Sudip Goswami vs State Of Tripura And Ors

[1] Leave to amend the petition by producing impugned order dated 30.09.2019 rejecting the representation of the petitioner. Petitioner to carry out the amendment in the prayer clause as well as annex it.

[2] The petitioner is the employee of Government of Tripura. He had entered his service under the Health and Family Welfare Department as Senior Technician. Over the period of time the petitioner was granted promotions. By an order dated 11.05.2017 the petitioner has been promoted to the post of Superintendent of Central Workshop (Group-B Gezetted). The said post carries the pay scale in the Pay Band-3 of `10,230-34,800/- with Grade Pay of `4,800/-. The case of the petitioner is that similar post of Maintenance Superintendent under the Department of Home (Fire Service) carries the pay scale in the Pay Band-4 of `15,600-39,100/- with Grade Pay of `6,600/-. The petitioner therefore contends that the post of Superintendent of Central Workshop should also be granted the said higher pay scale which is prescribed for the post of Maintenance Superintendent under the Department of Home (Fire Service). According to the petitioner, both the posts are to be filled by way of promotion from the respective feeder cadres which carry identical pay scales. The educational qualifications required for both posts are similar. The duties and responsibilities of the both posts are also identical. On these grounds the petitioner requests pay parity.

[3] Previously on the same grounds the petitioner had approached the Court by filing writ petition No.220 of 2018. This petition was dismissed by the learned Single Judge by a judgment dated 09-08-2018. In the said decision in a detailed consideration the learned Judge compared the recruitment Rules for the respective posts as also the grounds of discrimination raised by the petitioner. The learned Judge was of the opinion that the principle of equal pay for equal work flowing from Article 14 and 39(d) of the Constitution of India is not attracted in the present case. It was observed that the posts are different with different conditions of service and responsibilities. The posts are also part of the different departments of the Government. The following observations of the said decision can be noted.

"[7] I have heard counsel for the parties and with their assistance perused the materials available on record. The facts are not in dispute that the post held by the petitioner of Superintendant for Central Workshop is in (Group-B Gazetted) and regulated by the separate set of Rules which has been framed by the State Government in exercise of powers conferred under proviso to Art.309 of the Constitution of India vide notification dt.16th October, 2014 which lays down the duties assigned to the post of Superintendant for Central Workshop.

[8] At the same time, the post of Maintenance Superintendant with which a parity has been claimed by the petitioner is in the department of Fire Services and service conditions are separately regulated by the Rules framed by the State Government under proviso to Art.309 of the Constitution of India vide its notification dt.22nd April, 1987 read with later amendment dt.3rd June, 1988. The only common feature between the two respective posts appears to be that both are in (Group-B Gazetted).

[9] The „onus of proof‟ of parity in the duties and responsibilities of the subject post with the reference post, under the principle of „equal pay for equal work‟, lies on the person who claims it and who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as that of the reference post. It has been settled that the principle of „equal pay for equal work‟ applies to cases of unequal scales of pay, based on no classification or irrational classification. For equal pay, the employees with whom equation is sought should be performing work, which besides being functionally equal, should be of the same quality and sensitivity. At the very situation, where a person holding the post of his common nomenclature, but working in different departments having dissimilar powers, duties and responsibilities, indisputably can be placed in different pay scales and one cannot claim the benefit of principle of „equal pay for equal work‟.

[10] The paramount consideration is the equality of functions and responsibilities under the principle of „equal pay for equal work‟ and the duties of the two posts should be of equal sensitivity and also qualitatively and the valid classification, pay differentiation would be legitimate and permissible. In the instant case, the onus of proof on the shoulder of the petitioner which he was unable to discharge.

[11] The question emerges as to whether in the present set of facts which has been noticed by this Court the principle of „equal pay for equal work‟ as prayed for by the petitioner has any application. It is indeed a settled principle that Art.14 would apply only when invidious discrimination is meted out of equal and similarly circumstanced without any rational basis or relationship in that behalf analyzing the matter, this Court is of the opinion that no parity could be claimed and the principle of equal pay for equal work as prayed for by the petitioner has no application in the facts of the instant case.

[12] The judgment on which the petitioner has placed reliance in Randhir Singh (supra) is a case where the employees were working as a driver constable discharging similar duties but working in different departments and the question emerged for consideration was that when all were working as driver constables with similar duties there could not be any disparity in their pay scale. In the later judgment cited by the petitioner in State of Punjab and Others (supra), the issue which arose for consideration was as to whether the temporarily engaged employees in various capacities are entitled to minimum of the regular pay scale on account of their performing the same duties which are discharged by those engaged on regular basis, against sanctioned posts, which is not the facts situation in the instant case. Either of the judgment placed reliance by the petitioner is of no assistance."

