandir was

transposed from Government Sponsored Polytechnic to a self-

financed institute during 2007-2008. During such time,

Government of West Bengal Circulated "Option Form" individually

among all the then serving teachers and staff. At their express

written request, they were absorbed into Government Service.

49. Respondent nos.1 to 9 who initially had joined in the post of

Workshop Instructor in Ramkrishna Mission Shilpa Mandir were

given the status of Government Employees by virtue of Memo

no.3576/TET dated 11.12.2007 as a special measure. In view of

the above, proforma respondents have no obligation to implement

the scale of pay as funds which are provided by the State

Government are disbursed to the concerned teachers/staff in the

above manner.

50. In reply Mr. Advocate General has submitted that they pay

scale of Govt. sponsored Workshop Instructors/Mistri Instructor

and polytechnics was changed and determined by the West Bengal

Services(Recruitment to the post of Workshohp Instructor/ Mistri

Instructor in Government and Government -aided Polytechnics in

West Bengal) Rules, 1986, issued vide notification No.21-

Edn(TET)/10R-3/86 dated 22.01.1987 ("1987 Notification") and

memo no.5-F(Law) dated 03.01.2001 ("2001 Memo"). The 1987

notification and 2001 memo re-fixed the pay for all workshop

instructors/mistri instructors in Government and Sponsored

Polytechnics appointed after 22.01.1987 for the ease of

Administration, that would be applicable to all respondents apart

from respondents number 8 and 13. The aforementioned

notifications were never challenged. In fact, respondent nos. 8 and

13 were appointed between 1974-1975, and their claims are not

maintainable after 20 years, nor did they have the required

Diploma Degree qualification. It is settled law that the Courts

should not enter upon the task of job evaluation which is

conducted by an expert body like the Pay Commission, after taking

rigorous exercise for job evaluation, taking into consideration

various factors including different qualifications or different

statutory rules governing the appointment and conditions and

financial limitations of the State, with the object of ease of

administration as reiterated in Union of India vs. Indian Navy

Civilian Design Officers Association and another reported in

2023 SCC Online SC 173 (para 14): 2023 INSC 152.

51. It is submitted that Memo No.3181/TET dated 7th November,

2008 issued by the Directorate of Technical Education and

Training, is in relation to teaching and non-teaching staff and has

no relevance to the instant case, as all workshop instructors/mistri

instructors are specifically governed by the 1987 notification and

the 2001 memo.

52. In the impugned order, the Hon'ble Justice Chakraborty has

made an observation in context to the 1987 notification and 2001

memo that "considering such argument and the circular dated 3rd

January, 2001, the Hon'ble Division Bench did not interfere with

the order dated 9th September, 2003". Therefore, the only reference

the Hon'ble Single Bench has made regarding the aforementioned

notifications is regarding the Hon'ble Division Bench order dated

22.08.2007 in MAT 4207 of 2006 arising out of order dated

09.09.2003 in WP 3222(w) of 1998. However, without entering into

the merits of the case, the Hon'ble Division Bench dismissed the

appeal on the ground of delay in filing the appeal. In fact, order

dated 09.09.2003 was an ex-parte order and did not consider either

the 1987 notification or the 2001 Memo. Therefore, the impugned

order as well as the orders preceding the same, more elaborately

argued earlier is per incurium. The writ-respondents cannot take

advantage of the State complying with the High Court orders on

the threat of contempt.

53. Moreover, the order date 22.08.2007 in MAT 4207 was

challenged in the Supreme Court in SLP No.83 of 2008 in which by

an order dated 18.01.2008, the Hon'ble Supreme Court declined to

interfere with the order dated 22.08.2007 on the ground of delay.

However, it is imperative to note that the Hon'ble Supreme Court of

India kept the question of merits open. The writ respondents

cannot take advantage of the State complying with High Court

orders on the threat of contempt.

54. The writ-respondents knowingly being appointed after

22.01.1987, and accepting the conditions stated n 1987

notification and the 2001 memo, cannot now take advantage of

orders that are per incurium. In fact, by agreeing to options in

employment relating to terms of service every year, the writ

respondents have consented to the terms of agreement every year.

Merely because mistake have been committed earlier, does nto

mean that the respondents should be allowed to take advantage of

the same.

