Research › Browse › Judgment

Allahabad High Court · body

1989 DIGILAW 502 (ALL)

Manmohan Dayal v. State of U. P.

1989-07-11

B.KUMAR

body1989
JUDGMENT B. Kumar, J. - Heard the learned counsel for the parties. Since the point involved is legal and short, learned counsels for both the parties have agreed that this petition may be finally disposed of at this stage. 2. From the facts as elaborated in the order of the Tribunal, it appears that the petitioner was employed in the Planning Research & Action Institute, Lucknow which was a department under Planning (B) Department of U.P. Civil Secretariat. Sometime later a Directorate was created and the said Institute namely, Planning Research and Action Institute came under the Directorate. Earlier the scales of pay of the employees of the Institute and that of employees of the Secretariat were naturally the same. Sometime, it appears, in 1965 when the scale of pay of Upper Division Assistants of the Secretariat was revised, scale of pay of Upper Division Assistants of the Directorate remained the same and they were not given the benefit of the revised scale of pay; as it appears that this establishment had gone under the Directorate and no more remained a part of the Civil Secretariat. Subsequently, however, in the years 1972 and 1979, when the scales of pay were revised, the employees of the Institute were also made admissible the same scales of pay as were provided for the Upper Division Assistants of the Secretariat. It appears that the grievance of the petitioner before the Tribunal was that during the brief period, namely since 1.4.65 to 31.7.72 the petitioner was being paid in lower scale in comparison to Upper Division Assistants of U. P. Civil Secretariat. Except for this brief period the scale of pay of U.D.As. of both the Departments have been the same, though, it has been contended, the nature of their work is same. It has been specifically pleaded in the claim petition that the action of the State Government was discriminatory and violative of Articles 14 and 16 of the Constitution of India. 3. The Tribunal after detailing the facts in its order has observed, thus: This is a matter of policy which is to be decided by the State Government. It does not come within the jurisdiction of the Tribunal. The Tribunal has not been invested with the powers of the (sic) to decide such matters which relate to the policy of the State Government. It does not come within the jurisdiction of the Tribunal. The Tribunal has not been invested with the powers of the (sic) to decide such matters which relate to the policy of the State Government. The employees can be given relief only on the basis of the orders of the State Government or the declared policy. Since the State Government has not sanctioned the scale of Rs. 200450 to the employees of the Institute from 1.4.65, the Tribunal cannot grant this relief to the petitioner. The petition has, therefore, no force and it has, therefore, to be rejected. 4. It has been contended that the above quoted observation of the learned Tribunal is not correct. There appears to be force in the submission made. In reply, the learned Standing Counsel has placed reliance upon a case reported in AIR 1989, Supreme Court Page 19 State of U.P. and others vs. J.P. Chaurasia and others, specific to the observation made in paragraph 17 of the said Judgment which are to the following effect : The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degree in the performance. The quantity of work may be the same. But quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The question of posts on equations of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalent unless it is shown that it was, made with extraneous consideration 5. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalent unless it is shown that it was, made with extraneous consideration 5. On the basis of the above observations, it has been contended by the learned Standing Counsel that such matters are hot to be gone into, by the Courts and the best Judge about scale of pay etc, is the Employer, namely the State. 6. It is clear from the observations made by the Tribunal that it has been under the impression that where some action or inaction on the part of the Government is in accordance with the policy decision of the State, the jurisdiction of the Tribunal ceases. This view is obviously not correct. The Tribunal, definitely has jurisdiction to go into, enquire into action or inaction of the State Government to find out if the same is in consonance with the provisions of Articles 311 and 16 of the Constitution of India. In this connection section 4 of the U.P. Public Services (Tribunals) Act, 1976 may be perused, which reads as follows : 4. Reference of claims to Tribunal. If any person who is or has been a public servant claims that in any matter relating to employment as such public servant his employer or any officer or authority subordinate to the employer has dealt with him in a manner which is not in conformity with any contract, or (a) in the case of a Government servant, with the provisions of Article 311 of the Constitution or with any rules of law having force under Article 309 or Article 313 of the Constitution; (b) in the case of a servant of a local authority or a statutory corporation, with Article 16 of the Constitution or with any rules or regulations having force under any Act of Legislature constituting such authority or corporation; he shall refer such claim to the Tribunal, and the decision of the Tribunal thereon shall, subject to the provisions of Articles 226 and 227 of the Constitution, be final : (Provided............................................................................. 7. 7. A bare reading of Section 4 of the U. P. Public Services Tribunal Act, makes it clear that an action of the State Government even though it may be in pursuance of its policy decision, cannot be sustained if it is violative of Article 16 of the Constitution and the Tribunal has ample power to interfere in the matter in exercise of its jurisdiction vested by virtue of section 4 of the U. P. Public Services (Tribunals) Act, 1976. As a matter of fact an employee will be entitled to challenge the policy decision of the State, if any, on the ground that it is discriminatory and hit by Article 16 of the Constitution. 8. So far the decision, referred to by the learned Standing Counsel, in the case of State of U. P. and others vs. J. P. Chaurasia and others (supra) is concerned, it has not been laid down in that case that in such matters the court is not vested with any jurisdiction to entertain a petition. It has only been held that in such matters, as it relates to the nature of duties and the scale of pay etc., the Court should normally accept the recommendation of the Pay Commission and ordinarily it may not evaluate and interfere in these matters. Therefore, in each case it will depend upon the facts whether the court would think it proper to interfere in the matter or not. As we find in the present case, specific plea of violation of Article 16 of the constitution has been raised and the main contention appears to be that it has always been considered by the State, the Upper Division Assistants of the Planning Research & Action institute are to get the same scale of pay as the Upper Division Assistants of U.P. Civil Secretariat except for the period with effect from 1.4.65 to 31.7.72. According to petitioner, it is arbitrary and discriminatory. As a matter of fact this was the question which was to be considered by the Tribunal but, as observed earlier, the Tribunal thought that it has no juridiction to go into the matter as it involved policy decision of the State. The Tribunal clearly erred in taking this view and its order is, thus, not sustainable. 9. As a matter of fact this was the question which was to be considered by the Tribunal but, as observed earlier, the Tribunal thought that it has no juridiction to go into the matter as it involved policy decision of the State. The Tribunal clearly erred in taking this view and its order is, thus, not sustainable. 9. In the result the writ petition is allowed and the order of the Tribunal dated 3.6.1989, contained in Annexure7 to the writ petition is setaside. The Tribunal is directed to consider and decide the claim petition a fresh according to the law. 10. Learned counsel for the petitioner has submitted that the Tribunal may be directed to dispose of the claim petition at an early date as the petitioner had retired as far back as in 1982 That being the position, it is provided that the Tribunal may try to dispose of the petition early. 11. Costs easy.