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2002 DIGILAW 1190 (PAT)

Shyam Prasad Chaudhary v. State Of Bihar

2002-11-01

P.N.YADAV, S.N.JHA

body2002
Judgment S.N.Jha, J. 1. This writ petition by seven employees of the Bihar State Cooperative Land Development Bank (in short the Land Development Bank) has been filed in representative capacity for a direction upon the respondents, in sum and substance, to give them the pay parity with the Secretariat employees of the State Government while implementing the recommendations of the 5th Pay Revision Committee as accepted by the State Government vide resolution no. 6021 dated 18.12.89 of the Finance Department. 2. The case of the petitioners is that the employees of the Land Development Bank were treated at par with the Secretariat employees of the State Government in the matter of pay scales since 1981. But while implementing the revised pay scales, after the 5th Pay revision, lower scales have been allowed to them. The petitioners are Section Officers and Assistants and the case has been argued with reference to the pay scales of these two posts. According to the petitioners, after the 4th pay revision, the Section Officers of the Land Development Bank were allowed the scale of Rs. 880-1510 at par with the scale of Section Officers in the secretariat and, wise the scale of Rs.785-1210 was allowed to the Assistants at par with their counterparts in the secretariat. They have been granted, respectively, the sacle of Rs. 1640-2900 and Rs. 1400-2600 as against the scales of Rs. 2000-3500 and Rs. 1500- 2750 allowed to the Section Officers and Assistants in the secretariat. The Registrar, Co-operative Societies, Bihar communicated the approval of revised replacement scales in the light of the recommendation of the 5th Pay Revision Committee to the employees of the Apex/State level Co-operative Societies and other Co-operative Societies with effect from 1.4.91 vide letter no. 13/ BISCOMAUN-032/91-6064 dated 2.8.91. According to the petitioners, under Rule 33 of the Bihar Co-operative Societies Rules, 1959, the Registrar, Co-operative Societies is competent to fix the scales of pay etc. of the employees of a registered Society and in that view, the direction of the Registrar is binding on the concerned Co-operative Societies. As a matter of fact, pursuant to the said letter dated 2.8.91 an office order was issued by the Administrator of the Land Development Bank vide memo no. 290/Adm. dated 3.8.91 implementing the replacement scales recommended by the 5th Pay Revision Committee at par with the equivalent post under the State Government. As a matter of fact, pursuant to the said letter dated 2.8.91 an office order was issued by the Administrator of the Land Development Bank vide memo no. 290/Adm. dated 3.8.91 implementing the replacement scales recommended by the 5th Pay Revision Committee at par with the equivalent post under the State Government. However, another office order was issued allowing lower scales than the scales of the corresponding posts on 4.12.91 vide memo no. 6072. The case of the petitioners is that the nature of their duties and functions are the same as their counterparts in the secretariat of the State Government and therefore on the principle of equal pay for equal work they are entitled to the same scale of pay. They were accordingly always treated at par with the Government employees since 1981. In any case, in view of the above said decision of the Registrar, Co-operative Societies dated 2.8.91 which is binding on the concerned Co-operative Societies including the Land Development Bank, the action of the respondent-Bank in granting lower scale of pay must be held to be arbitrary and set aside. 3. The case of the respondents is that pay scales have been fixed in the light of the above said decision of the Registrar, Co-operative Societies dated 2.8.91. While accepting the revised replacement scales recommended by the 5th Pay Revision Committee with effect from 1.4.1991 vide para Ka of the letter, the Registrar has also directed that the actual fixation of revised replacement scales shall be done by Two-Member Committee consisting of the Managing Director or the Administrator or Chief Executive Officer of the ApexState level Co-operative Societies and Joint Registrar, Co-operative Societies (Audit) (Headquarters) after removing the anomalies ensuring that in no case the employees of the Co-operative Societies are allowed higher scale than the scales of the equivalent posts of the State Government, vide para Angaoi the letter. Accordingly, a two-member Committee consisting of Administrator and the Joint Registrar, Co-operative Societies went into the gamut of pay fixation and pursuant to its recommendation the impugned officer order was issued c 4.12.91. By the said office order the petitioners have been, in fact, allowed the same scale of pay as the Section Officers and the Assistants of the State Government mentioned in Schedule-I of the resolution dated 18.12.89 of the Finance Department. 4. By the said office order the petitioners have been, in fact, allowed the same scale of pay as the Section Officers and the Assistants of the State Government mentioned in Schedule-I of the resolution dated 18.12.89 of the Finance Department. 4. Shri J. P. Shukla, learned counsel for the Land Development Bank pointed out that pursuant to the 4th pay revision common scales of pay had been allowed to Government employees irrespective of the office/establishment to which they belonged. The 5th Pay Revision Committee however suggested different scales of pay for the employees of the Secretariat and attached offices, High Court, Legislature Secretariat and Public Service Commission describing them as common categories. The pay scales for the common categoriesemployees were mentioned in schedule-ll of the resolution while the pay scales of the general employees were mentioned in schedule-1. The scale of pay of Rs. 1500-2700 (in the case of Assistants) and Rs. 2000-3500 (in the case of Section Officers) has been granted only to those working in the Secretariat and its attached offices, High Court, Legislature Secretariat and Public Service Commission. Other Government employees have been allowed the scale of Rs. 1400-2600 (in the case of Assistants) and Rs. 1640-2900 (in the case of Section Officers). The petitioners have been allowed the same very scale and therefore they cannot contend that they have been granted lower scale of pay than the Government employees. 