Phassang Chachok and 12 Ors v. The State of Ap and 4 Ors

ORDER The Governor of Arunachal Pradesh is pleased to grant the benefit of Compensatory Pay equivalent to one month's pay to the operational staff of Arunachal Pradesh State Transport Services, as mentioned at annexure "A" (attached) in lieu of duty performed by them on Saturdays, Sundays and holidays, subject to the following conditions:

(1) The above benefit of compensatory pay shall be effected from the financial year of 2000-2001 and shall be payable at the end of the financial year.

(2) The benefit of one month compensatory pay would be available to only those operational stff who do not avail themselves(any long leave) i.e., one calendar month or more during the financial year and who actually perform duty on Saturdays, Sundays and holidays. A duty register alongwith record of all office orders shall be duly maintained by all controlling officers for the purpose.

(3) The benefit will not be available to those who are under suspension or on extra ordinary leave during the financial year for 30 days or more.

(4) The benefit of compensatory pay will also not be available to those operational staff in Annexure "A" during their tenures at posts or stations which do not require working on Saturdays, Sundays and holidays. Page No.# 14/20

(5) In respect of employees who have joined service for the first time, the payment would be admissible to him/her in the first financial year provided he/she by rendered service for not less than 9 (nine) months in that financial year./

(6) The payment of compensatory pay will be equal to the basic pay plus dearness allowance drawn by the government servant on the 31st March of the relevant year. The payment will be made from the head of account meant for salary and necessary budgetary provision will be made for the purpose.

Sd/- P.M. Nair Chief Secretary Govt. of Arunachal Pradesh Itanagar

Memo No. TPT (B)50/2/96 Copy to:-

¶1The Secretary to the Governor, Arunachal Pradesh, Itanagar.

¶2The Commissioner to CM, A.P. Itanagar.

¶3The Accountant General, A.P, Shillong.

¶4PS to the Chief Secretary, Govt. of Arunachal Pradesh, Itanagar.

¶5The Commissioner/Secretaries, Govt. A.P. Itanagar.

¶6All heads of Department, Arunachal Pradesh.

¶7All the Deputy Commissioners, Arunachal Pradesh.

¶8The General Manager, STS, Arunachal Pradesh for information and necessary action

¶9The DIPR, Arunachal Pradesh, Naharlagun with the request to publish in Arunachal Pradesh.

¶10The Treasure Officer, A.P.

¶11Office Copy. Sd/- (S.C.L.Das) Secretary (Transport etc) Govt. of Arunachal Pradesh

Annexure- "A" attached to the Order No. TPT(B) 50/2/96 dated 09.03.2000 Categories of operational staff for whom the compensatory pay is allowed under State Transport Services: S.No. Nomenclature of Posts

¶1Senior Booking Clerk

¶2Booking Clerk

¶3Driver

¶4Conductor

¶5Driver Grade II

¶6Mechanic-Grade-I, Grade-II, Grade-III

¶7Welder-

¶8Electrician

¶9Accountant-cum-Store Keeper (Technical)

¶10Store Inspector

¶11Store Keeper Grade-II and Grade-III

¶12Upholder

¶13Painter Grade-II and Grade-III

¶14Artisan-Grade_ Page No.# 15/20

¶15Body fitter Grade-III

¶16Pump Operator

¶17Carpenter-Grade-III

¶18Helper to Mechanic/Welder/ Electrician/ Painter/ Store-Keeper

¶19Car Washer Sd/- (S.C.L.Das) Secretary (Transport etc)

Govt. of Arunachal Pradesh

¶17On bare perusal of the above order dated 09.03.2000 including its annexure, we find that the order only indicates for granting the benefit of compensatory pay equivalent to one month's pay to the operational staff of Department of State Transport Services, Government of Arunachal Pradesh showing the categories with nomenclature of posts of the operational staff which shall be in lieu of duty performed by them on Saturdays, Sundays and other holidays with certain conditions. It does not include the post of Chowkidar, the post(s) in which the appellants/petitioners are working.

