Calcutta High Court
Pankaj Kar Chaudhuri & Others vs The Kolkata Municipal Corporation & … on 28 January, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Debangsu Basak
and
The Hon'ble Justice Md. Shabbar Rashidi
APO No. 36 of 2024
Pankaj Kar Chaudhuri & Others
Vs.
The Kolkata Municipal Corporation & Others.
For the Appellant : Mr. Dubdutta Sen, Sr. Adv.
: Ms. Suchismita Ghosh Chatterjee, Adv.
: Ms. Ledia Dasgupta, Adv.
For the KMC : Mr. Alak Kumar Ghosh, Adv.
: Mr. Arijit Dey, Adv.
: Ms. Manisha Nath, Adv.
Heard on : January 16, 2025
Judgment on : January 28, 2025
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Md. Shabbar Rashidi, J.
1. The appeal is in assailment of judgment and order dated
February 07, 2024, passed in WPO No. 729 of 2017.
2. By the impugned judgment and order the learned Single
Judge, dismissed the writ petition filed on behalf of the
appellant writ petitioners on the ground of delay in
approaching the court. Learned Single Judge also observed
that in the writ petition, the writ petitioners had not
challenged the decision of the KMC authorities dated 6th June,
2017 rejecting the prayer of the petitioners to grant pay
protection in order to bring pay parity in between the
petitioners and the Respondent no.9.
3. It was contended on behalf of the appellants that
there was factually no delay in approaching the court. Learned
Single Judge erred in holding that the appellants filed the writ
petition with a delay of more than 5 years. The appellants also
disputed the finding of the Learned Single Judge to the effect
that the cause of action arose in the year 1996. It was
3
submitted that although, the disparity in the pay packet of the
writ petitioner and Respondent No.9 arose in 1996, the writ
petitioners preferred representation against such disparity
contemporaneously. However, the representation of the
appellants was disposed on June 06, 2017 and thereafter; the
writ petitioners approached the court with a writ petition
which culminated into the impugned judgment and order.
Therefore, such approach by the appellants cannot be said to
be belated.
4. It was also submitted that the authorities acted in utter
violation of Article 14 of the Constitution of India by negating
the claim of the writ petitioners for pay parity in accordance
with Regulation 34A of Central Civil Service Regulations and
Circular No. 74 dated January 31, 1985. Such claim could not
have been rejected on the ground of delay. In support of their
contentions, the appellants relied upon (1974) 1 Supreme
Court Cases 317 (Ramchandra Shankar Deodhar & Ors v.
The State of Maharashtra & Ors), (1974) 3 Supreme Court
Cases 91 (Haryana State Electricity Board v. State of
4
Punjab and Others) and (1989) 1 Supreme Court Cases 546
(P.L. Shah v. Union of India and Another).
5. It was further submitted that the higher pay granted to
Respondent No.9 was possibly because of the fact that he was
enjoying higher pay in the post of welfare officer as he was
accommodated to the post of assistant manager on the post of
welfare officer being abolished, was not sustainable. It was
contended that since the post of welfare officer was abolished
and Respondent No. 9 was accommodated in the post of
assistant manager, he could not have brought forward his
previous scale of pay for determination of fixation of his pay in
the cadre of assistant manager. It was further submitted that
the appellants as well as Respondent No. 9 were
simultaneously promoted to the post of deputy manager and
as such, they should have been granted similar pay in the
promotional post. As such, the appellants were entitled to pay
protection as against the pay as fixed for Respondent No. 9.
6. It was further contended that after the revision of pay
and immediately prior to the promotion of the appellants,
Respondent No. 9 was getting a pay at par with appellant No.2
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whereas appellant No.1 and 3 were getting slightly less than
the pay of appellant No.1. Respondent No.9 was junior to the
appellants and as such, the appellants were entitled to pay
protection in terms of the provisions of regulation 34A read
with circulars dated January 31, 1985 and August 29, 2007.
