Jodhpur Central Co-operative Bank Ltd. and Others vs The Co-operative Bank Officers' Association

Heard learned counsel appearing for the parties.

The Jodhpur Central Co-operative Bank Ltd. has filed this intra-court appeal against the judgment of learned Single Judge dated 12.01.2006, by which, he allowed the writ petition giving directions to the respondents to set right the anomaly, by which, the officers in the bank on their promotion from the post of clerks were drawing lesser pay, and to devise such procedure of calculation or system as may bring the situation wherein the promotee does not get the total carry home package, lesser than that of the carry home package of clerk.

The learned Single Judge, after giving these directions to set right the anomaly, further directed that the arrears so becoming payable consequent upon the direction shall be calculated and shall be paid to the members of the petitioner-association within a period of six months and that if the payment is not made within a period of six months, the amount so payable, shall carry interest on prevailing Bank''s Commercial Advancement Rates from the date the amount became due till actual payment. The learned Judge further directed that in the event, the payment is not made, the judgment will be executable by the concerned Principal Civil Court of Original Jurisdiction as a decree of a Civil Court and in accordance with the provisions of Order 21 CPC.

It is submitted by the learned counsel appearing for the bank that learned Judge did not take into consideration that the wages and allowances were fixed by the different wage settlements arrived at by the Wage Boards. It is not uncommon that on promotion the total take home package may get reduced on account of the dearness allowance payable to different bank employees on the settlements by the Wage Boards. Learned Single Judge stepped into an arena reserves for experts and had without considering the effect of various settlements by the Wage Boards adopted a common sense approach in allowing the writ petition with direction that anomaly should be removed. It is further submitted that the directions to pay the difference of six months failing which interest will be payable and the judgment of the High Court would be executed by Civil Court decree are wholly unsustainable inasmuch as until the amount is determined, the interest is not payable and that a writ of mandamus does not require execution from the Civil Court as a writ, order or direction in nature of mandamus is an execution in itself and that its non-compliance attracts the proceedings under the Contempt of Courts Act, 1971.

Learned counsel for the appellant bank has relied on a Supreme Court decision in State Bank of India and Others Vs. K.P. Subbaiah and Others, , in which, it was held in paragraph 20, 21 and 23 as follows:--

"20. The fixation of pay scales is essentially a function of the executive. They are closely interlinked with evaluation of duties and responsibilities attached to the posts and the pay scales are normally linked with conclusions arrived at by expert bodies like the Pay Commission.

The degrees of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the tasks, hazard attendant on work and fatigue involved are some of the relevant factors which go into the process of fixing the pay scale. [See Delhi Veterinary Association v. Union of India]

Ordinarily, a pay structure is evolved keeping in mind several factors, for example (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenue of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings,(ix) satisfaction level, and (x) employer''s capacity to pay etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. [See Secretary, Finance Department v. WB Registration Service Association]."

In the present case, it is stated that during the pendency of the writ petition, considering the terms of the Wage Board Settlement, the matter was referred to the Managing Director of the Rajasthan State Co-operative Bank Ltd. Jaipur to consider and decide the matter with regard to the alleged anomaly. The Managing Director of the Bank after considering the grievance of the officers found that no relief is possible under the existing frame work of wage settlement/s/rules framed by the Registrar, Co-operative Societies under Rule 41 of the Rajasthan Cooperative Societies Rules 1966 and the Act.

Learned counsel for the respondent-Association submits that an apparent anomaly was established before the learned Single Judge in which a clerk on promotion as officer was receiving lesser pay. The learned Single Judge has rightly drawn the conclusion that the pay cannot be lesser in case of promotion and that there was no justification to countenance the situation that an incumbent on promotion may not be driven to a situation where he gets lesser take home package as compared to what he would have drawn had he not been promoted. The learned Single Judge has rightly held that inherently, in the very nature of things, promotion is for betterment of the incumbent and not for worsening his condition, as compared to the one occupied by him before promotion.

It is submitted that a suit was filed by the respondent in which a decree was obtained that any amount which was paid to step up the salary to bring it in tune with take home package with the clerk should not be recovered back from the respondent. It is submitted that the learned Single Judge did not commit any error in allowing the writ petition and in directing the respondents to set right the anomaly.

