Page 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2521   OF 2013 (Arising out of SLP(C) No. 7420 of 2012)

Arindam Chattopadhyay and others          …Appellants

versus

State of West Bengal and others …Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Leave granted.

2. The question which arises for consideration in this appeal is whether  

the  appellants,  who have  been working as  Child Development Project  

Officer  (CDPO) in the  Integrated  Child Development Services  (ICDS)  

since July, 1999, are entitled to be paid salary in the pay scale prescribed  

for that post.

3. On being selected by the West Bengal Public Service Commission,  

the appellants  were  appointed  as  Assistant  Child Development Project  

Officer  (ACDPO)  in  1986-87.   After  about  12  years,  the  competent  

1

Page 2

authority issued order dated 7.7.1999 with the concurrence of the Finance  

Department of the Government whereby the petitioners were temporarily  

transferred to ICDS projects to act as CDPOs in their existing pay scales.  

4. The appellants made representation dated 15.2.2011 with the prayer  

that they may either be promoted to the post of CDPO or be given pay  

scale of that post by asserting that they had been discharging the duties of  

the post of CDPO.

5. After about 2 years, the appellants filed O.A. No.330/2003 before  

the State Administrative Tribunal, West Bengal (for short, ‘the Tribunal’)  

and prayed for issue of a direction to the respondents to pay them salary  

and allowances  in the scale  of Rs.5500-11200 attached to  the post  of  

CDPO from the date they were working as acting CDPO, i.e., 7.7.1999. In  

paragraph 4 of the application, the appellants averred as under:

“Your Applicants state that although your Petitioners have  been posted as Acting Child Development Project Officer,  (CDPO) by virtue of said  Office Order (Annexure (‘P/l’)  and have been shouldering the higher responsibilities of  the  post  of  C.D.P.O.,  the  impugned  order stipulates  that your Applicants and others covered by the said order,  should get pay and allowance in their existing pay scale  of  A.C.D.P.O.  Such  denial of higher  scale  of  pay  and  allowances  of  the  post  of  Child  Development  Project  Officer (CDPO) to your Applicants is unjust, improper and  illegal  under  the  law  of  the  land,  since  no  employee  should get the pay and allowances of the post he holds,  even in Acting capacity. Your Applicants, therefore, pray  to  the  Hon'ble  Bench  for  appropriate  direction  or  directions in the Respondents 1 to 3 to pay the pay and  allowance of the post of Child Development Project Officer  (CDPO),  the  scale  of  pay  being  Rs.470-1160/-(ROPA  1981)/1640-3625 (ROPA 1990)/5500-l1200 (ROPA 1988),  from the date of Applicants have been working as Acting  

2

Page 3

CSPO by dint of Office Order dated 07.07.99 (Annexure  ‘P/1’).”

6. In the counter filed by the respondents, it was not disputed that the  

appellants had been discharging the duties of CDPO but it was averred  

that there is no recruitment rule exclusively for the post of CDPO which is  

governed by West Bengal Junior Welfare Services Rules (for short, “the  

Rules”).  This is evinced from paragraphs 3 and 4 of the reply, which are  

extracted below:

“(3) With regard to the statements made in paragraph  4.11 of the instant application the respondents state that  there is no recruitment rule exclusively for the post of CD- POS. The post of CDPOS are manned from the WBJSW ser- vice cadres along with 8 other posts. Hence the question  of changing recruitment rules for the post of CDPOS holds  no ground.  In  respect of the projects having no regular  CDPO the ACDPOS are ordered to hold the charge of the  projects in order to run the projects. It is a common prac- tice of  the Administration to order the office second in  command to hold the charge of the office whenever the  office first in command goes on leave, or tour, or other- wise the post  falls  vacant.  Such duties have also been  mentioned in the job chart of the ACDPOS published by  the Government of India. To remain in charge does not  qualify him to enjoy the pay scale of the head of office.

