GAHC010077762022 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) PRINCIPAL SEAT W.P(C) NO. 2933/2022 1. Bhaskar Bhattacharjya, S/O Late Rajendra Nath Bhattacharjya, Age-54 Years, Vill: Digheli, P.O-Bagdigheli, Dist: Nalbari, 781334, Assam 2. Gunaditya Sutradhar S/O Late Jatin Sutradhar, Age-42 Years, Village: Dakshinhati, P.O- Barpeta, District: Barpeta, 781301, Assam 3. Sanjay Das, S/O Late Jagannath Das, Age-46 Years, Village: Kolayahati, P.O.: Sundardiya, District: Barpeta, 781315, Assam 4. Al Faruque Mollah S/o Late Sirazul Islam Mollah Age-47, Village: Pragati Nagar, P.O: Khalilpur, District: Dhubri, 783325, Assam 5. Mustaq Hussain S/o Late Mir Hussan Age 50 Years Village: Dampur, P.O Dampur District: Kamrup(R)-781102, Assam 6. Amal Das S/O Late Prabin Das Age 53 Years Village: Silsakoo, P.O: Guwahati District: Kamrup(R) PIN: 781030, Assam 7. Abu Hyder Sazidur Rahman Mollah S/O Late Sirazul Islam Mollah Age: 45 Years, Village: Pragati Nagar, P.O: Khalilpur, District: Dhubri-783325, Assam 8. Asifa Khanam Ahmed W/O Mir Maniruj Zaman Age 46 Years Village: Dakhingaon, P.O: Kahilipara, District: Kamrup(M)-781029, Assam 9. Siddhartha Shankar S/O Late M.K. Paul Age: 46 Years Address: 2nd Link Road, Lane No. 12, H. NO. 29, District: Silchar, Assam 10. Atanu Roy Choudhary, S/O Late Rabindra Nath Roy Choudhary, Age 49 Years, Address-106/G, Kaziranga Apartment, Ananda Nagar, Lane No. 04, P.O. Pandu, Guwahati(M)-781012, Assam 11. Gunindra Sarma, S/O Pabindra Nath Sarma Age:41 Years, Address: 2 No. Sonkuriha, P.O: Kalog, District: Nalbari-781315, Assam 12. Abhijit Adhikari, S/O Late Mrinal Kanti Adhikari, Age-48 Years Address- Subhas nagar, Srinagar Lane W/No-26, P.O Karumganj-788710, Assam ……..Petitioner -Versus- 1. National Health Mission Represented by the Mission Director, Christian Basti, Guwahati-781005 2. Mission Director, National Health Mission, Christian Basti, Guwahati, Assam 3. The Executive Director, National Health Mission, Assam 4. State of Assam, represented by The Principal Secretary to the Government of Assam, Health and Family Welfare Department, Dispur, Guwahati-6 5. District Health Society, National Health Mission, Assam ……..Respondents – B E F O R E – HON’BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the petitioner :Mr. S. Borthakur, Advocate Advocate for the respondents :Mr. B. Gogoi, Addl. Advocate General, Assam Date of Judgment & Order: : 23.10.2025 JUDGMENT AND ORDER Heard Mr. S Borthakur, learned counsel for the petitioners. Also heard Mr. B. Gogoi, learned Addl. Advocate General, Assam for the respondents. 2. This writ petition has been filed by the petitioners who are seeking grant of adequate and regular increment on the salaries received by the petitioners as well as for grant of benefits in the nature of Earned Leave (EL), Casual Leave (CL), Maternity Leave, Gratuity etc. 3. The learned counsel for the petitioners submits that all the writ petitioners were appointed as Compute Assistant in different districts on different dates pursuant to a regular selection process. Their appointments are contractual in nature and these appointment orders were issued by the Mission Director, National Rural Health Mission (NRHM), Assam. The particulars of the various appointment orders and the dates are mentioned in Paragraph-2 of the writ petition. The copies of the appointment letters are also enclosed to the writ petition as Annexure-A Series. 4. It is submitted before the Court that altogether 32 persons were appointed as Computer Assistant out of which 27 persons including the writ petitioners were appointed at the District Level and 5 persons were appointed at the State Level under the National Health Mission. Presently 12 of these persons are employed and serving in the different districts. Although their initial salaries at the time of their appointments were Rs. 7,000/- per month, subsequently, their pay was also enhanced gradually. At present they are drawing a salary of Rs. 16,500-18,000 per month. The writ petitioners submit that at the time when they were serving in the Office in the year 2012 by Office Order No. NRHM/HRD/Office Order/304/2006/Pt-II/2286 dated 26.04.2012, the designation of Computer Assistants who are serving at the NRHM was re-designated as <Administrative Assistant=. However, in so far as the writ petitioners are concerned, they continued to serve as Computer Assistant as they were employed in the district level. 5. By order No. IDSP/24/Pt-2/15-16/13599 dated 05.12.2016 issued by the Mission Director, National Health Mission, Assam, Data Entry Operator, Computer Assistant, MMU Handyman and others Support Staff were discontinued under National Health Mission w.e.f 10.01.2017. In the said order, the writ petitioners were permitted to be engaged in their respective positions on a lumsum basis and it is on that basis, the petitioners are allowed to continue in their respective District Health Society as Computer Assistant. 6. It is submitted that order dated 28.03.2017 was passed by the Missioner Director, National Health Mission, Assam, provisions for regular increment of salary of its staff. By the said order, increment for staff working in Grade A was increased by 7%; Grade B by 5% and Grade C by 3%. However, Grade D and Grade E were not subjected to any entitlement. The present writ petitioners were also not extended the said benefit. Being aggrieved, they submitted a representation before the Mission Director, National Health Mission, Assam ventilating their grievances. However, such representation remained pending and no such orders were passed by the authorities on the prayers made by the petitioner. 