Full Judgment Text
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PETITIONER:
STATE OF WEST BENGAL AND ORS. ETC.
Vs.
RESPONDENT:
DEBDAS KUMAR AND ORS. ETC.
DATE OF JUDGMENT19/02/1991
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
SHARMA, L.M. (J)
CITATION:
1991 SCR (1) 517 1991 SCC Supl. (1) 138
JT 1991 (2) 36 1991 SCALE (1)271
ACT:
West Bengal Services (Revision of Pay and Allowance)
Rules 1970-Schedule I, Part-B and Notification dated
November 19, 1974 sub-para (ii) of Part IV 3 ‘Diploma
holders in engineering’-Whether to be termed as Sub-
Assistant Engineers and given the benefit of the post and
pay scale.
HEADNOTE:
The respondents in these appeals are diploma holder
engineers employed in the various departments of the
Government of West Bengal as Operator-cum-
mechanics/Electricians etc. in the pay scale of Rs.230-425.
Consequent upon the amendment of West Bengal Services
(Revision of Pay and Allowances) Rules, 1970 the
respondents filed writ petitions before the High Court
claiming that by virtue of sub-para (ii) of Para IV of the
Notification dated 19.11.74 they are to be termed as Sub-
Assistant Engineers and given the benefit of that post and
scale of pay of Rs.300-600, as they are diploma holders
in engineers. It was asserted by them that the benefit of
the said Notification had been given to similarly situated
persons in the other department of the State Government but
they had been subjected to discriminatory treatment by
denying to them those benefits. The State Government
contended before the High Court that sub-para (ii) Para IV
of the notification applied only to Overseers, Estimators
and Sub-Overseers already working in the pay scale of
Rs.300-600 and not to Operator-cum-Mechanics/Electricians
etc. whose scale of pay was Rs.230-425. According to the
State, the said Notification was intended merely to change
the designation of various technicians and engineers having
identical scale of pay Rs.300-600 to secure uniformity of
designation of those employees and since the recruitment
qualification of the respondents was much less than the
diploma in engineering, they were not entitled to be
redesignated as Sub-Assistant Engineers. The learned
single Judge of the High Court allowed the writ petitions
holding that the case of the respondents fell within the
purview of the November 1974 notification and they were
entitled to be termed as Sub-Assistant Engineers. The State
Government preferred an appeal against the said order before
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the Division Bench. The Division Bench of the High Court,
though held that sub-para (ii) of para IV of the
Notification dated 19.11.1974 could not be
518
construed to include the Operator-cum-
Mechanics/Electricians, who were drawing the pay scale of
Rs.230-425, dismissed the appeals with the observation that
the respondents/writ petitioners should have been admitted
to the benefit of the pay scale of Rs.300-600 long before
others holding the same position as the writ petitioners
had been granted the benefits. The State Government has
now filed these appeals after obtaining special leave.
Dismissing the appeals, this Court,
HELD: The reasons for amending the 1970 Rules by the
Notifications dated 11.3.1974 and 19.11.1974 was the
decision of the Government to remove the anomalies in the
existing rule so as to attract men of quality and also with
a view to remove frustration among those having specialised
knowledge of a technical nature.[525C-D]
The persons brought under the category of ‘other
diploma holder engineers’ can only be the persons like the
Operator-Cum-Mechanic/Electrician with diploma in
engineering and working in various departments in the
Engineering Service. [525F]
Clause (iv) of Para IV of the Notification which states
that Gazetted status is conferred on the members of the
Subordinate Engineering Services and all sub-Assistant
Engineers also relates to these two categories, that is, the
Overseers, Sub-Overseers and Estimators who are already
members of the Subordinate Engineering Service and the
‘other diploma holder engineers’ now termed as Sub-Assistant
Engineering. [525G-H]
There is a concurrent finding that these respondents
have been discriminated and the State Government had acted
arbitrarily without any rational basis by conferring
benefits of the Notification to 17 other employees in other
departments while denying the said benefits to the said
respondents in the Agriculture Department.[526E]
Chief Secretary to Government of A.P. v. Cornelius,
[1981] 2 SCR 930; State of Punjab v. Joginder Singh, [1963]
Supp.2 SCR 169, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1196 of
1986 with 830 of 1991.
