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2008 DIGILAW 703 (RAJ)

State of Rajasthan v. Kaushal Singh Rathore

2008-03-05

R.M.LODHA, RAGHUVENDRA S.RATHORE

body2008
Honble LODHA, J.–The State Government through Secretary, Department of Education and the Secretary, Department of Finance have preferred this appeal aggrieved by the order dated 8th April, 2004 passed by the Single Judge whereby he allowed the writ petition filed by the present respondents and directed the appellants herein to comply with the recommendations of the Beri Commission as approved by the Committee of Secretaries. (2). The short question that requires to be considered by us in this appeal is whether the direction issued by the Single Judge to the present appellants to comply with the recommendations of Beri Commission as approved by the Committee of Secretaries is legally sustainable. In other words, can a mandamus be issued by the Court as has been done by the Single Judge directing the compliance of recommendations of a Commission recommending the pay scale to various categories of employees in the State of Rajasthan. (3). The controversy arises from the facts which may be briefly noticed by us. For the sake of convenience we shall refer to the parties as parties in the writ petition, namely; the present respondents, `the petitioners and the present appellants, `the respondents. (4). The petitioners are Aeromodelling Instructors and employees of the State of Rajasthan. That their services are governed by the Rules and Regulations framed by the State of Rajasthan is an admitted case. Relying upon the general and specialised qualifications, the petitioners set up the case that an Aeromodelling Instructor is not required to be technically qualified but must also held `C certificate of NCC. A cadet who is holding `C certificate becomes eligible to be appointed in the defence services directly and commission is given to him on the basis of interview and suitability. Although, according to the petitioners, the Aeromodelling Instructors are substantively in employment of different states, the necessary qualifications have been prescribed by the Director General of National Cadet Corps (NCC) and it is not open to the state to alter or modify the essential qualifications prescribed. The Aeromodelling Instructors are said to be performing identical duties all over the country and it is the petitioners case that there is absolutely no difference in the nature of duties assigned to Aeromodelling Instructors of one state or the other. The Aeromodelling Instructors are said to be performing identical duties all over the country and it is the petitioners case that there is absolutely no difference in the nature of duties assigned to Aeromodelling Instructors of one state or the other. The petitioners set up the case that in so far as State of Rajasthan is concerned, Aeromodelling Instructors employed herein do not have any promotional avenues and, thus, an Aeromodelling Instructor recruited to the said post as such retires from that post alone without getting even a single promotion. That post of Aeromodelling Instructor in the State of Rajasthan has been included in `subordinate service of the State is not in dispute. Relying upon the principle of `equal pay for equal work and the recommendations of the Beri Commission which is said to have examined the pay scales of Aeromodelling Instructors, the petitioners prayed for the following reliefs: "(i) by an appropriate writ order or direction the respondents may be directed to implement the Report of the Beri Commission for the Aeromodelling Instructors in the State of Rajasthan. (ii) by further appropriate writ order or direction the respondents may be directed to give pay scale to the Aeromodelling Instructors employed in the State of Rajasthan equal to the Aeromodelling Instructors employed in the State of Andhra Pradesh and Manipur. (iii) By further appropriate writ order or direction the respondents may be directed to give higher pay scale to the petitioners/Aeromodelling Instructors in the State of Rajasthan. (iv) the directions may be further issued to get further promotion avenues for the Aeromodelling Instructors employed in the State of Rajasthan. (v) That the direction may be issued to give the status of gazetted officer to the Aeromodelling Instructors in the State of Rajasthan. (5). The state government through its functionaries contested the writ petition by filing written response. It was reiterated that the petitioners are the government employees and governed by the Rajasthan State Subordinate Service Rules. As per the policy in the state subordinate service, if an employee is not in a position to get any promotion, he/she is granted selection grade on completion of 9, 18 and 27 years and thereby such employees in subordinate services get all benefits and advantages of promotion and plea of stagnation pales into insignificance. As per the policy in the state subordinate service, if an employee is not in a position to get any promotion, he/she is granted selection grade on completion of 9, 18 and 27 years and thereby such employees in subordinate services get all benefits and advantages of promotion and plea of stagnation pales into insignificance. The respondents set up the case that there is no recommendation of Beri Commission available for high pay scale to Aeromodelling Instructors. They pleaded that the recommendations and suggestions of the Beri Commission are to the government and these recommendations and suggestions are not binding. The State