We have considered the submissions and find that an anomaly resulted on account of the different Wage Board Settlements which was noticed by the learned Single Judge in the following terms:--

"To consider this point, first of all I may look the report submitted by the Managing Director of the Apex Bank, and a look thereat does show, that in sub-para 3 thereof, the basic salary of the clerk (at the last stage) has been shown to be Rs. 419, he was getting cash allowance of Rs. 20, D.A. of Rs. 1119.45, House Rent Allowance Rs. 25, and Medical Rs. 8. Thus, he was getting a total take home package of Rs. 1591.78, while after promotion, the basic salary was increased from Rs. 419 to Rs. 475/-, cash allowance is not admissible to the officers, and the D.A. was reduced to Rs. 625/-, House Rent Allowance was increased to Rs. 47.50, and the medical allowance was increased to Rs. 12.50. Thus, the total take home package came to Rs. 1160/- and therefore, in order to protect the pay, personal pay of Rs. 431.78 was given, so as to maintain the take home package to Rs. 1591.78. This, in my view only shows the rationale, or logic, behind grant of personal pay, which is claimed to be not a right of the incumbent. On the other hand, the calculations given by the Managing Director in sub-para 2, do show, that if the salary were to be calculated in the month of December, 1984, taking the Index Number to be 601, then the clerks were getting three different pay scales, and the last stage in the three scales was Rs. 971, 1289, and 1343 carrying the D.A. 1122, 1489, and 1551 respectively. Thus, making a total 2093, 2778 and 2894 respectively, while the last stage of the pay scale of the officers was 950 and 1330, with admission D.A. of Rs. 1009, and 1197, respectively. Thus, the total take home package comes to Rs. 1959 and 2527 respectively. This summing up as given by the M.D., in its report by itself is enough for me to conclude that the anomaly is writ large, and may be, that per the calculation given in para-3, the take home package was protected but then, with progress of time, as claimed by the respondent, the personal pay is to be gradually adjusted in the D.A., with the result, that the take home package remains the same, while in case of the clerk, at an identical stage, with passage of time, he gets increase in the take home package, and thus in the process of time, as mentioned in para-2 of the Managing Director''s report, the clerk carries higher take home package, as compared to the officer." 10. The anomaly as referred to above was removed by giving a personal pay to the clerk on their promotion as officer so as to maintain the take home package The Bank had resolved the anomaly by stepping up the pay which could be recovered from the increase in the salary subsequently.

In the cases where Wage Board Settlements as expert bodies determine wage structure, the allowances paid to the employees in the lower category to mitigate their hardships may result in reduction in the salaries on promotion. The Wage Board Settlements are quasi judicial determination of which the execution may in exceptional circumstances result in anomalous pay structure. The courts do not interfere with the Wage Board Settlements which are binding on both employer and employee unless the Wage Board Settlements are challenged in the Court. In the present case, the allowances admitted by the Wage Board Settlements to the clerk were higher than that of officer. It is not such an anomaly which could have attracted a remedial action by the Court under Article 226 on a common sense approach and consequential orders.

Learned Single Judge erred in law in directing the respondent to set right the anomaly by devising a procedure, calculation or system as may bring a situation wherein the promotee does not get the total carry home package lesser than that which is carry home package of clerk. Such determination could be removed by Wage Board whenever it was constituted, before which the parties were required to place various details. The determination by Wage Board is made on historical basis, cost index and variety of other factors which may many a time be resolved by way of proceedings of the Wage Board or arbitration or determination by nominated authority. The courts do not ordinarily interfere as indicated by the Hon''ble Supreme Court, and issue a direction for not only setting right the anomaly but also directing undetermined and unspecific amounts to be paid within specific time. We agree with the learned counsel appearing for the appellant that a writ, order or direction under Article 226 of the Constitution does not require execution as a Civil Court decree inasmuch as a direction in nature of mandamus is an execution in itself, the non-compliance of which may call for an action of contempt under Section 11 of the Contempt of Courts Act, 1971.

The special appeal is allowed. The judgment of learned Single Judge dated 12.01.2006 is set aside.