State Of West Bengal vs Subhas Kumar Chatterjee & Ors

dismissed the writ petition preferred by the State of West 2

Bengal, appellant herein and confirmed the judgment and

order dated 18th August, 2005 passed by the State

Administrative Tribunal, West Bengal.

2. In order to consider the question as to whether the

judgment suffers from any infirmities requiring our

interference, it may be just and necessary to notice the

relevant facts.

3. The controversy involved in the present matter

requiring resolution centers around the issue as to whether

the Senior Laboratory Assistants in the Roads and Buildings

Research Institute and various other divisions under the

Public Works (Roads) Department, Government of West

Bengal are entitled to the same pay scale at par with the

Research Assistants in the same department?

4. On 4th July, 1972 the Government of West Bengal, in

exercise of its power conferred by the proviso to Article 309

of the Constitution of India made the Rules for regulation of

recruitment to the post of Senior Research Assistant,

Research Assistant and Senior Laboratory Assistant in the 3

Roads and Buildings Research Institute and various other

divisions under the Public Works (Roads) Department. The

post of Senior Laboratory Assistant is a feeder to the post

of Research Assistant. The pay scale fixed under the

Revision of Pay and Allowances Rules, 1981 ( for short

ROPA Rules) for the post of Research Assistant was scale

no. 9 ( Rs. 300-910) and for the post of Senior Laboratory

Assistant scale no. 6 (Rs. 300-685).

5. In the year 1982, three Senior Laboratory Assistants

filed a Writ Petition in the Calcutta High Court claiming

scale no. 11 under ROPA Rules on the allegation that they

were performing similar duties as that of Senior Research

Assistants. The said Writ Petition was disposed of by a

learned Single Judge of the High Court granting scale no.

11 as claimed by the writ petitioners therein vide judgment

dated 25th November, 1987. Be it noted that the said writ

petition was disposed of on the doctrine of non-traverse

since the State Government was unrepresented and no

affidavit filed on its behalf. However, the learned Judge

granted relief directing the said pay scale to be paid w.e.f 4

1st April, 1981 but, directed that the petitioners therein

would be entitled to arrears only w.e.f April, 1987. The

State was also directed to place the matter before the 3rd

Pay Commission so that the Commission could consider the

case of the Senior Laboratory Assistants for higher scale

duly taking into consideration their qualifications and

duties.

6. On 30th June 1987, 3rd Pay Commission for the State of

West Bengal was constituted to consider the revision of pay

and emoluments of its employees. The Commission

submitted its report in December, 1988, granting only scale

6 (revised to Rs. 1040-1920) to the Senior Laboratory

Assistants and scale 9 (revised to Rs. 1260-2610) for the

Research Assistants. The State Government having

accepted the recommendations framed ROPA Rules, 1990

allowing scale nos. 6 and 9 respectively to the Senior

Laboratory Assistants and Research Assistants. The 4th Pay

Commission retained the same pay scales. However, the

pay structure was revised. The State Government

accordingly framed ROPA Rules, 1998.

5

7. The respondents herein who are the Research

Assistants approached the Tribunal after a period of more

than 12 years claiming revision of scale of pay and fixation

of benefits w.e.f 1st April, 1981 in scale no. 14. Their case

essentially was based upon the judgment of the High Court

in Writ Petition No. 2893W of 1982 granting scale no. 11 to

Senior Laboratory Assistant which was the feeder post to

the Research Assistant and therefore, the Research

Assistants were entitled to the proportionate hike in their

scale of pay. The Tribunal disposed of the O.A filed by the

respondents herein directing the Chief Engineer, Public

Works (Roads) Directorate to treat the application filed

before it along with its annexures as a representation and

to dispose of the same by a reasoned order.

8. Be that as it may, by order dated 31st August, 2001

the Chief Engineer extended the scale no. 11 to the

respondents which was not acceptable to the State

Government. The respondents once again approached the

Administrative Tribunal in the year 2002 seeking

appropriate directions as against the State to revise the pay 6

scale in terms of the orders of the Chief Engineer. The

Tribunal while rejecting the objections of the State that the

Chief Engineer was not competent to modify or amend

ROPA Rules as he did by his order, allowed the claim of the

respondents.

