Page No.# 1/12 vs The State Of Assam And 2 Ors
2022 Latest Caselaw 1726 Gua

                                                                 Page No.# 1/12

GAHC010006572019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/249/2019

         JITEN KR. DAS AND 27 ORS.
         S/O. LATE SUREN DAS, R/O HOUSE NO. 19, LNB ROAD, HATIGAON,
         GUWAHATI- 781038

         2: BIRINCHI PRAN BAISHYA
          RABINDRA BHAWAN
         AMBARI
          GUWAHATI- 781001.

         3: ANUJ BARUAH
          CULTURAL CENTRE
          DUDHNOI
          GOALPARA- 783124

         4: GOBINDA BAISHYA
          BOKU CULTURAL CENTRE
          BOKO
          MAMRUP- 781123

         5: BAIDYA DEURI
          CULTURAL CENTRE DHEMAJI
          P.O. DHEMAJI- 787057

         6: RAJIB KAIREE
          JYOTI BHARATI
          POKI
         TEZPUR- 784001.

         7: MUNIN GOSWAMI
          CULTURAL CENTRE
          NAGAON
          NAGAON- 782001.

         8: SOURABH PANIPHUKAN
                              Page No.# 2/12

CULTURAL CENTRE BORDUA
NAGAON- 782122

9: JAYANTA DAS
 CULTURAL CENTRE JAGOROAD
 MORIGAON- 782005.

10: PABITRA PEGU
 CULTURAL CENTRE DIBRUGARH
 DIBRUGARH- 786001.

11: ANSHUMAN DUTTA
 CULTURAL CENTRE SIVASAGAR
 SIVASAGAR- 785665.

12: SRIMATI SWAPNA SAIKIA
 CULTURAL CENTRE
 SIMOLUGURI
 SIMOLUGURI
 SIVASAGAR- 785686

13: BHANITA HIRA
 CULTURAL CENTRE SONARI
 P.O. SONARI- 785690

14: JOGESWAR GOGOI
TAI MEUSEUM
 SIVASAGAR
 SIVASAGAR- 785640.

15: SOMNATH BORA
 CULTURAL CENTRE TITABOR
 JORHAT- 785630

16: JOGANANDA BURAGOHAIN
 CULTURAL CENTRE JORHAT
 JORHAT- 785001.

17: KAHANJAN BRAHMA
 CULTURAL CENTRE KOKRAJHAR
 KOKRAJHAR- 783370.

18: PRANJIT PATHAK
 CULTURAL CENTRE BIJNI
 BIJNI- 783390

19: UTPAL DAS
 CULTURAL CENTRE BARPETA
                                                   Page No.# 3/12

BARPETA- 781301.

20: NAREN DUTTA
 CULTURAL CENTRE NA-SATRA
 SARTHEBARI
 BARPETA- 781307.

21: DHANANDA DAS HAZARIKA
 CULTURAL CENTRE SIPAJHAR
 SIPAJHAR- 784145.

22: HIRANYA DEKA
 CULTURAL CENTRE SAIGAON
 SAIGAON- 781124

23: P. JEMMI
 CULTURAL CENTRE HAFLONG
 KARBI ANGLONG- 788819

24: HEMARI TAKBIR
 CULTURAL CENTRE DIPHU
 KARBI ANGLONG- 782460.

25: NABAB AKRAM HUSSAIN
 CULTURAL CENTRE SILCHAR
 SILCHAR- 788001.

26: JOGANTA BAYAN
 CULTURAL CENTRE HAILAKANDI
 HAILAKANDI- 788151.

27: JATIN KUMAR
 CULTURAL CENTRE
 SARUPATHAR
 P.O.- DHANSIRI
 DIST- GOLAGHAT
 PIN- 787112.

28: RABI JYOTI BARUAH
 CULTURAL CENTRE
 GOLAGHAT- 785621

VERSUS

THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY, CULTURAL
AFFAIRS DEPARTMENT, DISPUR, GUWAHATI- 781006.
                                                                       Page No.# 4/12

            2:THE COMMISSIONER AND SECRETARY

             FINANCE DEPARTMENT
             GOVT. OF ASSAM
             DISPUR
             GUWAHATI- 781006.