From the Judgment and Order dated 19.4.1985 of the
Calcutta
519
High Court in F.M.A.T.Nos. 153 of 1980 and 326 of 1983.
N.S. Hegde, Additional Solicitor General, Tapas Ray,
D.K. Sinha, J.R.Das and D.N. Mukherjee for the Appellants.
P.P. Rao, A.K. Ganguli, Ajit Chakraborty, A.
Mariarputham. Mridula Ray, A. D. Sikri and B.B. Tawakley for
the Respondents.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. The West Bengal Services (Revision of
Pay and allowance) Rules, 1970, (hereinafter referred to as
1970 Rules), issued in exercise of the power conferred by
the proviso to Article 309 of the Constitution of India,
vide Notification No. 5212.F dated 30th December, 1970 on
the basis of the Pay Commission Report specified the revised
scales of pay of the government employees in various
departments with effect from 1st April, 1970. Schedule I of
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the 1970 Rules relates to services generally.
The Government of West Bengal issued Notification No.
10303.F dated 19th November, 1974, amending the 1970 Rules.
The Notification material for the purpose of these cases is
set out below:
"NOTIFICATION
No. 10303.F, Dated the 19th November, 1974.
In exercise of the powers conferred by the proviso
to Article 309 of the Constitution of India, the
Governor is pleased to direct that the following
amendment shall be made in the West Bengal Services
(Revision of Pay and Allowance) Rules, 1970,
Published with Finance Department Notification No.
5212,F, dated the 30th December. 1970, as amended
from time to time, namely:
AMENDMENTS
In Schedule I, Part-B, to the said rules, the
following amendments shall be made:
1. In the cadre of Assistant Engineers under
different Departments, the Intermediate Selection
Grade shall be at 15 per cent of the Cadre in the
scale as shown in Column (3) of the Schedule.
520
II. In departments/offices having services/posts as
shown in Column (i) in the scale as shown in Column
(2) of the Schedule, there shall be no Intermediate
or New Selection Grade as the case may be at 10 per
cent of the services/posts (except in the cadre of
Assistant Engineer) in the scale as shown in Column
(3) of the Schedule.
III. From 1st August 1974, the New/Intermediate
Selection Grade shall be raised to 15 per cent,
from 10 per cent.
IV. (i) Sub-Assistant Engineers having Engineering
Degree shall have an initial start in the existing
scale of Rs.300-600 at the stage of Rs.360 per
month. They will also get the benefit of age
relaxation for direct recruitment either through
the Public Service Commission or for ad hoc
appointments.
(ii) All Test Relief Overseers and other diploma
holder Engineers will henceforth be termed as Sub-
Assistant Engineers.
(iii) Sub-Assistant Engineers with L.E.E. who have
supervisor’s licence from the Commerce and
Industries Department will get a qualification pay
of Rs.50 per month.
(iv) Gazetted status is hereby conferred on the
members of the Subordinate Engineering Service and
all Sub-Assistant Engineers.
V. The existing scale, namely Rs.375-10-415-15-610-
20-650 prescribed for the members of the non-
gazetted Health Service having M.B.B.S., or M.M.F.
qualifications shall be changed to Rs. 375-10-415-
15-610-20-650 (E.B. after 8th and 18th stages)
higher initial start at Rs.450.
VI. All Licentiate Medical Officers in the West
Bengal Health Service (Non-Gazetted) who have
completed 10 years of service shall be eligible for
appointment in the West Bengal Health Service
(Gazetted) within the existing cadre strength of
the basic grade provided they are found suitable
for the basic grade in consultation with the Public
Service Commission.
521
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VII. The New or Intermediate Selection Grades
sanctioned above shall be admissible after 10 years
of service in the grade next below.
VIII. Unless otherwise stated above and in the
Schedule; these amendments shall be deemed to have
come into effect from 1st day of March, 1974.
