Gauhati High Court
WP(C)/6189/2018 on 23 July, 2024
GAHC010197122018
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
(1) WP(C) NO.6189 OF 2018
1. In-service TET Qualified Elementary
Teachers' Association, Karimganj,
represented by its President, namely,
Imdadur Rahman, Assistant Teacher,
32 No. Lowairpoa L.P. School, Under
Patherkandi Education Block, Village:
Khud Purahuria, PO: Manikganj,
District: Kamrimganj, Assam, PIN -
788712.
2. Nani Gopal Deb, Assistant Teacher,
371 No. Uttar Bilbari L.P. School,
Village: Ranibari, PO: Ranibari, PS:
Nilambazar, District: Karimganj,
Assam.
3. Nazmul Islam, Assistant Teacher, 34
No. Bosla Boys L.P. School, resident of
Bonomali Road, PO, PS & District:
Karimganj, Assam.
4. Snigdha Talukdar, Assistant
Teacher, 1239 No. Vivekananda
Harijan L.P. School, Karimganj,
resident of L.B. Road, PO, PS &
District: Karimganj, Assam.
5. Chayan Banik, Assistant Teacher,
606 No. Bagadohar L.P. School,
WP(C) No.6189/2018 and WP(C) No.2763/2019 Page 1 of 28
resident of Silchar Road, Ghatline,
Karimganj, PO, PS & District:
Karimganj, Assam.
........Petitioners
-Versus-
1. The State of Assam to be
represented by the Commissioner &
Secretary to the Government of Assam,
Education (Elementary) Department,
Dispur, Guwahati - 781006.
2. The Commissioner & Secretary to
the Government of Assam, Finance
Department, Dispur, Guwahati -
781006.
3. The Secretary to the Government of
Assam, Finance (PRU) Department,
Dispur, Guwahati - 781006.
4. The Pay Anomaly Committee
(Government of Assam), Notices to be
served through the Additional Chief
Secretary/Commissioner & Secretary/
Secretary to the Government of Assam,
Personnel Department, Dispur,
Guwahati - 781006.
5. The Director of Elementary
Education, Assam, Kahilipara,
Guwahati - 781019.
........Respondents
(2) WP(C) NO.2763 OF 2019
1. Bhupen Chandra Sut,
Son of Shri Kanak Chandra Sut,
Resident of Village: Balaibil, PO:
Changsari, District: Kamrup, Assam,
PIN - 781101.
2. Kishan Patowary,
Son of Sri Basanta Patowary,
Resident of Village: Dorakhara, PO:
Dorakhara, District: Kamrup, Assam,
PIN - 781101.
3. Madhab Chandra Sarma,
Son of Late Krishna Kanta Sarma,
Resident of Village: Ischadagharia, PO:
Kaniha, PS: Rangia, District: Kamrup,
Assam, PIN - 782354.
4. Arifuddin Ahmed,
Son of Late Mahnur Ali,
Resident of Village: Saniadi, PO:
Saniadi, District: Kamrup, Assam, PIN
- 781102.
5. Bhupen Chandra Nath, Assistant
Teacher, Son of Late Girish Nath,
Resident of Village: Dubjeni, PO:
Chhaygaon, District: Kamrup, Assam.
6. Nabarun Chakrabarty,
Son of Late Nilotpal Chakrabarty,
Resident of Village: Rangpur, PO:
Rangpur, District: Cachar, Assam, PIN
- 788816.
7. Kartik Rajbongshi,
Son of Hari Chandra Rajbongshi,
Resident of Village: Bareigaon, PO:
Tamulpur, District: Baksa (BTAD),
Assam, PIN - 781367.
8. Manoranjan Das,
Son of Subhangshu Das,
Resident of Ward No.16, District:
Barpeta, Assam, PIN - 781301.
9. Jitumani Sarma,
Son of Madhab Sarma,
Resident of Village: Barpeta Road,
Jyotinagar, PO: Simlaguri, District:
Barpeta, Assam, PIN - 781315.
10. Ashok Das,
Son of Dandiram Das,
Resident of Village: Bankakata, PO:
Choudhurikhat, District: Kamrup,
Assam.
11. Madan Biswasi,
Son of Late Abhay Charan Biswasi,
Resident of Village: Hajo Malitola, PO:
Hajo, District: Kamrup, Assam, PIN -
781102.
12. Fakrul Islam,
Son of Late Abdur Rouf,
Resident of Village: Chamdhara, PO:
Dagaon, District: Nagaon, Assam, PIN
- 782124.
........Petitioners
-Versus-
1. The State of Assam, represented by
the Commissioner & Secretary to the
Government of Assam, Elementary
Education Department, Dispur,
Guwahati - 781006.
2. The Secretary to the Government of
Assam, Finance (PRU) Department,
Assam, Dispur, Guwahati - 781006.
