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CASE NO.: Appeal (civil)  793 of 1998

PETITIONER: State of Mizoram & Another

RESPONDENT: Mizoram Engineering Service Association & Anr.

DATE OF JUDGMENT: 06/05/2004

BENCH: Brijesh Kumar & Arun Kumar.

JUDGMENT: JUDGMENT

ARUN KUMAR, J.

This appeal is directed against the judgment dated 28th  February, 1997 passed by a Division Bench of the Gauhati High  Court.  By the Impugned judgment the Division Bench dismissed  the appeal against the judgment dated 17th May, 1996 passed by  the learned Single Judge.  The learned Single Judge had allowed  a writ petition filed by respondent herein challenging a notification  No.G.12011/3/87 F.Est dated 3rd February, 1989 whereby certain  categories of engineers in the State Engineering Service had been  excluded for purposes of revision of pay scales accepted by the  State vide Notification No.G.12011/3/87F.Est dated 19th January,  1989. The Mizoram Engineering Service Association (respondent)  has been demanding  higher pay scales for its members.  The  background  is that prior to 1971 what is now known as the State  of Mizoram was a district called the Lushai Hills District within the  State of Assam.  From 1971 to 1986 Mizoram was a Union  Territory under the North Eastern Areas Reorganisation Act, 1971.   It attained full state-hood on 20th February, 1987.  In 1974 when  the State was a Union Territory, the Government of India  constituted a Departmental Pay Committee to suggest scales of  pay and allowances for employees of Mizoram on the pattern of  Central Government employees vide Ministry of Home Affairs letter  No.1.3.1973.MP dated 4th November, 1974.  On the  recommendation of the said Departmental Pay Committee, the  Government of India revised the  scales of pay and allowances for  the employees of the State of Mizoram w.e.f. 1.1.1973.  On a  demand made by Superintending and Executive Engineers of the  respondent Association for equalizing their respective scales of  pay with their counterparts in the Central Public Works  Department, the Government of India vide letter dated 16.10.1983  intimated to the Secretary to the Mizoram Administration, Public  Works Department conveying the sanction of President of India for  revision of pay scales of the Engineers (Group ’A’ posts) in tune  with the pay scales enjoyed by the engineers in the CPWD.  The Government of India accepted the Fourth Central Pay  Commission Report regarding revision of pay scales for Group A,  B, C, D & E posts in the Central Civil Services w.e.f. 1.1.1986.  The  recommendations of the Fourth Central Pay Commission accepted  by the Government of India became applicable for the civil services  in  Mizoram also.  The Central Civil Services (Revised Pay) Rules,  1986 came into force w.e.f. 1.1.1986 and they were made  applicable to the employees forming part of the civil services in  Mizoram.  Certain representations were made on behalf of  employees for removal of anomalies resulting from the Fourth  Central Pay Commission Report.  In 1987 an Anomalies

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Committee was appointed to look into the alleged anomalies and  make suitable recommendations.  The recommendations of the  Anomalies Committee created further anomalies rather than  resolving them.  On 7th November, 1988 another Anomalies  Committee was appointed.  The report of the Anomalies  Committee was accepted by the Government of the State of  Mizoram.  A  notification   No. G 12011/3/87F.Est. dated 19th  January, 1989 accepting the recommendations was issued.  Soon  thereafter the State Government issued another notification dated  3rd February, 1989 (the impugned notification) to the effect that the  scales of pay for Group ’A’ officers as mentioned  in paras 28 of  Schedule A and Schedule B did not include pay scales for MCS  officers/MPS officers whose pay scales were governed by their  respective service rules.  The notification further excluded  engineering officers of the rank of Executive Engineer and  Superintending Engineer from the benefits of the notification dated  19th January, 1989.  This notification was challenged by the  respondent Association by filing a Writ Petition in the Gauhati High  Court.  In the Writ Petition the first prayer was with regard to  quashing the notification dated 3rd February, 1989 which excluded  the Executive Engineers and the Superintending Engineers from  getting the benefit of revised pay scales under the notification of  the State Government dated 19th January, 1989.  The second  prayer was with respect to the Chief Engineers and Additional  Chief Engineers seeking directions that they should get the  conversion scale of pay of Rs.5900-6700 and Rs.4500-5700  respectively instead of the revised scales of pay prescribed for  them by the State Government.  The scale of Rs.5900-6700 for the  Chief Engineer and Rs.4500-5700 for Additional Chief Engineer  demanded by the respondent Association was as per the  recommendations of the 4th Central Pay Commission and was the  same as was being allowed to incumbents holding equivalent  posts in the Central Public Works Department.  The learned Single  judge allowed the Writ Petition granting both the prayers of the Writ  Petitioner.  The appeal against the judgment of the learned Single  Judge was dismissed by the Division Bench.  The present appeal  is directed against the said judgment of the Division Bench.