7. It is submitted by the learned counsel for the petitioners that the Director of Health Service (FW), Assam by a communication No. HSFW/UIP/HR/U.16.4/129/2020/2214 dated 28.10.2020 issued to the Mission Director, NHM, Assam on the subject of up-gradation of salary structure of existing, contractual Computer Assistant and proposed for re-fixation of the Base Salary of contractual Computer Assistant along with Experience Bonus of 15% and yearly increment of 5%. The said letter also proposed benefits like Earned Leave (EL), CL, Maternity Leave, Gratuity etc. However, no action was taken by the National Health Mission. One of the writ petitioners Shri Bhaskar Bhattacharya submitted a representation on 22.10.2021 before the Director of Health Services, FW, Assam seeking enhancement of salary as well as other benefits. This was followed by similar representations by other writ petitioners. 8. The learned Addl. Advocate General, Assam for the respondents on the other hand submits that during the pendency of the writ petition by an order dated 30.03.2015, the benefits of Earned Leave (EL), CL, Maternity Leave, Gratuity etc has been granted to the petitioners. 9. Referring to the affidavit in opposition filed by the respondents, it is submitted by the learned Addl. Advocate General, Assam that the post in which the petitioners were initially engaged, have been discontinued and pursuant thereto they are engaged lumsum basis on a budget made available under the National Health Mission. As such, they are paid wages and not salary. The wages are being paid as per the Minimum Wages Act. Since no salary is paid to them, there is no question of grant of any increment. It is submitted that besides the other benefits like Earned Leave (EL), CL, Maternity Leave, Gratuity etc which is made available to the writ petitioners, their wages under Minimum Wages Act, 1948 are paid along with annual increment. This averments made in the affidavit however are disputed by the petitioners. The learned counsel for the petitioners also does not dispute to the said position on facts. 10. In rejoinder, the contentions of the respondents are disputed by the petitioner. It is denied by the petitioners that their remunerations are paid and revised under the Minimum Wages Act of 1948. In so far as the question of making budgetary provision in the ROP is concerned as projected by the respondents, it is stated that such provisions can only be made pursuant to such a decision being taken at the appropriate level and it is this decision not having been taken by the authorities and the writ petitioners have approached this Court. However, the same is again reiterated by the respondent in their additional affidavit where Paragraph-4 of the said affidavit, there is an averment that the petitioners are being provided similar annual increment in remuneration as that of contractual staff under NHM according to their performance, appraisal grades and subsequent order of annual increment. One of petitioners namely Shri Bhaskar Bhattacharjya has filed affidavit in reply reiterating their contentions as well as the averments made in the writ petition. 11. The learned counsel for the parties have been heard. Pleadings available on record have also been carefully perused. 12. At the outset, it is necessary to observe that although the writ petitioners filed this writ petition seeking enhancement an increment of the pay being currently received by the writ petitioners along with other benefits like Earned Leave (EL), CL, Maternity Leave, Gratuity etc. During the pendency of the writ petition, the other benefits like Earned Leave (EL), CL, Maternity Leave, Gratuity etc were granted by the respondent authorities in so far as the writ petitioners are also concerned. As such, the prayer in the writ petition in this regard having been granted by the respondents, no further cause survives in the writ petition as regards such prayers made. 13. However, notwithstanding that the petitioners are urging their case for being considered for grant of enhanced pay as well as the increments are being granted in respect of persons undertaking and executing similar works under the National Health Mission. The contentions of the writ petitioners are that although they are performing similar Jobs and undertaking similar responsibilities, they are being discriminated by non-consideration of the prayer for enhanced salary along with increments as have been granted in the case of similarly situated employees who are employed under the NHM. The petitioners are employed under the various district officers. There is also no dispute that although the petitioners were initially appointed as Computer Assistants, their posts were discontinued along with other posts like Date Entry Operator, MMU Handyman and others Support Staff by the NHM w.e.f 10.01.2017 by Office Order dated 05.12.2016. The petitioners, however, were permitted to continue in their services in their respective positions on a lumsum basis. It is the case projected before this Court that notwithstanding that the writ petitioners are engaged on a lumsum basis, they are rendering similar services and undertaking similar responsibilities as the