The respondent deny and dispute all allegations, imputa- tions and contentions made in this paragraph which are  not borne out by records and those which are contrary to  inconsistent with what have been stated above. All allega- tions, not specifically admitted herein shall be deemed to  have been set out herein and denied seriatim.

(4) With regard to the statements made in the rest of  the paragraphs of the instant application the respondents  state all  the employees under the state of West Bengal  are governed by WBSR. Under WBSR, holding of tempo- rary charge of a higher post does not qualify an officer to  enjoy the higher pay scale which is enjoyed by an officer  

3

Page 4

of  higher  cadre  service  normally  holding  the  post.  The  ACDPOS have been appointed under Rules framed for ap- pointment to the post clearly mentioning the pay scales,  terms and conditions and job responsibilities. To remain  in charge of the CDPOs in their absence is within the job  chart of the ACDPOs. Hence question of violation of natu- ral justice by not allowing them pay scale attached to the  WBJSWS does not arise.  The respondents reiterate that  there is no pay scale specifically attached to the post of  CDPO, hence no question of allowing that pay scale to the  ACDPOs in charge of the projects at all arise. Proper steps  have been taken to fill  up the posts of CDPOs with the  WBJSWS cadre but the process have been delayed due to  objection  of  ACDPOs  themselves  and  such  steps  go  against their own interest as well.

Save those stated above and those which are matters of  record all other allegations made in these paragraphs are  denied.”

7. The Tribunal dismissed the Original Application vide order dated  

16.9.2005 by recording the following observations:

“Now, the question  to  be  decided  is  whether the applicants are entitled to get the pay scale of  CDPO when they were posted there as Acting. In the in- stant  case,  from  their  order  issued  by  a  letter  dated  07.07.99 it is clear that the ACDPOs, i.e., the applicants  were transferred temporarily to the ICDS projects to act  as CDPO officers in the existing scale of pay with immedi- ate effect and until further orders. So, from the order it- self it is clear that they were posted to act as CDPO in  their existing scale of pay. It is also categorically stated  by the respondent that there is no specific pay scale for  CDPOs. So, the question of issue of separate pay scale to  the applications does not arise. Ld. Lawyer for the petitioners relied upon the judgement  reported in 1990 S.C. cases (L&S 1127). We have gone  through the said judgment. It is the settled principle of law  that each case shall be decided on its own merits. After  going through the said judgment we find that the order is- sued by the Deptt. is specific and clear. This runs as fol- lows:-

"the Directors of Education, A & N Islands is pleased to  order  the  transfer  of  Shri  Selveraj,  primary  School  

4

Page 5

Teacher attached to Middle School, Kanyapur to Direc- torate of Education (Scouts Section ) to look after the du- ties of Secretary (Scouts) with immediate effect. His pay  will be drawn against the post of Secretary (Scouts) under  GFR 77".

So, from the order itself it appears that it is already men- tioned clearly the pay which will be drawn.

In the present case the order is also itself is very clear that  the applications will act as CDPO in their existing scale of  pay.

The applicants are also quite under the WBSR rules. The  said  rule  does  not  provide  that  holding the  temporary  charge of a  higher post  qualify an officer to  enjoy the  higher pay scale which is enjoyed by an office of a higher  cadre service normally holding the post.  Considering all  these aspects  we do not find any merit to consider the  prayer  of  the  applicants.  Hence,  the application is  dis- missed on contest.”

8. The  appellants  challenged  the  order  of  the  Tribunal  in  WPST  

No.775/2005  but  could not  convince the  High Court  to  entertain their  

prayer.  Their writ petition was dismissed vide order dated 5.12.2011, the  

relevant portion of which is extracted below:

“In the instant case we find from the order of the Tribunal  that  post  of  C.D.P.O.  did  not  have  any  particular  pay  scale. Be that as it may, once the petitioners were asked  to man the post temporarily, it would mean officiation in a  superior  post  that  would  attract  appropriate  officiating  allowance.  Pay  scale  in  the  superior  post  can  only  be  achieved once  they  are  promoted or  absorbed in  such  post  on  promotional  basis.  We,  however  deprecate the  practice of the State by asking them to temporarily man  such post without filling up the post on regular basis. It is  high  time  the  State  should  look  into  the  problem  and  solve it on perpetual basis. Till then, the petitioner would  be entitled appropriate  officiating allowance as  per  the  rules. Such officiating allowance would be available to the  petitioners from the date of filing of the petition before  

5

Page 6

the Tribunal.”

