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2003 DIGILAW 744 (GUJ)

M. B. Patel v. State of Gujarat

2003-12-26

K.A.PUJ

body2003
JUDGMENT : K.A. Puj, J. The petitioners have filed this petition under Article 226 of the Constitution of India seeking declaration from this Court that the action of the respondent authorities in not giving the petitioners the pay scale of Rs. 950-1400 commensurating to their nature and duties and the refusal on the part of the respondent No. 2 to give the said pay scale to the petitioners is illegal, arbitrary, discriminatory and violative of Arts. 14 and 16 of the Constitution of India. The petitioner have prayed for further declaration that looking to the nature of work, duties and functions of the petitioners, they are entitled to be treated in the higher pay scale and seeking direction to the respondent authorities to pay to the petitioners the pay scale of Rs. 950-1400 with effect from 1.1.1996. 2. The brief facts giving rise to the present petition are that:- The petitioners have been working as Laboratory Attendants in Public Health Engineering Laboratory, Gujarat Water Supply and Sewerage Board, Baroda. The petitioner Nos. 1 and 2 joined the Government services in 1973 and the petitioner No. 3 joined in 1980 and were working in the board since it has come into existence. The grievance of the petitioners was that though they were performing the duties of much dangerous nature, they were given pay scale of Peon working in the office and were not given the pay scale of other Laboratory Attendants of other Board/Corporation performing same duties. It is further stated that since the long standing demand of the petitioners were not looked into by the respondents, the petitioners have filed Special Civil Application No. 5467/1991 and thereafter M.C.A. No. 50/1992 before this Court and while disposing of the said petitions, this Court has directed the respondent authorities to consider the representations submitted by the petitioners regarding pay scale in the context of Central Pay Commission's report within a period of 6 weeks from the date of said order and to communicate the decision to the petitioners. The said representation was decided by the respondent authorities on 5.2.1992 whereby the demand made by the petitioners was turned down. Being aggrieved by the said decision of the respondent authorities, the petitioners have filed the present petition before this Court. 3. The said representation was decided by the respondent authorities on 5.2.1992 whereby the demand made by the petitioners was turned down. Being aggrieved by the said decision of the respondent authorities, the petitioners have filed the present petition before this Court. 3. It is further stated that the Public Health Engineering Laboratory, Baroda was under the Public Health and Family Welfare Department of the State Government and on the establishment of the board, it was working under the Board. It was further stated that the petitioners were working the same duties which their counterparts in the office of Conservator of Forest Commissioner of Fisheries and Director of Medical Education and Research were doing. It was stated that the pay scale of the Laboratory Attendants working in those departments was Rs. 950-1400 whereas the pay scale of the petitioners was only Rs. 750-940. It is further stated that the petitioners' duties and functions were not that of Peons and Laboratory Attendant working in the offices. But they were doing much dangerous duties. The petitioners stated that they have to go to the fields along with their superiors to collect samples of foul water, sewage water, dirty water, chemicalised water, samples of water coming from chemical factories etc. in the Laboratory. The petitioners have to handle very poisonous and dangerous chemicals. It was further stated that the Senior Scientific Officers have also stated that duties and functions of the petitioners were also the same as that of the Laboratory Attendants in other Government departments and they also recommended for higher pay scale for the Laboratory Attendants. 4. Mr. Suphaiya, learned Advocate for Mr. Jivanlal Patel appearing for the petitioners submit that the petitioners have been discharging their duties as Laboratory Attendants right from 1974 onwards and still they were not given higher pay scale of the Laboratory Attendant which is given in other Government departments. He has further submitted that as per Government Gazette published on 13.9.1986, the pay scale of the Laboratory Attendant was Rs. 950-1400 and the said pay scale should be given to the petitioners. He has further submitted that at the time when the petitioners were appointed as Laboratory Attendant in 1974, there were no recruitment rules prescribing the educational qualification and hence the same would not apply to the petitioners retrospectively. 950-1400 and the said pay scale should be given to the petitioners. He has further submitted that at the time when the petitioners were appointed as Laboratory Attendant in 1974, there were no recruitment rules prescribing the educational qualification and hence the same would not apply to the petitioners retrospectively. He has further submitted that the Chief Scientific Officer under whom the petitioners were working had in clear terms stated that the duties of the Laboratory Attendant are altogether different from that of Peon working in the office and the petitioners have to handle dangerous and hazardous chemicals and to help the Scientific Officer in the Laboratory. The Peons and Chowkidars are not supposed to handle such dangerous chemicals. He has further submitted that the respondent while passing the impugned order has not considered the directions given by this Court and without any application of mind have considered the representation of the petitioners and hence the impugned order requires to be quashed and set aside. 5. In support of his submission Mr. Supaiya has relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Jasmer Singh & Ors., 1996 (11) SCC 77 , for the proposition that there may also be other considerations which have relevance to efficiency in service which may justify differences in pay-scale on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay-scale. 