Suman Shyam, J.

(Oral)

In tune with the recommendation of the pay commission, the Govt. of Mizoram had framed the Mizoram (Revision of Pay) Rules, 2010 (hereinafter referred to as ROP Rules, 2010) under proviso to Article 309 of the Constitution which was notified in the official Gazette on 06-08-2010, so as to give effect to the revision of pay of the employees of the Government of Mizoram. The ROP Rules, 2010 had provided that the pay of all the Govt. employees covered therein shall be notionally fixed w.e.f. 01-01-2006 but actual monitory benefit shall be paid w.e.f. 01-01-2009 only. On 23-09-2010 the Secretary to the Govt. of Mizoram, Finance Department, had issued a notification appointing a Pay Anomaly Committee consisting 04 members by invoking the powers under Rule 18 of the ROP Rules, 2010 so as to look into certain anomalies in the pay structure. The Committee was required to submit its report of recommendation within 02 months from the date of issuance of the notification. However, on 01-06-2011, a new Anomaly Committee was appointed by including an additional member and also expanding the terms of reference. The terms of reference of the Committee constituted on 01-06-2011 is reproduced herein below:

"The terms of reference of the Committee shall be as stipulated below:

(a) to identify the errors, omissions, commissions and inconsistencies that have emerged out of the implementation of the Mizoram (Revision of Pay) Rules, 2010,

(b) to examine the emerging problems that have been arisen on account of Revision of Pay structure and allowances for employees of the Government of Mizoram.

(c) to explore suitable solutions to the problems that have arisen out of the revision of pay structure and allowances under the above stated Rules,

(d) to design suitable system for step-up of Grade pay in respect of employees whose pre-revised pay scales were critically stagnant and anomalously lopsided from the pay of their counterparts in other Departments/Cadres/ Organizations."

2. On examining the issues, the Anomaly Committee had submitted its report which was considered by the Council of Ministers in its meeting held on 13-06-2012 where-after, the recommendations of the Committee was accepted without any modification. However, the Council of Ministers took a decision to give effect to the revised pay scale w.e.f. 01-06-2012 and accordingly, a notification dated 04-07-2012 was issued in exercise of powers conferred under Article 162 of the Constitution of India, notifying that the up-gradation of pay should be construed as revision of pay and the same shall take effect from 01-06-2012. Aggrieved by the notification dated 04-07-2012, the respondents in the writ appeal, numbering 617, who are all employees of the Govt. of Mizoram and effected by the cut-off date fixed by the notification dated 04-07-2012 for giving effect to the revised pay scale, had approached this Court by filing W.P.(C) No. 138/2013 which was allowed by the learned Single Judge by the judgment and order dated 19-09-2014 with a direction upon the appellants to take steps to implement the report of the pay committee in accordance with the provision of the ROP Rules, 2010. The State of Mizoram has preferred this appeal assailing the judgment and order dated 19-09-2014. In the meantime another 55 similarly situated petitioners had filed a separate writ petition number and registered as W.P.(C) No. 158/2016 assailing the notification dated 04-07-2012, which petition has also been tagged with this writ appeal. By this common order, we propose to dispose of the writ appeal and the writ petition.

3. Heard Mr. A.K. Sarma, learned Addl. Advocate General, Govt. of Mizoram appearing for the State. We have also heard Mr. K.N. Choudhury, learned Sr. counsel and Mr. A.R. Malhotra, learned counsel appearing for the private respondents/writ petitioners.

4. The learned Additional Advocate General has argued that the notification dated 04-07-2012 deals with up-gradation of pay structure and a revised pay structure and therefore, it was permissible for the Government to fix a cut-off date for extending financial benefit by taking note of the financial constraints faced by the State. Urging that the State is going through financial crisis, Mr. Sarma submits that it was a conscious decision taken by the Council of Ministers to extend financial benefit w.e.f. 01-06-2012. According to Mr Sarma, the State had the discretion to take a decision in such matter and therefore, the learned Single Judge was correct in interfering with the same. The learned Addl. AG has, therefore, prayed for dismissal of both the writ petitions. In support of above his arguments, Mr. Sarma has relied upon the following decisions:

(i) (2007) 8 SCC 279 (S.C. Chandra & Ors. v. State of Jharkhand & Ors.) P. 21

(ii) (2009) 1 SCC 73 (Chandrashekar A.K. v. State of Kerala & Ors.) P. 11, 12, 14 & 15

(iii) (2015) 3 SCC 653 (T.V.L.N. Mallikarjuna Rao with Union of India v. S.D. Bhangale & Ors.) P. 26.

(iv) (2008) 1 SCC 630 (Union of India & Ors. v. Hiranmoy Sen & Ors.) P. 5.

5. Mr. K.N. Choudhury, learned Sr. counsel appearing for the private respondents/writ petitioners, on the other hand, contends that the ROP Rules, 2010 having been notified under the proviso of Article 309 of the Constitution of India, the same could have been modified by issuing the impugned notification under Article 162 of the Constitution. The learned Sr. counsel submits that financial constraint cannot be a ground to deprive the employees of their rights which had accrued under the ROP Rules, 2010 and considering the fact that the respondents/writ petitioners had never raised any dispute regarding anomaly in their pay structure, the entire exercise of appointing an Anomaly Committee and thereafter, deferring the date for payment of actual monetary benefit is wholly arbitrary and illegal and hence, has been rightly interfered with by the learned Single Judge. By referring to a decision of the Supreme Court in the case of State of Haryana, etc. etc. v. Shamsher Jang Bahadur etc. etc. reported in (1972) 2 SCC 188 , the learned Sr. counsel has argued that even the Govt. cannot alter the Rules framed under Article 309 of the Constitution of India by means of administrative instruction.