We have heard the learned counsel for the parties at length.   At the outset we may note that the learned counsel for the  appellant has not seriously challenged the impugned judgment so  far as it grants relief to the Executive Engineers and  Superintending Engineers by quashing the Notification dated 3rd  February, 1989.  The challenge in the appeal is mainly directed  against the scale of pay granted to the Chief Engineers and  Additional Chief Engineers i.e. Rs.5900-6700 and Rs.4500-5700  respectively.   In this connection following points have been raised: 1.      The base year for purposes of revision of pay scales of  Chief Engineer and Additional Chief Engineer should be  taken as 1973 and not 1983 even though the revision was  being taken into consideration w.e.f. 1.1.1986 as per the  Fourth Central Pay Commission Report which had been  accepted by the State Government.  2.      In respect of Chief Engineer, the recommendation of the  Pay Anomalies Committee which was accepted vide  Notification dated 19th January, 1989 was to the effect that  only the existing incumbent would get the scale of   Rs.5900-6700 and future entrants would be entitled to pay  scales of Rs.4500-5700 only.   This scale is the scale for  all heads of departments in the State of Mizoram while the  scale of Rs.5900-6700 was for next higher post.   It was not disputed that the then incumbent of the post  of Chief Engineer namely, Mr. Robula was given the scale  of Rs.5900-6700.  It was submitted that the said scale was  specially allowed to him since he was holding the post on

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1.1.1986 i.e. the date from which Fourth Central Pay  Commission recommendations were made applicable.    Subsequent entrants to the service were not to be given  that scale. (Per letter dated 13th January,1989 from  Secretary, PWD to Director Accounts & Treasury,  Mizoram). 3.      It was vehemently argued that scale of Rs.5900-6700 was  being allowed by the Government of India for senior level  posts in the corresponding cadres.  Engineering Service in  the State of Mizoram was not an organized service.   There were no Recruitment Rules for the service.    Therefore, there were no senior level posts which would  entitle the incumbents to get the grade of Rs.5900-6700.   

So far as the question as to which base year should be taken  into consideration for purposes of revision of pay i.e. 1973 or 1983,  we may recall that Mizoram became a Union Territory in the year  1973.  The Government  of India had accepted the fact that the  persons employed in Engineering Services within the State of  Mizoram should get pay scale at par with those working in the  Central Public Works Department.  This decision was also  implemented.  The scales of pay for Engineers working in the  Mizoram State were revised w.e.f. 1973.  The next crucial event in  this connection is the recommendations of the Fourth Central Pay  Commission which were accepted by the State of Mizoram as well.   These recommendations take 1983 as the base year for the  purpose of revision of pay scales.  Apart from this the Central Civil  Services (Revised Pay) Amendment Rules, 1987 also take the  year 1983 as the base year.  These rules came into force on 1st  January, 1986.  At that time Mizoram was a Union Territory.  The  Government of India accepted the Rules.  They were made  applicable in Mizoram as well. The schedule annexed to the Rules  refers to present scales and revised scales of pay.  The present  scales mean the scales which were in force at that time.  For the  relevant category of posts the existing scale given in the Schedule  is Rs.2250-125/2-2750 and the revised pay scale is Rs.5900-200- 6700.  In this background there does not appear to be any good  reason for taking 1973 as the base year for the purposes of pay  revision in Mizoram.  No reason is forthcoming. Mr. L. Nageshwara  Rao, the learned Additional Solicitor General appearing for the  appellant relied on a Notification dated 1st February, 1989 to  submit that it was the decision of the State Government to treat the  year 1973 as the base year for the purpose of pay revision and  that has to be accepted.  We are unable to accept this submission  made on behalf of the appellants in view of the fact that  recommendations of the Fourth Central Pay Commission have  been duly accepted by the State Government.  Additional factor  which impels us to take this view  is that the State Government  itself accepted the scale of Rs.5900-6700 and allowed the same to  the then incumbent Mr. Robula w.e.f. 1.1.1986.  The State linked  up revision of pay scale of Mr. Robula with the date of revision of  pay scales as per recommendations of the Fourth Central Pay  Commission.  A different reasoning cannot be applied in case of  other officers in the service.  In this connection it is also worth  noting that in para 4 of the counter affidavit filed on behalf of the  State Government before the learned Single Judge in response to  the Writ Petition   it  is admitted that the existing pay scale for the  post of Chief Engineer was Rs.2250-2500 prior to enforcement of  recommendations of the Fourth Central Pay Commission.  This is  also admitted that the conversion scale for the scale of Rs.2250- 2500 is Rs.5100-5700 and 5900-6700 as per the Fourth Pay  Commission Report. However, it is submitted that grade of  Rs.5900-6700 was applicable only in respect of organized Medical,  Engineering and other Central Services as per specific  recommendations of the Fourth Central Pay Commission.  In view