¶18We took note that though the appellants in the writ petition had prayed for a direction to include the appellants in the order dated

09.03.2000, the main trust of submission by the learned counsel for the appellants/petitioners is that as per the order dated 09.03.2000, the only parameter to be considered is for those employees who performed duty on Saturdays, Sundays and other holidays and since the appellants/petitioners are working seven days in a week without there being any holidays, they Page No.# 16/20 are entitled to be granted the benefit of compensatory pay equivalent to one month's pay as per the said order and also heavily basing on the recommendation letter by the General Manager, State Transport Services, Government of Arunachal Pradesh. The recommendation by the General Manager would not create any right to the appellants.

¶19We also find that the nature, duty and responsibility of a Chowkidar, i.e, the appellants post is as such that they are appointed to work as per the terms of their appointment and to that extent they may have to work on Saturday, Sunday and other holidays. It is the categorical stand of the State respondents that they are only working for eight hours and even if they work for more than their normal hour duties, they are entitled to claim for honorarium and other allowances.

¶20Regard being had to the submission that the Chowkidars are made to attend office on Saturdays, Sundays and other holidays with other operational staff attending office is only considered to be rejected in as much as by the very nature of duty and terms of appointment as a Chowkidar, they would not have choice of duty and complain of deploying them on Saturdays, Sundays and other holidays. It is not the case of the appellants that they are also deployed on duty as that of the operational staff other than the duty of a Chowkidar. Page No.# 17/20

¶21So far as the applicability of principle of sub-silentio to the facts of the case, we in agreement with the learned Single Judge and would not have any discordant note with it in as much as the learned counsel for appellants had heavily bank on the order dated 02.04.2019 passed in WP(C) 90(AP)/2017.

¶22As righty considered and relied on by the learned Single Judge, to which we are in agreement with, in the case of State of Haryana versus Haryana Civil Secretariat Personal Staff Association, reported in (2002) 6 SCC 72, the Hon'ble Supreme Court has observed which is reproduced herein below: "10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay, It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration :of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational unjust and prejudicial Page No.# 18/20 to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case 'the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre"

¶23The Hon'ble Supreme Court has observed aforesaid after consideration of the case of Finance Department versus West Bengal Registration Service Association, reported in (1993) Supp (1) SCC 53 wherein it has held as under: "12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the ask of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in Page No.# 19/20 him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalization of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (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) avenues of promotion, (vi) the nature of the duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, 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. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice. "

¶24While referring to above decisions of the Hon'ble Supreme Court, we are conscious that the cases are related to the equation of posts and determination of pay scales, however, as in the present case the grievances of the appellants for inclusion of their post in the order dated 09.03.2000, which is a policy decision of State, and for grant of the benefit of compensatory pay equivalent to one month's pay, in our considered view, are relevant and applicable.

¶25In view of above discussions and in the facts and circumstances of the present case, we are of the view that appellants/petitioners are not Page No.# 20/20 entitled for grant of compensatory pay equivalent to one month's pay in terms of the order dated 09.03.2000 and no mandamus can be issued for inclusion of the post of Chowkidar in the said order.

¶26Resultantly, we hold that the appellants/petitioners are not entitled for compensatory pay equivalent to one month's pay and there is no infirmity in the judgment and order of the learned Single Judge dated

09.05.2022, which would warrant interference in this intra-court appeal.