Administrative Assistants who are employed under the NHM. The Administrative Assistants are similarly situated persons who were initially engaged as Computer Assistants along with the writ petitioners and their posts were subsequently re- nomenclatured as Administrative Assistants. However, the responsibilities undertaken by these <Administrative Assistants= and the present writ petitioners employed on a lumsum basis are one and the same and therefore having extracted work from the writ petitioners, they are entitled to be benefited by enhanced pay with increments under the principle of equal pay for equal jobs. 14. It is also seen that the representations filed by the writ petitioners have remained pending. The petitioners have also not placed before this Court any instances specifically to show that the nature of jobs and responsibilities undertaken by the petitioners are exactly the same or atleast similar to a great extent to those undertaken by persons employed in similar capacities under the NHM. While the writ petitioners have referred to the Judgment of the Apex Court in State of Punjab & Ors. v. Jagjit Singh & Ors, reported in (2017) 1 SCC 148 to buttress their submissions that they are entitled for enhanced pay along with increments to the extent of such pay and increments being granted to the employees under the NHM undertaking similar responsibilities, however, as discussed, no specific instances have been brought before this Court by the petitioners to support their contentions that the work and responsibilities undertaken by the petitioners at the district level offices as well as the work undertaken by <Administrative Assistants= in the NHM are of similar nature and therefore they are entitled to the claims made. 15. The averments and submissions before this Court that the petitioners are performing equal work at the various district level offices with those employees in the NHM will not be sufficient to allow the claims of the writ petitioners for consideration of their prayers for grant of enhanced pay with increments in the absence of any supporting materials being placed before this Court. In Union of India Vs. Tarit Ranjan Das, reported in (2003) 11 SCC 658, the Apex Court was examining the question of parity in employment with equal pay for equal work on the claim made by the Stenographers of Subordinate Offices of Geological Survey of India claiming same pay- scale as paid to Stenographers Grade –C to the Central Secretariat. The Apex Court held that the equality sought for is not based on designation or nature of work load. There are several other work factors like responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements which commensurate with the position in the hierarchy as well as the qualifications required which are equally relevant. The relevant before the principle of Equal Pay for Equal Works can be invoked. Paragraphs of the said Judgment are extracted below: <9. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any data. 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. 11. In the case of State of U.P. v. J.P. Chaurasia [(1989) 1 SCC 121 : 1989 SCC (L&S) 71 : (1988) 8 ATC 929] it was pointed out that whether two posts are equal or should carry equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily, it requires among others, evaluation of duties and responsibilities of the respective posts by the competent authorities constituted for the purpose and courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. v. Pramod Bhartiya [(1993) 1 SCC 539 : 1993 SCC (L&S) 221 : (1993) 23 ATC 657] by a three-Judge Bench of this Court. In the case of Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] a claim for equal pay by a group of pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable.= 16. As such, the principle of parity of pay cannot be applied merely by taking into account the nomenclature or the similar jobs undertaken, it will require proper evaluation of duties and responsibilities of the respective posts by the competent authorities which are to be constituted for the said purpose. It will not be proper for Courts to ordinarily substitute its views in the place of those authorities more particularly where specific details in respect of the nature and the work specifications have not been placed before the Court. It is possible that the quantity of work may be the same but the quality may be different. As held by the Apex Court, these aspects cannot be determined by relying on the averments in affidavits on the interested parties. It must be determined by expert bodies like Pay Commission and the Government who are the best judges to evaluate the nature of duty, responsibility and all other factors. 17. As discussed above, there is no material placed by the writ petitioners to support their contentions that the similar nature of jobs undertaken by the petitioners vis-a-vis those undertaken by the Administrative Assistants employed under NHM. Under such circumstances, in the absence of any relevant material before the Court, the prayers made by the writ petitioners for grant of parity with that of Administrative Assistants employed in NHM or even for a directions to the respondent authorities to undertake that exercise is not warranted. 18. In that view of the matter, the writ petition being devoid of any merit and the same is dismissed. No order as to cost. JUDGE Comparing Assistant