3. The Anomaly Committee of Revision
of Pay, 2017, Government of Assam,
Finance (Pay Research Unit)
Department, Dispur, Guwahati -
781006.
4. The Joint Secretary, Finance (PRU)
Department, Assam, Dispur, Guwahati
- 781006.
5. The Treasury Officer, Kamrup,
Guwahati.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE KARDAK ETE
For the Petitioners : Mr. A.M.S. Mazumder, Advocate in
WP(C) No.6189/2018.
: Mr. H. Das and Mr. D. Baruah,
Advocates in WP(C) No.2763/2019.
For the Respondents : Mr. R. Mazumdar, Standing Counsel,
Education (Elementary) Department.
: Mr. B. Gogoi, Standing Counsel,
Finance Department.
Date of Hearing : 18.07.2024.
Date of Judgment : 23.07.2024.
JUDGMENT & ORDER (CAV)
(Vijay Bishnoi, CJ)
Heard Mr. A.M.S. Mazumder, learned counsel for
the petitioners in WP(C) No.6189/2018 and Mr. H. Das,
learned counsel for the petitioners in WP(C) No.2763/2019.
Also heard Mr. R. Mazumdar, learned Standing Counsel,
Education (Elementary) Department and Mr. B. Gogoi,
learned Standing Counsel, Finance Department, appearing
for the respective respondents.
2. In both these writ petitions, the petitioners have
challenged the validity of the Notification dated 02.07.2018
issued by the Secretary to the Government of Assam,
Finance (PRU) Department, whereby the Government of
Assam has accepted certain recommendations of the
Anomaly Committee and took a decision to revise the
Allowances/Pay Scales of certain category of employees of
different Departments. The petitioners have also
challenged the Notification dated 04.08.2018 issued by the
Secretary to the Government of Assam, Finance (PRU)
Department, in exercise of powers conferred by the proviso
to Article 309 of the Constitution of India, whereby certain
amendments had been made in the Schedule to the Assam
Services (Revision of Pay) Rules, 2017 under the Head of
"Education Department" below the Sub-Head "Assam
Lower School Service (Teaching & Inspection) ME/MV/
Senior Basic Schools" and "LP/Junior Basic/Pre-Primary
Schools" by inserting new entry in some columns.
3. The brief facts of the case are that the
petitioners are possessing Graduate qualification and are
serving as Assistant Teachers in provincialized Elementary
Schools in the State of Assam, mostly in Lower Primary
Schools, however, some of the petitioners are serving in
the Upper Primary Schools also. The State of Assam, as per
the recommendations of the 7th Assam Pay & Productivity
Pay Commission (hereinafter to be referred as "7th
APPPC"), brought into force the Assam Services (Revision
of Pay) Rules, 2017 (hereinafter to be referred as "ROP
Rules, 2017") vide Notification dated 17.03.2017 while
exercising powers conferred by proviso to Article 309 of the
Constitution of India, which has come into effect from
01.04.2016. As per the ROP Rules, 2017, which has been
given effect from 01.04.2016, Pay Structure of Teachers
serving in ME/MV/Senior Basic Schools has been revised in
the following manner:
"Name of Post or Existing Pay Scale Revised Pay Structure Remarks
Service
Pay Band ( ) Grade Pay Band ( ) Grade
Pay ( ) Pay ( )
1 2 3 4 5 6
Assam Lower School Service (Teaching and Inspection)
ME/MV/Senior Basic Schools
Head Master, ME/ PB-2 PB-2
MV/Senior Basic 5200-20200 3300 14000-49000 8700
Schools
Graduate Teacher PB-2 PB-2
5200-20200 2700 14000-49000 8700
Junior (Under PB-2 PB-2
Graduate) Teacher 5200-20200 2500 14000-49000 6200
of ME/ MV/Senior
Basic Schools/
Assistant Sub-
Inspector of Schools
LP/Junior Basic/Pre-Primary Schools
Head Master PB-2 PB-2
5200-20200 2700 14000-49000 8700
Graduate Teacher PB-2 PB-2
5200-20200 2700 14000-49000 8700
Under Graduate PB-2 PB-2
Teacher 5200-20200 2500 14000-49000 6200
Craft Teacher PB-2 PB-2
5200-20200 2400 14000-49000 6200
(Matriculate) (Matriculate)
4. It appears that several Employees'
Organizations/individual employees had raised grievances
before the State Government in respect of certain
recommendations of the 7th APPPC in relation to Grade
Pays, Pay Bands, re-designation of posts, advance
increments, fixed pays, House Rents, Medical Allowances
and Allowances of various types.
5. To redress those grievances, the Government of
Assam constituted an Anomaly Committee vide Notification
dated 18.05.2017. The Anomaly Committee has submitted
its recommendations to the Government of Assam on
31.12.2017 and the Government of Assam has accepted
certain recommendations of the Anomaly Committee and
decided to implement the same vide Notification dated
02.07.2018, which is under challenge in these writ
petitions.
