State Of Meghalaya vs . Shillong Municipal Employees
2022 Latest Caselaw 100 Meg

Serial No. 01     HIGH COURT OF MEGHALAYA
Regular List             AT SHILLONG

 WA No. 12 of 2021 with
 MC (WA) No. 60 of 2021
                                                 Date of order: 28.03.2022
 State of Meghalaya             vs.        Shillong Municipal Employees
                                           Association & Anr.
 Coram:
      Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
      Hon'ble Mr. Justice H. S. Thangkhiew, Judge
 Appearance:
 For the Appellant               : Mr. A. Kumar, AG with
                                   Ms. R. Colney, GA

 For the Respondent No. 1        : Mr. A.S. Siddiqui, Sr. Adv. with

Ms. M.K. Sah, Adv.

For the Respondent No. 2 : Mr. Philemon Nongbri, Adv.

 i)     Whether approved for                         Yes
        reporting in Law journals etc.:

 ii)    Whether approved for publication             Yes/No
        in press:

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral)

The appeal is directed against a judgment and order of March 19,

2020 passed on a petition under Articles 226 of the Constitution of India

brought by the first respondent association, which is a body of the

employees engaged in the Shillong Municipal Board. By the impugned

judgment and order the writ court has, in effect, allowed the prayer in the

writ petition that the employees of the Shillong Municipal Board will be

entitled to the same pay scale and benefits as per the latest pay

commission terms pertaining to the Meghalaya government employees.

2. The prayer in the writ petition was as follows:

"In the Premises aforesaid it is most respectfully prayed that your Lordship would be graciously pleased to issue rule, call for records and after hearing the parties be pleased to issue a writ in the nature of Mandamus directing Respondent No. 1 to provide the benefits of the recommendation of the 5th Pay commission to the Members of the Petitioner Association."

3. In the judgment and order challenged herein by the State, the writ

court has primarily referred to an industrial award of the year 1971 which,

more or less, granted the same pay facilities and benefits, with some

minor exceptions, to the employees of the Shillong Municipal Board at

par with the State government employees. The writ court held that since

such award had not been challenged before any appropriate forum and

further since the benefits under the Third Pay Commission in the State

had been unilaterally extended by the State to the Shillong Municipal

Board employees, "there appears to be no reason as to why the benefit of

the 5th Meghalaya Pay Commission should not be extended to the

employees of the Shillong Municipality ..."

4. It is, thus, that the industrial award of July 21, 1971, which was

perceived to have binding effect by the writ court, needs to be seen. The

order passed by the Tribunal framed the following questions:

"1. (a) Whether the demands of the workmen appearing hereinunder under the caption of Charter of Demands are justified?

(b) If not, to what relief are the workmen are entitled?"

The charter of demands runs into the first five pages of the order

before the rival submissions, including as to the maintainability of the

proceedings, are recorded over the next page and a half. There is no

opinion as such which is rendered by the Tribunal as it was unnecessary

to do so since the parties reported to the Tribunal that on July 16, 1971,

the disputes were settled by way of a memorandum of settlement. The

solitary aspect on which there was no agreement pertained to the ad hoc

dearness allowance of Rs. 20/- per month. However, the Tribunal held

that the employees of the Shillong Municipal Board were entitled to such

ad hoc dearness allowance from the date it was given effect to in the case

of the employees of the government.

5. On the main aspect of whether the duties of the employees of the

Shillong Municipal Board were the same as the duties of the employees

of the State government, such issue was not gone into, particularly in the

light of the settlement and it was the entirety of the settlement executed

between the Board and its employees that was set out as a part of the

award. Indeed, even the most fundamental issue as to whether all the

employees of the Shillong Municipal Board could be regarded as

workmen for the Industrial Tribunal to exercise jurisdiction over all such

employees, was also not addressed. Thus, the award of July 21, 1971

merely recorded the settlement between the parties while it decided the

only aspect that was left for its consideration that since dearness

allowance at a particular rate had been extended to government

employees, the same benefit should be made available to the employees

of the Shillong Municipal Board. The consideration of dearness

allowance is quite different from the consideration as to whether groups

of persons employed under different employers discharging similar or

comparable duties are entitled to the same scale of pay or the same level

of benefits. Dearness allowance, ordinarily, should be uniform for

everyone since the consideration that goes into assessing the rate of

dearness allowance is, in simple terms, how the cost of living has become

more expensive at the time that the dearness allowance is being given

than when the pay scale had been originally fixed.

6. What is important is that in course of the award of July 21, 1971,

the Industrial Tribunal had no occasion to go into the parity or otherwise

of the duties discharged by the employees of the State government and

the employees of the Shillong Municipal Board. The fact that the

Tribunal agreed to extend the same dearness allowance to the employees

of the Shillong Municipal Board as had been afforded to the State

government employees, is of no relevance in the present context.

7. Implicit in the prayer made in the writ petition is an assertion that

the employees of the Shillong Municipal Board discharge the same duties

and functions as the State government employees, and, as such, upon the

scales of pay of the State government employees having increased

pursuant to the latest pay commission, the same increase should be

effected in the pay scales of the employees of the Shillong Municipal

Board.

8. Such aspect of the matter does not appear to have come up for

discussion in course of the writ petition being allowed and the prayer

being acceded to.

9. The second aspect that weighed with the writ court was that the

revised pay scales under the Third Meghalaya Pay Commission (ROP)

Rules, 1997, were extended to the Municipal Boards in the State,

including the Shillong Municipal Board, with effect from January 1,

1996. Upon noticing such fact, the writ court held that "if this has been

the case, then without any plausible explanation, there appears to be no

reason as to why the benefit of the 5th Meghalaya Pay Commission

should not be extended to the employees of the Shillong Municipality ..."