9. The appellant State challenged the said order of the

Tribunal in a writ petition filed before the High Court. The

High Court vide impugned order dismissed the writ petition

and confirmed the order of the Tribunal. Hence this appeal.

10. Shri Bhaskar P. Gupta, learned senior counsel

submitted that the impugned order suffers from errors

apparent on the face of the record. The High Court

completely misdirected itself in deciding the matter in

controversy by ignoring the well settled legal principles. It

was submitted that Revision of Pay and Allowances Rules

(ROPA) are framed by the Government of West Bengal by

the directions of the Governor under Article 309 of the

Constitution of India and are binding in their nature. The

Rules are amended from time to time based upon the

recommendations of successive Pay Commissions. The 7

successive Pay Commissions have consistently

recommended scale no. 9 for the Research Assistants to

which category the respondents belong. The State cannot

be compelled to act contrary to statutory rules framed by it

in exercise of the powers under proviso to Article 309 of the

Constitution. It was also submitted that the Pay

Commission fixed pay scales after evaluation of duties of

the concerned class of employees, educational

qualifications, total pay structure, finances of the

Government and various other factors. The State having

accepted the recommendations made necessary

amendments to the Rules and cannot be compelled to make

isolated changes in one of the category inasmuch as such a

change may have a cascading effect on the whole pay

structure of its employees.

11. The learned counsel for the respondents strongly

supported the impugned judgment. It was submitted that

the Government having implemented the directions of the

learned Single Judge in case of Senior Laboratory Assistants

in the feeder category, cannot fix the pay scales of 8

Research Assistants in the lower pay scale than that of the

Senior Laboratory Assistants.

12. Now we shall proceed to consider the submissions

made by the counsel during the course of the hearing of

this appeal.

13. This Court time and again cautioned that the court

should avoid giving a declaration granting a particular scale

of pay and compel the Government to implement the same.

Equation of posts and equation of salaries is a matter which

is best left to an expert body. Fixation of pay and

determination of parity in duties and responsibilities is a

complex matter which is for the executive to discharge.

Even the recommendations of the Pay Commissions are

subject to acceptance or rejection, the Courts cannot

compel the State to accept the recommendations of the Pay

Commissions though it is an expert body. The State in its

wisdom and in furtherance of its valid policy may or may

not accept the recommendations of the Pay Commission.

[See: Union of India V. Arun Jyoti Kundu1 and State of

1 (2007) 7 SCC 472 9

Haryana & Anr. V. Haryana Civil Secretariat Personal

Staff Assn.2]. It is no doubt, the constitutional courts

clothed with power of judicial review have jurisdiction and

the aggrieved employees have remedy only if they are

unjustly treated by arbitrary State action or inaction while

fixing the pay scale for a given post.

14. In the present case, the 3rd Pay Commission vide its

recommendations made in December, 1988 allowed only

scale no. 6, to the Senior Laboratory Assistants and scale

no. 9, for the Research Assistants. The Government having

accepted the recommendations framed rules allowing scale

no. 6 and 9, respectively to the Senior Laboratory

Assistants and Research Assistants. The 4th Pay

Commission retained same scales though the actual pay

structure was revised. It appears from the record that in

the State of West of Bengal pay scales are fixed under

statutory rules. The constitutional validity of those rules

under which the pay scales are fixed has not been

challenged.

2 (2002) 6 SCC 72 10

15. Be that as it may, the Chief Engineer while acting

under the directions of the Tribunal passed the order

declaring that the respondents are entitled to the relief as

prayed for by them and accordingly granted scale no. 11 to

the respondents. The Chief Engineer completely ignored the

statutory rules under which the respondents are entitled

to only scale no. 9. The Government did not implement the

same. The respondents once again approached the

Tribunal seeking appropriate directions for implementation

of the order passed by the Chief Engineer.