IX. The Notifications bearing No. 2194.F, 2195.F
and 2197, dated the 11th March, 1974, stand
cancelled.
X. No prior consultations with the Public Service
Commission shall be necessary for making
appointments to New/Intermediate Selection Grades
sanctioned in this Notification."
The said Notification contained a Schedule. The
relevant items dealing with Engineering is provided as
follows:
SCHEDULE
_______________________________________________________________
Service/ Existing scale New/Intermediate
Posts Rs. Selection
Grade Rs.
________________________________________________________________
1. Engineering
Services/Posts.
i) Assistant 475-30-685-35-1000- 825-50-875-60-1415.
Engineer 50-1150, with selec-
tion grade for 5 per
cent of the cadre on
1150-50-1350.
ii) Executive 825-50-875- 1535-60-1775.
Engineer 60-1475.
iii) Sub-Assistant 300-10-430-15-600 560-20-700-25-
Engineer with higher initial 825(a).
start at Rs. 330/-.
____________________________________________________________
The respondents in Civil Appeal No. 1196 of 1986 and
the respondents in the other Civil Appeal arising out of
S.L.P. (Civil) No. 5298 of 1987 are diploma holder engineers
employed in various
522
departments of the Government of West Bengal in the post of
Operator-cum-Mechanics/Electricians etc. in the scale of pay
of Rs.230-425. These respondents filed two writ petitions
bearing No. C.R.. Nos. 6053 (W) of 1978 and C.R. No.6593(W)
of 1978 before the High Court of Calcutta, claiming that by
virtue of sub-para (ii) of Para IV of the Notification No.
10303.F dated 19th November, 1974, the writ petitioners who
are diploma holders in engineering are to be termed as Sub-
Assistant Engineers and given the benefit of that post and
the scale of pay of Rs.300-600. They contended inter alia
that the benefit of the aforesaid Notification was given to
similarly situated persons in the other deparptments of the
Government of West Bengal and the writ petitioners employed
in the Agriculture Department had been subjected to
discriminatory treatment.
The State Government contended before the High Court
that sub-para (ii) of Para IV of the said Notification
applies only to the Overseers, Estimators and Sub-Overseers
already holding the scale of pay of Rs.300-600 and not to
Operator-cum-Mechanics/Electricians etc.like the writ
petitioners whose scale of pay is Rs.230-425. According to
the State, the said Notification was merely one changing the
designation of various techniques and engineers having scale
of pay of Rs.300-600 but having different designations and
was meant to give uniformity of designation to all the
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aforesaid officials in the same scale of pay of Rs.300-600.
It was also the contention of the State that they being
Operator-cum-Mechanics whose recruitment qualifications is
much less than the the diploma in engineerings, the writ
petitioners cannot or are not entitled to be redesignated as
Sub-Assistant Engineers. These contentions were repelled by
the learned single Judge who by judgment dated 19th
September, 1979, allowed the writ petitions. In the
Judgment, Sabyasachi Mukharji, J., (as he then was) held as
under:
"Now it is important to emphasise that the said
Notifications covered ‘other diploma holder
Engineers’. Now, if those who were engineers or
those for whose recruitments qualification of
being engineers was essential there was no
necessity to indicate that they should be
henceforth be termed as Sub-Assistant Engineers.
They are Engineers, Sub-Assistant or otherwise,
before they were called by the deeming provision
of the amended Notifications referred to
hereinbefore."
In construing sub-para (ii) of Para IV of the said
Notification, the learned Judge said thus:
523
"The aforesaid clause in the Notifications can
only mean, in my opinion, that even though the
persons who come within the purview of this amended
clause of the Notification will for the limited
purpose of their pay, allowances and other
financial emoluments be termed from the date of
coming into operation or from the mentioned in the
Notification of 1974 that is to say from 1st of
March, 1974 as Sub-Assistant Engineers though they
are, in fact, not engineers. That in my opinion,
is clear from the language used."