[4] The petitioner had carried the said decision of the learned Single Judge in intra court appeal. The Division Bench disposed the appeal making the following observations :

"[2] In the response filed to the writ petition, we notice the State to have itself referred the matter for examination to the Department of Finance, but however, basis for rejection of petitioner‟s prayer, seeking parity of the pay scale, was neither disclosed to him nor explained in the affidavit filed before this Court. The least which is expected of the State is to have assigned reasons, if not afforded an opportunity of hearing.

[3] We do find the learned Single Judge to have examined the matter on the issue of equivalence, but then we are also of the considered view that no such material, which led to the formation of such opinion, was ever placed in the writ proceedings, enabling the learned Single Judge to consider the same and take a holistic view, with regard to the petitioner‟s claim for parity in the pay scale. Also in our considered view principles of natural justice stand violated causing serious prejudice to the writ petitioner.

[4] Under these circumstances, we are of the considered view that interest of justice would be best met, that instead of remanding the matter back for consideration by the learned Single Judge, the State is directed to consider the petitioner‟s case afresh, in the light of additional material, which he shall be placing within a period of four weeks from today.

[5] We expect the State to comply with the principles of natural justice, including affording opportunity of hearing/representation and communicating the reasons for accepting/rejecting the petitioner‟s claim.

[6] We expect the State to do the needful positively within a period of three months from the date of receipt of the petitioner‟s request.

Liberty reserved to the petitioner to place additional material before the authority positively within a period of two weeks from today.

[7] Needless to add, liberty is reserved to the petitioner to approach the Court afresh, on the same and subsequent cause of action, if so required and desired.

[8] We hope and expect the State to take a considered view, based on the relevant materials so placed on record by the parties, independent of the view already taken by the learned Single Judge vide impugned judgment dated 09.08.2018 in WP(C) No. 220 of 2018, titled as Sri Sudip Goswami v. The State of Tripura & Others.

[9] With the aforesaid observations and directions, the appeal stands disposed of.

[5] The petitioner thereupon made a fresh representation to the department on 27.05.2019 reiterating the same contentions which are noted above. This representation was disposed of by the impugned order dated 30.09.2019. The claim of the petitioner was rejected making the following observations :

"With reference to his prayer dated 27-05-2019 and subsequent his hearing in person dated 26th August, 2019 in connection with W.A. 68 of 2018 for upgradation of his Pay Scale, Sri. Sudip Goswami, Superintendent for Central Workshop, Agartala Government Medial College and GBP Hospital, Agartala is hereby informed. His claim in reference to his prayer is not accepted of due to qualitative difference regarding nature, power, duties, quality reliability, responsibility of work and evaluation by the Competent authority between his post as Superintendent for Central Workshop with that of Maintenance superintendant, Home(Fire Service) Department as brought in his prayer as reference. Besides he did not submitted any additional materials before the authority in support of his claim.

Hence, the Govt. of Tripura, Health & Family Welfare Department has not considered the prayer of Sri. Sudip Goswami for the upgraded Pay Scale."

[6] Having heard learned counsel for the petitioner, I do not think this is a case where the petitioner has made out any ground for interference. As noted by the learned Single Judge in the previous round of litigation, the principle of equal pay for equal work has certain inherent limitations. Ordinarily the question of equivalence of posts is left for the Government to decide. Pay scales of large number of posts are fixed on the basis of recommendations of expert bodies such as pay commission. The Courts ordinarily would not interfere with such decisions. Unless and until in all respects, the educational qualifications, the nature of duties and responsibilities, the workload and all other relevant aspects are identical, pay parity between two posts cannot be ordered.

[7] Reference in this respect can be made to a recent decision of the Supreme Court in case of S.H. Baig and others versus State of Madhya Pradesh and others, reported in (2018) 10 SCC 621, in which following observations were made:

Parity of pay scales cannot be given to the Appellants even on the principle of equal pay for equal work. The Appellants contend that some of the Ministerial employees were assigned work in the Executive Police Force. Some persons in the Ministerial (E) branch have been appointed to the Police Force as Deputy Superintendent of Police also. The Ministerial (E) staff is also assigned duties of Executive Police Force during elections. The Government maintains that the members of the Ministerial (E) branch do not discharge executive functions. It is well settled law that even if persons are holding same rank/designation and having similar powers, duties and responsibilities they can be placed in different scales of pay and cannot claim the benefit of the principle of equal pay for equal work. [See: Randhir Singh v. Union of India and State of Punjab v. Jagjit Singh ]. In this case the qualifications for appointment, mode of recruitment, training, the duties and responsibilities not being similar, the Appellants are not entitled for the relief of equal pay."

[8] In the present case the post of Maintenance Superintendent, Department of Home (Fire Service) with which the petitioner seeks to compare his post, is an entirely different department. The impugned order records that there is qualitative difference regarding nature, powers, duties and responsibilities of the work between two posts. In absence of any material to the contrary the said decision cannot be disturbed.

[9] In the result, the petition is dismissed.