In support of such contention learned advocate for the
appellants relied upon All India Reporter 1987 SC 537
(Comptroller and Auditor General of India, Gian Prakash,
New Delhi & Anr. v. K. S. Jagannathan & Anr.) and All
India Reporter 2010 SC 1955 (Secretary, Cannanore
District Muslim Educational Association, Kanpur v. State
of Kerala & Ors).
7. On the other hand, learned advocate for KMC submitted
that the appellants have filed the instant writ petition much
after their superannuation in the year 2012. It was also
submitted that the appellants did not make any prayer as
prayed in the writ petition while discharging their function as
Assistant Manager and subsequently as Deputy Manager.
Learned advocate for KMC also stated that the prayer of the
appellants for pay protection was considered by a six-member
6
committee headed by the Joint Municipal Commissioner
(Personnel) of KMC as the chairman. The decision of said
committee dated June 6, 2017 has not been challenged in the
writ petition.
8. It has also been submitted that the pay packets of the
appellants and Respondent No.9, were changed/enhanced
from time to time in accordance with ROPA Rules, 2009 and
2006. Learned advocate for the KMC has also submitted that
the pay scale of the appellants was fixed in Pay Band 4. The
pay of appellant number one was fixed at ₹ 24,740/- in Pay
Band 4 (₹ 9000 – 40,500 with grade pay of ₹ 4800). Similarly
pay of appellant No. 2 was fixed at ₹ 25,310/- and that of
appellant No. 3 was fixed at ₹ 24,020/- in the same scale of
pay. Whereas, basic pay of Respondent No. 9 was fixed at ₹.
31,380/- in Pay Band 4A (₹ 15,600 – 42,000/- with a grade
pay of ₹ 6600/-).
9. It was further contended that after promotion of the
appellants to the post of Deputy Manager, the pay of the
appellants was fixed on the next highest stage in the same pay
scale as fixed in the post of Assistant Manager. However,
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Respondent No.9 was not provided with the higher fixation of
pay in the promoted post of Deputy Manager as the last pay
drawn in the post of Assistant Manager was retained by him
on such promotion.
10. Learned advocate for KMC also submitted that,
Respondent No.9 came to the Assistant Manager Cadre from a
different source and for that reason; his pay was higher than
that of the appellants in the post of Assistant Manager.
Consequently, basic pay and grade pay of Respondent No. 9
continued to be higher than the appellant. The appellants
never raised any objection in this regard. It was also submitted
that there has been substantial difference between the pay
scales, basic pay and grade pay of Respondent No. 9 and that
of the appellants which entitled Respondent No. 9, a higher
pay packet. The appellants have suppressed such facts with
regard to fixation of their pay following ROPA Rules, 2009.
Learned advocate for KMC relied upon the circulars issued on
April 24, 2010 and August 29, 2007 as well as Rule 55 (4) of
the West Bengal Service Rules Part-I. In support of his
contentions learned advocate for KMC relied upon (1997) 7
8
Supreme Court Cases 690 (Union of India & Ors v R.
Swaminathan & Ors), (1997) 6 SCC 360 (Union of India &
Ors v. O.P. Saxena) and 1995 All India Reporter SCW 1318
(Manish Gupta & Ors v. Gurudas Roy).
11. Relying upon (1989) 2 Supreme Court Cases 290 (State
of Andhra Pradesh & Ors v. G. Sreenivasa Rao & Ors),
learned advocate for Kolkata Municipal Corporation submitted
that equal pay for equal work does not mean that all the
members of the cadre must receive the same pay packet
irrespective of their seniority, source of recruitment, additional
qualifications and various other incidents of service.
Reasonable classification based on intelligible criteria having
nexus with the object sought to be achieved is permissible.
Abstract doctrine of equal pay for equal work cannot be read
in Article 14 of the Constitution.