The learned single Judge noticed that the history
preceding the Notification supported the clear language used
and persons holding different positions became by virtue of
the Notification entitled to be termed as Sub-Assistant
Engineers irrespective and independent of whether by
fortuitous circumstances some of the incumbents who got the
benefits of the said Notification are also qualified
engineers. Accordingly, it was held that the writ
petitioners come within the purview of the Notification for
purpose of the the pay-scale and the rule was made absolute.
The State Government carried the matter in appeal. The
Division Bench of the High Court vide judgment and order
dated 19.4.1985, however, affirmed the judgment while
holding that sub-para (ii) of Para IV of the Notification
dated 19.11.1974 cannot be construed to include the
Operator-cum-Mechanics/Electricians who are holders of
diploma in engineering and drawing the scale of pay of Rs.
230-425. The appeal was dismissed with the observation that
the writ petitioners should have been admitted to the
benefit of the scale of pay of Rs.300-600 with higher
initial start long before others holding the same position
as the writ petitioners have been granted the benefits and
that great injustice had been done to the writ petitioners
by keeping them in the panel since 1974 without taking any
steps for their appointments to the post of Sub-Assistant
Engineers although others have been appointed to the said
post in implementation of the impugned Notification.
Being aggrieved by the appellate judgment, the State
has moved this Court under Article 136 of Constitution.
Leave is granted in S.L.P.(C) No. 5298 of 1987.
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The main contention urged on behalf of the appellants
is two-fold. It is contended that the Division Bench having
come to the
524
specific conclusion that the Notification in question is
not applicable to the respsondents herein, the writ
petitions ought to have been dismissed. The further
contention is that the appointment of 17 other persons
without considering the case of the respondents even if
irregular cannot be the basis for making the Notification
applicable to the respondents.
Before considering these propositions put forward by
Mr. Hegde, Addl. Solicitor General, appearing for the
appellants, we shall dispose of the preliminary objection
raised by Mr. P.P. Rao, counsel for the respondents. It was
pointed out that no appeal has been preferred by the State
of West Bengal against the judgment dated 25.6.1982 in the
case of Ranjit Kumar Ghosh & Ors. v. The State of West
Bengal & Ors., being C.R. No. 923 (W) of 1980, granting
similar relief and that the rule of law has become final so
far as that matter is concerned. Relying on the decision of
this Court in Chief Secretary to Govt. A.P. v. Cornelius,
[1981] 2 SCR 930, it was argued that the State cannot
agitate the case of only few others. It is not disputed
that the judgment against which no appeal has been preferred
is only based on the judgment in the main case which is now
pending before us for consideration. The Court in State of
Punjab v. Joginder Singh, [1963] Supp.2 SCR 169, where a
similar objection was raised overruled the same observing at
page 177 thus:
"In our opinion, the true position arising, if the
present appeal by the State Government should
succeed, would be that the finality of the orders
passed in the other three writ petitions by the
Punjab High Court would not be disturbed and that
those three successful petitioners would be
entitled to retain the advantages which they had
secured by the decision in their favour not being
challenged by an appeal being filed. That however
would not help the present respondent who would be
bound by our judgment in this appeal and besides,
so far as the general law is concerned as
applicable to everyone other than the three writ
petitioners (who would be entitled to the benefit
of decisions in their favours having attained
finality), the law will be as laid down by this
Court. We therefore overrule the preliminary
objection."
It appears that this pronouncement was not noticed in
Cornelius case (supra) where the facts were also not
identical. We have, therefore, no hesitation in overruling
the preliminary objection.
525
The appellants, in our opinion, cannot however, succeed
on the merits. The basis of the respondents’ claim is that
they are diploma holder engineers who are to be designated
as Sub-Assistant Engineers for the purpose of the revised
pay-scale by virtue of the Notification dated 19th November,
1974. The learned single Judge had construed the expression
’other diploma holder engineers’ in clause (ii) of Para IV
of the said Notification as covering persons like the
respondents who are holders of diploma in engineering. The
Division Bench in holding a contrary view overlooked the
fact that the posts of Overseers, Estimators and Sub-
Overseers were already covered under the category of Sub-
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Assistant Engineers even under the unamended rules and were
in the pay-scale of Rs.300-600 whereas the respondents
holding the post of Operator-cum-Mechanics/Electricians were
diploma holder engineers in the scale of pay of Rs.230-425.
