T.N.K. Singh, J.

1. The Accounts Services Association comprising of employees of 3 (three) categories of services, namely (1) Divisional Accounts Officer, (2) Senior Divisional Accountants & (3) Junior Divisional Accountants which is a registered society having Registration No. AR-13/2/88 is the Petitioner of the present writ petition.

2. Heard Mr. CT Jamir, learned Counsel appearing for the Petitioner/association and Ms. Y. Longkumer, learned GA, Nagaland appearing on behalf of the Respondents.

3. By this writ petition, the Petitioner/ association is challenging the office memorandum being No. FIN/ROP-30/ 2002 dated Kohima the 31.08.2004 (Annexure - M to the present writ petition) wherein the Government of Nagaland rejected the demand of the Petitioner/ association for revision of pay scale of the Junior Division Accountant under the ROP Rules, 1999 at par with the pay scale of (1) UDAs, (2) Overseer-Grade I, (3) Nursery Sister, District Welfare Officer, Organiser (Social Welfare Department), (4) Supervisor, (5) Foreman (Power Department) etc. For easy reference, the impugned office memorandum dated 31.08.2004 is quoted hereunder:

GOVERNMENT OFNAGALANED FINANCE DEPARTMENT ESTABLISHMENT & ROP BRANCH OFFICE MEMORANDUM

Dated Kohima, the 31st Aug. 2004.

NO. FIN/ ROP- 30/2002: To examine the issue contained in the representation of the members of Accounts Service Association of Nagaland pertaining to their pay scales a high level Committee was constituted vide this Department Notification of even number dated 26th July 2003 and 1st Sept. 2003.

1. The representatives of the Accounts Service Association of Nagaland (ASAN) were also heard in person. The salient points put forwarded by the ASAN representatives is applied below:

i) Minimum qualification required for initial recruitment in the lowest grade that is, Junior Division Accountant is graduation, which is higher than that required for recruitment as directorate UDA, Overseer etc.

ii) Pay scale of directorate UDA is same as that of UDA, and lower than that of Sr. D.A. But next promotion, the directorate UDA becomes a Superintendent (Grade - A post) whereas JDAs next promotion is Sr. DA (Group-C) and thereafter DAO (Group - B).

iii) Whereas the other posts like Overseer Grade-1, Nursery Sister, District Welfare Officer, Organiser (Social Welfare Department), Supervisor, Foreman (Power Department) etc. were given upgraded from time to time, the 3 (three) cadres which are represented by ASAN continued to be given only the corresponding higher seals in each ROP. Thus, they are effectively downgraded, by comparison.

2. After considering all the aspects, the Committee observed as follows:

(i) Comparison between the directorate UDAs and the JDAs is not found valid because of limited promotional prospects for the directorate UDAs as compared to the JDAs who have reasonable prospect of reaching upto DAOs.

(ii) Comparison with Overseer, Nursing Sisters, Tutors etc. is also not acceptable since technical qualification is required for initial recruitment to these posts; whereas the qualification for initial recruitment to the post of JDA is simple graduation although in service training may be imparted to them subsequently,

iii) As for the District Welfare officers Organisers of Social Welfare Department, the Committee considered the fact that the development department have expanded over the years and these Officers become District Level Heads of Officers with added responsibility. The JDAs/ Sr.DA/DAOs, on the contrary, do not hold the responsibility of the Heads of Offices.

3. The Committee noted that these issues were earlier examined by the Pay Commission/Pay Committee/Anomaly Committees. All the aforesaid Commissions/Committees, except the Anomaly Committee on ROP 99, also heard the ASAN or the employees of the 3 (three) Cadres now forming the ASAN and did not recommend the change as demanded by the ASAN.

4. The present Committee therefore does not find it desirable to consider any mid term change in the pay scale of certain cadres, both on its own merit and also considering the likely wide spread repercussions.

5. Considering all the factors involved and basing on the recommendation of the above mentioned Committees, it is recommended that statues-quo be maintained and that the whole matter may be brought before the next Pay Commission/Committee for detailed examination.

4. The Petitioner/association is asking for revision of pay scale, more particularly, Junior Accountant on the basis of comparative pay revision of the post of UDAs mainly on the ground that the educational qualification for the post of Junior Accountant on direct recruitment is graduate which is higher than that of recruitment as directorate UDAs, Overseer etc. In short the Petitioner/ association is equating the post of Junior Accountant with that of the UDA and also other posts like Overseer Grade-I, Nursery Sister, District Welfare Officer, Organiser (Social Welfare Department), Supervisor, Foreman (Power Department) etc.

5. The Government of Nagaland under the impugned office memorandum dated 31.08.2004 had rejected the demand for revision of pay scale of the Junior Division Accountant by equating the post of Junior Accountant to those posts mentioned above, on the ground that; i) comparison between directorate UDAs and JDAs is not found valid because of the limited promotional aspects for the directorate UDAs as compared to the JDAs who have reasonable prospect of reaching up to DAOs (Divisional Account Officers), ii) comparison with Overseer, Nursery Sisters, Tutors etc. is not acceptable since technical qualification is required for initial recruitment to those posts; whereas the qualification for initial recruitment to the post of JDA is simple graduation though in service training may be imparted to them subsequently, iii) As for the District Welfare Officers, Organisers of Social Welfare Department, the Committee considered the fact that the development department have expanded for the years and these offices become District Level Heads of Officers with added responsibility. The JDAs/Sr.DA/ DAOs, on the contrary, do not hold the responsibility of the Heads of Offices.