12. Appellants joined the post of Assistant under Kolkata
Municipal Corporation on various dates in the year 1976. They
were subsequently promoted to the post of Head Assistant on
November 20, 1984. Ultimately, the appellants were promoted
9
to the post of Assistant Manager on October 1, 1992, February
23, 1990 and June 30, 1992 respectively.
13. Respondent No. 9 was initially appointed as junior clerk
on February 5, 1973. He was later on promoted to the post of
standard clerk with effect from September 7, 1978.
Respondent No. 9, however, qualified in the municipal service
commission examination, and was appointed to the post of
Welfare Officer on September 14, 1983. On August 14, 1996
i.e. more than four years after the appellants were promoted to
the post of Assistant Manager, Respondent No. 9 was
accommodated to the post of Assistant Manager (Welfare
Service) in the cadre of Assistant Manager since the post of
Welfare Officer was abolished. At the time of such
arrangement, the pay of Respondent No. 9 was fixed much
higher than that of the appellants.
14. Thereafter, on several dates in 2011 and 2012, the
appellants and Respondent No. 9 were promoted to the post of
Deputy Manager in the pay scale of ₹. 9000/- 40,500/-.
However, according to the case made out by the appellants,
inspite of them being in the same scale of pay after promotion,
10
the pay of Appellant Nos. 1 and 3 was fixed at ₹. 26090/- and
that of Appellant No. 2 was fixed at ₹. 26670/-. The pay of
Respondent No. 9 was fixed at ₹. 31380/- which was higher
than that of the appellants, though, he was promoted to the
post of Deputy Manager subsequent to Appellant Nos. 2 and 3.
15. Subsequently, appellant No.1 superannuated from
service on June 30, 2012 with last pay drawn by him at ₹.
26090/-. Appellant Nos. 2 and 3 superannuated on August
31, 2012 with last pay of ₹. 27470/- and ₹. 26880/-
respectively. Respondent No.9 superannuated from service on
June 30, 2013 with last pay of ₹. 33300/-. All of them
superannuated as Deputy Manager and at the relevant point
of time, they were drawing salary in the pay scale of ₹. 9000-
40500/-.
16. Therefore, on the basis of the materials placed before us
it is evident that the appellants were inducted into service on
different dates in the year 1976. They got promotion from time
to time and subsequently came to hold the post of Assistant
Manager in the year 1990 and 1992.
11
17. Respondent No. 9, although, was inducted into service
much prior to the appellants i.e. in 1973 and he was promoted
as standard clerk in 1978 but in 1983, Respondent No. 9
competed for welfare services and was selected. He was posted
as Welfare Officer at a higher pay. Later on, the post of Welfare
Officer was abolished and Respondent No. 9 was
accommodated in the cadre of Assistant Manager in the year
1996. The record goes to show that while the appellants were
promoted to the post of Assistant Manager in due course,
Respondent No. 9 was accommodated in such cadre as
Assistant Manager (Welfare Service).
18. Consequently, the pay packet of Respondent No. 9 was
higher than that of the appellants. Such facts indicate that
Respondent No. 9 was accommodated in the cadre of Assistant
Manager from a different source than that of the appellants.
Although, the appellants and Respondent No. 9 were
officiating in the same cadre of assistant manager,
nevertheless, their pay was fixed in accordance with the extant
rules governing the field commensurate to the pay they were
receiving before their induction in the promoted cadre.
12
19. Naturally, Respondent No. 9 was getting a higher pay in
his previous cadre i.e. welfare officer as compared to the pay
the appellants were receiving before their promotion to the
cadre of Assistant Manager. It also transpires from the
materials placed on record that after their promotion to the
post of Assistant Manager, the appellants were enjoying Pay
Band 4 (₹ 9000 – 40,500 with grade pay of ₹ 4800) whereas
Respondent No. 9, owing to the source of his appointment,
was granted pay band 4A (₹ 15,600 – 4200 with grade pay of ₹
6600). For such reason, basic pay of Respondent No. 9 was
fixed much higher than the pay of the appellants. Although, at
some point of time pay of Respondent No. 9 may have gone at
par with some of the appellants but owing to different scales of
pay, grade pay, increment and other parameters, such
respondent was found to be getting higher salary than that of
the appellants.