55. Mr. Subrata Ghosh, the learned counsel for the writ

petitioners have distinguished the decision of Indian Navy Civilian

(supra) in contending that the said decision has no nexus to the

present case in as much as the posts of Workshop Instructors in

all the polytechnics are having same nature of duty and is

governed by the same Rule. The aforesaid decision is based on two

different sets of rules which is singularly absent in the present cse.

It is further submitted that the writ petitioners had and have the

requisite qualifications as per Notification No.21-Edn(TET)/10R-

3/86 dated 22nd January, 1987, in view thereof, the allegation that

they are not having the required Diploma Degree qualification is

unsustainable.

56. On these narratives the appeal was heard.

57. The issue raised before the learned Single Judge is captured

in the first sentence of paragraph 12 of the impugned order which

reads:

"12. The main contention of the petitioners is that all the workshop instructors of different polytechnics (government and sponsored) are doing same or similar nature of work and as such no discrimination can be introduced amongst them."

58. The learned Single Judge in allowing the writ petition had

accepted that the petitioners are doing same type of job and on the

basis of the settled principles of equal pay for equal work they

cannot be placed in a lower scale of pay than the others. Excepting

the writ petitioners other Workshop Instructors of Government and

Sponsored Polytechnics are getting the scale of Rs.425-1050

irrespective of their qualification and appointment whether prior to

1987 or thereafter. There is no distinction in the present appeal

compared to WP 3222 (w) of 1998. In view of the fact that their

duties and responsibilities are same as the duties and

responsibilities of the writ petitioner in WP 3222(w) of 1998 and

on a parity of reasoning the petitioners are entitled to the same

benefits as extended to the petitioners in WP 3222(w) of 1998.

59. It was observed that the parameters as regards such equality

stand satisfied and as such the petitioners cannot be denied

similar benefits. The differentiation of pay scales for posts having

no difference in degree or responsibility, reliability and

confidentiality would not fall within the realm of valid

classification. The nature of work of the subject posts is the same

and not less onerous than the reference posts. The difference

among the petitioners and the petitioners in the earlier writ

petition as sought to be argued by Mr. Bandyopadhyay is not

based on any legitimate foundation.

60. The learned Single Judge has referred to the various

memoranda by which the Government in compliance of the order

passed in earlier writ proceeding implemented the order and the

writ petitioners who are standing on the same and equal footing

could not have been denied the similar benefits.

61. The learned Single Judge has also referred to the memoranda

dated 12th May, 1983 and 8th July, 1983 issued by the Deputy

Secretary, Education Department Technical Branch Education and

Training clarifying on the eligibility of the revised scale of pay

Rs.380-910 to the Workshop Instructors (Trade Certificate Holders)

of the Government Polytechnics challenged by the Workshop

Instructors of Hooghly Institute of Technology and Malda

Polytechnic in CO 3021 (w) of 1995.

62. Both the revised memoranda were set aside by an order

dated 22nd August, 1990 with a direction upon the respondents to

give benefit to the revised scale of pay of Rs.425-1050 to such

Workshop Instructors Hooghly.

63. Learned Single Judge upon noticing that all these orders

passed in the earlier proceedings concerning same and similar

issues having been accepted and implemented by the State, the

writ petitioners are also entitled to get similar benefits and

accordingly the learned Single Judge has directed the appellants

to grant the benefits of revised scale of pay of Rs.425-1050 to the

writ petitioners with effect from 1st April, 1981 and thereafter in the

correspondening scale or scales to which the same has been

revised from time to time. The appellants were further directed to

disburse the arrears from the date of filing of the writ petition

within a period of three months from the date of communication of

this order.

64. The state is aggrieved by this order.

65. Thus, the principal issue that has fallen for consideration is

the claim of the respondents/writ petitioners with regard to scale of

pay extended to Shib Narayan Chakraborty (supra). The basis of

the claim appears to be that they are similarly placed and

circumstanced as Shib Narayan Chakraborty and 21 others and

since the State of West Bengal has conceded to their claim and

implemented the order passed by the learned Single Judge, similar

benefits are required to be extended to the respondents/writ

petitioners.

66. Learned Advocate General has taken us through various

government orders and rules in relation to Workshop/Mistri

Instructors of Government Polytechnics and Government Aided

Polytechnics. Admittedly, Shib Narayan Chakraborty and 21

others, at the time of their appointment, could not have claimed

scale No.11 as they were not diploma holders in terms of ROPA

Rules, 1981 published vide Notification No.5691-F dated 28th July,

1981.