6. Placing reliance on another decision of the Apex Court in the case of State of Mizoram & Anr. v. Mizoram Engineering Service Association & Anr. reported in (2004) 6 SCC 218 , Mr. Choudhury has submitted that taking a similar plea in an earlier proceeding, the appellant State had made an attempt to deny the benefit of pay revision under the 4th Central Pay Commission and in that case also the Honble Supreme Court has held that heavy financial burden and lack of resource of State Govt. can hardly be a ground in such matters. As such, submits Mr. Choudhury, the impugned notification is wholly un-justified and cannot stand the scrutiny of law.

7. We have considered the rival submissions made at the bar and have also perused the materials available on record. Although, the respondents counsel has categorically submitted that his clients had never made any complaint against the revised pay structure proposed by ROP Rules, 2010 and the matter was unilaterally referred to the Anomaly Committee by the Govt. we find that there is no dispute as regards the recommendation of the Anomaly Committee and the same has only been accepted by both the parties but has even been implemented w.e.f. 01-06-2012.Therefore, the only question that arises for consideration in these proceedings is as to whether, upon revision of the pay scales, was it open for the Govt. of Mizoram to defer the date of payment of actual financial benefit to 01-06-2012 from the original date of 01-01-2009 fixed by the ROP Rules, 2010.

8. As noted above, the stand of the State is that the cut-off date of 01-06-2012 has been prompted by financial constraints faced by the State. Although Mr. Sarma has argued that the notification dated 04-07-2012 has provided for up-gradation of pay and revision of pay, yet, he has failed to substantiate the said argument based on materials on record. Since the Anomaly Committee had been admittedly appointed by the Govt. in exercise of powers under Rule 18 of the ROP Rules, 2010 on the terms which have been noted above, we fail to understand as to how the recommendation of the Anomaly Committee can be de-linked from the ROP Rules, 2010. Fixation of a cut-off date for extending the financial benefits to those employees covered by the ROP Rules was one of the issues referred to the Anomaly Committee. The ROP Rules of 2010 clearly mentions the cut-off date of actual financial benefit to be 01-01-2009 and the said rules are applicable to all persons appointed to civil services and holding the posts in connection with the affairs of the Govt. of Mizoram whose pay is debitable to the consolidated fund of the State. There is no dispute in this case that the respondents/writ petitioners come within the purview of the POR Rules of 2010. If that be so, the respondents/writ petitioner cannot be deprived of the benefits accruing to them under the ROP Rules of 2010.

9. In the case of Purshottam Lal & Ors. v. Union of India & Anr. reported in (1973) 1 SCC 651 , relied upon by Mr. Choudhury the Supreme Court has categorically observed that it was for the Govt. to accept the recommendation of the Pay Commission and while doing so, to determine which category of employees should be taken to have been included in the terms of reference. However, having accepted the recommendation, the Govt. would be bound to implement the same in respect of all Govt. employees and if it does implement the report regarding some employees only, it commits a breach of Article 14 and 16 of the Constitution of India.

10. Law is firmly settled that the rules framed under Article 309 of the Constitution would be equally binding on the Govt. and such rules cannot be tinkered with nor can it be whittled down by executive instructions. In the case of Shamsher Jang Bahadur (Supra), it has been categorically held that the Govt. would be competent to alter the rules framed under Article 309 of the Constitution of India by means of administrative instruction. However, we find that, that is precisely what has been done in this case. By issuing the impugned notification under Article 162 of the Constitution of India, the Government has altered the ROP Rules, 2010 framed under Article 309 by deferring the date from which the financial benefit in the revised pay structure was payable to the employees. Not only that, the deferred cut-off date of 01-06-2012 has been applied only to a particular category of employees whereas actual financial benefit under the ROP Rules of 2010 has been allowed with effect from 01-01-2009 in case of others. This, in our considered view, was a clearly discriminatory in nature and therefore, was hit by the principles embodied under Articles 14 and 16 of the Constitution of India.

11. Upon the promulgation of the ROP Rules, 2010, a right had accrued to all the employees covered by the Rules to receive the monitory benefit under the revised pay scale w.e.f. 01-01-2009 and the said right could not have been taken away by the State by subsequently issuing the impugned notification dated 04-07-2012. Since this is not a case of fixation of cut-off date for payment of financial benefits independent of the ROP Rules, 2010, hence, the decisions cited by the learned Addl. AG, in our view, would not be of any assistance to him in the facts of the present case.

12. For the reasons stated above, we do not find any good ground to interfere with the impugned judgment and order 19-09-2014. Consequently, the writ appeal is held to be devoid of any merit and the same is accordingly, dismissed.

13. We are informed that the respondents/writ petitioners have already been paid the monitory benefits under the revised pay scale w.e.f. 01-06-2012. We, therefore, direct that the arrear pay for the period from 01-01-2009 to 31-05-2012, as due and payable to the respondents/writ petitioners be released within a period of 06 months from today, failing which, the said amount will carry interest @ 12% per annum with effect from the date of this order till disbursement.

14. Writ Petition (C) No. 158/2016 shall stand disposed of in the light of the observations made hereinabove. No order as to cost.