5. Counsel for the petitioners did not dispute that the 5th Pay Revision Committee carved out different scales of pay for the posts of Assistants and Section Officers amongst others. While earlier those posted in the Secretariat etc. were allowed the same scale as their counterparts posted in the muffasil offices, higher scale was allowed to the Secretariat employees after the 5th pay revision. He however, contended that the petitioners perform the same duties and functions as Assistants and Section Officers working in the Secretariat etc., they are entitled to same scale i.e. Rs. 1500-2750 in the case of Assistants and Rs. 2000-2500 in the case of Section Officers. 6. The question for consideration thus is whether the claim of the petitioners that they should be allowed parity with the secretariat employees, as against the employees in the muffasil offices, is fit to be allowed. 1500-2750 in the case of Assistants and Rs. 2000-2500 in the case of Section Officers. 6. The question for consideration thus is whether the claim of the petitioners that they should be allowed parity with the secretariat employees, as against the employees in the muffasil offices, is fit to be allowed. It is not in dispute that the petitioners have, in fact, been granted the scale of pay allowed to Government employees in the muffasil officers i.e. other than in the secretariat and its .attached offices, High Court, Legislature secretariat or the Public Service Commission. 7. In paragraph 7 of the counter affidavit the Land Development Bank has stated that the employees cannot claim parity with the Secretariat Assistants for three-fold reason - (i) The minimum educational qualification of Secretariat assistants is graduation whereas for the assistants of the Land Development Bank, it is intermediate. In fact, there are cases of simple matriculates appointed as assistants, (ii) The Secretariat assistants etc. are not liable to be transferred to field offices whereas the Bank assistants are transferable to any of the offices of the Bank in any corner of the State, (iii) The Secretariat Assistants are subjected to rigorous process of competitive examination conducted by the Subordinate Services Selection Board, (now Bihar Public Service Commission) whereas in the Land Development Bank no such selection process is followed. In fact, a large number of assistants were appointed without observing any norm of selection at all. It has further been stated that there is no policy decision of the Bank that its employees should be treated at par with the employees of the Secretariat. 8. Shri J. R Shukla submitted that the claim of the petitioners for equal pay on the ground that they are performing the same duties cannot be accepted in view of different educational qualifications, different recruitment process etc. In support of the contention he placed reliance on State of T. N. and another V/s. M. R. Alagappan and others, (1997) 4 SCC 401 , State of U.P. and others V/s. Ministerial Karamchari Sangh, (1998) 1 SCC 422 , Union of India and others V/s. Ram Gopal Agarwal and others, (1998) 2 SCC 589 and State of Haryana and another V/s. Haryana Civil Secretariat Personal Staff Association, 2002(2) BLJR 1688. 9. 9. A Constitution Bench of the Apex Court in State of Mysore V/s. P. Narsingh Rao, AIR 1968 SC 349 , held that higher educational qualification furnish a relevant considerations for fixing higher pay scales and consequently the classification of two grades of tracers in two different pay scales by the State of Mysore was not violative of Articles 14 and 16 of the Constitution. In that case the non-matriculate tracers (represented by the pensioner) and matriculate tracers were allowed different scales of pay despite similarity of work done by them. In Markendeya V/s. State of A.P., (1989) 3 SCC 191 , similarly, the Apex Court had to consider difference in pay scale to two classes of employees, namely, Graduate Supervisors holding degree in Engineering and non-graduate Supervisors holding diploma or certificate. It was held that on the ground of difference in educational qualifications, different treatment in the matter of pay scale was justified and the same was not violative of Articles 14 and 16 of the Constitution. Again in the case of Sita Devi V/s. State of Haryana, (1996) 10 SCC 1 the Court upheld difference in pay scale of non-matriculate and matriculate Instructors employed in the Adult Literacy Programme in the State of Haryana. 10. In State of U.P. V/s. J. P. Chaurasia (1989)1 SCC 121 the Court observed that the matters relating to pay scales should be better left to expert bodies and Courts should refrain from interfering in the matter. It would be useful to quote the relevant observations as under :- 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 degrees 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 equation of posts or equation of pay must be left to the Executive Government. 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 equation of posts or equation 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 equivalence unless it is shown that it was made with extraneous consideration. 