20. It has been contended on behalf of the appellants that
since the appellants and Respondent No. 9 were promoted to
the same posts of Assistant Manager and Deputy manager and
the respondent was much junior to the appellants, he could
13
not have been granted higher pay. It cannot be ignored that
the appellants and Respondent No. 9 came to hold the post of
Assistant Manager and Deputy Manager from different
sources. Their pay in the promotional posts was fixed in
accordance with the extant rules commensurate to their pay in
the previous post. Reliance was placed on DMC (P)’s Circular
dated April 24, 2010 dealing with clarification on pay fixation.
The said circular is reproduced here as follows:
D.M.C.(P)’s Circular NO. 07/ VIII of 2010-11
Date: 24/04/2010Sub : Clarification on pay-fixation of departmental
employees in cases of promotions / appointments to
higher posts.
It is clarified that the pay of (1) the qualified
departmental candidates to the post of Jr.Asstt.,
Driver, Teacher etc. and (2) promotees to higher posts
shall be fixed in the following manner :-
i) If it is seen that the pay of the departmental
employee after fixation is less than the minimum
entry pay (part E of CMFA’s Circular No.23 of 2008-
09 dt.07.03.09) of the higher post as applicable to the
direct recruit candidates to the post to which
appointment is given, the pay of the employee shall
14
be fixed in such minimum entry pay of such higher
post(s).
ii) If it is seen that the pay of the departmental
employees after fixation is higher than the minimum
entry pay of the higher post to which appointment is
given, the pay of the employee shall be fixed in the
same stage in the pay scale of the newly appointed
post. If there is no such stage the excess amount
shall be absorbed in next/ subsequent increments.
iii) The concerned employee may at his/ her option
retain his/ her old pay scale until the date on which
he/ she has earned his/ her next or any subsequent
increments on the old scale of pay. The option shall
be exercised within 30 days from the date of issue of
the order for appointment to the higher post. The
option once exercised is final.
iv) It has been decided that an undertaking from the
concerned employee is to be obtained before giving
effect of fixation of pay as stated in (i) above. A pro-
forma for undertaking is given overleaf.
v) The aforesaid clarification shall take effect from
01.01.2006 and arrear payment shall be admissible.
15
This is issued as clarification to Personnel Deptt’s
Circular No.2 of 1997-98 dated 07.04.1997.
This Circular is issued with the approval of the
Municipal Commissioner.
Sd/-
(A. Bandyopadhyay)
O.S.D. & D.M.C (Personnel)
21. Clause (ii) of the aforesaid circular clarified as to how the
pay of an employee would be fixed on his promotion. That is
how the pay of Respondent No. 9 was fixed on his promotion
to the post of Assistant Manager and Deputy Manager. We are
also not unmindful of the fact that owing to his previous post
as Welfare Officer in the welfare service, Respondent No. 9 was
enjoying the pay scale of 4A whereas, the appellants were
receiving their pay in pay scale 4. The two scales carried
different grade pay and quantum of increment might as well
be different.
22. The appellants placed reliance on Regulation 34A of the
corporation of Calcutta Service Regulation which provides
that, if an officer on his promotion to a higher post draws pay
at a higher rate than his senior officer due to fixation of his pay
in the higher post under the normal rules, or due to revision of
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pay scales, the pay of the officer senior to him shall be fixed at
the same stage and from the same date the junior draws the
higher rate of pay irrespective of whether the lien in the lower
post held by the senior officer is terminated at the time of re-
fixation of pay subject to the condition that both the senior and
junior officer belong to the same cadre and the pay scale of the
post in which they have been promoted are also identical. The
aforesaid regulation also clarifies that the benefits of this
Regulation shall not be admissible in the case where senior
officer exercise his option to retain unrevised scale of pay or
where the pay drawn by the senior officer in the lower post
before promotion to the higher post was also less than that of
his junior.