9. Shri S. Bhattacharjee, learned counsel for the appellants relied upon  

the judgments of this Court in Selvaraj v. Lt. Governor of Island, Port  

Blair and others (1998) 4 SCC 291 and State of West Bengal and others v.  

Pantha Chatterjee and others (2003) 6 SCC 469 and argued that in view of  

the doctrine of equality enshrined in Articles 14 and 16 read with Article  

39(d), the appellants are entitled to be paid salary and allowances in the  

scale meant for the post of CDPO because they are discharging the duties  

of that post.  Learned counsel further argued that the stipulation contained  

in order dated 7.7.1999 that  the appellants are temporarily transferred to  

ICDS project to act as CDPOs in their existing pay scale cannot be made  

the basis for depriving them of their constitutional right guaranteed under  

Articles 14 and 16.  

10. Learned  counsel  for  the  respondents  referred  to  the  provisions  

contained in the Rules framed by the Governor under proviso to Article  

309 of the Constitution to show that the post of CDPO is required to be  

filled by promotion and argued that the appellants do not have the right to  

be paid salary in the higher pay scale because they have so far not been  

promoted as CDPOs.

11. We have considered the respective submissions.  The applicability  

of  the  doctrine  of  equality,  enshrined  in  Articles  14  and  16  of  the  

6

Page 7

Constitution,  in  the  matter  of  pay  and  allowances  was  explained  in  

Randhir Singh v.  Union of  India  (1982)  1  SCC 618  in the  following  

words:

“It is true that the principle of “equal pay for equal work”  is not expressly declared by our Constitution to be a fun- damental right.  But it  certainly is a  constitutional goal.  Article 39(d) of the Constitution proclaims “equal pay for  equal work for both men and women” as a directive prin- ciple of State Policy. “Equal pay for equal work for both  men and women” means equal pay for equal work for  everyone and as between the sexes. Directive Principles,  as has been pointed out in some of the judgments of this  Court have to be read into the fundamental rights as  a  matter of interpretation. Article 14 of the Constitution en- joins the State not to deny any person equality before the  law or the equal protection of the laws and Article 16 de- clares that there shall be equality of opportunity for all cit- izens in matters relating to employment or appointment to  any office under the State. These equality clauses of the  Constitution must mean something to  everyone.  To the  vast  majority of  the  people  the equality clauses  of  the  Constitution would mean nothing if they are unconcerned  with the work they do and the pay they get. To them the  equality clauses will have some substance if equal work  means  equal  pay. Whether  the  special  procedure  pre- scribed by a statute for trying alleged robber-barons and  smuggler kings or for dealing with tax evaders is discrim- inatory, whether a particular governmental policy in the  matter of grant of licences or permits confers unfettered  discretion on the Executive, whether the take-over of the  empires of industrial tycoons is arbitrary and unconstitu- tional and other questions of like nature, leave the millions  of people of this country untouched. Questions concerning  wages and the like, mundane they may be, are yet matters  of vital concern to them and it is there, if at all that the  equality clauses of the Constitution have any significance  to them. The Preamble to the Constitution declares  the  solemn resolution of the people of India to constitute India  into a Sovereign Socialist Democratic Republic. Again the  word “socialist” must mean something. Even if it does not  

