R.N. Misra, J.
1. Petitioner was recruited on 9.11-1963 as an amin under the Delta Land Acquisition Organisation set up in the year 1956. The scale of pay of amins working in the various departments of Government throughout the State including the Delta Land Acquisition Organisation was Rs. 70.1-75-2-95 per month besides dearness allowance and additional dearness allowance admissible to Government servants. With effect from 1.1.1965, Government decided to enhance the pay scale of amins working in the Settlement Department from Rs. 70 95 to Rs. 80-120. Amins employed under the P. &. S. Department and Town Planning & Capital Administration in the Urban Development Department demanded the same enhanced scale and in due course that also was extended to them. Employees in Land Acquisition Organisation including the petitioner demanded the benefit of enhancement of scale of pay and on the recommendation of the Land Acquisition Officer, the Power & Irrigation Department of the State Government recommended the case of the employees of the Land Acquisition Department to the Finance Department and ultimately the following order was communicated to the Land Acquisition Officer:
I am directed to refer to your letter No. 2941 dated 14.9.1972 on the subject noted above and to say that after careful consideration Government has been pleased to decide that the scale of pay of amins under the Land Acquisition Organisation, Delta Irrigation Scheme, Cuttack is hereby enhanced from Rs 70.1.75-2-95 to Rs. 80-3-110 KB-3-116-4-120 with effect from 1.1-65 subject to condition that pay will be fixed notionally in the enhanced scale from the date of issue of the order, without any arrear pay benefit..'(Annexure-6)
The Land Acquisition Officer by his order dated 1-3-1974, implemented the Government direction by passing the following Office order:
Government in Irrigation & Power Department in their G.O.No. NCM - II - P-58/73-28366 dated 21-9-1973 have enhanced the scale of pay of amins in this organisation from Rs. 704-75-2.95 to Rs. 80.2-110-EB-3-116-4-120 with effect from 1-1-1965. Consequently the pay of Shri Khirod Chandra Das, amin, (petitioner) is fixed on 1-1-1965 at Rs. 80 per month with next increment due on 1-1-1966, i.e., after completion of one year from the date of fixation of the pay in the enhanced scale raising the pay to Rs. 83 and he is allowed the following increments as shown below. The benefit of the enhanced scale will be given effect to from 21-9-1973. i.e., from the date of issue of the Government Order referred to above without any arrear benefits.
Increments Sanctioned Date Pay
Date Pay1-1-1967 ... Rs. 86/.1-1-1968 ... Rs. 89/.1-1-1969 ... Rs. 92/-1-1-1970 ... Rs. 95/-1-1-1971 ... Rs. 98/.1-1.1972 ... Rs. 101/-1-1-1973 ... Rs. 104/-(Annexure-7)
Petitioner alleges that the direction not to extend the benefit from 1-1-1965 is discriminatory and, therefore, the opposite parties be directed to extend the benefit so far as the petitioner is concerned with effect from 1.1-1965.