6. Pursuant to the Notification dated 02.07.2018,
the Governor of Assam, while exercising powers conferred
under proviso to Article 309 of the Constitution of India,
has issued a Notification dated 04.08.2018, whereby the
Schedule to the ROP Rules, 2017 has been substituted by a
new Schedule, whereby the Grade Pay of the Graduate
Teachers serving in LP/Junior Basic/Pre-Primary Schools
has been reduced from 8700/- to Rs.7400/-. The
amended Schedule of the ROP Rules, 2017 is reproduced
herein below:-
"Assam Lower School Service (Teaching and Inspection)
ME/MV/Senior Basic Schools
Name of Post or Existing Pay Scale Revised Pay Structure Remarks
Service
Pay Band Grade Pay Band (Rs.) Grade
(Rs.) Pay (Rs.) Pay (Rs.)
(1) (2) (3) (4) (5) (6)
Head Master, PB-2 3300 PB-2 8700
ME/ MV/Senior 5200-20200 14000-49000
Basic Schools
Trained PB-2 2700 PB-2 8700 Irrespective
Graduate 5200-20200 14000-49000 of Arts,
Teacher Science,
Commerce
Graduate
Untrained
Graduate
Teacher PB-2 2500 PB-2 6800
including 5200-20200 14000-49000
Trained Under-
Graduate
Teacher &
Untrained Under
Graduate
Untrained PB-2 2500 PB-2 6200
Teacher 5200-20200 14000-49000
Assistant Sub- PB-2 2500 PB-2 6200
Inspector of 5200-20200 14000-49000
School
LP/Junior Basic/Pre-Primary Schools
Name of Post or Existing Pay Scale Revised Pay Structure Remarks
Service
Pay Band Grade Pay Band (Rs.) Grade
(Rs.) Pay (Rs.) Pay (Rs.)
(1) (2) (3) (4) (5) (6)
Trained PB-2 2700 PB-2 7400
Graduate 5200-20200 14000-49000
Teacher
Untrained
Graduate
Teacher PB-2 2500 PB-2 6800
including 5200-20200 14000-49000
Trained Under-
Graduate
Teacher
Untrained PB-2 2500 PB-2 6200"
Teacher 5200-20200 14000-49000
7. Learned counsels appearing for the petitioners in
both these writ petitions have vehemently argued that the
action of the State Government of reducing the Grade Pay
of the Graduate Teachers working in the LP/Junior Basic/
Pre-Primary Schools is illegal, arbitrary and discriminatory.
It is contended that the categorization of the Graduate
Teachers working in the LP/Junior Basic/Pre-Primary
Schools and of those Teachers working in ME/MV/Senior
Basic Schools is without any justification.
It is contended that the decision to reduce the
Grade Pay of the Graduate Teachers serving in LP/Junior
Basic/Pre-Primary Schools is not permissible under the law
and that too without affording an opportunity of hearing to
the petitioners particularly when earlier their Pay Structure
was at par with the Graduate Teachers serving in Upper
Primary Schools.
8. It is further argued that the Graduate Teachers
serving in LP/Junior Basic/Pre-Primary Schools are
discharging the similar duties as of the Trained Graduate
Teachers serving in ME/MV and Senior Basic Schools and in
such circumstances, the action of the State Government of
reducing the Grade Pay of the Graduate Teachers serving
in LP/Junior Basic/Pre-Primary Schools is violative of Article
14 of the Constitution of India.
9. The learned counsels for the petitioners have
placed reliance on the decisions of the Hon'ble Supreme
Court rendered in Divisional Superintendent, Eastern
Railway, Dinapur & Ors. -Vs- Shri L.N. Keshri & Ors.,
reported in (1975) 3 SCC 1; Greed Corporation of
Orissa & Ors. -Vs- Rasananda Das , reported in (2003)
10 SCC 297; Union of India & Ors. -Vs- Jagdish
Pandey & Ors., reported in (2010) 7 SCC 689 and State
of West Bengal & Anr. -Vs- West Bengal Minimum
Wages Inspectors Association & Ors., reported in
(2010) 5 SCC 225. Lastly, it is prayed that the impugned
Notifications dated 02.07.2018 and 04.08.2018 may kindly
be set aside and a direction be issued to the respondent
State to fix the Grade Pay of the petitioners as Rs.8700/-
instead of Rs.7400/-.
10. Per contra, the learned counsels appearing for
the respondents have vehemently opposed the writ
petitions and have submitted that the State Government
has not committed any illegality in fixing the petitioners'
Grade Pay at Rs.7400/- instead of Rs.8700/- pursuant to
the recommendations of the Anomaly Committee. It is
contended that the Anomaly Committee, after scrutinizing
the recommendations made by the previous Pay
Commissions and considering the entry qualification
required for various categories of posts of Teachers as per
the Service Rules, has made a recommendation that there
should be different Grade Pay for different categories of
L.P. School Teachers in accordance with the ROP Rules,
2010.
