Full Judgment Text
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CASE NO.:
Appeal (civil) 793 of 1998
PETITIONER:
State of Mizoram & Another
RESPONDENT:
Mizoram Engineering Service Association & Anr.
DATE OF JUDGMENT: 06/05/2004
BENCH:
Brijesh Kumar & Arun Kumar.
JUDGMENT:
JUDGMENT
ARUN KUMAR, J.
This appeal is directed against the judgment dated 28th
February, 1997 passed by a Division Bench of the Gauhati High
Court. By the Impugned judgment the Division Bench dismissed
the appeal against the judgment dated 17th May, 1996 passed by
the learned Single Judge. The learned Single Judge had allowed
a writ petition filed by respondent herein challenging a notification
No.G.12011/3/87 F.Est dated 3rd February, 1989 whereby certain
categories of engineers in the State Engineering Service had been
excluded for purposes of revision of pay scales accepted by the
State vide Notification No.G.12011/3/87F.Est dated 19th January,
1989. The Mizoram Engineering Service Association (respondent)
has been demanding higher pay scales for its members. The
background is that prior to 1971 what is now known as the State
of Mizoram was a district called the Lushai Hills District within the
State of Assam. From 1971 to 1986 Mizoram was a Union
Territory under the North Eastern Areas Reorganisation Act, 1971.
It attained full state-hood on 20th February, 1987. In 1974 when
the State was a Union Territory, the Government of India
constituted a Departmental Pay Committee to suggest scales of
pay and allowances for employees of Mizoram on the pattern of
Central Government employees vide Ministry of Home Affairs letter
No.1.3.1973.MP dated 4th November, 1974. On the
recommendation of the said Departmental Pay Committee, the
Government of India revised the scales of pay and allowances for
the employees of the State of Mizoram w.e.f. 1.1.1973. On a
demand made by Superintending and Executive Engineers of the
respondent Association for equalizing their respective scales of
pay with their counterparts in the Central Public Works
Department, the Government of India vide letter dated 16.10.1983
intimated to the Secretary to the Mizoram Administration, Public
Works Department conveying the sanction of President of India for
revision of pay scales of the Engineers (Group ’A’ posts) in tune
with the pay scales enjoyed by the engineers in the CPWD.
The Government of India accepted the Fourth Central Pay
Commission Report regarding revision of pay scales for Group A,
B, C, D & E posts in the Central Civil Services w.e.f. 1.1.1986. The
recommendations of the Fourth Central Pay Commission accepted
by the Government of India became applicable for the civil services
in Mizoram also. The Central Civil Services (Revised Pay) Rules,
1986 came into force w.e.f. 1.1.1986 and they were made
applicable to the employees forming part of the civil services in
Mizoram. Certain representations were made on behalf of
employees for removal of anomalies resulting from the Fourth
Central Pay Commission Report. In 1987 an Anomalies
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Committee was appointed to look into the alleged anomalies and
make suitable recommendations. The recommendations of the
Anomalies Committee created further anomalies rather than
resolving them. On 7th November, 1988 another Anomalies
Committee was appointed. The report of the Anomalies
Committee was accepted by the Government of the State of
Mizoram. A notification No. G 12011/3/87F.Est. dated 19th
January, 1989 accepting the recommendations was issued. Soon
thereafter the State Government issued another notification dated
3rd February, 1989 (the impugned notification) to the effect that the
scales of pay for Group ’A’ officers as mentioned in paras 28 of
Schedule A and Schedule B did not include pay scales for MCS
officers/MPS officers whose pay scales were governed by their
respective service rules. The notification further excluded
engineering officers of the rank of Executive Engineer and
Superintending Engineer from the benefits of the notification dated
19th January, 1989. This notification was challenged by the
respondent Association by filing a Writ Petition in the Gauhati High
Court. In the Writ Petition the first prayer was with regard to
quashing the notification dated 3rd February, 1989 which excluded
the Executive Engineers and the Superintending Engineers from
getting the benefit of revised pay scales under the notification of
the State Government dated 19th January, 1989. The second
prayer was with respect to the Chief Engineers and Additional
Chief Engineers seeking directions that they should get the
conversion scale of pay of Rs.5900-6700 and Rs.4500-5700
respectively instead of the revised scales of pay prescribed for
them by the State Government. The scale of Rs.5900-6700 for the
Chief Engineer and Rs.4500-5700 for Additional Chief Engineer
demanded by the respondent Association was as per the
recommendations of the 4th Central Pay Commission and was the
same as was being allowed to incumbents holding equivalent
posts in the Central Public Works Department. The learned Single
judge allowed the Writ Petition granting both the prayers of the Writ
Petitioner. The appeal against the judgment of the learned Single
Judge was dismissed by the Division Bench. The present appeal
is directed against the said judgment of the Division Bench.
