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Allahabad High Court · body

1987 DIGILAW 628 (ALL)

U. P. Veterinary Association v. State of U. P

1987-05-21

D.S.BAJPAI, U.C.SRIVASTAVA

body1987
JUDGMENT D.S. Bajpai, J. - Petitioner No. 1, U.P. Veterinary Association, is a Service Association duly recognised by State of U.P. and petitioner No. 2 is a bona fide member of the petitioner No. 1, Association. The petitioner No. 1, the General Secretary, and the petitioner No. 2, a Medical Officer, serving in the U.P. Veterinary Service have through this writ petition invoked the jurisdiction of this Court under Article 226 of the Constitution of India praying for issue of a writ of certiorari quashing a Government Order contained in annexure 5 to the writ petition in as far as it varied the Post Graduate Pay for Master's Degree holders in the said service from Rs. 100/- to Rs. 50/- and for a consequential writ of mandamus commanding the State of U.P. opposite-party No. 1, to grant Post Graduate Pay at the rate of Rs. 100/- per month instead of Rs. 50/- per month. A further prayer has been made for a writ of mandamus commanding the State of U.P. to declare that the members of the petitioner No. 1 Association in the U.P. Veterinary Service were entitled. to get dearness allowance on the Post Graduate Pay as well and for quashing an order contained in annexure 6 in as far as it directed that the members of the said Service were disentitled to .D.A. thereon. As a consequential prayer it has been claimed that the recovery of dearness allowance paid on Post Graduate Pay be set aside as contained in annexure 6-A to the writ petition. 2. We have heard the learned Counsel for the petitioners as also the learned Standing Counsel and perused the affidavits exchanged between the parties. The two points that come out for decision are as to. 'Whether tho petitioners who had Post Graduate Master's Degree were entitled to Rs. 100/- per month as-special pay or not. The petitioners' have averred that G.O. dated 24.9.68 at item 2 in the fourth paragraph of the said G.O. provides the rates of P.G.P. as under : (i) For post graduate diploma -Rs. 50/-p.m. (ii) For post graduate's Degree -Rs. 100/-p.m. (iii) For Ph.D.... Rs. 125/- (iv) For D.Sc. Rs. 150/- 3. Subsequently it is asserted that the Government upon the recommendations of the U.P. Pay Commissions of 1971-73 and 1979-81 by G.Os. 50/-p.m. (ii) For post graduate's Degree -Rs. 100/-p.m. (iii) For Ph.D.... Rs. 125/- (iv) For D.Sc. Rs. 150/- 3. Subsequently it is asserted that the Government upon the recommendations of the U.P. Pay Commissions of 1971-73 and 1979-81 by G.Os. dated 21.1.74 and 10.81(annexures 2 and 3 respectively) decided to continue to grant P.G.P. as under the G.O. of 24.9.68 referred to herein above. The petitioners assert that the P.G. P. has been directly linked with the basic pay as defined in the Fundamental Rule 9 (21) (i) of the Financial Handbook, Volume II, Parts II to IV. The petitioners assert that it was by G.O. dated 18.12.75 (annexure 4) that the State Government decided to grant P.G.P. to officers and employees of the Animal Husbandry Department with effect from 10.3.70, but only to those holding Ph.D. Degree from any recognised University or Institution in a subject of Animal husbandry, provided the said Degree was not a Prescribed qualification for the posts held by them. Subsequently, when an agitation was launched for implementing the Government decision as contained in the original G.O. of 24.9.68, the Government by a G.O. dated 6.9.79 (annexure 5) provided that holders of M.V. Sc. Degree in class I and II posts in the Directorate of Animal Husbandry and all the said degree holders drawing pay in the scale of Rs. 550-1200 be allowed P.G.P. of Rs. 50/- per month on conditions envisaged in annexures 1 and 2. A perusal of this annexure indicates that P.G. Diploma holders have been deprived of the benefit of this G.O. while P.G.P. for M.V.Sc. Degree holders has been allowed at a reduced rate of Rs. 50/- per month instead s Rs. 100/- per month and nothing has been said about admissibility of dearness allowance on the Graduate Pay which, according to the petitioners, had directly linked with the pay. Specific orders have been issued vide annexure 6-A directing stoppage of payment of dearness allowance on the P.G.P. and for recovery of the amount already paid on that account from the officers concerned. The petitioners aver that they made representation to the competent authorities but to no effect and hence the instant writ petition. 