Government set up the plea that the pay scales of Aeromodelling Instructors cannot be compared with other posts nor can it be compared with the pay scales given in other states. Each state has to prescribe pay scales to different categories of its employees on the basis of financial position and provision. They submitted that the State of Rajasthan never took decision that the pay scales of its employees would be given identical to the pay scales of the employees under the Union Territory. The State of Rajasthan is maintaining its own pay scales for the post of Aeromodelling Instructors and the petitioners cannot claim that they should be given pay scales of Aeromodelling Instructors which are provided by other states. The plea of discrimination is emphatically denied by the state and it has been submitted that as there are only four posts of Aeromodelling Instructors and their work is to impart training to NCC cadets and although no promotional avenues are available but that grievance is taken care of by grant of selection grade. (6). The petitioners filed rejoinder to the reply submitted by the State government and reiterated their stand set up in the writ petition. (7). The Single Judge while allowing the writ petition of the petitioners noticed that since the state accepted the recommendations of the Beri Commission and that the Committee of Secretaries (for short, `COS) examined the Beri Commissions report and gave their suggestion and the same have been implemented, however, the state has not disclosed what were the Beri Commission recommendations and approved by the COS and, therefore, the state government must comply with the recommendations of the Beri Commission as approved by the COS. While directing so, the Single Judge relied upon the decision of the Supreme Court in the case of Purshottam Lal and other vs. Union of India and another, AIR 1973 SC 1088 . (8). Mr. M.S. Raghav, Additional Advocate General assailed the order of the Single Judge and vehemently contended that no mandamus could be issued by the Single Judge directing the state government to comply with the recommendations of the Beri Commission as approved by the COS. He relied upon the decision of the Supreme Court in the case of M.P. Rural Agriculture Extension Officers Association vs. State of M.P. and anr. (2004) 4 SCC 646 . (9). On the other hand Mr. Manoj Kumar Sharma, the counsel, for the original writ petitions heavily placed reliance upon the judgment of the Supreme Court in the case of Purshottam Lal and another (supra) and submitted that the judgment in the case of Purshottam Lal being by the Constitution Bench must be applied to the facts of the present case and the Single Judge cannot be said to have erred in passing the order impugned in the present appeal. When his attention was drawn to the Division Bench judgment of this Court dated 7th May, 2007 in the case of State of Rajasthan and others vs. Rajasthan Vidhi Seva Sangh and another, D.B. Civil Special Appeal (Writ) No. 633/1992, Mr. Manoj Kumar Sharma submitted that the reference concerning pay scale of Aeromodelling Instructors was specifically made to the Beri Commission and, therefore, the said decision cannot be applied to the facts of the present case. (10). In the case of Pushottam Lal, the grievance raised in the writ petition filed under Article 32 of the Constitution of India before the Supreme Court was that the petitioners therein had been discriminated against by the government by non- implementation of the report of second pay commission only in respect of the pay held by them. (10). In the case of Pushottam Lal, the grievance raised in the writ petition filed under Article 32 of the Constitution of India before the Supreme Court was that the petitioners therein had been discriminated against by the government by non- implementation of the report of second pay commission only in respect of the pay held by them. Dealing with this controversy, the Supreme Court noticed that on August 2, 1960, the government issued a notification giving effect to the recommendations of the Pay Commission but in so far as the petitioners therein who were holding the office of the post of Research Assistant Grade II and Computer at various research institutions and colleges, the stand of the government was that these posts were not specifically included in the list of scientific posts mentioned in para 28 of the Chapter XV of the 2nd pay commissions report hence the revised pay scales for these posts be given. Dealing with this aspect, in paragraph 15 of the report, the Supreme Court held thus: "15. Mr. Dhebar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned." (11). The Supreme Court observed that since reference to the pay commission was with regard to all government employees and it accepted the recommendations of the second pay commission, it is bound to implement the recommendations in respect of all government employees and if it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. We are afraid, the aforesaid observations of the Supreme Court has no application to the fact situation obtaining in the present case. We are afraid, the aforesaid observations of the Supreme Court has no application to the fact situation obtaining in the present case. In the case of Purshottam Lal, it was found that the government acted in violation of Articles 14 and 16 in implementation of the revised pay scales in a particular category of servants although it has made a reference in respect of all government employees and it accepted the recommendations, it is pertinent