We have heard the learned counsel for the parties at length.
At the outset we may note that the learned counsel for the
appellant has not seriously challenged the impugned judgment so
far as it grants relief to the Executive Engineers and
Superintending Engineers by quashing the Notification dated 3rd
February, 1989. The challenge in the appeal is mainly directed
against the scale of pay granted to the Chief Engineers and
Additional Chief Engineers i.e. Rs.5900-6700 and Rs.4500-5700
respectively. In this connection following points have been raised:
1. The base year for purposes of revision of pay scales of
Chief Engineer and Additional Chief Engineer should be
taken as 1973 and not 1983 even though the revision was
being taken into consideration w.e.f. 1.1.1986 as per the
Fourth Central Pay Commission Report which had been
accepted by the State Government.
2. In respect of Chief Engineer, the recommendation of the
Pay Anomalies Committee which was accepted vide
Notification dated 19th January, 1989 was to the effect that
only the existing incumbent would get the scale of
Rs.5900-6700 and future entrants would be entitled to pay
scales of Rs.4500-5700 only. This scale is the scale for
all heads of departments in the State of Mizoram while the
scale of Rs.5900-6700 was for next higher post.
It was not disputed that the then incumbent of the post
of Chief Engineer namely, Mr. Robula was given the scale
of Rs.5900-6700. It was submitted that the said scale was
specially allowed to him since he was holding the post on
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1.1.1986 i.e. the date from which Fourth Central Pay
Commission recommendations were made applicable.
Subsequent entrants to the service were not to be given
that scale. (Per letter dated 13th January,1989 from
Secretary, PWD to Director Accounts & Treasury,
Mizoram).
3. It was vehemently argued that scale of Rs.5900-6700 was
being allowed by the Government of India for senior level
posts in the corresponding cadres. Engineering Service in
the State of Mizoram was not an organized service.
There were no Recruitment Rules for the service.
Therefore, there were no senior level posts which would
entitle the incumbents to get the grade of Rs.5900-6700.
So far as the question as to which base year should be taken
into consideration for purposes of revision of pay i.e. 1973 or 1983,
we may recall that Mizoram became a Union Territory in the year
1973. The Government of India had accepted the fact that the
persons employed in Engineering Services within the State of
Mizoram should get pay scale at par with those working in the
Central Public Works Department. This decision was also
implemented. The scales of pay for Engineers working in the
Mizoram State were revised w.e.f. 1973. The next crucial event in
this connection is the recommendations of the Fourth Central Pay
Commission which were accepted by the State of Mizoram as well.
These recommendations take 1983 as the base year for the
purpose of revision of pay scales. Apart from this the Central Civil
Services (Revised Pay) Amendment Rules, 1987 also take the
year 1983 as the base year. These rules came into force on 1st
January, 1986. At that time Mizoram was a Union Territory. The
Government of India accepted the Rules. They were made
applicable in Mizoram as well. The schedule annexed to the Rules
refers to present scales and revised scales of pay. The present
scales mean the scales which were in force at that time. For the
relevant category of posts the existing scale given in the Schedule
is Rs.2250-125/2-2750 and the revised pay scale is Rs.5900-200-
6700. In this background there does not appear to be any good
reason for taking 1973 as the base year for the purposes of pay
revision in Mizoram. No reason is forthcoming. Mr. L. Nageshwara
Rao, the learned Additional Solicitor General appearing for the
appellant relied on a Notification dated 1st February, 1989 to
submit that it was the decision of the State Government to treat the
year 1973 as the base year for the purpose of pay revision and
that has to be accepted. We are unable to accept this submission
made on behalf of the appellants in view of the fact that
recommendations of the Fourth Central Pay Commission have
been duly accepted by the State Government. Additional factor
which impels us to take this view is that the State Government
itself accepted the scale of Rs.5900-6700 and allowed the same to
the then incumbent Mr. Robula w.e.f. 1.1.1986. The State linked
up revision of pay scale of Mr. Robula with the date of revision of
pay scales as per recommendations of the Fourth Central Pay
Commission. A different reasoning cannot be applied in case of
other officers in the service. In this connection it is also worth
noting that in para 4 of the counter affidavit filed on behalf of the
State Government before the learned Single Judge in response to
the Writ Petition it is admitted that the existing pay scale for the
post of Chief Engineer was Rs.2250-2500 prior to enforcement of
recommendations of the Fourth Central Pay Commission. This is
also admitted that the conversion scale for the scale of Rs.2250-
2500 is Rs.5100-5700 and 5900-6700 as per the Fourth Pay
Commission Report. However, it is submitted that grade of
Rs.5900-6700 was applicable only in respect of organized Medical,
Engineering and other Central Services as per specific
recommendations of the Fourth Central Pay Commission. In view
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of this stand of the State Government it is difficult to accept that the
Chief Engineers will not be allowed the grade of Rs.5900-6700.