            3:THE DIRECTOR
             CULTURAL AFFAIRS DEPARTMENT
             GOVT. OF ASSAM
             RABINDRA BHAWAN
            AMBARI
             GUWAHATI- 781001

Advocate for the Petitioner   : MR. B K BHATTACHARJEE

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 23.05.2022

Heard Dr. R. Sarma, learned counsel for the petitioners. Also heard Mr. D. Bora, learned Govt. Advocate appearing for respondent nos. 1 and 3 and Mr. A. Chaliha, learned standing counsel for the respondent no.2.

2. The case of the petitioners is that they were appointed in the establishment of the Directorate of Cultural Affairs through a selection process initiated by the Assam Public Service Commission (APSC). At present, the petitioners are holding the post of Cultural Development Officers (earlier designated as "Officer-in-charge"), under the Cultural Affairs Department, Govt. of Assam. By referring to the Revision of Pay Rules (RoP for short), 1998, it is projected that the Officer-in-charge of various cultural centres were earlier drawing pay-scale of ₹620-25-745-EB-30-895-EB-35-1315, which was revised to Page No.# 5/12

pay-scale starting from ₹1375/-. The same pay scale was payable to Officer-in- charge, District Museum under the Directorate of Museum, Assam as per RoP, 1990. However, as per the RoP, 1998, the Officer-in-charge of different cultural centres under the Directorate of Cultural Affairs, Assam were entitled to pay- scale commencing from ₹3580/-, which is same that was being paid to the Officer-in-charge, District Museum under the Directorate of Museum, Assam. However, by a notification dated 19.03.2002, the Govt. of Assam had given pay- scale starting from ₹4390/- to the post of Officer-in-charge, District Museum.

3. The grievance of the petitioners is that similar pay enhancement/ re- fixation were not done for the post of Officer-in-charge of different cultural centres. Accordingly, it is submitted by the learned counsel for the petitioners that there has been a discrimination against the petitioners by denial of pay parity. Referring to the RoP, 2010, it has been submitted that while the officer- in-charge of different Cultural Centres under the Directorate of Cultural Affairs, Assam have been given revised pay structure of Pay Band-2, of ₹5200-20200 with Grade Pay of ₹2800/-, the Officer-in-charge, District Museum under the Directorate of Museum, Assam have been given revised pay structure of Pay Band-4, ₹12000- 40000 with Grade-Pay of ₹5400/-. Accordingly, the learned counsel for the petitioners has submitted that pay disparity was created for the first time after the RoP, 2010 was given effect to.

4. It is projected that pursuant to disparity in the pay structure, the All Assam Officer-in-charge Association of the Directorate of the Cultural Affairs, Assam has submitted various representations. However, although the issue was raised before the Anomaly Committee, which was set up to examine the

anomalies, if any, in the recommendation of the 7 th Assam Pay and Productivity Page No.# 6/12

Pay Commission (7th APPPC for short), the said Committee in its reports of 2017, merely requested the Appointing Committee of the Administrative Department that they may examine the claim in consultation with the Finance Department. It is submitted that by communication dated 07.08.2020, the Joint Secretary to the Govt. of Assam, Cultural Affairs Department had instructed the Directorate of Cultural Affairs, Assam that the Finance (PRU) Department had expressed their inability to consider the proposal regarding pay structure of Cultural Development Officers under the Directorate of Cultural Affairs, Assam in

the absence of any specific recommendation of 7 th APPPC and Anomaly Committee, 2017 and accordingly, the said authority was requested to place the matter before the next Pay Commission after the service rules are finalised.