to refer the reference made to the second pay commission which reads, "examine the principles which should govern the structure of emoluments and conditions of Central Government employees." The reference, thus, included the structure of emoluments and conditions of service of all central government employees. The government having accepted the recommendations of the second pay commission, sought to discriminate some of the employees by not implementing the report and, thus, it held that the action of the government was in breach of Articles 14 and 16 of the Constitution. This is not the case here. (12). Incidentally, we may notice that, inter-alia, issue concerning pay scale of legal assistants was also referred to the Beri Commission. The Beri Commission recommended the pay scale of 760-1420 for the assistant legal assistants and 900-1600 for the head legal assistants. The government did not accept the pay scale recommended by the Beri Pay Commission in its entirety and granted pay scale of 660-1240 to the legal assistants and 800- 1550 to the head legal assistants. The controversy concerning the pay scale for legal assistants and head legal assistants reached this court in the writ petition filed by the Rajasthan Vidhi Seva Sangh and one K.C. Chhangani. They prayed in the writ petition that the government be directed to pay scale of 860-1750 to the legal assistants and pay scale of 1000-1860 to the head legal assistants. The Single Judge granted the relief to the petitioners partially on 8th September, 1992. The said judgment was assailed by the State government and its functionaries in D.B. Civil Special Appeal (Writ) No. 633/1992, State of Rajasthan & Others vs. Rajasthan Vidhi Seva Sangh and another. The Division Bench presided over by one of us (R.M. Lodha, J.) while deciding the special appeal in the judgment dated 7th May, 2007 accepted the appeal and set aside the order of the Single Judge. The Division Bench presided over by one of us (R.M. Lodha, J.) while deciding the special appeal in the judgment dated 7th May, 2007 accepted the appeal and set aside the order of the Single Judge. In paragraph 3 of the said judgment the claim of the petitioners in Rajasthan Vidhi Seva Sangh has been noticed which reads thus: "3. The petitioners founded their claim on better pay scale on the recommendations made by the Law Reforms and Legal Services Committee headed by the then Advocate General Dr. L.M. Singhvi (for short, "Law Reforms Committee") and the recommendations of the B.P. Beri Pay Commission (for short `Beri Pay Commissioner). The petitioners also claimed that the Legal Assistants belonged to the Rajasthan Legal Service and, therefore, they must be accorded pay scales of the Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service, Rajasthan Judicial Service etc., the said pay scale being 1000-1860." (13). The stand of the government was noticed in paragraph 4 of the judgment thus: "4. The Government contested the claim of the petitioners and denied that the Legal Assistants and the Head Legal Assistants were entitled to the pay scales of Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service and Rajasthan Judicial Service. The Government also denied their claim that the Legal Assistants were entitled to the pay scale of 760-1420 and the Head Legal Assistants the pay scale of 900-1600. The Government also took the stand that no relief could be granted to the petitioners in exercise of writ jurisdiction under Article 226 of the Constitution of India since no such mandamus could be issued." (14). In paragraph 11 of the judgment it was noticed that the Rajasthan Legal Subordinate Service Rules, 1976 included the post of legal assistant and head legal assistant and the pay scales of legal assistant under these Rules was 200-450 while the pay scale of the head legal assistant was 275-650. (15). In paragraph 13 of the judgment, the recommendations of the Beri Pay Commission concerning legal assistant and head legal assistant have been referred which read thus: "13. It is common ground of the parties that in the year 1979-80, Beri Pay Commission was appointed by the State Government. The Beri Pay Commission recommended the pay scale of 760-1420 for the legal assistant and 900-1600 for the post of Head Legal Assistant. It is common ground of the parties that in the year 1979-80, Beri Pay Commission was appointed by the State Government. The Beri Pay Commission recommended the pay scale of 760-1420 for the legal assistant and 900-1600 for the post of Head Legal Assistant. The Government did not accept the pay scale recommended by the Beri Pay Commission in its entirety and granted pay scale of 660-1240 to the Legal Assistant and 800-1550 to the Head Legal Assistant. As a matter of fact it is this pay that led to the filing of the writ petition and the claim for higher pay scale." (16). Then in para 17, it has been notice that the government did not accept the pay scale recommended by the Beri Commission in its entirety. Paragraph 17 of the judgment reads thus: "17. Be that as it may, in the year 1980, the Beri Pay Commission was constituted by the Government and it partly accepted the recommendations of that Commission and increased the then existing pay scale of Legal Assistant and Head Legal Assistant from 500-890 to 660-1240 and 620-1100 to 800-1550 respectively; though the Government did not accept the pay scale recommended by the Beri Commission in its entirety. This shows without doubt that the Government has been consciously making decision in respect of the pay scale of