It is also contended that the Expert Body, after
taking into consideration the various aspects, has
recommended for a different Pay Scale for the Graduate
Teachers serving in the Pre-Primary Schools and Upper
Primary Schools on the logic that the requisite qualification
for an Elementary Teacher is under-graduate in the Service
Rules and, therefore, they are not entitled for graduate
pay.
The recommendations of the Anomaly
Committee were made after examining the minimum entry
qualification required for various categories of posts of
Teachers and the same cannot be questioned without
there being strong reasons.
11. It is submitted that the petitioners have failed to
demonstrate that the recommendations of the Anomaly
Committee are arbitrary or without taking into
consideration the various relevant aspects. It is further
contended that those Teachers, who were serving in
various Schools on the basis of their intermediate
qualifications, cannot be termed as Graduate Teachers
simply because they had acquired the Graduate Degrees.
12. In support of the above contentions, the learned
counsels for the respondents have placed reliance on the
decisions of the Hon'ble Supreme Court rendered in the
S.C. Chandra & Ors. -Vs- State of Jharkhand & Ors.,
reported in (2007) 8 SCC 279; Union of India & Ors.
-Vs- M.V. Mohanan Nair, reported in (2020) 5 SCC 421
and a judgment of a Division Bench of this Court in
Mariamma Sebastian -Vs- Union of India & Ors.,
reported in 2009 5 GLR 230. The respondents have also
placed reliance on a decision of the Hon'ble Supreme Court
in the case of State of West Bengal & Anr. -Vs- West
Bengal Minimum Wages Inspectors Association &
Ors., reported in (2010) 5 SCC 225, on which the learned
counsel for the petitioners have also placed reliance. The
learned counsels for the respondents have, therefore,
prayed that there is no force in these writ petitions and the
same are, therefore, liable to be set aside.
13. On rejoinder, learned counsels appearing for the
petitioners have vehemently submitted that the attitude of
the respondents is discriminatory vis-à-vis the petitioners
and the Assistant Teachers serving in various Upper
Primary Schools. It is the contention of the petitioners that
in some of the Blocks, the Assistant Teachers in the Upper
Primary Schools are paid salary as per the Grade Pay of
Rs.8700/- as admissible to the Graduate Teachers working
in Upper Primary Schools. In support of their contention,
the petitioners have placed reliance on a Pay Slip for the
month of July, 2023 of one of the Teacher, namely, Mithu
Boro, in Block Elementary Education, Chhaygaon.
14. In counter to the above contentions, the learned
counsels appearing for the respondents have submitted
that the respondents are in knowledge that in some of the
Schools, either Pre-Primary Level or Upper Primary Level,
the Assistant Teachers are being paid salary as per the
Grade Pay of Rs.8700/- and as per the respondents, the
same is a fault on the part of the officers. It is further
submitted that for that purpose, deliberations are going on
in the Department to resolve the said anomaly at the
earliest. It is further contended that fixation of Grade Pay
of the said Assistant Teacher, as indicated by the
petitioners, is illegal and on the basis of the said illegality,
the petitioners cannot claim the relief which would amount
to perpetuate the illegality. In support of the above
contention, the learned counsels for the respondents have
placed reliance on the decision of the Hon'ble Supreme
Court rendered in Basawaraj & Anr. -Vs- Special Land
Acquisition Officer, reported in (2013) 14 SC 81.
15. We have heard the learned counsel appearing
for the parties and have perused the material available on
record.
16. It is pertinent to mention here that the service
conditions of the petitioners herein are governed by the
Assam Elementary Education (Provincialisation) Rules,
1977. The definitions of "Lower Primary School" and
"Upper Primary School" are provided in Section 2(x) and
2(xii) of the 1977 Rules, which read as under:
"2(x) 'Lower Primary School' means the School
imparting Education up to Class V;
(xii) 'Upper Primary School' means the Institution
imparting education upto Class VIII including ME
School or MV School or ME Madrasa or Senior Basic
School individually or a combination of any two or
three of or all the four categories of these
institutions."
17. From the facts, it is clear that prior to coming
into force of the ROP Rules, 2017, the Pay Scales of
Graduate Teachers serving in the LP/Junior Basic/Pre-
Primary Schools were fixed in the Pay Band-2 in Pay Scale
of Rs.5200/- - Rs.20200/- with the Grade Pay of
Rs.2700/-. However, with the coming into force of the
ROP Rules, 2017, their pay structures have been revised
and they were placed in Pay Band-2 in the Scale of Pay of
Rs.14000/- - Rs.49000/- with a Grade Pay of Rs.8700/-.