67. Before 1981, pay scale for Workshop Instructors of

Government Polytechnic was Rs.230-425/- with higher initial start

at Rs.250/- as per ROPA, 1970. Whereas, for the Workshop/Mistri

Instructors in Government sponsored Polytechnics the pay scale

was Rs.230-425/-. The writ petitioners were initially appointed as

Workshop Instructors in the Government Sponsored Polytechnics

namely Ramkrishna Mission Shilpa Mandir, Belur and

Ramakrishna Mission Shilpa Pith, Belgharia, North 24 Parganas.

68. Revision of Pay and Allowances Rules, 1981 issued vide

notification No.5691-F dated 28.07.1981, prescribed three

qualification linked pay scales for Workshop/Mistri Instructors of

Government Polytechnics. Such pay scales were recommended by

the-then Pay Commission.

69. Such recommendation of three separate pay scales was

absent in case of Government Sponsored Polytechnics, who are

governed by separate ROPA Rules and as per ROPA Rules, 1981,

whose pay scale was Rs.360-815/- (Scale 8) in terms of

memorandum No.372-Edn(B) dated 31.07.1981 and the same was

revised to Rs.1200-2360/- in terms of subsequent ROPA Rules

issued vide memorandum No.33-Edn(B) dated 07.03.1990.

70. After coming into force of ROPA Rules, 1981, a group of

Workshop Instructors filed writ petition before the Hon'ble High

Corut (C.R.No.3021(W) of 1985 (Shib Narayan Chakraborty and 21

Ors. Vs. The State of West Bengal) due to their higher qualification

on ground of equal pay for equal work. In the writ, the Hon'ble

Court had directed State, ex-parte, to grant the revised scale of pay

to such petitioners.

71. Thereafter, on 2201.1987 Recruitment Rules, 1986 came into

force, regulating the recruitment to the post of Workshop

Instructor/Mistri Instructor in Government and Sponsored

Polytechnics where a single scale of pay of Rs.380-910/- (Scale-9)

was prescribed for all as qualification prescribed for all the posts

workshop instructors/mistri instructors are same.

72. Even after coming into force of the Recruitment Rules, 1986,

the Hon'ble Court did not consider the difference between the

workshop instructors appointed prior to the Recruitment Rules,

1986 and those appointed in terms of Recruitment Rules,1986.

73. State had complied with the orders passed from time to time

by granting higher scale of pay i.e Rs.425-1050 (Scale 11 of ROPA,

1981).

74. Relevant provisions of Recruitment Rules, 1986 has neither

been questioned by the writ petitioners nor has it been struck

down by any Court of law and the order of learned Single Judge in

the earlier proceeding was contrary to such Rules, 1986.

75. However, this fact was not brought to the notice of the

learned Single Jude at the time when the writ petition was

disposed of. In fact the State did not make any representation and

the learned Signle Jduge did not have the occasion to consider the

said notification.

76. The order of the learned Single Judge dated 22nd August,

1990 also recorded that the State did not make any representation.

It was an ex parte order. Although the said order was given effect to

by the State of West Bengal, however, at a later point of time, when

similar issue came up for consideration and relevant

circulars/notifications were brought to the notice in some of the

proceedings, the earlier ex parte order in such matters extending

benefits to the writ petitioners on the basis of the decision in Shib

Narayan Chakraborty (supra) was recalled.

77. Mr. Ghosh laid much stress on the decision of the Hon'ble

Supreme Court in Ganesh Chandra Samanta (supra) and the

decision in Jagdish Singh and others (supra) to claim benefits

extended to Shib Narayan Chakraborty and 21 others.

78. As noticed earlier, indisputably, the Hon'ble Division Bench

dismissed the appeal of the State on the ground of delay and the

Special Leave Petition was dismissed without interfering with the

order of the Hon'ble Division Bench with the observation that the

matter decided by the learned Single Judge as well as the Hon'ble

Division Bench in applying wrong notification are "left open".

79. This observation has clearly left the issue open for review and

reexamination on consideration of the relevant notifications and

government orders that would be applicable to the

writ/respondents.

80. The learned Single Judge has proceeded on the basis that the

State having accepted the order in Shib Narayan Chakraborty and

21 others and Ganesh Chandra Samanta and others (supra) as a

model employer is required to extend such benefits to the writ

petitioners on an assumption that the writ petitioners are similarly

placed.