2. The return made to the rule nisi by the Under Secretary in the Irrigation & Power Department does not dispute the petitioner's assertion that amins working in various departments of Government Including the Land Acquisition Organisation have been given enhanced pay scale with effect from 1-1-1965. Similarly, there is no dispute against petitioner's assertion in paragraph 12 of the writ petition that the work of amins in other departments is comparatively easier than that of the Land Acquisition Organisation. In paragraph 9 of the counter-affidavit, it has been asserted:.The essence of the contents of these paras (14 to 26) of the writ petition is that the Government decision not to allow arrear pay prior to 21-9-1973 consequent on the revision of the pay scale with effect from 1-1-1965 is arbitrary, discriminatory and has been taken without proper application of mind. There is no basis for taking soon a view. It was a conscious decision taken in accordance with the financial principles followed by Government. Rule 32 of the O.G.F.R. Vol. 1 lays down that excepting in exceptional circumstances revision of pay should not be given with retrospective effect. In the particular case, Government took a lenient view and agreed to allow the revision of pay with effect from 1-1-1965 without giving the arrears that would accrue in consequence thereof. Such steps are usually taken when pay scales of particular posts are revised long time after. The decision to revise the pay scale of the amins working in the Land Acquisition Office, Delta Irrigation Scheme, Cuttack, was taken in 1973, some six years after such a decision was taken in case of amins working in the Town Planning Organisation. Had the decision regarding revision of pay in respect of the Amins working in both the Delta Irrigation Scheme and in the Town Planning Organisation been taken at a time and amins of the Delta Irrigation Scheme denied the benefit of arrear pay while allowing such benefit to the amins in the Town Planning Organisation, the charge of discrimination and arbitrariness could have been appropriate. Since the decision were taken at two different times with a time gap of six years (the amins in the Town Planning Organisation were given the benefit of revision of pay in 1967). there is no basis for calling the Government decision arbitrary or discriminatory. The decision was taken consciously with a view to save the Public Exchequer from an undue financial burden.
Mr. Dora for the petitioner contends that when there is no dispute that the amins in the Delta Irrigation Organisation where petitioner serves and the amins in the various other departments of Government are similarly placed and render almost uniform type of service, there was absolutely no justification for the Government to omit to consider the case of the petitioner and other amins employed in the Delta Irrigation Organisation when pay scale of amins in other departments was revised. Merely because Government had omitted to consider the case of amins in the Delta Irrigation Scheme, there can be no justification to hold that the mistake of Government would be a justification to deprive the petitioner of the banefit to which he is legitimately entitled. Mr. Dora relies on an unreported decision of this Court in the case of Nanda Kishore Das v. State of Orissa and Anr. where it was held :
It is the usual rule that equal work should carry equal salary. Salary is also integrally connected with status. In view of the position that the post of Dairy Supervisor is equal to the rank of Farm Manager, there is absolutely no justification to treat the Dairy Supervisor with the same training and equipment in a different way. Maintaining dis-parity in pay scales while there is equality otherwise is bound to lead to some amount of discrimination on one hand and heartburning in the employees on the other. In fact, while fixing pay scales, this rule is usually observed. There is no justification for treating the post of Dairy Supervisor differently when for all purposes it is an equal post with that of Farm Manager, Farm Superintendent and other posts of that category as indicated above.
There can be no dispute with the proposition. As we have already indicated, in the counter-affidavit there is no dispute that the nature of work of amins in the Delta Irrigation Scheme and elsewhere is similar. Undoubtedly, the other conditions of service are similar. The fact that Government have accepted in 1973 the claim of the amins in the Delta Irrigation Organisation and equated their pay scales with that of the amins in other departments supports the petitioner's contention that amins under the Delta Irrigation Organisation and elsewhere in Government service are of the same status. The mistake in not equating the pay scales with effect from 1-1-1945 is that of Government. The decision on the representation was taken belatedly. Petitioner and other amins in his establishment bad represented to the authorities earlier and even the recommendation of the Land Acquisition Officer was more than a year before the order was passed. In the circumstances, we see no justification in Government relying upon Rule 52 of the Orissa General Financial Rules, Volume-I The spirit of that Rule does not apply to the present case where a mistake had teen committed in omitting a class of employees from giving them their legitimate due. Undoubtedly, when amins in the Delta Irrigation Scheme and amins in ether establishments of Government render equal work and other conditions of service are similar if disparity is maintained in pay scale, it would be discriminatory treatment. To accept this stand of Government would ultimately amount to a premium on premium on negligence and Government would have a benefit for their own mistake at the cost of the petitioner and similarly situated employees for no fault of theirs.
3. We accordingly allow the application and direct the opposite parties to pay the petitioner the enhanced scale with effect from 1-1-65. We, however, make no direction for costs.
N.K. Das, J.
4. I agree.