The Anomaly Committee in its recommendations has
recommended to fix the Grade Pay of Rs.7400/- for
Graduate Teachers working in LP/Junior Basic/Pre-Primary
Schools under Pay Band-2 in the Pay Scale of Rs.14000/-
- Rs.49000/-. At this stage, it would apposite to quote the
recommendations of the Anomaly Committee in relation to
the Grade Pays of Graduate Teachers, which are as
follows:-
"Anomaly in Grade pays of Graduate teachers:
The Finance PRU Department has referred the matter
relating to pay fixation of teachers of lower Primary
and Upper primary schools to anomaly committee. In
this connection, the Committee examined the
recommendations of the 7th Pay & Productivity Pay
Commission contained in Point No '1.6(C)' of Chapter
14 of the Report:
'The Commission feels that at the level of LP
and ME schools there are no justification for
differentiating the qualification of science
graduate vs-a-vis arts graduate or any other
graduate. Accordingly the Commission
recommends that the entire graduate teacher in
LP and ME schools should have the same GP of
Rs.3300. It is further recommended that all
other teachers who have under graduate
qualification should be put in the GP of
Rs.2500.'
In the above recommendation, the 7th APPPC
mentioned that there is no justification for
differentiating the qualification of Science graduate vis-
a-vis arts graduate or any other graduate teacher in
case of LP and ME schools. So the Commission
recommended pay scale to other trained Graduate
teachers at par with the Science Graduate teacher
without discrimination.
But the fact is that in case of LP/Junior Basic
Schools, there are no Science, Arts or any other
graduate posts. These category of posts exist only in
ME Schools. The Committee examined the minimum
entry qualification required for the various categories of
posts of teachers as per existing applicable service
Rule. The Minimum qualification of the teachers of LP
School is under graduate. Therefore, the scale of pay of
graduate teachers prescribed is not justified in case of
teachers of LP schools.
The Anomaly Committee carefully scrutinised the
recommendations made by previous Pay Commissions
and it has been found that ROP Rules 1990 and 1998,
there were two categories of pay scale for LP School
Teachers i.e. trained teacher and untrained teacher.
But under ROP 2010, the LP School teachers have been
classified under three categories viz, i) trained
graduate teachers, ii) trained under graduate teacher
and iii) untrained teachers. The pay scales for these
teachers were recommended in the same pay band
with different grade pays i.e. grade pay of Rs.2700/-
for trained graduate teachers and Rs.2500/- for other
two categories of teachers.
Therefore anomaly committee in of the view that
there should be different grade pay for different
categories of LP schools teachers in accordance with
ROP 8 Rule 2010. After careful consideration, the
Committee recommends grade pay of Rs.7400/- for
trained graduate teachers, Rs 6800/ for untrained
graduate teachers including trained under graduate
teachers and Rs.6200/- for untrained teachers under
ROP Rule. As per information available, at present the
senior most Teacher in LP School is allowed to hold
charge as in charge Headmaster. There is no specific
post of Headmaster for LP School. The Pay scales of
head master of LP Schools has to be decided by the
Government in administrative Department while
creating posts, if considered necessary. Therefore it
will be inappropriate for the Anomaly Committee for
prescribing any pay scale for the Head Master of LP
Schools.
In case of ME and other upper primary Schools,
the Anomaly Committee feels that there should be
parity of pay scale amongst all teachers irrespective of
streams i.e. Arts, Science, Commerce etc. Therefore, the
Anomaly Committee recommends Grade pay of
Rs.8700/- to the trained Graduate teachers as
applicable to the Science graduate teacher. The
Committee also recommends grade pay of Rs 6800/ to
the untrained graduate teacher including trained under
graduate teacher and untrained undergraduate
teacher. The remaining teachers without training shall
continue to get grade pay of Rs.6200/-."
18. While going through the said recommendation, it
is culled out that the Anomaly Committee has scrutinized
the recommendations made by the previous Pay
Commissions in ROP Rules, 1990; 1998 and 2010. The
Anomaly Committee has also taken into consideration the
fact that in LP/Junior Basic/Pre-Primary Schools, there are
no Science, Arts or other Graduate posts and the minimum
entry qualification required for Teachers of L.P. Schools is
under-graduate. Having gone through the
recommendations of the Anomaly Committee, it cannot be
said that the same are arbitrary and has been made
without considering various aspects, such as the entry
qualification, nature of job and the subjects taught in the
Schools concerned.
19. It is settled that the recommendations of the
Expert Bodies are not liable to be interfered with in routine
manner until and unless it is demonstrated that the said
recommendations are without any justifications.
20. The Hon'ble Supreme Court in S.C. Chandra
(supra) has held as under:
"33. It may be mentioned that granting pay
scales is a purely executive function and hence the
court should not interfere with the same. It may
have a cascading effect creating all kinds of
problems for the Government and authorities. Hence,
the court should exercise judicial restraint and not
interfere in such executive function vide Indian
Drugs & Pharmaceuticals Ltd. v. Workmen [(2007) 1
SCC 408].