Legal Assistant and Head Legal Assistant." (17). It was observed by the Bench in the aforesaid judgment that the fixation of pay scale is a complex exercise and diverse factors are taken into consideration before the Rules are framed and once the Rules are framed, they have statutory force and that it is not for the court to direct the state to make a particular law. The Court held that no mandamus can be issued to the government with regard to fixation of pay scale. This is what the Division Bench held: "19. Comparisons are odious and comparing the two un-equals is dangerous. By no stretch of imagination, the posts of Legal Assistant and Head Legal Assistant can be compared with the Inspectors or the Officers of Commercial Taxes Department or Cooperative Department or other Departments. This is what the Division Bench held: "19. Comparisons are odious and comparing the two un-equals is dangerous. By no stretch of imagination, the posts of Legal Assistant and Head Legal Assistant can be compared with the Inspectors or the Officers of Commercial Taxes Department or Cooperative Department or other Departments. In our considered view, the comparison of the pay scale of Legal Assistants in the year 1983 and that of the Inspectors Grade-I, Commercial Taxes Department and the Inspectors Grade-I, Cooperative Department to find out that in the year 1983 the pay scale of Legal Assistants was higher and then that in the year 1987, the pay scale of Legal Assistant and Inspector Grade-I, Commercial Taxes Department and Inspector Grade-I, Cooperative Department was brought at par but in the year 1989, the pay scale of the Legal Assistant was fixed lower to that of Inspector Grade-I of Commercial Taxes Department or that of Cooperative Department, and, therefore, the pay scale of Legal Assistant has to be pushed to the highest in the subordinate service, would not be correct legal approach. Different pay scale different categories of service/s in the Government are fixed in the Rules framed under Article 309 of the Constitution of India. This is a complex exercise and diverse factors are taken into consideration before the Rules are framed. Once the Rules are framed, they have statutory force. It is trite principle of law that it is not for the Court to direct the State to make particulars law. The only basis for examination before the Court could be the plea of discrimination and violation of Article 14 of the Constitution of India. But for a plea of discrimination or infraction of Article 14 of the Constitution of India, the plea has to be founded on the equals being treated differently; the comparison cannot be made of unequals. 20. We fail to appreciate how a direction could be issued to the Government to upgrade the pay scale of legal subordinate service to the highest pay scale in the subordinate service of the State. We find no legal basis nor any justification for issuing such mandamus to the Government and thereby indirectly making law that the Legal Assistant in legal subordinate service must be given the highest pay scale of the other subordinate services. We find no legal basis nor any justification for issuing such mandamus to the Government and thereby indirectly making law that the Legal Assistant in legal subordinate service must be given the highest pay scale of the other subordinate services. For the same reason, the direction of the Single Judge that the post of Head Legal Assistant should be considered a post in two pay scales higher than a post of Legal Assistant and consequently the Head Legal Assistant must be given pay scale No. 16 cannot be legally sustained." (18). The Bench considered the decisions of the Supreme Court in the case of M.P. Rural Agriculture Extension Officers Association vs. State of M.P. and another 2004(4) SCC 646 , State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association - (2002) 6 SCC 72 = (RLW 2003(1) SC 3) and Secretary, Finance Department and others vs. West Bengal Registration Service Association and others- 1993 (Supplementary) (1) SCC 153 and with reference to these decisions made observations in paragraphs 21, 22 and 23 thus: "21. In M.P. Rural Agriculture Extension Officers Association Versus State of M.P. and Another ( 2004(4) SCC 646 ), the Supreme Court held that the recommendation of the pay commission is not binding on the State and cannot be enforced by issuing writ of or in the nature of mandamus. It was held that the State can make the Rules in exercise of the powers under proviso to Article 309 in consistent with or contrary to the recommendations of the Pay Commission by evolving policy decision. 22. The two Judge Bench of the Supreme Court in the case of State of Haryana and Another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 Supreme Court Cases 72) made important observations that fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors are required to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of revised scale of pay. The Supreme Court went on to observe that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. The Supreme Court went on to observe that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. It was held that in the context of the complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government, the Court should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. The Court should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the Court holds that the order passed by the Government is unsustainable, ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter. The Court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. 