As noticed by the learned single Judge, the reasons for
amending the 1970 Rules by the Notifications dated 11.3.1974
and 19.11.1974 was the decision of the Government to remove
the anomalies in the existing rule so as to attract men of
quality and also with a view to remove frustration among
those having specialised knowledge of a technical nature.
This factual background was not considered by the Division
Bench while considering the scope of the amended provisions.
The appellants admitted that in 1970 the pay-scale of
Overseers and Sub-Overseers was revised and both Overseers
and Sub-Overseers were brought within the scale of Rs.300-
600. The Division Bench has recorded a finding to the
effect that the Overseers. Estimators and Sub-Overseers
were already included in the categories of Sub-Assistant
Engineers under Schedule I Part-B of the 1970 Rules even
before the same was amended by the Notification.
The persons brought under the category of ’other
diploma holder engineers’ can only be the persons like the
Operator-cum-Mechanic/Electrician with diploma in
engineering and working in various departments in the
Engineering Service. It is to be noticed that the
respondents have been absorbed in the posts of Operator-cum-
Mechanics after having attended to the training sponsored
under the scheme ’Training of Educated Unemployed Youths’ in
the operation of river lift, deep tubewells and shallow
tubewells etc. Clause (iv) of Part IV of the Notification
which states that Gazetted status is conferred on the
members of the Subordinate Engineering Services and all Sub-
Assistant Engineers also relates to these two categories,
that is, the Overseers, Sub-Overseers and Estimators who are
already members of the Subordinate Engineering Service and
the ’other diploma holder engineers’ now termed as Sub-
Assistant Engineers.
526
It has been contended for the appellants that by
construing the Notification as including Operators-cum-
Mechanics in the lower time scale as Sub-Assistant Engineers
and giving them a higher scale, there would be a division
amongst the Operators-cum-Mechanics in the matter of their
pay-scale and such an anomly would not have been
contemplated by the rule makers. There is no force in this
contention. It is well-settled that difference in pay of
employees belonging to the same cadre post or educational
qualification is constitutionally valid and permissible and
is not violative of Articles 14 and 16 of the Constitution.
The post of Sub-Assistant Engineer is a direct recruitment
post. It appears that the Division Bench assumed that the
post of Sub-Assistant Engineers were ultimately a
promotional post for the Operators-cum-Mechanics through
intermediary promotions in intermediary grades. This is
incorrect. Under the Rules, the post of Sub-Assistant
Engineers is not at all a promotional post for any
categories of employees in the State, on the contrary, it is
a direct recruitment post. It is not contested that 17 other
employees similarly placed as the respondents herein were
given the benefits of the said amended Notifications and
were conferred both status of Sub-Assistant Engineers and
also the pay-scale thereof for the reason that they were
also diploma holder engineers though they were not in the
pay-scale of Rs.300-600. This is a concurrent finding that
these respondents have been discriminated and the State
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Government had acted arbitrarily without any rational basis
by conferring benefits of the Notification to 17 other
employees in other departments while denying the said
benefits to the said respondents in the Agriculture
Department.
It has been brought to the notice of the Court that the
Operators-cum-Mechanics would be absorbed in the existing
vacancies in the category of Sub-Assistant Engineers since
injustice had been done to the respondents by keeping them
in the panel since 1974 without taking any steps for their
appointments as Sub-Assistant Engineers along with others
when such appointments were made and the assurance made
before the Court. The fact that in implementation of the
judgment of the learned single Judge, the respondents have
already been admitted to the benefits of the amended Rule,
is an additional reason for this Court not to interfere with
the impugned judgment.
We are, therefore, of the view that both the civil
appeals have only to be dismissed. We do so accordingly.
The parties are directed to bear their respective costs.
Y.L. Appeals dismissed.
527