34. ...............
35. ...............
36. It is well settled by the Supreme Court that
only because the nature of work is the same,
irrespective of educational qualification, mode of
appointment, experience and other relevant factors,
the principle of equal pay for equal work cannot
apply vide Govt. of W.B. v. Tarun K. Roy [(2004) 1
SCC 347].
37. Similarly, in State of Haryana v. Haryana
Civil Secretariat Personal Staff Assn. [(2002) 6 SCC
72] the principle of equal pay for equal work was
considered in great detail. In paras 9 and 10 of the
said judgment the Supreme Court observed
that equation of posts and salary is a complex
matter which should be left to an expert body. The
courts must realise that the job is both a difficult and
time consuming task which even experts having the
assistance of staff with requisite expertise have
found it difficult to undertake. Fixation of pay and
determination of parity is a complex matter which is
for the executive to discharge. Granting of pay parity
by the court may result in a cascading effect and
reaction which can have adverse consequences
vide Union of India v. Pradip Kumar Dey [(2000) 8
SCC 580]."
21. In West Bengal Minimum Wages Inspectors
Association (supra), the Hon'ble Supreme Court has held
as under:
"22. The claim in the writ petition was not based
on the ground that subject post and reference
category posts carried similar or identical duties and
responsibilities but on the contention that as
the subject post holders and the holders of reference
category posts who were enjoying equal pay at an
earlier point of time, should be continued to be given
equal pay even after pay revision. In other words,
the parity claimed was not on the basis of equal pay
for equal work, but on the basis of previous equal
pay.
23. It is now well settled that parity cannot be
claimed merely on the basis that earlier the subject
post and the reference category posts were carrying
the same scale of pay. In fact, one of the functions of
the Pay Commission is to identify the posts which
deserve a higher scale of pay than what was earlier
being enjoyed with reference to their duties and
responsibilities, and extend such higher scale to
those categories of posts.
24. The Pay Commission has two functions; to
revise the existing pay scale, by recommending
revised pay scales corresponding to the pre-revised
pay scales and, secondly, make recommendations
for upgrading or downgrading posts resulting in
higher pay scales or lower pay scales, depending
upon the nature of duties and functions attached to
those posts. Therefore, the mere fact that at an
earlier point of time, two posts were carrying the
same pay scale does not mean that after the
implementation of revision in pay scales, they
should necessarily have the same revised pay
scale."
22. In M.V. Mohanan Nair (supra), a 3(three)
Judges Bench of the Hon'ble Supreme Court has observed
as under:
"32. ......When the expert body like the Pay
Commission has comprehensively examined all the
issues and representations and also took note of
inter-departmental disparities owing to varying
promotional hierarchies, the Court should not
interfere with the recommendations of the expert
body. When the Government has accepted the
recommendation of the Pay Commission and has
also implemented those, any interference by the
Court would have a serious impact on the public
exchequer.
33. Observing that it is the function of the
Government which normally acts on the
recommendations of the Pay Commission which is
the proper authority to decide upon the issues,
in Union of India v. P.V. Hariharan, (1997) 3 SCC
568), it was held as under : (SCC pp. 570-71, para
5)
'5. ... It is the function of the Government
which normally acts on the recommendations
of a Pay Commission. Change of pay scale of
a category has a cascading effect. Several
other categories similarly situated, as well
as those situated above and below, put
forward their claims on the basis of such
change. The Tribunal should realise that
interfering with the prescribed pay scales is
a serious matter. The Pay Commission,
which goes into the problem at great depth
and happens to have a full picture before it,
is the proper authority to decide upon this
issue. Very often, the doctrine of 'equal pay
for equal work' is also being misunderstood
and misapplied, freely revising and
enhancing the pay scales across the board.
We hope and trust that the Tribunals will
exercise due restraint in the matter. Unless a
clear case of hostile discrimination is made
out, there would be no justification for
interfering with the fixation of pay scales. We
have come across orders passed by Single
Members and that too quite often
Administrative Members, allowing such
claims. These orders have a serious impact
on the public exchequer too. It would be in
the fitness of things if all matters relating to
pay scales i.e. matters asking for a higher
pay scale or an enhanced pay scale, as the
case may be, on one or the other ground, are
heard by a Bench comprising at least one
Judicial Member.'
34. Observing that the decision of expert bodies
like the Pay Commission is not ordinarily subject to
judicial review, in State of U.P. v. U.P. Sales Tax
Officers Grade II Assn. (2003) 6 SCC 250], the
Supreme Court held as under : (SCC p. 253, para 11)
'11. There can be no denial of the legal
position that decision of expert bodies like
the Pay Commission is not ordinarily subject
to judicial review obviously because pay
fixation is an exercise requiring going into
various aspects of the posts held in various
services and nature of the duties of the
employees.'