4. What is strange is that by a subsequent G.O. dated 1.7.1983 (annexure 7) two officers of the department Dr. D.V.S. Chaudhary and Dr. V.B. Singh holders of M.V. Sc. Degree were granted P.G.P. of Rs. The petitioners aver that they made representation to the competent authorities but to no effect and hence the instant writ petition. 4. What is strange is that by a subsequent G.O. dated 1.7.1983 (annexure 7) two officers of the department Dr. D.V.S. Chaudhary and Dr. V.B. Singh holders of M.V. Sc. Degree were granted P.G.P. of Rs. 100/- per month, while other members of the petitioner No. 1, including the petitioner No. 2, who hold M.V.Sc. Degree,and similarly placed and circumstanced as Dr. D.V.S. Chaudhary and Dr. V.B. Singh, continue to get Rs. 50/- which, the petitioners assert, is discriminatory and violative of Articles 14 and 16 of the Constitution of India. A further example of discrimination has been pointed out by the petitioners in as much as holders of Master's Degree in Medicine in the Medical and Health Services of the State Government are still being paid a P.G.P. of Rs. 100/- and the P.G. Diploma holders in the said Service are getting a P.G.P. of Rs. 50/-. In the counter affidavit filed by the State of U.P. allegations of discrimination made in paragraphs 14 to 17 to the writ petition have been replied and it has been asserted that : "14. That the contents of paras 14 and 15 are misconceived and the same are denied. It is submitted that Dr.D.V.S. Chaudhary and Dr. V.B. Singh had been granted P.G. pay of Rs. 100/- per month and other M.V. Sc. degree holders are being given Rs. 50/- per month as P. G.pay as per instructions contained in G.O. No. XII-E-1-10-16 (3) 74, dated 6.9.79. They were higher allowed as" special case. It was done considering special circumstances of their case. The petitioners' case is entirely different. Dr. Chaudhary and Dr. Singh had done post graduation from U.S.A. at their own costs. 15. That para 16 of the writ petition needs no reply. 16. That in reply to para 17 of the writ' petition it is stated that P.G. pay at the rate of Rs. 50/- per month is being allowed in accordance with G.O. dated 6.9.79 referred to above." 5. Learned Standing Counsel relied on the G.O. of 6.9.79. The opposite-party No. 1 having admitted that they were paying a P.G.P. of Rs. 100/- to Dr. D.V.S. Chaudhary and Dr. V.B. Singh who also held M.V.Sc. 50/- per month is being allowed in accordance with G.O. dated 6.9.79 referred to above." 5. Learned Standing Counsel relied on the G.O. of 6.9.79. The opposite-party No. 1 having admitted that they were paying a P.G.P. of Rs. 100/- to Dr. D.V.S. Chaudhary and Dr. V.B. Singh who also held M.V.Sc. Degree (may be from U.S.A. which is of no special significance) and similarly placed members of the U.P. Veterinary Service in the department with M.V. Sc. Degree being paid Rs. 50/- per month is on the face of it discriminatory and the State has failed to establish any reasonable nexus between the two different rates of P.G.P. fixed - Rs. 100/- per month for Dr. D.V.S. Chaudhary and Dr. V.B. Singh alone and Rs. 50/- for all others. We fail to find any reasonable classification either. The impugned order contained in annexure 5 reducing the P.G.P. for Master's Degree from Rs. 100/- to Rs. 50/- cannot be sustained in as much as Rs. 100/- p.m. as P.G.P. had already been paid by the State Government to Dr. D.V.S. Chaudhary and Dr. V.B. Singh. The State has to treat persons with similar qualifications and similarly placed and circumstanced equally and impartially. No explanation for not giving P.G.P. of Rs. 50/- per month to the Diploma holders in the Animal Husbandry Department. while paying the same in the Department of Medical and Health. Services has also been given and we feel that Diploma holders in the U.P. Veterinary Service are also entitled to get P.G.P. of Rs. 50/- per month. 