81. The writ petitioners are all appointed between 1997 and

2000. The applicable rules under notifications in the case of the

writ petitioners would be 1987 notification and 2001 memo. By

virtue of the notification of 1987, a single pay of scale of pay

Rs.380-910 (scale No.9 ROPA 1991) was prescribed for all

Workshop/Mistri Instructors uniformly including the government

and government aided polytechnics appointed after 22nd June,

1987.

82. In terms of the recommendation of the pay commission

constituted on 27th November, 1995, the Department of Technical

Education and Training revised the scale of pay for the

Government sponsored Polytechnics on and from 17th May 1999.

For the Workshop Instructors with diploma, the revised pay scale

was Rs.4500-9700 (Scale No.10) and for other categories, it was

fixed at Rs.4000-8850 (scale No.9). This was followed by a

government order dated 3rd January, 2001 in which it was stated

that the 4th Pay Commission after considering the matter of the

Workshop/Mistri Instructors found that there was no merit in the

upgradation of the pay scale from scale no.9 to scale no.10 because

as per the recruitment rules framed vide notification dated 22nd

January, 1987 the qualification and scale of pay for all

Workshop/Mistri Instructors in Government and Government

sponsored Polytechnic was stipulated to be the same.

83. The basis of the writ petition is the order passed in Shib

Narayan Chakraborty and 21 others (supra). The learned Single

Judge has proceeded on the basis of the orders passed in Shib

Narayan Chakraborty and Ganesh Chandra Samanta (supra) that

were passed in ignorance of Notification No. 21-Edn(TET)/10R-

3/86 dated 21st January,1987, that is, the 1987 notification and

memo No.5-F(Law) dated 3rd January, 2001, that is, 2001 memo.

These notifications are having the force of the statute and govern

the relationship between the parties are relevant and crucial to the

issue.

84. The power of judicial review of the High Courts in the matter

of classification of the posts and determination of pay scale is no

more res integra. Plethora of decisions have suggested that

equation of posts and equation of salaries is a complex matter

which should be best left when expert body unless there are cogent

materials on record to come to a definite and firm conclusion that a

grave error had crept in while fixing the pay scale for a given post

and the interference of the Court is absolutely necessary to undo

the justice.

85. The recommendation of the IVth Pay Commission as noted in

the government memo dated 3rd January, 2001 is an opinion by a

body of expert which cannot be lightly interfered with as the pay

commission is supposed to undertake rigorous exercise for job

evaluation after taking into consideration of several factors like:

 Nature of work  Duties  Accountability and responsibility attached to the posts.  Extent of powers conferred on the persons holding a particular post.

 Promotional avenues  Statutory rules governing the conditions of service.  Horizontal and vertical relativities with similar jobs etc.

[See: Union of India vs. Indian Navy Civilian Design Officers Association and another reported in 2023 SCC OnLine SC 173; State of Bihar vs. Bihar Secondary Teachers Struggle Committee reported in (2019) 18 SCC 301 and State of Haryana vs. Charanjit Singh reported in (2006) 9 SCC 321].

86. The Courts have consistently held that even if the nature of

the work involved in two posts may sometime appear to be more or

less similar, however, if the classification of the posts and

determination of pay scale have reasonable nexus with the

objective or purpose sought to be achieved, the pay commissions

would be justified in recommending and the State would be

justified in prescribing different pay scale for the seemingly similar

posts.

87. The power of judicial review in the matter involving financial

implications are also very limited. The Courts have over the years

given due credence to the wisdom of the pay commission and not

interfered with such policy matters involving financial implications

unless a gross case of arbitrariness or unfairness are established.

88. The principle of equal pay for equally work has no

mechanical application in every case and Article 14 permits

reasonable classification based on qualities or characteristics of

persons recruited and grouped together as against those who have

left out. A classification based on difference in educational

qualifications and processes of recruitment justify a difference in

pay scale.[see State of Bihar (supra)].

89. The 1987 notification has clearly determined the basis of the

scale of pay which was ignored by two decisions to which we have

referred mainly due to the faults and latches on the part of the

State in not apprising the Court of the existence of the said two

circulars. The reference to the said circulars were in fact taken

into consideration by Justice Kar Gupta in recalling His Lordship's

order. The initial order was based on the orders passed in the

aforesaid two matters where the 1987 notification and 2001 memo

were not considered. In fact, the later decisions of the Tribunal

where the State has contested had declined to follow the earlier two

decisions and kept the matter reserved for decision on merits.