6. As stated above, the main basis for challenging the impugned office memorandum dated 31.08.2004 is based on the equation of the post of JDAs with those posts i.e., UDA, Overseer, Nursing Assistant, Tutors etc. This Court in exercise of its writ jurisdiction is ill equipped to determine the equation of posts. The Apex Court in State of UP and Ors. v. J.P. Chaurasia and Ors. AIR 1989 SC 19 [LQ/SC/1988/516] held that

The equation of posts or equation of pay must be left to the executive government. It must be determined by the expert bodies like Pay Commission. They would be the best Judge to evaluate the nature of duties and responsibilities of posts if there is any such determination by a Commission or Committee, the Court should ordinarily accept it. The Court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration.

The Apex Court reiterated the ratio laid down in State of UP and Ors. v. J.P. Chaurasia and Ors. (supra) in Supreme Court Employees Welfare Association v. Union of India and Ors. : AIR 1990 SC 334 [LQ/SC/1989/355] that:

It is not the business of the Supreme Court to fix the pay scales of the employees of any institution in exercise of its jurisdiction under Article 32. If there be violation of any fundamental right by virtue of any order or judgment, the Supreme Court can strike down the same but, surely, it is not within the province of the Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32.

7. Normally, whether two posts are equal or should carry equal pay depends upon several factors and it does not depend upon either the nature of the work or the volume of work. Primarily, it requires amongst Ors. , evaluation of duties; responsibility of the respective jobs. The Apex Court in Supreme Court Employees Welfare Association v. Union of India and Ors. (supra) held that if any unequal pay is based on no classification, it would be violative of Article 14 of the Constitution of India. Para 38 of the Supreme Court Employees Welfare Association v. Union of India and Ors. (supra) read as follows:

38. It follows from the above decisions that although the doctrine of equal pay for equal work does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of equal pay for equal work, as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved the doctrine of equal pay for equal work, will not have any application even though the persons doing the same work are not getting the same pay. In short. so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of equal pay for equal work as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. Dhirendra Chamoli v. State of U.P. (1996) 2 SCC 637 is a case of equal pay for equal work. As envisaged by Article 14 and not of the abstract doctrine of equal pay for equal work.

8. The Apex Court in "State of Maharashtra v. Assn. of Court Stenos PA PS and Anr. : AIR 2002 SC 555 [LQ/SC/2002/24] held that the High Court in its discretionary jurisdiction under Article 226 of the Constitution cannot itself examine the nature of the work of its employees and issue a mandamus directing a particular pay scale to be given to such employee. The Court, further, clarifies that this may not be construed as total ouster of jurisdiction of the High Court under Article 226 to examine the nature of duties of an employee and apply the principle of equal pay for equal work in an appropriate case.

9. The Apex Court in Union of India v. Tarjit Ranjan Das : (2003) 11 SCC 658 [LQ/SC/2003/1004 ;] held that the equality of pay is based on several factors like the responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy and the qualifications required which are equally relevant. Para 9 of the SCC in Union of India v. Tarjit Ranjan Das (supra) read as follows:

9. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any date. It is trite law that it is not open for any Court to sit in judgment as on appeal over the conclusion of the Commission. Further, the Tribunal and the High Court proceeded as if it was the employer who was to show that there was no equality in the work. On the contrary, the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy, the qualifications required which are equally relevant.

10. In the impugned office memorandum dated 31.08.2004, which was issued on the recommendation of the high level committee constituted in compliance with the judgment and order of this Court dated 04.07.2003 passed in WP(C) No. 131(K) of 2002, reasons had been given for denying the demand of the Petitioner/association for revising the pay scale of the JDAs on the basis of comparative pay revision of the posts of UDA, Overseer, Nursing Sisters and Tutors. As discussed above, this Court, while exercising the jurisdiction under Article 226 of the Constitution is ill equipped to determine the equation of posts and equation of pay scale which would be determined by the Expert Committee.

11. For the reasons discussed above, this Court is not interfering with the impugned office memorandum dated 31.08.2004. And accordingly, this writ petition is dismissed.

12. However, dismissal of the writ petition shall not bar the Respondents to consider the revision of pay scale of the Divisional Accountants and divisional Accounts Officers at par with the revision of pay scale of the posts mentioned in the Nagaland Public Works Department Code, more particularly, para Nos. 124,125,126 and 127 which are quoted below:

124. To assist the Divisional Officers in discharge of their responsibilities as referred to above, the Accountant General, Nagaland and Assam, will post a Divisional Accountant to each Division.

Note- The employment, as a Divisional Office of any person, who does not belong to the establishment of Divisional Accountants is not permissible. But when a regular Divisional Accountant is not available and as a purely temporary arrangement, the Accountant General may entrust to Junior Divisional Accountant, or Assistant Divisional Accountant, the duties of a Divisional Accountant in the particular vacancy even though he might not have passed the Divisional Test Examination.

125. The Divisional Accountant should be treated as senior member of all ministerial establishment in the whole Division and given all facilities to be conversant With all sanctions, orders, proceedings, circulars, etc. of the Division. Daks, papers and files should pass through him.

126. The relatives position of the Division Accountant to the Divisional Officers in respect of accounts is analogous to that of a Sub-Divisional Officer to the Divisional Officer in respect of works, and the responsibilities of the latter for the work of the Divisional Accountant are similar to those which attach to him in respect of the execution of works in the charge of his other subordinates.

127. The responsibilities and duties of the Divisional Accountant have been narrated in the Central Public Works Accounts Code.

13. Parties are to bear their own costs.