23. In the case of Secretary, Finance Department and others vs. West Bengal Registration Service Association and Others (1993 (Supplementary) (1) SCC 153), the Supreme Court observed that though the recommendation of the Pay Commission concerning pay fixation is entitled to great weight but the same is not binding on the Government." (19). The Bench also considered the Constitution Bench decision of the Supreme Court in the case of Purshottam Lal and others vs. Union of India and another which was cited by Mr. Manoj Kumar Sharma before us as well. Paragraphs 29 and 30 of the judgment are as follows: "29. The counsel for the petitioners also placed reliance on the judgment of the Supreme Court in the case of Purshottam Lal and Others Versus Union of India and Another ( AIR 1973 SC 1088 ). In that matter before the Supreme Court, the grievance was raised about non implementation of the report of the Second Pay Commission. Dealing with this aspect the Supreme Court observed in para 15 of the report thus: "Either the Government has made reference in respect of all Government employees or it has not. In that matter before the Supreme Court, the grievance was raised about non implementation of the report of the Second Pay Commission. Dealing with this aspect the Supreme Court observed in para 15 of the report thus: "Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned." 30. In the case of Purshottam Lal it was found that the Government acted in violation of Articles 14 and 16 in implementation of the revised Pay Scales in a particular category of servants from a date later than that recommended by the Pay Commission. That is not the case here. Purshottam Lal cannot be applied to the present fact situation. (20). Then in paragraph 31 of the judgment, while dealing with the direction of the Single Judge, the Bench held that if such direction is allowed to stand, it would amount to framing of Rules by the Court which under proviso to Article 309 of the Constitution of India is the sole domain of the Governor. The Bench held thus: "31. In what we have discussed above, we are of the view that the direction given by the Single Judge, if upheld, shall result in framing the Rules by the Court, which under proviso to Article 309 of the Constitution of India is the sole domain of the Governor. Much water has flown under the bridge after the writ petition came to be filed in the year 1984. As noticed above, the Rajasthan Service (Revised Pay Scale) Rules, 1989 effective from 1st September, 1988 came into force. As a matter fact, there was no direct challenge to the pay scale of Legal Assistant and Head Legal Assistant prescribed in the said Rules by the petitioners in the writ petition. With due regard to the Single Judge, we find ourselves unable to concur with his view. (21). As a matter fact, there was no direct challenge to the pay scale of Legal Assistant and Head Legal Assistant prescribed in the said Rules by the petitioners in the writ petition. With due regard to the Single Judge, we find ourselves unable to concur with his view. (21). In what has been observed above, we have no hesitation in holding that the Single Judge was not justified in issuing the direction to the State Government to comply with the recommendations of the Beri Commission as approved by the COS. We are afraid, such direction amounts to tinkering with the Rajasthan Subordinate Service Rules which admittedly governs the services of the petitioners. Rajasthan Subordinate Service Rules have been framed by the Governor in exercise of the powers conferred on him under Article 309 of the Constitution of India and, we are afraid, if the direction given by the Single Judge is upheld, it shall result in framing the Rules by court which under proviso to Article 309 of the Constitution of India is the sole and exclusive domain of the Governor. Even if we assume that the recommendations of the Beri Commission were accepted by the COS, in our considered view, it is open to the state government accept or not to accept such report of the COS. No mandamus or a high prerogative writ in that nature can be issued by the High Court directing the state government for compliance of recommendation of the Beri Pay Commission or the report of the COS. We are, thus, unable to concur with the view of the Single Judge. (22). The special appeal has to be allowed and is allowed. We set aside the order of the Single Judge dated 8th April, 2004. As a result of this, the writ petition filed by the petitioners stands dismissed. (23). Although, the writ petition has been dismissed by us, by way of foot note, we observe that the petitioner may make an appropriate and adequate representation to the sale government for redressal of their grievance concerning the pay scale. As a result of this, the writ petition filed by the petitioners stands dismissed. (23). Although, the writ petition has been dismissed by us, by way of foot note, we observe that the petitioner may make an appropriate and adequate representation to the sale government for redressal of their grievance concerning the pay scale. If such a representation is made, we further observe that the state government or the authority competent to take such decision in the matter shall consider all aspects raised in the representation objectively and in right perspective and take a decision in the matter which is just, fair and reasonable keeping in view the fact that there are only four posts of Aeromodelling Instructors. (24). The parties shall bear their own costs.