90. The decision in Jagdish Singh (Supra) also does not assist

the writ petitioner as it was considering the claim of the

temporary/casual employees for equal pay scale which is not the

case here. In Jagdish Singh (supra), the Hon'ble Supreme Court

directed payment of minimum wages/pay scales applicable to

regular employees holding same posts in department. A pay

structure is normally to be evolved keeping in mind factors such as

method of recruitment and employers capacity to pay.

91. The qualification for appointment and mode of recruitment,

training, the duties and responsibilities are some of the factors

required to be taken into consideration for deciding the relief of

equal pay, in fact, it has been answered by the 4th Pay Commission

in its recommendation restoring the notification of 1987 for the

purpose of scale of pay decided on the criteria laid down therein.

The petitioners are bound by the said notification and the

government orders. These notifications are not under challenge.

92. Moreover, they could not have claimed the benefit of the pay

scale prior to 1987 as all of them have been appointed during 1997

and 2000. The respondents writ petitioners no.8 and 13 are only

entitled to such benefits of the scale of pay existing prior to 1987

and hence the writ petition so far as the said respondents are

concerned stand allowed. The ground of delay cannot operate as a

bar to their legitimate claim of which they were denied without any

justification. The state as a model employer cannot be heard to

defeat a legitimate claim. The state having accepted their service is

bound to pay the scale of pay to which they were entitled since

their engagement. We are not convinced with the argument of Mr.

Advocate General that on the ground of delay the claims of the writ

petitioner nos.8 and 13 are required to be rejected.

93. Even otherwise in absence to the relevant provisions of the

Recruitment Rules, 1986 and relying on orders that are per

incurium parity of payment cannot be claimed. Even it is accepted

that some of the writ petitioners in two matters having been

extended the revised scale of pay that cannot aid all the writ

petitioners as two wrongs do not make a right. It is clear that

neither Shib Narayan Chakraborty and 21 others or Ganesh

Chandra Samanta and others were entitled to higher scale of pay

as their cases were decided without considering the 1987

notification and 2001 memo and on concession in TA No.18 of

1996. A party cannot claim that since something wrong has been

done in another case, direction should be given for doing another

wrong. It would not be setting a wrong right, but would be

perpetuating another wrong. In such matters, there is no

discrimination involved, Per Arijit Prasad, J. in Union Of India (UOI)

& Anr. vs International Trading Co., reported in 2003 (5) SCC 437

(paragraph -43). Moreover, the respondents cannot strengthen their

case on negative equality. They have to establish and succeed on the

strength of their case on some other basis and not by claiming

negative equality.

94. This view has been reiterated in umpteen number of judgments

including G.Sadasivan Nair vs. Cochin University of Science and

Technology reported in 2022(4) SCC 404 paragraph 19; Chebrolu

Leela Prasad Rao & Ors. Vs. State of A.P. & Ors. reported in

2021(11) SCC 401 paragraph 95, to name a few.

95. In Chebrolu Leela (supra) it has been reiterated that the

concept of equality cannot be pressed to commit another wrong. The

concept of equality enshrined in Article 14 of the Constitution is a

positive concept. It is not a concept of negative equality. It cannot be

used to perpetuate an illegality. The doctrine of equity would not be

attracted when the benefits were conferred on the basis of illegality,

96. In the instant case, the decisions relied upon by the learned

Single Judge are per incurium. Extension of benefit conferred on

others based on an error cannot form the basis of an enforceable

legal right. (See Rwmwi Borgoyary vs. Union of India reported in

2020 (15) SCC 546 para 13).

97. In view of the fact that the learned Single Judge has

overlooked the 1987 notification and memo of 2001 that were

applicable to the writ petitioners and decided the writ petitions

solely on the basis of the orders which are per incuriam, the order

under challenge is required to be set aside with modification.

98. We thus partially modify the order of the learned Single

Judge by allowing the reliefs to the writ petitioners/respondents 8

and 13 only and set aside as against the rests. The time to comply

with the order passed by the learned Single Judge in relation to

writ petitioners/respondent nos.8 and 13 is extended by three

weeks from date.

99. The appeal is allowed in part. CAN 2 of 2021 accordingly

stands disposed of in terms of this order.

100. However, there shall be no order as to costs.

[ SOUMEN SEN, J. ]

I agree.

[ UDAY KUMAR, J.]