6. Mr. Supaiya has further relied on the decision of the Hon'ble Supreme Court in the case of State Bank of India & Anr. v. Mr. Ganeshbabu & Ors., 2002 (4) SCC 556 , for the proposition that denial of equality in pay amounted to hostile discrimination. He has also relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana & Anr. v. Tilak Raj & Ors., 2003 (6) SCC 123 , wherein it is held that "it is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay-scales. v. Tilak Raj & Ors., 2003 (6) SCC 123 , wherein it is held that "it is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay-scales. The problem about equal pay cannot always be translated into a mathematical formula." On the basis of the facts of the petitioners case and on the basis of the above authorities, Mr. Supaiya has submitted that the petitioners are entitled to higher pay scale and they should be treated at par with other Laboratory Attendants who are working in other Government departments. 7. Mr. D.G. Chauhan, learned Advocate appearing for the respondents has submitted that the petitioners are not entitled to the relief prayed for in this petition as the petitioners are not possessing minimum qualification of Secondary School Certificate Examination with the subject of Science and Mathematics is less than 50% of total marks. He has further submitted that the petitioner Nos. 1, 2 and 3 appointed as Laboratory Attendants. However, it was made very clear in the appointment order itself that if they were on the same pay drawing on the post of Chowkidar or Peon, as the case may be. He has further submitted that there was no difference between the pay scale of a Peon or Chowkidar on one hand and the Laboratory Attendants on the other hand so far as the respondent board is concerned. It is further submitted that the petitioners cannot claim higher pay scale simply on the basis of the pay scale of the Laboratory Attendants of other departments as the pay scale would depend upon so many factors such as the functions, nature of duties and working conditions, responsibilities, experience, educational qualifications etc. 8. In support of his submission, Mr. Chauhan has relied on the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh & Ors. v. J.P. Chaurasia & Ors., 1989 (1) SCC 121 for the proposition that there are various factors justifying distinguishes in the pay scale. It depends upon evaluation of duties and responsibilities, over and above, the quantity and quality. Chauhan has relied on the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh & Ors. v. J.P. Chaurasia & Ors., 1989 (1) SCC 121 for the proposition that there are various factors justifying distinguishes in the pay scale. It depends upon evaluation of duties and responsibilities, over and above, the quantity and quality. It is further held that the Courts did not suit to evaluate and compare on the basis of affidavits and pleadings and the matter should be left to the executives who should appoint an expert body for the purpose and Court should respect such determination unless any mala fides is shown in that decision making process. 9. He has further relied on the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh & Anr. v. Pramod Bharatiya & Ors., AIR 1993 SC 286 , wherein it is held that "since the plea of equal pay for equal work has to be examined with reference to Article 14, the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be." Since the petitioners in the present case have not discharged their burden, their plea for equal pay for equal work should not be accepted. 10. Mr. Chauhan has further relied on the decision of the Hon'ble Supreme Court in the case of State of West Bengal & Ors. v. Hari Narayan Bhowal & Ors., 1994 (4) SCC 78 , wherein it has held that "the claimants must not only establish that the nature of the work is identical but also that there was no reasonable basis to treat them separately. Mere similarity in the nature of work of two groups is not sufficient." It is further held that "pay-scale fixed by expert bodies like the Pay Commission should not be interfered with by the Court on the ground of equal pay for equal work as it would be justified only if violation of Article 14 is established. Till the claimants satisfied on material produced, that they have not been treated as equals within the parameters of Article 14, Courts should be reluctant to issue any writ or direction to treat them equal, particularly when a body of experts has found them not to be equal." 11. Mr. Till the claimants satisfied on material produced, that they have not been treated as equals within the parameters of Article 14, Courts should be reluctant to issue any writ or direction to treat them equal, particularly when a body of experts has found them not to be equal." 11. Mr. Chauhan has also relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Jasmer Singh & Ors., 1996 (11) SCC 77 (Supra). This decision was also relied on by the petitioners. However, the same would help to the respondent rather than it help to the petitioners as in that case, even it was specifically stated that there may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job, although the designation of the job may be same. Here in the present case, admittedly the petitioners do not possess the minimum qualification which require for Laboratory Attendants and hence they cannot claim parity in pay scale with Laboratory Attendants working in other Government departments. 12. Mr. Chauhan has further relied on the decision of the Hon'ble Supreme Court in the case of Secretary to Government & Ors. v. C. Muthu, 2001 (10) SCC 545 , wherein it is held that "in granting relief while applying the principles for "equal pay for equal work," the Court or Tribunal should be very circumspect and until and unless it is established that the two posts are almost similar in all aspects, the Court or Tribunal should not venture to grant the relief sought for." Here in the present case, the petitioners as well as the Laboratory Attendants in other Government Departments are not similar in all aspects and hence, this Court should not grant the relief as prayed for by the petitioners. 