The High Court can issue a writ of mandamus to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

JUDGMENT :

(Hiranmay Bhattacharyya, J.)

1. The petitioners have prayed for issuance of a writ of mandamus directing the respondent authorities to release the benefits as per the recommendations of the 5th Pay Commission and other consequential benefits to the petitioners after setting aside, cancelling the order dated 2nd November, 2021.

2. The Under Secretary to the Government of India by the order dated 2nd November, 2021 rejected the prayer of the petitioners for grant of the recommendations of the 5th Pay Commission.

3. Shorn of unnecessary details, the facts are that the petitioners were employees of National Instruments Limited (hereinafter referred to as ‘NIL’). Pursuant to the directives issued by the Hon’ble Supreme Court on 14th March, 1986, the Government of India appointed a High Power Pay Committee (hereinafter referred to as ‘HPPC’) which gave its final report to the Government of India on 24th November, 1988 recommending implementation of Central Government pay structure for the employees of all the 69 Public Sector Enterprises including the NIL following Central Dearness Allowance (hereinafter referred to as ‘CDA’) pattern and upon consideration of the same the Hon’ble Supreme Court ultimately delivered the judgment on 3rd May, 1990 issuing directions for implementation of the said HPPC report and in compliance of such directives, the Government of India, Ministry of Porgramme Implementation, Department of Public Enterprises (hereinafter referred to as ‘DPE’) issued memoranda dated 12th June, 1990 and 24th October, 1997 observing, inter alia, that the pay scales in respect of employees of all the 69 Public Sector Enterprises including the NIL would be revised with effect from 1st January, 1996. NIL was, however, declared a Sick Industrial Company on a reference to the Board for Industrial and Financial Reconstruction (hereinafter referred to as ‘BIFR’) and after protracted discussions and negotiations between the management of NIL and Unions for rehabilitation, a memorandum of settlement was arrived at on 6th October, 1997 and the employees, in the best interest of revival of NIL agreed that the status quo in respect of existing pay scales would be maintained for a period of at least 3 years. Regarding treatment of sick enterprises, the Pay Revision Committee, inter alia, observed that irrespective of their financial position, the Public Sector Enterprises that followed the CDA pattern would get the benefit of the recommendations of the 5th Central Pay Commission as per orders of the Hon’ble Supreme Court. Subsequent thereto, NIL issued salary bills to the petitioners showing accrual of emoluments according to the recommendations of the 5thy Pay Commission and interim relief was granted. In the midst thereof, the BIFR by an order dated 12th November, 2002 concluded that the NIL was not likely to become viable on long term basis and that it would be wound up. Against the said order an appeal was preferred. Subsequent thereto, the Calcutta University and Jadavpur University submitted their individual proposals to the Department of Heavy Industry expressing the desire to take over their assests and liabilities of NIL and that in a meeting held on 24th June, 2005, decision was adopted to take over the assets and liabilities of NIL by Jadavpur University and the Department of Heavy Industry agreed to take the responsibility of all the dues pertaining to the employees of NIL up to the last date. Subsequent thereto, a representation was made on 6th July, 2006 claiming the benefit of revised pay scales. It was categorically pointed out by the petitioners that employees similarly situated who had retired/resigned under Voluntary Retirement Scheme had been disbursed their dues of the revised pay scales and that they are entitled to the similar benefits. Since such claim of the petitioners was not attended to by the respondents, the petitioners were constrained to prefer an application under Article 226 of the Constitutio