10. The considerations that weighed with the writ court, both as to the

finality of the industrial award of 1971 and the extension of the benefits

under the Third Pay Commission to employees of the Shillong Municipal

Board, would have been appropriate, if, in course of the award of 1971

or the extension of the Third Pay Commission benefits in 1996, it was

held or observed or conceded that the duties and functions of the

employees of the Shillong Municipal Board were the same as the duties

and functions of the State government employees in similar or

comparable posts.

11. There is no doubt that the pay scales at various levels need to be

periodically revised. That is not in issue. What is in issue is whether and

to what extent would the revision of pay of the State government

employees impact the revision of the pay of the employees of the Shillong

Municipal Board. If it is found, as a matter of fact, that the duties and

functions of the two classes of employees are the same, the revision

effected in the pay of the State government employees would fasten to

the pay of the employees of the Shillong Municipal Board. But in neither

case, whether upon the award being passed in 1971 or the Third Pay

Commission benefits being extended to the employees of the Shillong

Municipal Board in 1996, did the State government accept or concede

that the duties and functions of the employees of the State government

and the Municipality Board were identical.

12. It is one thing to agree to extend certain benefits upon a settlement

being recorded and without indicating any reasons for such settlement;

and quite another to extend the same benefits on a parity of the duties

performed. What would not follow from such agreement is that the mere

acceptance of the demand implies that the duties and functions

discharged by two sets of employees may be the same. Indeed, it may be

discovered as a matter of fact that the duties and functions discharged by

the members of the Municipality Board are more.

13. A judgment reported at (2002) 10 SCC 319 (State of Maharashtra

v. R.N. Gangwani) was noticed by the writ court in course of the

impugned judgment. Such judgment was rendered in the context of a

notification issued in Maharashtra in 1984 under the Municipality Act in

that State providing that the pay scales of the municipal employees should

not exceed the pay scales prescribed by the Maharashtra Civil Services

(Revision of Pay) Rules, 1978. What fell for consideration before the

Supreme Court was whether such notification implied that the fixation

and revision of the pay scales of the municipal employees should be the

same as that of the civil service employees in the State. In such context,

the Supreme Court held that the benefit of any pay scale or similar

revision would be available only if the Municipal employees discharged

the same duties in respect of the posts of the corresponding government

employees. The court went on to observe that a parity could be granted,

but only upon determination of the relevant facts and not ipso facto by

reason of the wording of the notification. It is the same principle which

will apply in the present case.

14. The mere fact that the State government had settled with the

employees of the Shillong Municipal Board in 1971 to accede to the same

revision as applied to government employees in the State and the further

fact that in 1996, the benefits under the Third Pay Commission were

unilaterally extended by the State to, inter alia, the employees of the

Shillong Municipal Board would not amount to any acceptance by the

State government that the duties and functions discharged by the

employees of the Shillong Municipal Board were or are the same as those

discharged by the State government employees.

15. Even now, it is open to the State to extend the benefits of the Fifth

Pay Commission to various classes of employees in employment under

other authorities. Administrative exigencies may prompt such a decision,

but unless the decision to extend the same benefits is expressly founded

on the ground that the duties and functions discharged by the other set of

employees are the same as those discharged by the State government

employees, the other set of employees cannot demand the corresponding

rise in future.

16. A ground has been urged on behalf of the first respondent

association that the entire difficulty arises since no election has been held

in the Shillong Municipal Board - or , indeed, in any other municipal

body in the State - despite the introduction of Part IXA to the

Constitution with effect from the year 1993. It is submitted on behalf of

the State that in view of the anomalous situation in the State as to whether

the municipal boards in urban areas exercising a decree of

superintendence over the land owned by the District Councils would be

subject to the same rules, in view of Article 243ZC of the Constitution

read with the Sixth Schedule thereto, the matter is still pending

consideration and a clarificatory bill is under consideration of the

Parliament.

17. As to whether elections have been held to the municipal bodies in

the State or to the Shillong Municipal Board in this case, is quite

irrelevant for the present purpose. Even if it is assumed that it is the State

government which calls the shots at the Shillong Municipal Board, it does

not follow that the employees of the Shillong Municipal Board are

entitled to the same pay scales as regular State government employees.

The distinction, as always, will be based on the duties and functions

discharged by a set of employees and unless it can be said, upon a

fact-finding exercise being undertaken, that the employees of the

Shillong Municipal Board have the same work as the employees of the

State government, the simultaneous or automatic extension of the

benefits conferred on the State government employees cannot be claimed

by the employees of the Shillong Municipal Board.

18. Accordingly, the judgment and order impugned, insofar as it

extends all benefits under the Fifth Meghalaya Pay Commission to

employees of the Shillong Municipal Board stand set aside. However,

since the State government is the ultimate employer, the State is directed

to set up an appropriate body within three months from date to look into

the revision of pay scales and benefits of the employees of the Shillong

Municipal Board - whether as a part of all the municipal bodies or

independently - so that such commission or expert body renders an

appropriate report within six months from the date of the constitution

thereof. It is also made clear that the appropriate date for implementation

of the revision will be decided upon by the State in accordance with law

and it does not follow from this order that such date may be prospective

and not retrospective.

19. The writ petition is disposed of accordingly.

20. WA No.12 of 2021 along with MC (WA) No. 60 of 2021 are

disposed of.

21. There will, however, be no order as to costs.

       (H. S. Thangkhiew)                            (Sanjib Banerjee)
              Judge                                    Chief Justice


Meghalaya
28.03.2022
"Sylvana PS"