13. Mr. Chauhan has further relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Haryana Civil Secretariat Personal Staff Association, 2002 (6) SCC 72 , wherein the Hon'ble Supreme Court has specifically held that "parity cannot be claimed merely on the ground of designation being the same. 13. Mr. Chauhan has further relied on the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Haryana Civil Secretariat Personal Staff Association, 2002 (6) SCC 72 , wherein the Hon'ble Supreme Court has specifically held that "parity cannot be claimed merely on the ground of designation being the same. The Court has further held that the claim of equal pay for equal work in not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive of discharge. While taking a decision in the matter, several relevant factors are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. The Court has further observed that merely because the designation was same, the Court should not grant any relief without comparing the nature of the duties and responsibilities and qualifications for recruitment and without considering the relevant rules, regulations and executive instructions issued by the employer and governing the cadre concerned." 14. Mr. Chauhan has lastly relied on the decision of the Hon'ble Supreme Court in the case of State of Orissa & Ors. v. Balram Sahu & Ors., 2003 (1) SCC 250 , wherein it is held that "To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile indiscrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged indiscrimination." 15. On the basis of the aforesaid judgments of the Hon'ble Supreme Court as well as on the basis of the facts found on record and the submissions made in affidavit-in-reply, Mr. Chauhan has submitted that the petitioners do not deserve for any relief in this petition and it is required to be dismissed. 16. I have heard learned Advocate appearing for the respective parties and I have also gone through the pleadings made by them in the petition, affidavit-in-reply as well as affidavit-in-rejoinder. The authorities cited by them are also duly considered. 16. I have heard learned Advocate appearing for the respective parties and I have also gone through the pleadings made by them in the petition, affidavit-in-reply as well as affidavit-in-rejoinder. The authorities cited by them are also duly considered. Having regard to the principles laid down by the Hon'ble Supreme Court in the aforesaid authorities, I am of the view that the petitioners have failed to make out any case for consideration of any higher pay-scale on the basis of the pay-scale of Laboratory Attendants working in other Government departments. It has come on record that the petitioners were appointed either as Chowkidar or Peons and at the time of their subsequent appointment as Laboratory Attendants, clear-cut understanding was made that they would be given the pay scale of the Peon and Chowkidar as they were drawing. It has also come on record that the recruitment rules were framed in 1984. As per the said rules, minimum qualification was prescribed for appointment of Laboratory Attendant. A candidate should atleast be S.S.S. with subject of Science and Mathematics having not less than 50% of total marks. None of the petitioners are fulfilling this qualification and hence, they cannot claim any parity. Moreover, the Laboratory Attendants are also paying the scale of Rs. 750- 940 in the respondent Board and the Peon as well as Chowkidars are also given the said pay-scale. So, as far as the respondent board is concerned, there is no difference or parity in the pay-scale of Peon or Chowkidar and the Laboratory Attendants. The petitioners case cannot be compared with other Government departments as the nature and duties were different. The petitioners have not led any evidence to the effect that they are discharging same duties as that of the persons working in other departments. A letter produced by Chief Scientific Officer would not render much assistance to the petitioners as at the time of their appointment, the petitioners have agreed to their existing pay scales. Further, there is no applicability of the recruitment policy with retrospective effect as the recruitment rules were framed in 1984 and pay-scales were fixed in 1986 and for the first time, a representation was made by the petitioners in 1987. At the time of deciding the said representation, the existing rules are required to be applied. Further, there is no applicability of the recruitment policy with retrospective effect as the recruitment rules were framed in 1984 and pay-scales were fixed in 1986 and for the first time, a representation was made by the petitioners in 1987. At the time of deciding the said representation, the existing rules are required to be applied. The respondent Board has produced the Circular dated 5.5.1996 wherein different pay scales of different posts were prescribed. As per the said circular, the Laboratory Attendant was getting Rs. 750-940 which was put under the pay-scale of Rs. 2550-3200. Similarly, the Peons and Chowkidars were also put in the same category. As held by the Hon'ble Supreme Court in the aforesaid judgments that educational qualification is one of the important aspects of the whole matter and if there is no allegation with regard to malafide in determining or deciding the pay scale, the Court should not normally interfere in the matter. When the exercise is to be done by the expert body and appropriate decision is taken in the matter, the Court is very slow in interfering with or disturbing the decisions so taken by the expert body. In view of the above matter and having regard to the facts and circumstances of the case, the Court is of the view that the petitioners are not entitled to the higher pay scale as claimed in this petition. The petition is, therefore, dismissed. Rule discharged without any order as to costs. Petition dismissed.