23. In the facts of the present case, the appellants claim to
be senior than Respondent No.9, though, both of them
belonged to different cadres and came from different sources.
Moreover, Respondent No.9 was enjoying higher pay, even in
the previous post of Assistant Manager, at least from 1996 and
possibly as the Welfare Officer as well. Respondent No.9 was
inducted in the post of Welfare Officer after qualifying an
17
examination for such post. Owing to his special posting as
welfare officer, on absorption in the cadre of Assistant
Manager, his pay was fixed at was fixed at ₹. 31380/- whereas
pay of the Appellant Nos. 1 and 3 was fixed at ₹. 26090/-
respectively and that of Appellant No.2 was fixed at ₹. 26670/-
No objection whatsoever was ever raised by the appellants, at
least since 1996, when he was absorbed into the cadre of
Assistant Manager. Therefore, the clarification appended to
Regulation 34A itself, disentitles the appellants from claiming
pay protection on the grounds set forth in the writ petition.
24. As noted above, the appellants have sought for pay
protection as against Respondent No.9. The appellants
superannuated from service with last pay of ₹. 26090/-, ₹.
27470/- and ₹. 26880/- respectively. On the other hand at the
time of his superannuation, Respondent No.9 was drawing a
pay of ₹. 33300/-. The appellants superannuated in June,
2012 and August, 2012 whereas, Respondent No.9.
superannuated at the end of June, 2013. This must have
entailed an additional increment to Respondent No.9.
18
Therefore, higher last pay of Respondent No.9 was also on
account of his longer service for at least, one additional year.
25. The writ petition filed by the appellants was dismissed on
another ground of stale claim. The cause of action for the writ
petition arose on August 14, 1996 whereas the appellant filed
the writ petition in 2017. Therefore, according to the
impugned order, the appellants approached the court with
much delay. Not only that, they went on receiving their pay
without any objection or protest, since then.
26. In Ramchandra Shankar Deodhar (Supra), the Hon’ble
Supreme Court held that,
“10. The first preliminary objection raised on behalf
of the
respondents…………………………………………………
……
Moreover, it may be noticed that the claim for
enforcement of the fundamental right of equal
opportunity under Article 16 is itself a fundamental
right guaranteed under Article 32 and this Court
which has been assigned the role of a sentinel on the
qui vive for protection of the fundamental rights
cannot easily allow itself to be persuaded to refuse
19
relief solely on the jejune ground of laches, delay or
the like.”
27. Similarly, in Haryana State Electricity Board (Supra),
the Punjab and Haryana High Court’s decision that the case
with regard to confirmation where the affected person has
been filing representations could not be considered to be case
where relief could be denied on the ground of latches and
delay, was upheld by the Hon’ble Supreme Court.
28. In P.L. Shah (Supra), the Hon’ble Supreme Court
observed in the following terms. That’s to say:
“7. In the circumstances, the Tribunal was not right
in rejecting the application solely on the ground that
the order reducing the subsistence allowance having
been passed on 6-5-1982 the Tribunal could not
entertain an application for directing the Government
to revise the order dated 6-5-1982 even in respect of
any period within three years from the date on which
the Tribunal commenced to exercise its powers
having due regard to the date of the application also
since we feel that the cause of action in respect of
such prayer arises every month in which the
subsistence allowance at the reduced rate is paid.
We therefore set aside the order of the Tribunal and
remand the case to it to dispose of the application
20
made by the appellant on merits. We make an order
accordingly.”