Coming to the argument that the scale of pay of Rs.5900-
6700 was confined to only the then Chief Engineer Mr. Robula
and was not be allowed to future entrants in the service, we find no
justification for this. The fact that the revised pay scale was being
allowed to Mr. Robula in tune with the recommendations of the
Fourth Central Pay Commission, shows that the State Government
had duly accepted the recommendations of the Fourth Central Pay
Commission. Having done so, it cannot be permitted to
discriminate between individuals and not allow the same to the
rest. In this context the learned counsel for the appellant
submitted that it is not unusual that sometimes special pay is
granted to an individual and the same does not become a
precedent for others. As a proposition it may not be disputed. But
there has to be special reason for this. In the facts of the present
case we do not find any justification for confining the higher scale
to a particular individual and deny the same to others. There may
be special reasons for instance special merit, expertise or the like,
for giving special pay to a particular individual. In the present case
no such reason is forthcoming. On the other hand the reason
given is that since he was holding the post on 1.1.1986, the date
from which Fourth Central Pay Commission recommendations
were given effect to, he was being allowed the higher pay scale.
This reason rather supports the case of respondent. It shows an
admission on the part of the appellant that the revised pay scales
for the post of Chief Engineer as per the recommendations of the
Fourth Central Pay Commission was Rs.5900-6700 and was
allowed to a Chief Engineer. The State Government cannot be
permitted to discriminate between similarly placed individuals in
this behalf between those holding the post at the time of revision of
pay scales and future incumbents of the post. The argument has
no merit.
Great stress was laid on the fact that Engineering Service in
the State was not an organized service and therefore, it did not
have categorisation by way of entrance level and senior level posts
and for that reason the higher scale of Rs.5900-6700 which was
admissible for senior level posts could not be given in the
Engineering Service. The main reason for dubbing Engineering
Service as an unorganized service in the State is absence of
recruitment rules for the service. Who is responsible for not
framing the recruitment rules? Are the members of the
Engineering Service responsible for it? The answer is clearly ’No’.
For failure of the State Government to frame recruitment rules and
bring Engineering Service within the framework of organized
service, the engineers cannot be made to suffer. Apart from the
reason of absence of recruitment rules for the Engineering Service,
we see hardly any difference in organized and unorganized service
so far as Government service is concerned In Government service
such a distinction does not appear to have any relevance. Civil
Service is not trade unionism. We fail to appreciate what is sought
to be conveyed by use of the words ’organised service’ and
’unorganised service’. Nothing has been pointed out in this behalf.
The argument is wholly misconceived.
The learned counsel for the appellant also argued that if the
scale of Rs.5900-6700 is to be allowed to the Chief Engineers, the
State Government will have to allow the same scale to other heads
of departments in the service of the State Government which will
be a heavy burden on the financial resources of the State
Government and for that reason we should restrict the scale for
post of Chief Engineer and Additional Chief Engineer to Rs.4500-
5700 and Rs.4100-5300 respectively. In our view this is hardly any
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ground to interfere with the decision of the High Court. It has been
found that the claim of the respondents is fully justified by the facts
on record. The Central Government as well as the State
Government accepted the recommendations of the Fourth Central
Pay Commission and the scales being allowed to the members of
the respondent Association are based on those recommendations.
Thus we do not find any merit in the present appeal. The
impugned judgment does not call for interference. The appeal is
dismissed leaving the parties to bear their respective costs.