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PETITIONER: THE MUNICIPAL COMMISSIONER, CALCUTTA MUNICIPAL CORPORATION &

       Vs.

RESPONDENT: PIJUSH KANTI DAS & ANR.

DATE OF JUDGMENT:       22/01/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  1996 AIR 1108            1996 SCC  (7) 266  JT 1996 (2)   355        1996 SCALE  (1)518

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. PATTANAIK. J.      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

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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 -

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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.