29. In the case at hand, the cause of action first arose in
1996. The appellants went on receiving their pay which was
less than Respondent No.9 since 1996. The appellants then
did not raise any objection to such fixation. They first raised
the issue with the authorities when they superannuated in
2012 which was of course, disposed in 2017. It is true, lesser
or erroneous fixation of pay, if at all erroneous, is causing
injustice to the appellant from month to month but there is no
explanation offered for not taking up the issue at the very
outset when it occurred in 1996. Such conduct on the part of
the appellants is not only infested with delay but also invites
the principle of acquiescence and tacit acceptance as well.
30. In K. S. Jagannathan (Supra), the Hon’ble Supreme
Court observed that,
“20.There is thus no doubt that the High Courts in
India exercising their jurisdiction under Article 226
have the power to issue a writ of mandamus or a
writ in the nature of mandamus or to pass orders
and give necessary directions where the Government
21
or a public authority has failed to exercise or has
wrongly exercised the discretion conferred upon it by
a statute or a rule or a policy decision of the
Government or has exercised such discretion mala
fide or on irrelevant considerations or by ignoring the
relevant considerations and materials or in such a
manner as to frustrate the object of conferring such
discretion or the policy for implementing which such
discretion has been conferred. In all such cases and
in any other fit and proper case a High Court can, in
the exercise of its jurisdiction under Article 226, issue
a writ of mandamus or a writ in the nature of
mandamus or pass orders and give directions to
compel the performance in a proper and lawful
manner of the discretion conferred upon the
Government or a public authority, and in a proper
case, in order to prevent injustice resulting to the
concerned parties, the Court may itself pass an order
or give directions which the Government or the public
authority should have passed or given had it
properly and lawfully exercised its discretion.”
31. Similarly, in the case of Secretary, Cannanore District
Muslim Educational Association (Supra), on the question of
jurisdiction of the High Court, the Hon’ble Supreme Court
noted that,
22
48.This Court has also taken a very broad view of
the writ of Mandamus in several decisions. In the
case of The Comptroller and Auditor General of India,
Gian Prakash, New Delhi and another v. K.S.
Jagannathan and another – (AIR 1987 SC 537), a
three-Judge Bench of this Court referred to
Halsbury’s Laws of England, Fourth Edition, Volume
I paragraph 89 to illustrate the range of this remedy
and quoted with approval the following passage from
Halsbury about the efficacy of Mandamus :
“..is to remedy defects of justice and accordingly it
will issue, to the end that justice may be done, in all
cases where there is a specific legal right and no
specific legal remedy for enforcing that right, and it
may issue in cases where, although there is an
alternative legal remedy yet that mode of redress is
less convenient beneficial and effectual.”(See para
19, page 546 of the report)
49.In paragraph 20, in the same page of the report,
this Court further held :……………………..
“…and in a proper case, in order to prevent injustice
resulting to the concerned parties, the Court may
itself pass an order or give directions which the
Government or the public authority should have
passed or given had it properly and lawfully
exercised its discretion.”
23
32. There is no doubt that the High Court has the
jurisdiction and power to issue directions in appropriate cases
of injustice and to pass an order or give directions which the
Government or the public authority should have passed or
given had it properly and lawfully exercised its discretion.
33. In R. Swaminathan (Supra), in a situation identical to
the facts of the present case, the Hon’ble Supreme Court noted
that,
“7. For the fixation of pay on promotion, therefore,
one has to first look at the pay being drawn by the
promotee in the lower post. This pay in the lower post
must be increased by one increment in that pay
scale. His initial pay in the time-scale of the higher
post is fixed at the stage next above this notional pay
arrived at in the lower post.