35. In State (NCT of Delhi) v. Grade-I Dass
Officers' Assn. (2014) 13 SCC 296, the Supreme
Court refused to interfere with the ACP Scheme as it
would violate government policy and since exercise
of judicial review would not be proper, upheld the
ACP Scheme and the conditions therein.
36. In State of T.N. v. S. Arumugham (1998) 2
SCC 198, the Supreme Court has observed that the
Government has the right to frame a policy to ensure
efficiency and proper administration and to provide
to suitable avenues for promotion to officers working
in different department. The Supreme Court has
further observed that the Tribunal cannot substitute
its own views for the views of the Government or
direct new policy based on the views of the Tribunal.
37. Observing that fixation of pay and
determination of responsibilities is a complex matter
which is for the executive to take a decision, the
Courts should approach such matters with restraint,
in State of Haryana v. Haryana Civil Secretariat
Personal Staff Assn. (2002) 6 SCC 72, the Supreme
Court held as under : (SCC pp. 79-80, para 10)
'10. It is to be kept in mind that the claim of
equal pay for equal work is not a
fundamental right vested in any employee
though it is a constitutional goal to be
achieved by the Government. Fixation of pay
and determination of parity in duties and
responsibilities is a complex matter which is
for the executive to discharge. While taking a
decision in the matter, several relevant
factors, some of which have been noted by
this Court in the decided case, are to be
considered keeping in view the prevailing
financial position and capacity of the State
Government to bear the additional liability of
a revised scale of pay. ... That is not to say
that the matter is not justiciable or that the
courts cannot entertain any proceeding
against such administrative decision taken
by the Government. The courts should
approach such matters with restraint and
interfere only when they are satisfied that
the decision of the Government is patently
irrational, unjust and prejudicial to a section
of employees and the Government while
taking the decision has ignored factors
which are material and relevant for a
decision in the matter. Even in a case where
the Court holds the order passed by the
Government to be unsustainable then
ordinarily a direction should be given to the
State Government or the authority taking the
decision to reconsider the matter and pass a
proper order. The Court should avoid giving a
declaration granting a particular scale of pay
and compelling the Government to implement
the same.'
(emphasis supplied)
38. The prescription of pay scales and
incentives are matters where decision is taken by
the Government based upon the recommendation of
the expert bodies like the Pay Commission and
several relevant factors including financial
implication and court cannot substitute its views. As
held in Haryana CivilSecretariat Personal Staff
Assn., (2002) 6 SCC 72, the Court should approach
such matters with restraint and interfere only when
the Court is satisfied that the decision of the
Government is arbitrary. Even in a case where the
Court takes the view that order/scheme passed by
the Government is not an equitable one, ordinarily
only a direction could be given to the State
Government or the authority for consideration of the
matter and take a decision. In the present batch of
cases where the respondents are claiming financial
upgradation in the grade pay of promotional
hierarchy, no grounds are made out to show that the
MACP Scheme granting financial upgradation in the
next grade pay is arbitrary and unjust; warranting
interference. The implementation of the MACP
Scheme is claimed to have led to certain anomalies;
but as pointed out earlier, MACP Scheme itself is not
under challenge."
23. Recently, the Hon'ble Supreme Court in the case
of State of Uttar Pradesh & Anr. -Vs- Virendra
Bahadur Katheria & Ors., reported in 2024 SCC
OnLine 1712 has held as under:
"53. It needs no emphasis that prescription of
pay scale for a post entails Policy decision based
upon the recommendations of an expert body like
Pay Commission. All that the State is obligated to
ensure is that the pay structure of a promotional or
higher post is not lower than the feeder cadre.
Similarly, pay parity cannot be claimed as an
indefeasible enforceable right save and except
where the Competent Authority has taken a
conscious decision to equate two posts
notwithstanding their different nomenclature or
distinct qualifications. ......."
24. So far as the contention of the learned counsels
for the petitioners that some of the Assistant Teachers
working in the Upper Primary Schools are fixed in the
Grade Pay of Rs.8700/- is concerned, the learned counsels
for the respondents have admitted that the said fixation of
the Grade Pay of the Assistant Teachers is erroneous and
illegal and the same is to be looked into by the
respondents. However, the petitioners cannot claim the
similar treatment given to some employees erroneously in
illegal manner as it may amount to perpetuate the
illegality.