5. The learned counsel for the petitioners has submitted that as the Officer-in-charge of various cultural centres were previously drawing same pay- scale as was being drawn by their counterpart in the Directorate of Museum, who were previously designated as Officer-in-charge, District Museum, but the Officer-in-charge of District Museum are now being granted revised pay which is substantially higher than the Pay Band and Grade Pay being paid to the petitioners, which was a case of discrimination, and is violative of Article 14 of the Constitution of India. It is further submitted that both the Cultural Affairs Department as well as the Directorate of Museum are under the same Commissionarate of Cultural Affairs, Assam, but the revision pay of Officer-in- charge of District Museum alone by depriving the petitioners, was without any rhyme or reasons. It has also been submitted that while the area of work of the Officer-in-charge of the District Museum remains confined to the Museum, but the Officer-in-charge of various cultural centres are required to do field work, organize meetings and programs in the districts and therefore, the petitioners Page No.# 7/12

are doing more work than their counterpart in the Directorate of Museum. In support of his submissions, the learned counsel for the petitioners has placed reliance on the following cases, viz., (i) Union of India & Anr. Vs. Harananda & Ors., (2017) 13 SCC 216 and (ii) Secretary, Mahatama Gandhi Mission & Anr. Vs. Bhartiya Kamgar Sena & Ors., (2017) 4 SCC 449.

6. The learned Govt. advocate has submitted that the matter of fixation of pay is within the realm of the Executive and therefore, the Court would be slow in interfering with the matter relating to fixation of pay to the Govt. employees, as it would have cascading effect on the State and would affect the finance of the State by burdening the exchequer. It has also been submitted

that in the absence of any specific recommendation of 7 th APPPC and Anomaly Committee, 2017, the Directorate of Cultural Affairs has already been advised by the competent authority to place the matter before the next Pay Commission after the service rules of the said department are finalised.

7. The learned standing counsel for the Finance Department has also opposed the prayer made in this writ petition and it is submitted that the educational qualification of Officer-in-charge of District Museum at the entry level is Post-Graduate in any stream, whereas the educational qualification at the entry level for Officer-in-charge of various cultural centres is Graduate in Arts, Science and Commerce stream. Accordingly, it is submitted that various relevant factors were taken into consideration for having different pay-scale and grade pay for the Officer-in-charge of District Museum and the Officer-in-charge of various cultural centres.

8. The Court has considered the materials available in the writ petition, additional affidavit filed by the petitioners on 23.08.2021, affidavit-in-opposition Page No.# 8/12

filed by the respondent nos. 1 to 3 respectively, affidavit-in-reply filed by the petitioners against affidavit-in-opposition filed by respondent no.1 and common affidavit-in-reply in respect of affidavit-in-opposition filed by the respondent nos. 2 and 3.

9. The petitioners are rendering service as Officer-in-charge of different cultural centres under the Directorate of Cultural Affairs, Assam. Neither the court has the expertize, nor from the materials available on record, the Court is able to arrive at a conclusive finding that the nature and scope of work/ job of the petitioners is equivalent to that of the persons holding the post of Officer-in- charge of various District Museums in the State. The issue regarding fixation of pay and/ or pay parity, in the opinion of the Court, is exclusively within the domain of the Executive. In administrative matters, the Court should ordinarily defer to the judgment of the administrative/ executive, unless the decision is clearly violative of some statute or is shockingly arbitrary. It may be relevant to refer to the observations made by the Supreme Court of India in the case of Kesavnanda Bharati Vs. State of Kerala (1973) 4 SCC 225 , wherein it was observed as follows:- "1535. In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error."

10. In the present case in hand, the stand of the Finance Department is to the effect that the educational qualification for entry level in service for the post of Officer-in-charge of different cultural centres is Graduate in Arts/ Science/ Commerce whereas the entry level educational qualification for persons to hold the post of Officer-in-charge of District Museums is Post- Graduate in any stream. Therefore, if there is a pay disparity and the classification is made on the basis of educational qualification, it cannot be said that the classification Page No.# 9/12

was not founded in an intelligible differentia.

11. Nothing is demonstrated in this writ petition to show that the Government did not have discretion to alter the pay and grade pay for another set of employees i.e. the Officer-in-charge, District Museums and grant them a pay and pay grade which is higher than that of the petitioners, who are working as Officer-in-charge of various cultural centres. Therefore, if the State Executive, in its wisdom, deemed it appropriate to provide different pay level with different pay band to two sets of employees though under the same Directorate, it cannot be said that the basic requirement of Article 14 was violated and there was arbitrary decision making process, which would shock the conscience of the Court.

