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Himachal Pradesh High Court · body

2009 DIGILAW 486 (HP)

LALIT KUMAR v. STATE OF H. P.

2009-05-20

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge- Brief facts necessary for adjudication of this petition are that the petitioners were initially recruited as Sub Branch Incharges in the erstwhile Nahan Foundary Ltd. They were promoted as Branch Incharges. The respondent-State had issued notification dated 16.1.1989 regarding conversion of Nahan Foundary Ltd. into State Workshop for Public Works and Irrigation & Public Health Departments. Vide order dated 23/27.12.1989, the terms and conditions were prescribed for taking over the services of the employees of the erstwhile Nahan Foundary Ltd. in the H.P. Public Works/Irrigation & Public Health State Workshop (Nahan Foundary) with effect from 1.10.1988. The pay of Branch Incharges was fixed in the pay scale of Clerks vide order dated 18.10.1993 and that of Sub Branch Incharges was fixed in the pay scale of Daftries/Record Sorters with effect from 1.10.1988. They were re-designated as Senior Clerks with effect from 1.10.1993. The petitioners submitted representation on 18.12.1993 to the Commissioner-cum-Secretary (Public Works). They also approached the learned H.P. Administrative Tribunal by way of original application No. 854 of 1994 for redressal of their grievances. The original application was directed to be treated as representation to the Secretary (Public Works) on 14.7.1994. The same was rejected by the Secretary (Public Works) on 23.11.1994. 2. Mr. Dilip Sharma has strenuously argued that the petitioners were required to be re-designated as Senior Clerks and not as Clerks vide Annexure A-3 dated 18.10.1993 after the issuance of Annexure A-2. He has termed the decision of the State not to equate the petitioners as Senior Clerks unreasonable, arbitrary and irrational. He lastly contended that his clients were discharging more onerous duties as compared to their counter-parts of ministerial side in the H.P. Public Works Department and Irrigation & Public Health Department. 3. The learned Senior Additional Advocate General has supported the office order Annexure A-3 dated 18.10.1993 and memorandum Annexure A-7 dated 23.11.1994. 4. I have heard the parties and perused the record carefully. 5. The clerks in the H.P. Public Works Department and Irrigation & Public Health Department were placed in the pay scale of Rs. 260-400 with starting pay of Rs. 260/- with effect from 1.1.1986. The petitioners were given fixed salary of Rs. 260/- per month as Branch Incharges. 4. I have heard the parties and perused the record carefully. 5. The clerks in the H.P. Public Works Department and Irrigation & Public Health Department were placed in the pay scale of Rs. 260-400 with starting pay of Rs. 260/- with effect from 1.1.1986. The petitioners were given fixed salary of Rs. 260/- per month as Branch Incharges. The Branch Incharges were eligible for promotion as Sub Inspector who had common seniority with the category of Senior Clerks as per Recruitment & Promotion Rules framed by Nahan Foundary Ltd. Accordingly, the Branch Incharges could not be equated equivalent to promotional post of that grade. In other words, they were not discharging the same and similar duties of Senior Clerks in the Nahan Foundary Ltd. before the petitioners merged with the ministerial staff of H.P. Public Works Department and Irrigation & Public Health Department. The pay scale of Senior Clerks and Sub Inspectors was higher than the Branch Incharges. Their services were integrated and merged with the ministerial staff in accordance with law. The petitioners have failed to substantiate by leading tangible evidence that they were discharging the same duties which were being discharged by the Senior Clerks in the Public Works Department and Irrigation & Public Health Department. On the same analogy, the persons holding the posts of Sub Branch Incharges could not be equated with the posts of Clerks. The Sub Branch Incharges were getting fixed salary Rs. 232/- per month and they have been rightly placed/allowed pay scale of Daftries/Record Sorters i.e. Rs. 810-1440. The order passed by the Secretary (Public Works) dated 23.11.1994 is reasoned order. It need not be interfered with by this Court. 6. Their Lordships of the Hon’ble Supreme Court have held in the following case that the question of equivalence is to be decided by the employer. It is only when the decision taken by the employer/experts is arbitrary or unreasonable, the Court will review the decision. Their Lordships of the Hon’ble Supreme Court in K.T. Veerappa and others versus State of Karnataka and others, (2006) 9 Supreme Court Cases 406 have held as under: “He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretarial Personal Staff Assn. and Union of India v. S.B. Vohra. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretarial Personal Staff Assn. that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. 7. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs.