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2006 DIGILAW 1596 (ALL)

Basant Lal v. State Public Services Tribunal

2006-07-06

PRADEEP KANT, RAJIV SHARMA

body2006
JUDGMENT : Pradeep Kant and Rajiv Sharma, JJ. Heard learned Counsel for the Petitioner Sri S. K. Kalia, senior advocate, assisted by Mohd. Ali and Sri Harshvardhan for the State. 2. Two persons, namely, the Petitioner Basant Lal and one Sri Ram Maurya had filed two separate claim petitions before the Tribunal claiming the same relief of revision in the given pay-scale, which claim was dismissed by the Tribunal by a common order dated 16.11.1998 impugned in this writ petition. 3. Sri Ram Maurya, the other claimant, had not approached this Court in this writ petition and only one person approached this Court, namely, Basant Lal, who has challenged the aforesaid order. This order, therefore, would be binding upon Basant Lal only. 4. The Petitioner Basant Lal was appointed on the post of Artist-cum-Photographer in the department of Health and Family Planning in the pay-scale of Rs. 230-385 on 15.3.1980. He possessed the qualification of High School with a two years experience certificate at the time of his appointment. The qualification prescribed for the aforesaid posts were as under: (1) High School or equivalent examination passed certificate. (2) Certificate of Intermediate Grade Course from Bombay Arts College or equivalent certificate. (3) At least two years, experience certificate in photography. 5. There is no dispute that he possessed the aforesaid qualifications and requisite experience. It appears that the Government of U.P. revised the pay-scale of the Government servants on the recommendation of the Second Pay Commission with effect from 1.7.1979 and while making such revision in the pay-scale of the Artists-cum-Photographer, two separate pay-scales were carved out, namely, one pay-scale of Rs. 515-860 for the incumbents who had passed High School and three years' Art Diploma/Certificate and the second pay scale of Rs. 400-615 for such Artist-cum-Photographer, who did not possess either Diploma or three years certificate. Another pay revision was made by the Government w.e.f. 1.1.1986 but the pay-scale of Artist-cum-Photographer as against the existing pay-scale of Rs. 515-860 was revised to Rs. 1400-2300 but the personal pay scale of Rs. 400-615, which was given to those Artists-cum-Photographers who did not possess either diploma or three years certificate, was not revised. Later on, during the pendency of these claim petitions, the aforesaid pay-scale of Rs. 400-615 was revised to Rs. 975-1660 w.e.f 1.1.1986. 6. 515-860 was revised to Rs. 1400-2300 but the personal pay scale of Rs. 400-615, which was given to those Artists-cum-Photographers who did not possess either diploma or three years certificate, was not revised. Later on, during the pendency of these claim petitions, the aforesaid pay-scale of Rs. 400-615 was revised to Rs. 975-1660 w.e.f 1.1.1986. 6. The case of the Petitioner is that the action of the State Government in not giving the same pay-scale of Rs. 515-860 to him on the ground that he was not possessed of three years diploma/certificate, is absolutely arbitrary and discriminatory. The argument says that since at the time of the recruitment/appointment, the Petitioner did possess the qualifications prescribed for the post, any pay revision of the said post would entitle the Petitioner to have the benefit of such revision, irrespective of the fact that qualifications for the said post have been subsequently changed, varied or modified. 7. In response, learned Counsel for the State Sri Harsdvardhan has urged that laying down or providing different pay-scales by taking into consideration the different qualifications can not be said to be discriminatory and would constitute a valid criteria and legal classification for the purpose of determination of the pay-scale. The submission is that three years diploma/certificate being higher qualification than two years diploma/certificate, therefore, if the Government has prescribed higher pay-scale to the holder of the higher qualification, it cannot be termed as arbitrary or illegal. 8. His further submission is that the Petitioner not having possessed of the higher qualification was rightly not awarded the higher pay-scale but his interest stands fully secured by the revision of the pay-scale of Rs. 400-615 as per the revision made of the said pay-scale. 9. Having given our anxious consideration to the arguments raised and on perusal of the records, it becomes clear that at the time of the recruitment of the Petitioner into service as Artist-cum-Photographer, there was only one pay-scale of Rs. 230-385 and that the qualifications as prescribed did not have any alternative qualifications of three years diploma/certificate as against the qualification referred to in the earlier part of the judgment. The Petitioner undisputedly did possess the required/prescribed qualifications on the date of his appointment, i.e., 15.3.1980 and was awarded the pay-scale prevalent at that time. 10. 