7

Page 8

mean ‘to  each according to  his  need’,  it  must  at  least  mean  “equal  pay  for  equal  work”.  “The  principle  of  “equal pay for equal work” is expressly recognized by all  socialist systems of law, e.g., Section 59 of the Hungarian  Labour Code, para 2 of Section 111 of the Czechoslovak  Code, Section 67 of the Bulgarian Code, Section 40 of the  Code of the German Democratic Republic, para 2 of Sec- tion 33 of the Rumanian Code. Indeed this principle has  been incorporated in several western Labour Codes too.  Under provisions in Section 31 (g. No. 2d) of Book I of  the French Code du Travail, and according to Argentinian  law, this principle must be applied to female workers in  all collective bargaining agreements. In accordance with  Section 3 of the Grundgesetz of the German Federal Re- public, and Clause 7, Section 123 of the Mexican Consti- tution, the principle is given universal significance” (vide  International Labour Law   by Istvan Szaszy, p. 265). The    Preamble to the Constitution of the International Labour  Organisation recognises the principle of ‘equal remunera- tion for work of equal value’ as constituting one of the  means of achieving the improvement of conditions “in- volving such  injustice,  hardship  and  privation  to  large  numbers of people as to produce unrest so great that the  peace and harmony of the world are imperilled”. Constru- ing Articles 14 and 16 in the light of the Preamble and  Article 39 (  d  ), we are of the view that the principle “equal    pay for equal work” is deducible from those Articles and  may be properly applied to cases of unequal scales of pay  based  on  no  classification  or  irrational  classification  though  those  drawing  the  different  scales  of  pay  do  identical work under the same employer.”

       (emphasis supplied)

12.  Though the judgment in  Selvaraj v. Lt. Governor of Island, Port  

Blair and others (supra) can be distinguished on the ground that in the or-

der passed by the competent authority requiring the appellant, who was  

holding the post of primary teacher, to look after the duties of Secretary  

8

Page 9

(Scouts), it was mentioned that pay will be drawn against the post of Sec-

retary (Scouts) under general fundamental rules, the principles laid down  

in State of West Bengal and others v. Pantha Chatterjee and others (supra)  

has direct bearing on the question arising in this appeal.  The respondents  

in that  case  were  appointed  as  part-time Border  Wing Home Guards.  

They filed writ petition before the Calcutta High Court with the complaint  

that they were being discriminated vis-à-vis other regular   Border Wing  

Home Guards of West Bengal and the Border Security Force Personnel  

despite the fact that they were performing similar duties and discharging  

same responsibilities. The learned Single Judge referred to the judgments  

in  Bhagwan Dass v.  State of Haryana (1987) 4 SCC 634, Daily Rated  

Casual Labour through Bhartiya Dak Tar Mazdoor Manch v. Union of In-

dia (1988) 1 SCC 122 and Delhi Transport Corporation v.  D.T.C. Maz-

door Congress 1991 Supp (1) SCC 600, and held that the respondents are  

entitled to the same benefits as are admissible to the permanent Border  

Wing Home Guards.  The Division Bench of the High Court agreed with  

the learned Single Judge and dismissed the appeal filed by the State of  

West Bengal with some modification. While dismissing the appeal, this  

Court observed:  

“There is no dispute about the fact that there has been dis- parity  in  emoluments  and  other  working  conditions,  between the part-time BWHG and the BWHG on the per- manent staff although both have been deployed for per- forming the same nature of duties and have been working  

9

Page 10

for the same duration in the same conditions but one of  them with and the other without the necessities of the job,  facilities and benefits of the service. It is true and rightly  held that BWHG could not compare themselves with BSF  personnel but the difference between the permanent staff  and  the  part-time  staff  which  had  been  made  in  the  Scheme was obliterated and rendered ineffective. There is  no real distinction between the two, namely, the perman- ent BWHG and the part-time BWHG in absence of non- release of the latter after three months of the appointment,  as per the Scheme. It has not been indicated by the appel- lants or the Union of India that the petitioners were ever  disengaged of their assignment temporarily or the State  Government had availed of their services after due and  prior permission of the Central Government, or they were  ever freed to resume their old vocational pursuits. It is in  the affidavit of the authorities that BWHG are under oper- ational command of BSF authorities, when deployed for  patrolling along the Indo-Bangladesh border. In the back- ground of what has been indicated above, in our view the  findings arrived at by the High Court cannot be faulted  with.