8. The fixation of this pay in the higher post is,
however, subject to the proviso. If the person so
promoted has earlier officiated in that higher post or
substantively held that higher post for short or long
duration, then, (1) his initial pay which is fixed under
Rule 22(I)(a)(1) shall not be less than the last pay
which he drew when he last held the higher post. (2)
The period during which he drew that pay on such
24
last and any previous occasions shall count for
increments in the time-scale of the pay for the higher
post. For example, if the promotee had previously, on
various occasions, officiated in that higher post for
different periods, and if the sum total of periods for
which he so officiated is more than 12 months, he
would be entitled to an increment in that higher pay
scale. His initial pay, therefore, on his regular
promotion will be fixed taking into account not merely
his entitlement on the basis of his notional pay in the
pay scale of the lower post, but also taking into
account the last pay drawn by him while he was
officiating in the higher post and also counting the
previous periods during which he so officiated for his
increment in the higher pay scale. The Department
has also, in this connection, drawn our attention to
Fundamental Rule 26 which, inter alia, provides as
follows:
“FR 26. (a) All duty in a post on a time-scale
counts for increments in that time-scale:
Provided that, for the purpose of arriving at the
date of the next increment in that time-scale, the
total of all such periods as do not count for
increment in that time-scale, shall be added to
the normal date of increment.”
25
9. We are, however, in the present case, concerned
basically with Fundamental Rule 22(I)(a)(1) and the
proviso to Fundamental Rule 22 because, in all these
appeals, the junior employees who have got higher
pay on promotion than their seniors, had officiated in
the promotional post for different periods on account
of local ad hoc promotions granted to them. This is
because the Department of Telecommunications is
divided into a number of circles within the country.
The regular promotions from the junior posts in
question to the higher posts are on the basis of all-
India seniority. The Heads of Circles have, however,
been delegated powers for making local officiating
arrangements based on Circle seniority to the higher
posts in question against short-term vacancies up to
120 days in the event of the regular panelled officers
not being available in that Circle. This period of 120
days was subsequently revised to 180 days. Under
this provision for local officiation, the seniormost
official in the Circle is allowed to hold the charge of
the higher post for a limited duration. This is purely
out of administrative considerations and is resorted
to in order to tide over the exigencies of work. This
practice, we are informed, has been followed in all
Circles in the Department of Telecommunications
since 1970. This is because, at times it is not
26
possible to fill up all the vacancies in a particular
Circle for various reasons such as non-joining by a
particular person, chain promotions or short-term
vacancies arising on account of leave etc. It is
submitted before us by the Department that it is not
always possible to convene meetings of the
departmental promotion committee for filling up all
the posts which are only available for short periods
on all-India basis because of administrative
problems. To fill up this gap, the Government has
issued instructions from time to time to allow local
officiating arrangements in the interest of work. The
Department has also pointed out that all the
aggrieved employees in these appeals have availed
of such officiating promotions as and when such
occasion arose in their Circle and they were eligible.
The juniors, therefore, in each of these cases who
have received a higher pay on their regular promotion
than the seniors, have received this higher pay on
account of the application of the proviso to
Fundamental Rule 22.”
34. In view of the aforementioned facts, the Hon’ble Supreme
Court, in the said case, held thus,
“13. The employees in question are, therefore, not
entitled to have their pay stepped up under the said
Government Order because the difference in the pay
27
drawn by them and the higher pay drawn by their
juniors is not as a result of any anomaly; nor is it a
result of the application of Fundamental Rule
22(I)(a)(1).”
35. We have noted hereinbefore that since the appellants and
Respondent No.9 were inducted into the post of Assistant
Manager from two different sources i.e. on regular promotion
from the feeder posts and that from Welfare Officer, they could
not have been treated at par for the purpose of fixation of their
pay. Such view was laid down by the Supreme Court in the
case of O.P. Saxena (Supra). The Supreme Court in the said
Case observed that,
“21. Apart from the fact that the application of the
respondent before the Central Administrative
Tribunal which was filed in July 1991 was highly
belated, the position in this case is no different from
that of Union of India v. O.P. Saxena. In this case
also the respondent and Shri Sood were appointed to
the stationary post from two different sources. The
respondent was Driver Grade-C when he was so
appointed while Shri Sood was appointed to the
stationary post from the post of Driver Grade-A.