230-385 and that the qualifications as prescribed did not have any alternative qualifications of three years diploma/certificate as against the qualification referred to in the earlier part of the judgment. The Petitioner undisputedly did possess the required/prescribed qualifications on the date of his appointment, i.e., 15.3.1980 and was awarded the pay-scale prevalent at that time. 10. It is not the case of the Respondent State nor it has been stated in the counter-affidavit or any where else in the annexures. That at any point of time, the qualifications for the recruitment on the point of Artist-cum-Photographer were changed or that any alternative qualification was also prescribed, as aforesaid. In case any such qualification of having three years diploma/certificate was not prescribed by the State Government, there would be no occasion for the Petitioner to be deprived of the higher pay-scale of Rs. 515-860 but even if any such alternative qualification has been prescribed or could be prescribed, the Petitioner cannot be deprived of the benefit of the revised pay-scale of Rs. 515-860 simply on the ground that equivalence committee has so recommended. 11. The equivalence committee has said that the pay-scale of Rs. 550-860 will be given to those Artists-cum-Photographers, who possessed three years diploma/certificate and who do not possess the said diploma/certificate of three years, will be entitled to the personal pay-scale of Rs. 400-615. It cannot be substantiated by the State Government as to on what basis and on what reasons, this artificial classification was made by the Samta Samiti. 12. The Petitioner and all Artists-cum-Photographers, who were appointed in the same manner under the same rules having possessed of the prescribed qualifications and who performed, the same nature of the duties with the same degree of responsibility, could not have been divested of the right of having the given pay-scale of Rs. 515-860. After the Petitioner was appointed as Artist-cum-Photographer the benefit of revision of the pay-scale could not have been denied to him. Creation of the personal pay of Rs. 400-615 on the basis of the qualification, which were never prescribed at the time of the recruitment of the Petitioner, cannot be the basis for depriving the Petitioner of the revised pay-scale of Rs. 515-860, which was revised pay-scale of the post in question. 13. Creation of the personal pay of Rs. 400-615 on the basis of the qualification, which were never prescribed at the time of the recruitment of the Petitioner, cannot be the basis for depriving the Petitioner of the revised pay-scale of Rs. 515-860, which was revised pay-scale of the post in question. 13. In the case of State of Mysore v. B. Basavalingappa (1986) SCC 661 the Supreme Court had an occasion to consider the discrimination in the award of the pay-scale or in the revision of the pay-scale in regard to the certificate holder and diploma holders, who were recruited in the same cadre of instructors with the same pay-scale. In the aforesaid case, the question arose as to whether the Government was right in giving a different higher pay-scale to those instructors who are having diploma as against those who possessed only a certificate ; the Supreme Court found that both, namely, certificate holders and diploma holders were recruited to the same cadre of instructors with the same pay-scale without making any qualification-wise distinction, therefore, certificate holders cannot be given a lower pay-scale on subsequent pay revision in the absence of any material indicating that the diploma became a better qualification than the certificate at the time of pay revision. 14. The Tribunal further did not enter into the question about the superior qualification and that according to the Petitioner there was no institute, which was imparting three years diploma/certificate in the entire country whereas the diploma/certificate from Bombay Arts College was the well recognized and well reputed certificate. The Petitioner is thus entitled to this revision and fixation of his pay initially in the revised pay-scale of Rs. 515-860 and thereafter to all subsequent revision of the said pay-scale. 15. For the reasons stated hereinabove, we quash the order of Tribunal dated 16.11.1998 and further issue a writ in the nature of mandamus directing the Respondents to award the Petitioner the revised pay-scale of Rs. 515-860 from the date the said pay-scale was enforced and fix his salary accordingly. He shall also be given the benefit of all revisions of the said pay-scale, subsequently undertaken and consequential benefits including arrears of difference of salary shall be paid to the Petitioner, within a maximum period of two months from the date of receipt of the certified copy of this order. 16. The writ petition is allowed. He shall also be given the benefit of all revisions of the said pay-scale, subsequently undertaken and consequential benefits including arrears of difference of salary shall be paid to the Petitioner, within a maximum period of two months from the date of receipt of the certified copy of this order. 16. The writ petition is allowed. No order as to costs.