12. In the case of Harananda & Ors. (supra), the said order is only an interim observation of the Supreme Court of India, which can be gathered from the fact that after passing the interim order, the matter was fixed to be listed subsequently on 09.08.2017. In the said case, the Supreme Court of India, in its effort to find out whether benefit of equal pay for equal work could be granted, had directed the petitioners to file the duty charge and the job location so that a comparison can be made that can render assistance in the process of adjudication. Nonetheless, in the said case, although the Supreme Court of India had framed the issues that was required to be addressed, yet it was opined that the Union of India should take a decision, as advised, so that the respondents may feel that their grievances have been appositely redressed. In the present case in hand, the Directorate of Cultural Affairs has already been advised by communication dated 07.08.2020 by the competent authority to place the matter before the next Pay Commission, after the service rules are finalized.

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13. In the case of Secretary, Mahatama Gandhi Mission & Anr. (supra), the scope of Entry 25 in List-III of Schedule 7 of the Constitution of India was being examined in light of Articles 19(1)(g) and (6) and Article 30 of the Constitution of India. The Govt. of Maharashtra, under the provisions of Section 8(3) of the Maharashtra University Act, 1994, which authorised the State to make rules providing for the various aspects of the employment of officers, teachers and other employee of the University, affiliated colleges and recognized institutions,

extended the relevant rules to non-teaching staff and extended the 5 th Pay Commission recommendations to the non-teaching staff of the affiliated colleges without making any distinction between aided and unaided colleges. In light of such factual matrix, the appeals were dismissed by observing as follows- " even otherwise the appellants had obliged under law as we have already come to the conclusion that they are in fact obliged, it is for the appellants to work out for the remedies and find out the ways and means to meet the financial liability arising out of the obligation to pay the revised pay scales". Thus, it is apparent that in the said case, by virtue of the relevant 2009 Rules framed under the Maharashtra Universities Act, 1994, pay revision was already made and was implemented on non-aided colleges. Therefore, in light of the said decision, the Court is unable to hold that the disparity of pay, insofar as the petitioners and others are concerned, is in contravention of the touch-stone of Article 14 of the Constitution of India. Therefore, both the decisions cited by the learned counsel for the petitioners do not help to espouse the case of the petitioners.

14. The Court is inclined to refer to the decision of the Supreme Court of India in the case of Narmada Bachao Andolan Vs. Union of India, (2000) 10 SCC 664: 2022 0 Supreme SC 338, wherein it was observed as follows:

"229. It is now well-settled that the courts, in the exercise of their jurisdiction, Page No.# 11/12

will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the Courts are ill-equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution...."

15. In another decision rendered in the case of State of M.P. Vs. Narmada Bachao Andolan, (2011) 7 SCC 639, the Supreme Court of India had observed that "the Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power". The policy decision to have two different set of pay or pay grade to employees under different Directorates said to be hit by the principles of reasonable classification so as to vitiate the decision. Moreso, it may be mentioned that the decision to give different grade pay and pay-scale to two different employees are not under challenge. Nonetheless, the petitioners claim parity in the matter of pay. In this regard, the Court is of the considered opinion that the State should be left to decide as to what pay should be paid to which set of employees and the Court ought not to interfered in the matter of pay fixation and pay parity because in the present case in hand, the decision of the Government to have a different pay for the petitioners cannot be said to be arbitrary or discriminatory in any manner whatsoever.

16. In view of the discussion above, the present writ petition fails and the same is dismissed, with no order as to cost.

17. However, before parting with the records, the Court is inclined to clarify Page No.# 12/12

that this order shall not be a bar for the Directorate of Cultural Affairs, Assam to make a request to the appropriate authorities for placing the matter regarding pay of the Officer-in-charge of different cultural centres to be placed before the Pay Commission for its consideration. It is also clarified that this order shall not prejudice the petitioners while the Pay Commission taken its call on such request, if any.

18. This order shall also not be a bar for the competent respondent authorities to take a call on various representations submitted by the Directorate of Cultural Affairs as well as by petitioners regarding pay structure of Officer-in- charge of various cultural centres, now re-designated as Cultural Development Officers.

JUDGE

Comparing Assistant