11. In State of Haryana V/s. Haryana Civil Secretariat Personal Staff Association (supra) the Personal Assistants of the State Secretariat filed writ petition for a direction to grant them the scale of Rs. 2000-3500 besides special pay of Rs. 150 at par with the Personal Assistants working in the Central Secretariat. The claim was allowed by the High Court. On appeal by the State, setting aside the judgment the Supreme Court observed that the High] Court overlooked the position that the petitioner was claiming parity with the employee having the same designation in the Central Secretariat. Such comparison by a section of employees of the State Government with employees of Central Government based merely on designation of the post was misconceived. The court noticed the decision in the case of Secretary, Finance Department and others V/s. West Bengal Registration Service Association and others, 1993 Supp. (1) SCC 153 in which it was observed that the job evaluationtion is a difficult and time consuming task such even expert bodies having the asisiance of staff with requisite expertise have sometimes found difficult to undertake on account of want of relevant data and scales for evaluating performances of different groups of employees. This involves a constant study of the external comparisons and internal relativities on account of the charging nature of job requirements. This involves a constant study of the external comparisons and internal relativities on account of the charging nature of job requirements. The factors which may have to be kept in view for job evaluation include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) extent of powers vested in him (vi) the extent of his dependence on superiors for (the exercise of his powers (vii) the need to co-ordinate with other departments. Thus the pay structure is determined keeping in mind several factors like (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educationaltechnical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employers capacity to pay etc. The Court observed that such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. The Courts should therefore avoid jiving declaration granting a particular scale of pay and compelling the Government to implement the same. 12. A counter affidavit has also been filed on behalf of the Registrar, Co-operative Societies wherein it has been stated that the financial condition of the Land Development Bank has become precarious. It is running in accumulated loss of 3,821.13 lakhs. The entire owned funds comprising share capital reserves etc. at Rs. 12340.22 lakhs have been completely wiped out. As on 31.3.98 net worth of the Bank was negative at Rs. 1067.54 lakhs. 13. At the time of hearing counsel for the State produced a copy of confidential letter written by the Chief General Manager of NABARD dated 22.3.2002 regarding state of affairs of the Land Development Bank and it would be useful to quote the relevant part of the letter as under: You are kindly aware that the BSCLDB continues to accept deposits from the members of public although its net worth is negative at (-) Rs. 9308.74 lakhs as on 31.3.2000 as was revealed by NABARDs inspection. 9308.74 lakhs as on 31.3.2000 as was revealed by NABARDs inspection. The net worth of the bank based on its unaudited balance sheet as on 31 March 2001 is also negative at (-) Rs. 5866.22 lakhs. The acceptance of deposits of the bank having negative net worth is violative of the instructions contained in NABARD circular No. NB.IDD/LBD/1086/B-4/A/97-98 dated 26 August, 1997. 2. NABARDs successive inspections have also revealed that the internal control measures, systems and procedure of the BSCLDB were in a miserable state. There was no system of balancing the books at periodical intervals and in the absence of audit of books of accounts for over 3 years, the figures of assets and liabilities of the bank cannot be considered as fair, final and authentic. Further, the bank has failed to maintain adequate liquidity for its deposit liability on a number of occasions. 3. By framing rules for acceptance of deposits for a period of 120 months the bank had violated instructions contained in the RCS letter No. 6687 dated 6.8.1996 which stipulates acceptance of deposits for a maximum period of two years only. 4. The deposits of BSCLDB are not covered by any deposit insurance scheme and the bank has not spelt out clearly the procedure to ensure repayment to the depositors as and when their claims accrue. 5. In the above situation there exists a risk to its present and future depositors if the bank is permitted to continue with its deposit mobilisation scheme further. It was submitted that the similar claim of employees of the Khagaria District Central Co-operative Bank has been rejected by a learned single Judge of this Court in CWJC No. 4044 of 2001 (Dinesh Chandra Kumar & Ors. V/s. State of Bihar) on 21.5.2002 observing that having regard to the present financial position of the Bank, any additional financial burden on the bank in the form of an upward pay revision for its employees is bound to worsen the financial condition of the Bank at the cost of the depositors. I find substance in the stand of the respondents. 14. In retrospect, and to sum up, it would appear that the whole grievance of the petitioners is misconceived. The writ petition has been filed claiming parity with the Government servant in the matter of pay scales under the impression that they have been allowed lower scales. I find substance in the stand of the respondents. 14. In retrospect, and to sum up, it would appear that the whole grievance of the petitioners is misconceived. The writ petition has been filed claiming parity with the Government servant in the matter of pay scales under the impression that they have been allowed lower scales. The fact is that such parity has already been allowed. They have been granted the same scale which have been allowed to the general Government employees. The petition, further, has been filed in ignorance of the classification made by the State Government putting its employees in different categories and allowing them different scales of pay vide Schedules I, II and III of the resolution dated 18.12.1989. Earlier all of them were treated as one class and allowed common scale. This is no more so. The Registrar, Co-operative Societies directed the implementation of the revised replacement scale of pay. The scales mentioned in Schedule I are replacement scales and have been allowed to the petitioners. The scales mentioned in Schedules II and III are exception to the general scales. There is thus no violation of decision of the Registrar. The Registrar, further, had directed that actual pay fixation be done by the Committee after removing pay anomalies and it should not exceed the scale admissible to the Government employees in the secretariat etc. Being different class, the petitioners cannot claim parity with them. 15. In the result, I do not find any merit in this writ petition which is accordingly dismissed. P.N.Yadav, J. 16 I agree.