6. Coming next to the question of grant of dearness allowance on the P.G.P., we have to see whether under the Fundamental Rules such P.G.P. is an integral part of pay and whether it could be considered as a part of pay on which the petitioners are entitled to get dearness allowance. 50/- per month. 6. Coming next to the question of grant of dearness allowance on the P.G.P., we have to see whether under the Fundamental Rules such P.G.P. is an integral part of pay and whether it could be considered as a part of pay on which the petitioners are entitled to get dearness allowance. Pay has been defined in the Fundamental Rule, 9 (21) as under : "(21) pay means amount drawn monthly by a Government servant as - (i) the pay, other than special pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantially or in an officiating capacity, or to which he is entitled by reason of his position in a cadre, and (ii) overseas pay, technical pay, special pay and personal pay, and (iii) any other emoluments which may be specially classed as pay by the Governor." Personal-pay has been defined in Fundamental Rule 9 (23) as under : "(23) Personal Pay means additional pay granted to a Government servant - (a) to save him from a loss of substantive pay in respect of a permanent post other than a tenure post due to a revision of pay or to any reduction of such substantive pay otherwise than as a disciplinary measure; (b) in exceptional circumstances, on other personal considerations." Special pay has been defined in Fundamental Rule 9 (25) as under : "(25) Special pay means an addition of the nature of pay to the emoluments of a post or a Government servant, granted in consideration of (a) the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility; or (c) the unhealthiness of the locality in which the work is performed." 7. Fundamental Rule 9 (25) also does not help the petitioner because they have not been granted P.G.P. for performing any work of arduous nature much less any specific addition being made to the work load or it being in any way connected with performance of their duties in an otherwise unhealthy locality. 8. The petitioners urged that P.G.P. would be a part of pay on which dearness allowance would be admissible in terms of Fundamental Rule 9(21) (i). 8. The petitioners urged that P.G.P. would be a part of pay on which dearness allowance would be admissible in terms of Fundamental Rule 9(21) (i). We are unable to agree with this submission since pay has been defined in Fundamental Rule 9(21) (i) as "the pay, other than special pay or pay granted in view of his personal qualification........." (emphasis ours) : Therefore, the petitioners would not be entitled for P.G.P. being included as a part of the basic pay. Similarly, personal pay as defined in Fundamental Rule 9 (23) does not help the petitioners in as much as P.G.P. has not been granted to them to save them from a loss of substantive pay as provided in the said rule. Payment of dearness allowance has been clarified to be payable only on pay as defined under Fundamental Rule 9(21)(i) 9(23) and 9(25) (G.O. No. 3379/- 156-73 dated 15th December, 1975). 9. We, therefore, hold that the petitioners are not entitled to get D.A. on P.G.P. and their prayer in that respect is rejected. 10. As a result, the writ petition is partly allowed. The impugned order contained in annexure 5 is hereby quashed in as far as it reduces P.G.P. from Rs. 100/- to Rs. 50/- and the opposite-parties are directed to pay P.G.P. of Rs. 100/- per month to the holders of M.V. Sc. Degree in service of the State Government in the Animal Husbandry Department in terms of the G.O. dated 24.9.68 and also pay Rs. 50/- per month as, P.G.P. to Diploma holders in the Animal Husbandry Department. We restrain the opposite-parties from making any recovery of P.G.P. already paid to these officers. They will also be entitled to get the arrears of P.G.P. with effect from the enforcement of the said G.G. in the Animal Husbandry Department. The prayer for directions to pay dearness allowance on P.G.P. is, however, refused. There will be no order as to costs.