16. The Tribunal vide its order dated 18th August, 2005

having allowed the OA of the Respondents held that they

are entitled to fixation of pay as recommended by the Chief

Engineer and State must give effect to the same. We fail to

appreciate as to how the Administrative Tribunal could have

directed the State to implement the recommendations of

the Chief Engineer which run counter not only to the

recommendations of the Pay Commission but also the ROPA

Rules, 1998.

11

17. Being aggrieved by the order of the Tribunal the

appellant-State of West Bengal filed a writ petition in the

High Court of Calcutta and the same was dismissed by the

High Court. The High Court while upholding the validity of

the order passed by the Administrative Tribunal adopted a

very peculiar reason which in our considered opinion is

totally untenable and unsustainable in law. The High Court

took the view that "the Tribunal, in exercise of its power

under Article 226 read with Section 19 of the Central

Administrative Tribunals Act, has delegated rather

conferred power upon" the Chief Engineer "to decide the

issue and has done it with reason and the same remains

unchallenged. As such, even if on fact or in law, both the

two orders might or might not be correct one, once the

same is passed and is not set aside by the appropriate

forum and the same is binding between the parties."

18. According to the High Court the decision of the Chief

Engineer is a quasi judicial one in its nature and the same

has been passed in exercise of delegation of powers by the

Tribunal to decide the dispute between the parties as 12

regards the fixation of pay scales. The High Court also held

that the order of the Chief Engineer operates as res-

judicata. We shall deal with this aspect of the matter a little

later.

19. This court on more than one occasion decried such

practices adopted by the tribunals directing applications

filed before them to be treated as representations before

the executive authorities for their decision on merits. It is

for the tribunals that are empowered to examine service

disputes on merits. Such delegation of power apart from

being illegal and unconstitutional amounts to avoidance of

constitutional duties and functions to decide such disputes

which are exclusively entrusted to them by law. In

pursuance of the power conferred upon it by Clause (1) of

Article 323-A of the Constitution, Parliament enacted

Administrative Tribunals Act, 1985. The Statement of

Objects and Reasons of the Act, indicates that it was being

enacted to provide for the adjudication or trial by

Administrative Tribunals of disputes and complaints with

respect to recruitment and conditions of service of persons 13

appointed to public services and posts in connection with

the affairs of the Union or of any State or of any local or

other authority within the territory of India. Chapter III

deals with the jurisdiction, powers and authority of the

Tribunals. Sections 14, 15 and 16 deal with the

jurisdiction, powers and authority of the Central

Administrative Tribunals, the State Administrative Tribunals

and the Joint Administrative Tribunals respectively. The

Tribunals under the Act possess jurisdiction and powers of

every other court in the country except the jurisdiction of

the Supreme Court, in respect of all service related

matters. The Administrative Tribunals are conferred with

the jurisdiction to hear matters where even the vires of

statutory provisions are in question. Their function,

however, in this regard is only supplementary inasmuch as

such decisions are subject to scrutiny of the High Courts.

Such is the extent of awesome powers and jurisdiction

conferred upon the Tribunals. It is their bounden duty to

adjudicate the matters coming before them but not

delegate its jurisdiction to extra constitutional authorities.

Such practice is fraught with undesirable consequences 14

destroying the very purpose and scheme under which they

are created and constituted to adjudicate disputes in

specified areas. We hope and trust that the Tribunals in the

country henceforth will not repeat such practice of sending

the original applications filed before them to the Executive

Authorities for their disposal.

20. The origin of this controversy lies and is traceable to

the improper exercise of jurisdiction by the Tribunal

remitting the original application made to it to the Chief

Engineer for his decision. We are at a loss to appreciate as

to how the tribunal could have issued such a direction

virtually surrendering its jurisdiction to the Chief Engineer.

21. Now we shall revert to the question as to whether

the High Court was justified in rejecting the writ petition

filed by the appellant herein.