Therefore, for the reasons contained in the judgment
28
in CA No. 8852 of 1996 the order of the Tribunal has
to be set aside.”
36. In the case of Manish Gupta (Supra), in view of the
provisions of Rule 55 (4) of the West Bengal Service Rules it
was held by the Hon’ble Supreme Court that,
“we cannot say that there is no merit in the
submission of Shri. Sanghi that in view of the proviso
to Rule 55(4) the respondent cannot claim the fixation
of his basic pay on the same level as the basic pay
drawn by Hrishikesh Roy. In our view the appellants
could reasonably proceed on the basis that in view of
the proviso contained in Rule 55(4) of the Rules the
pay of the respondent cannot be fixed at the same
level as that the Hrishikesh Roy and, therefore, in
fixing the basic pay of the respondent it cannot be
said that the appellants had wilfully and deliberately
disobeyed the directions given by the Appellate
Bench in its order dated September 20, 1989.”
37. As regards the ‘principle of equal pay for equal work’, the
Hon’ble Supreme Court, in the case of G. Sreenivasa Rao
(Supra) laid down that,
“14. We do not agree with the High Court/Tribunal.
Doctrine of “equal pay for equal work” cannot be put
in a strait-jacket. Although the doctrine finds its place
29
in the Directive Principles but this Court, in various
judgments, has authoritatively pronounced that right
to “equal pay for equal work” is an accompaniment of
equality clause enshrined in Articles 14 and 16 of the
Constitution of India. Nevertheless the abstract
doctrine of “equal pay for equal work” cannot be read
in Article 14. Reasonable classification, based on
intelligible criteria having nexus with the object
sought to be achieved, is permissible.
15. “Equal pay for equal work” does not mean that
all the members of a cadre must receive the same
pay packet irrespective of their seniority, source of
recruitment, educational qualifications and various
other incidents of service. When a single running pay
scale is provided in a cadre the constitutional
mandate of equal pay for equal work is satisfied.
Ordinarily grant of higher pay to a junior would ex
facie be arbitrary but if there are justifiable grounds
in doing so the seniors cannot invoke the equality
doctrine. To illustrate, when pay fixation is done
under valid statutory rules/executive instructions,
when persons recruited from different sources are
given pay protection, when promotee from lower
cadre or a transferee from another cadre is given pay
protection, when a senior is stopped at efficiency bar,
when advance increments are given for
30
experience/passing a test/acquiring higher
qualifications or incentive for efficiency; are some of
the eventualities when a junior may be drawing
higher pay than his seniors without violating the
mandate of equal pay for equal work. The differentia
on these grounds would be based on intelligible
criteria which has rational nexus with the object
sought to be achieved. We do not therefore find any
good ground to sustain the judgments of the High
Court/Tribunal.”
38. Thus, in the facts and circumstances of the present case,
it transpires that the appellants and Respondent No.9 came to
be appointed as Assistant Manager from different sources. It is
also evident that Respondent No. 9 was drawing more salary
than that of the appellants even in post prior to his promotion
as Deputy Manager which ultimately resulted in fixation of
higher pay in such post in comparison to the appellants.
Moreover, Respondent No.9 worked for one additional year
before his superannuation. Such action on the part of the
authorities does not seem to violate any of the Rules,
Regulations and Circulars with regard to fixation, at any
stretch of imagination.
31
39. Therefore, in the light of discussions made herein, we
find no infirmity in the findings arrived at by learned Single
Judge and no reason to interfere with the impugned judgment
and order. The same is hereby affirmed.
40. Accordingly, the instant appeal being APO No. 36 of 2024
is hereby dismissed without any order as to costs and thus,
disposed of.
41. Urgent photostat certified copy of this order, if applied
for, be supplied to the parties on priority basis upon
compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
42. I agree.
[DEBANGSU BASAK, J.]