The
Municipal Commissioner, Calcutta Municipal Corporation Vs. Pijush Kanti Das
& Anr [1996] INSC 109 (22 January 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K. G.B. Pattanaik. J.
CITATION:
1996 AIR 1108 1996 SCC (7) 266 JT 1996 (2) 355 1996 SCALE (1)518
ACT:
HEAD NOTE:
Leave
granted.
This
appeal is directed against the Judgment of the Calcutta High Court in Letters
Patent Appeal arising out of the Judgment of the single Judge in Writ Petition No.10421(W)
of 1988. The question that arises for consideration is whether the principle of
'equal pay for equal work' has at all got any application to the case in hand
following which principle the High Court has directed that respondent no, 1
would be entitled to the pay scale of 660-1600, which is the pay scale of the
Education Officer under the Calcutta Municipal Corporation? The Calcutta
Municipal Corporation was constituted under the provisions of Calcutta
Municipal Corporation Act, 1980 with effect from 4.1.1984. Prior to the
constitution of the aforesaid Corporation, there was in existence the Calcutta
Corporation under the Calcutta Municipal Act, 1951 and three other
Municipalities called Jadhavpur Municipality, South Suburban Municipality and Garden Reach Municipality which had been constituted under the Bengal Municipal Act.
By Notification dated 21st of December, 1983 the Governor in exercise of power
conferred upon him by sub- section (2A), read with sub-section (2) of Section
120 of the Bengal Municipal Act, 1932 made arrangement for the employees of the
erstwhile Garden Reach Municipality.
Admittedly
the respondent was serving as 'Education in- charge' on a pay scale of 380-910.
In the Notification dated 21st of December, 1983, it was clearly stated that
for continuing civic services employees of the Commissioner of the Garden Reach
Municipality shall, on and from the said date, be taken over by the Corporation
and shall continue to serve, on the same terms and conditions of service as in
force in the said municipality immediately before the said date, under the
Corporation until further orders. In other words, the service conditions of
employees of Garden Reach municipality including that of the respondent
remained unaltered under the Calcutta Municipal Corporation.
Notwithstanding
the constitution of the Calcutta Municipal Corporation and the merger of all
the four municipalities referred to earlier, in view of the disparity in the
staffing pattern and the distinction in the functioning of the erstwhile
municipalities, the merged municipal units of Jadhavpur, South Suburban and
Garden Reach continued to be identified as 'Units' under the Corporation until
framing of appropriate rules and regulations. Under the Calcutta Municipal
Corporation there were 4 categories of Education Officers namely
(1)
Asst. Education Officer in the pay scale of 610 - 1270,
(2)
Deputy Education Officer in the pay scale of 550 - 1470,
(3)
Education Officer in the pay scale of 660 - 1600 and
(4)
Senior Education Officer in the pay scale of 1100 - 1900. Since the respondent
as 'Education Incharge' of Garden Reach Municipality was in the pay scale of 380 - 910 which is much less than
the pay scale of Asst. Education Officer 610 - 1270, he was given the said pay
scale with the designation Education Officer 'Unit'. The said respondent,
however, filed the writ petition claiming that he is entitled to the pay scale
of 660 - 1600 meant for Education Officer of the Corporation since he is also
Education Officer. The said writ petition having been allowed and the appeal
against the same to the Division Bench having been dismissed, the present
appeal has been preferred.
The
learned counsel for the appellant apart from bringing it to our notice the
Notification of the Governor dated 21st of December, 1983 to which reference
has already been made also brought to our notice two circulars namely Circular
No. 31 of 1985-86 as well as Circular No. 35 of 1985-86 which squarely deals
with the dispute with regard to the fixation of pay scales. Under Circular No.
31 dated 29th June, 1985 it has been clearly indicated that the officers and
the employees including the labour staff of the three units viz. Jadhavpur,
South Suburban and Garden Reach (erstwhile municipalities) who were in service
of the municipalities on 3.1.1984 and also those who have been appointed
thereafter in the pay scales of the Units and are continuing in service till
date be placed in the comparable posts and pay-scales under Calcutta Municipal
Corporation as indicated by designations and pay scales under Annexure - A, B
& C respectively for Jadhavpur, South Suburban and Garden Reach Units with
effect from 1st day of July, 1985 subject to exercising option by individual
employee to come under the recommended designations and pay scales whom in the
Annexure - A, B & C. So far as the respondent is concerned who was earlier
serving as 'Education Incharge' under Garden Reach Municipality approved designation was Education Officer 'Unit' and his
pay scale fixed at 610 - 1270. The Circular No. 35 of 1985-86 which was issued
on 7th August, 1985 pursuant to the order of the
Administrator had been issued as there had been certain changes in designation
and/or pay scales in respect of certain posts under the Calcutta Municipal
Corporation between the period from 4.1.1984 to 30.6.1985. Even in that
Circular while fixing of pay of employees in comparable posts, so far as the
post of erstwhile 'Education Incharge' in Garden Reach Municipality, the same has been notified and pay scale of 500 - 1360 has
been given with the designation of Education Officer 'Unit'.
But
the learned Single Judge being of the opinion that the Education Officer 'Unit'
discharges the same functions and duties as Education Officer of the Municipal
Corporation had directed the Corporation grant him the pay scale of 660 - 1600
as is admissible to the Education Officer of the Calcutta Municipal
Corporation. The Division Bench has also affirmed the said decision having
examined the matter on record and after hearing the counsel for the parties. We
unhesitatingly come to the conclusion that both the learned Single Judge as
well as the Division Bench of the High Court have committed gross error in
directing the Corporation to grant the pay scale of 660 - 1600 to the
respondent. There is no manner of dispute that before the merger, the
respondent as Education Incharge under the Garden Reach Municipality was drawing the pay scale of 380 - 910 which was much less
than the pay scale of Asst. Education Officer under the Calcutta Municipal
Corporation. After the merger of the Garden Reach Municipality with Calcutta Municipal Corporation the question arose fro
posting the employees of the erstwhile municipality against any comparable
post.
Circular
No. 31 had been issued and rightly the respondent had been granted the pay
scale with the designation as Education Officer 'Unit'. In complete ignorance
of the aforesaid Circular the High Court appears to have granted the pay scale
of 660 - 1600 to the respondent which is admissible to the post of Education
Officer under the Calcutta Municipal Corporation. By such direction not only
the respondent has been given promotion by two hierarchy but also would march
over the other Deputy Education Officers under the Corporation. Taking into
account the pay which the respondent was getting in the erstwhile Garden Reach
Municipality and his nature of duties, fixing of his pay comparable to the
Asst. Education Officer by application of Circular No. 31 can neither be said
to be arbitrary nor irrational, on the other hand the decision contained
therein must be held to be wholly justified. The High Court on the other hand
failed to consider the pay scale which the respondent was drawing in the
erstwhile Garden Reach Municipality and the duties discharged by him thereunder
and merely from the designation of Education Officer jumped to the conclusion
that the respondent should be entitled to the same pay scale as is admissible
to the Education Officer under the Corporation. The aforesaid conclusion of the
High Court on inaccurate premises, and on non consideration of the relevant
materials as well as the Circular No. 31 of 1985-86 is thus vitiated and the
judgment of the learned Single Judge as well as that of the Division Bench has
become vulnerable. In the circumstances we set aside the judgment of the Division
Bench of the High Court as well as that of the learned Single Judge and the
writ petition filed by the respondent stand dismissed. This appeal is allowed.
No
costs.
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