22. The High Court while rejecting the writ petition

held that the Chief Engineer has discharged "a solemn duty

undertaking the task of quasi-judicial duty has now reached

its finality. Now, it is a question of implementation of the 15

same". The High Court went to the extent of holding that

the decision rendered by the Chief Engineer pursuant to the

order of the Tribunal operates as res judicata if not issue

estoppel. We are bewildered to note that the High Court

advanced such an unstatable proposition. The Chief

Engineer did not undertake any task of discharging of any

quasi-judicial duty. The Administrative Tribunals by their

orders cannot create and constitute any quasi-judicial

authorities and entrust matters for their decision which

otherwise are not within their jurisdiction.

23. Whether the Administrative Tribunal can delegate its

power of judicial review and confer the same upon a Chief

Engineer? The Tribunals cannot travel beyond the power

conferred on them and delegate their essential function and

duty to decide service related disputes. Such delegation is

ab initio void. It is too elementary to restate that no

judicial tribunal can delegate its responsibilities except

where it is authorized to do so expressly. The power

conferred upon the Administrative Tribunals under the

provisions of the said Act flows from Article 323-A of the 16

Constitution. Such power can never be delegated except

under a valid law made by Parliament. The Tribunals by

their own act cannot delegate the power to decide any

dispute which in law is required to be decided exclusively by

such Tribunals.

24. For the aforesaid reasons, the order of the

Administrative Tribunal directing the Chief Engineer, Public

Works (Roads) Directorate to decide the dispute raised by

the respondents with regard to their pay scales is void ab

initio and cannot be given effect to.

25. The next question that arises for our consideration is

whether the decision of Chief Engineer operates as res-

judicata? The High Court fell into serious error in construing

the orders passed by the Chief Engineer as a decision.

There was no adjudication as such of any lis between the

parties by the Chief Engineer. The Chief Engineer in law was

not entitled to decide any dispute and much less with regard

to any dispute and complaint with respect to conditions of

service of any persons appointed to public posts controlled 17

by the State Government. The Chief Engineer was not

acting in any judicial or quasi-judicial capacity.

Administrative decisions by the executive authorities do not

bind the courts and much less operate as res judciata. In the

circumstances, the view taken by the Chief Engineer that the

respondents were entitled to scale No.11, cannot operate as

res judicata.

26. Yet another question that arises for our consideration is

whether a writ of mandamus lies compelling the State to act

contrary to law? The State Government having accepted the

recommendations of the successive Pay Commissions gave

effect to those recommendations by framing statutory rules

being ROPA Rules and scales of the employees have been

accordingly fixed. The respondents did not challenge the

vires of the said Rules under which they were entitled to

only a particular scale of pay. The State Government is

under obligation to follow the statutory rules and give only

such pay scales as are prescribed under the statutory

provisions. Neither the Government can act contrary to the

rules nor the Court can direct the Government to act 18

contrary to rules. No Mandamus lies for issuing directions to

a Government to refrain from enforcing a provision of law.

No court can issue Mandamus directing the authorities to act

in contravention of the rules as it would amount to

compelling the authorities to violate law. Such directions

may result in destruction of rule of law. In the instant case,

the impugned order of the High Court virtually compelled the

State to give pay scales contrary to statutory rules under

which pay scales of the employees are fixed. The decision of

the Chief Engineer being contrary to ROPA Rules, 1998,

cannot be enforced even if such a decision was taken under

the directions of the Administrative Tribunal. The orders of

the Tribunal as well as of the High Court suffer from

incurable infirmities and are liable to be set aside.

27. For the reasons above, the impugned judgment of the

High Court as well as the judgment of the Tribunal is set

aside. However, the amounts if any paid to the

respondents pursuant to the impugned orders shall not be

recovered.

19

28. The appeal is accordingly allowed without any order as

to costs.

...............................................J. (B. SUDERSHAN REDDY)

................................................J. (SURINDER SINGH NIJJAR)

NEW DELHI, AUGUST 17, 2010.