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of this stand of the State Government it is difficult to accept that the  Chief Engineers will not be allowed the grade of Rs.5900-6700.   

Coming to the argument that the scale of pay of Rs.5900- 6700 was confined to only  the then Chief Engineer Mr. Robula  and was not be allowed to future entrants in the service, we find no  justification for this.  The fact that the revised pay scale was being  allowed to Mr. Robula in tune with the recommendations of the  Fourth Central Pay Commission, shows that the State Government  had duly accepted the recommendations of the Fourth Central Pay  Commission. Having done so, it cannot be permitted to  discriminate between individuals and not allow the same to the  rest.  In this context the learned counsel for the appellant  submitted that it is not unusual that sometimes special pay is  granted to an individual and the same does not become a  precedent for others.  As a proposition it may not be disputed. But  there has to be special reason for this. In the facts of the present  case we do not find any justification for confining the higher scale  to a particular individual and deny the same to others.  There may  be special reasons for instance special merit, expertise or the like,  for giving special pay to a particular individual.  In the present case  no such reason is forthcoming.  On the other hand the reason  given is that since he was holding the post on 1.1.1986, the date  from which Fourth Central Pay Commission recommendations  were given effect to, he was being allowed the higher pay scale.   This reason rather supports the case of respondent.  It shows an  admission on the part of the appellant that the revised pay scales  for the post of Chief Engineer as per the recommendations of the  Fourth Central Pay Commission was Rs.5900-6700 and was  allowed to a Chief Engineer.  The State Government cannot be  permitted to discriminate between similarly placed individuals in  this behalf between those holding the post at the time of revision of  pay scales and future incumbents of the post.  The argument has  no merit.  

Great stress was laid on the fact that Engineering Service in  the State was not an organized service and therefore, it did not  have categorisation by way of entrance level and senior level posts  and for that reason the higher scale of Rs.5900-6700 which was  admissible for senior level posts could not be given in the  Engineering Service.  The main reason for dubbing Engineering  Service as an unorganized service in the State is absence of  recruitment rules for the service.  Who is responsible for not  framing the recruitment rules?  Are the members of the  Engineering Service responsible for it?  The answer is clearly ’No’.   For failure of the State Government to frame  recruitment rules and  bring Engineering Service within the framework of organized  service, the engineers cannot be made to suffer.  Apart from the  reason of absence of recruitment rules for the Engineering Service,  we see hardly any difference in organized and unorganized service  so far as Government service is concerned  In Government service  such a distinction does not appear to have any relevance.  Civil  Service is not trade unionism.  We fail to appreciate what is sought  to be conveyed by use of the words ’organised service’ and  ’unorganised service’.  Nothing has been pointed out in this behalf.   The argument is wholly misconceived.   

The learned counsel for the appellant also argued that if the  scale of Rs.5900-6700 is to be allowed to the Chief Engineers, the  State Government will have to allow the same scale to other heads  of departments in the service of the State Government which will  be a heavy burden on the financial resources of the State  Government and for that reason we should restrict the scale for  post of Chief Engineer and Additional Chief Engineer to Rs.4500- 5700 and Rs.4100-5300 respectively.  In our view this is hardly any

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ground to interfere with the decision of the High Court.  It has been  found that the claim of the respondents is fully justified by the facts  on record.  The Central Government as well as the State  Government accepted the recommendations of the Fourth Central  Pay Commission and the scales being allowed to the members of  the respondent Association are based on those recommendations.  

Thus we do not find any merit in the present appeal.  The  impugned judgment does not call for interference. The appeal is  dismissed leaving the parties to bear their respective costs.