¶27Accordingly, the writ appeal fails and is dismissed. No order as to cost. JUDGE JUDGE Comparing Assistant

Page No.# 1/20 GAHC040006262022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WA 13/2022 1:Phassang Chachok and 12 Ors. Central Workshop APSTS, Karsingsa, PO/PS Banderdewa, Dist. Papumpare, Arunachal Pradesh. M. No. 9436676071 2: Choki Tatung Chowkider Station Superintendent Itanagar PO/PS Itanagar District Papumpare Arunachal Pradesh. 3: Takap Dada Chowkider General Manager HQ APSTS Naharlagun PO/PS Naharlagun District Papumpare AP 4: Techi Sakap Chowkider APSTS Naharlagun PO/PS Naharlagun District Papumpare AP 5: T. Muri Chowkider Central Workshop Karsingsa PO/PS Banderdewa Page No.# 2/20 District Papumpare AP 6: Phassang Epo Chowkider. SS APSTS Koloriang Kurung Kumey District AP 7: Kholie Gungma Chowkider Central Workshop Karsingsa PO/PS Banderdewa District Papumpare AP 8: K. Pangking Chowkider GM Office APSTS Naharlagun PO/PS Naharlagun District Papumpare AP 9: Pakar Gao Chowkider SS Yingkiong APSTS Upper Siang District AP 10: Langku Toru Chowkider Station Superintendent Daporijo Upper Subansiri District AP 11: Ram Lal Chowkider Station Superintendent Tezu APSTS Lohit District Page No.# 3/20 AP 12: Attu Miso Chowkider Station Superintendent APSTS Pasighat East Siang District AP 13: Tahong Taga Chowkider Superintendent APSTS Pasighat East Siang District Arunachal Pradesh VERSUS 1:THE STATE OF AP and 4 Ors Represented through the Chief Secretary, Govt. of Arunachal Pradesh, Itanagar 2:The Secretary (Transport) Govt. of Arunachal Pradesh Itanagar 3:The General Manager State Transport Service Govt. of Arunachal Pradesh Naharlagun. 4:The Secretary Finance Department Govt. of Arunachal Pradesh Itanagar 5:The Under Secretary cum Sr. Analyst Department of Administrative Reform Govt. of Arunachal Pradesh Itanaga Page No.# 4/20 BEFORE HONBLE MR. JUSTICE S.K.MEDHI HONBLE MR. JUSTICE KARDAK ETE :: Judgment and Order (ORAL) :: For the appellants : Mr. Lissing Perme For the respondents : Mr. S. Tapin GA (AP) Date of hearing :09.05.2023. Date of Judgment & order :09.05.2023 (Kardak Ete, J) We have heard Mr. L. Perme, learned counsel for the appellants and Mr. S. Tapin, learned Senior Government Advocate for the State respondents. 2. This intra-court appeal has been preferred by the appellants against the judgment and order dated 09.05.2022 passed by the learned Single Judge in WP(C) No. 85(AP)/2020. 3. The appellants, thirteen in numbers, have preferred this appeal jointly, who are working as Chowkidar in the Department of Transport, Government of Arunachal Pradesh, assailing the impugned judgment and order dated 09.05.2022 whereby the learned Single Judge has dismissed Page No.# 5/20 the writ petition being WP(C) 85(AP)/2020 thereby rejecting the claim of the appellants/ petitioners for grant of benefit of compensatory pay equivalent to 1 (one) month's pay as that of the operational staff of the Department of Transports, Government of Arunachal Pradesh, the claim based on the Department order dated 09.03.2000. 4. The relevant facts for the purpose of this present appeal is that the Department of Transports, Government of Arunachal Pradesh by order dated 09.03.2000 has decided to grant the benefit of compensatory pay equivalent to one month's pay to the operational staffs consist of 19 categories of employees in the Department in lieu of duty performed by them on Saturdays, Sundays and Holidays with certain conditions. The claim of the appellants/petitioners is that as per the terms of the order dated 09.03.2000, the only parameter required for entitlement of one month compensatory pay is that in addition to their normal duty, the employees concerned need to perform duties on Saturdays, Sundays and Holidays. Though the appellants/petitioners also in addition to their normal duties also performed duties on Saturdays, Sundays and Holidays, the post of Chowkidar in which the appellants are working, did not find place in the said order. The appellants approached the General