With a  view to recapitulate the legal position, we may  briefly refer to some decisions of this Court apart from  those relied upon by the High Court. In a decision repor- ted in Jaipal v. State of Haryana (1988) 3 SCC 354 it has  been held to be a constitutional obligation to ensure equal  pay for equal work where the two sets of employees dis- charge similar responsibilities under similar working con- ditions. The plea of temporary or casual nature of employ- ment or full-time and part-time employees had been neg- ated. Similarly, in the case reported in Dhirendra Chamoli  v. State of U.P. (1986) 1 SCC 637 it was held that casual  workers could not be denied same emoluments and bene- fits  as  admissible  to  the  temporary  employees  on  the  ground that they had accepted the employment with full  knowledge of their disadvantage. In Grih Kalyan Kendra  Workers'  Union v.  Union of  India  (1991)  1  SCC  619  though on facts no discrimination was found but the prin- ciple of “equal pay for equal work” was upheld and re- cognized where all were placed similarly and discharging  same duties and responsibilities irrespective of the casual  nature of work. This right had been held to have assumed  

10

Page 11

the status of a fundamental right in service jurisprudence  having regard to the constitutional mandate of “equality”  in  Articles  14  and  16.  In  Daily  Rated  Casual  Labour  through Bhartiya Dak Tar Mazdoor Manch v.  Union of  India (1988) 1 SCC 122 right of daily-rated casual work- ers in the P & T Department was  recognized and they  were directed to be paid in minimum of the scale as was  admissible to the regular workers as both discharged sim- ilar work and responsibilities.”

(emphasis supplied)

13. Reverting to the facts of this case, we find that although the appel-

lants were recruited as ACDPOs, the State Government transferred and  

posted them to work as CDPOs in ICDS projects.  If this would have been  

a stop gap arrangement for few months or the appellants had been given  

additional charge of the posts of CDPO for a fixed period, they could not  

have  legitimately  claimed  salary  in  the  scale  of  the  higher  post,  i.e.,  

CDPO.  However, the fact of the matter is that as on the date of filing of  

the Original Application before the Tribunal, the appellants had continu-

ously worked as CDPOs for almost 4 years and as on the date of filing of  

the writ petition, they had worked on the higher post for about 6 years.  By  

now, they have worked as CDPOs for almost 14 years and discharged the  

duties of the higher post.  It is neither the pleaded case of the respondents  

nor any material has been produced before this Court to show that the ap-

pellants have not been discharging the duties of the post of CDPO or the  

degree of their responsibility is different from other CDPOs.  Rather, they  

have tacitly admitted that the appellants are working as full-fledged CD-

11

Page 12

POs. since July, 1999.  Therefore, there is no legal or other justification for  

denying them salary and allowances of the post of CDPO on the pretext  

that they have not been promoted in accordance with the Rules.  The con-

vening of the Promotion Committee or taking other steps for filling up the  

post of CDPO by promotion is not in the control of the appellants.  There-

fore, they cannot be penalised for the Government’s failure to undertake  

the exercise of making regular promotions.

14. In the result, the appeal is allowed. The impugned order as also the  

one passed by the Tribunal are set aside and the respondents are directed  

to pay salary and allowances to the appellants in the pay scale of the post  

of CDPO with effect from the date they took charge of those posts. This  

exercise must be completed within 8 weeks from today.  The arrears shall  

be paid to the appellants within a period of 9 months.

15. Since regular promotions to the post of CDPO have not been made  

for more than one decade,  we direct the respondents to do the needful  

within a period of six months from today.

..….………………….…J.     [G.S. SINGHVI]

..….………………….…J.     [H.L. GOKHALE]

New Delhi, March 13, 2013.  

12