25. The Hon'ble Supreme Court in Basawaraj
(supra) has observed as under:
"8. It is a settled legal proposition that Article
14 of the Constitution is not meant to perpetuate
illegality or fraud, even by extending the wrong
decisions made in other cases. The said provision
does not envisage negative equality but has only a
positive aspect. Thus, if some other similarly
situated persons have been granted some
relief/benefit inadvertently or by mistake, such an
order does not confer any legal right on others to get
the same relief as well. If a wrong is committed in an
earlier case, it cannot be perpetuated. Equality is a
trite, which cannot be claimed in illegality and
therefore, cannot be enforced by a citizen or court in
a negative manner. If an illegality and irregularity
has been committed in favour of an individual or a
group of individuals or a wrong order has been
passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for
repeating or multiplying the same irregularity or
illegality or for passing a similarly wrong order. A
wrong order/decision in favour of any particular
party does not entitle any other party to claim
benefits on the basis of the wrong decision. Even
otherwise, Article 14 cannot be stretched too far for
otherwise it would make functioning of
administration impossible. (Vide Chandigarh
Admn. v. Jagjit Singh [(1995) 1 SCC 745], Anand
Buttons Ltd. v. State of Haryana [(2005) 9 SCC
164], K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581]
and Fuljit Kaur v. State of Punjab [(2010) 11 SCC
455].)
26. A Division Bench of this Court in Mariamma
Sebastian (supra) has declined to grant relief to a Junior
Teacher who was claiming higher Grade Pay on the basis
of his qualification of graduation while observing as under:
"8. Taking note of the submissions made by Dr.
Singh, now the point that falls for consideration
before us is as to whether the petitioner is entitled to
be paid the pay scale of trained graduate teacher.
Admittedly, the petitioner was not
appointed as trained graduate teacher. The
petitioner might have had the qualification of
graduation with B. Ed. degree, but unless she is
appointed to the related post of trained graduate
teacher merely by having higher qualifications, she
is not entitled to get the benefit of higher pay scale
prescribed for such higher post. It is further noticed
that the required qualification for Junior Teacher is
intermediate or 10+2 standard and not graduate.
The petitioner was appointed to the substantive post
of Junior Teacher. It is the case of the respondents
that the categories of post as trained graduate
teacher is not available in the establishment of
Assam Rifles. The petitioner having been appointed
to the substantive post in the cadre of Junior
Teacher and the posts of Junior Teacher and the
trained graduate teacher being in different cadre
and category, in our considered opinion, the claim of
the petitioner is misplaced and she is not entitled to
claim the pay scale of trained graduate teacher."
27. The same situation exists in the present cases
where the petitioners were appointed on the posts of
Teacher in the LP/Junior Basic/Pre-Primary Schools or even
in the Upper Primary Schools considering their qualification
as under-graduate and, therefore, the claim of the
petitioners of a higher Grade Pay on the basis of their
qualification of graduation cannot be accepted.
28. So far as the judgments on which the learned
counsels for the petitioners have placed reliance are
concerned, the same are of no help to the petitioners for
the following reasons.
(i) In Divisional Superintendent, Eastern
Railway, Dinapur (supra), the Hon'ble Supreme Court
has held the action of the employers of reducing the Pay
Scale of its employees as illegal on the ground that no
opportunity was granted to them before doing so.
However, in the present cases, this is not the position
because the Anomaly Committee has considered the
grievances of the individuals/Employees' Associations in
detail and has thereafter submitted its recommendations.
(ii) In Greed Corporation of Orissa (supra), the
Hon'ble Supreme Court has disapproved the action of the
employer of depriving its employees from higher Pay Scale
after attaining the age of 58 years on the ground that the
service conditions of those employees were protected
under Section 60 of the concerned Regulations. However,
no such protection is available to the petitioners in the
present cases.
(iii) In Jagdish Pandey (supra), the Hon'ble
Supreme Court has held that the Pay Scale of an employee
cannot be varied until and unless valid and proper reasons
are there. In the present cases, the Anomaly Committee
has recommended for variation in the Pay Scale of the
Graduate Teachers working in LP/Junior Basic/Pre-Primary
Schools while giving reasons, which in our opinion, are
just.
(iv) In West Bengal Minimum Wages Inspectors
Association (supra), the Hon'ble Supreme Court has
categorically held that the higher Pay Scale or lower Pay
Scale is required to be fixed while taking into consideration
the nature of duties and functions attached to the posts
and mere fact that on earlier point of time 2(two) posts
were carrying the same Pay Scale does not mean that after
the implementation of the revision in the Pay Scales, they
should necessarily have the same revised Pay Scale.
29. In the present cases, one of the claim of the
petitioners is that with the coming into force of the APPPC
Rules, 2017, their Pay Scale was fixed at par with the
Graduate Teachers working in the Upper Primary Schools
and the same cannot be varied by the State as the same is
not permissible under the law but as held by the Hon'ble
Supreme Court that simply because earlier the 2(two) posts
were carrying the same Pay Scale does not mean that after
implementation of the revision in the Pay Scale, they
should necessarily have the same revised Pay Scale, the
said claim of the petitioners cannot be accepted.
30. In view of the above discussions, we do not find
any merit in these writ petitions, the same are, therefore,
dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
