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2010 DIGILAW 267 (JHR)

Panna Lal Prasad v. State of Jharkhand

2010-02-19

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT : D.G.R. PATNAIK, J. 1. Heard counsel for the parties. 2. Challenge in this writ application is to the letter dated 8 10.2001 (Annexure-3) issued under the signature of Deputy Secretary, Department of Finance, Government of Jharkhand whereby it has been declared that persons including the petitioners who were appointed after 1.4.1981, will get lower scale of pay. Besides praying for quashing the aforesaid letter, the petitioners have also prayed for a direction upon the respondents to give them the revised pay scale of Rs. 5000-8000/- at par with the other Assistants who are also employed in the Forest Department. 3. The petitioners who were appointed in the Department after 1.4.1981, are working as Assistants in the Trading Division of the Forest Department, State of Jharkhand and are presently posted at Chaibasa. 4. Prior to 1981, in the Field Establishment Department within the Forest Department, there were different scales in respect of Inspector Amin, Forester and Lower Division Assistant. Vide resolution dated 30th December 1981 adopted by the State Government, the aforesaid three separate scales were clubbed together and fixed at Rs. 580-860/- and in course of subsequent pay revision, the scale of pay of the Assistant was fixed at Rs 4000-6000/-. While this scale of pay continued for all the Assistants, by the impugned notification dated 8.10.2001 (Annexure-3), a Special Pay at higher scale was introduced and fixed in respect of such Assistants who were appointed prior to 1.4.1981, at the scale of Rs. 5000-8000/- and the scale of the petitioners and similarly situated other Assistants who were appointed after 1981, continued to remain at Rs. 4000-6000/- and was made effective from 1.1.1996. 5. The grievance of the petitioners is that in spite of their pretest, their scales of pay have not been fixed at par with the other Assistants working in the Forest Department and for whom higher pay scales have been fixed. 6. Shri Ananda Sen, learned Counsel for the petitioners, would explain that in the Circle Cadre of the Forest Department, there were three categories namely, Lower Division Assistant, Upper Division Assistant and Office Superintendent. The entry level was in the level of Lower Division Assistant, while the remaining two posts were promotional posts to be tilled up from the Lower Division Assistants. 7. The entry level was in the level of Lower Division Assistant, while the remaining two posts were promotional posts to be tilled up from the Lower Division Assistants. 7. Denying and disputing the claim of the petitioners, the stand taken by the respondents in their counter-affidavit and as explained by the counsel for the respondents, is as follows: Prior to 1.4.1981, the Ministerial Establishment of the Forest Department had three tier structure comprising of Secretariat Cadre, Circle Cadre and the Mufassil Cadre. These three cadres were in different pay scales with different educational qualification. Prior to 1.1.971, the Ministerial employees- Office Superintendent, Upper Division Assistant and Lower Division Assistant were in the pay scale of Rs. 200-400, Rs. 200-300 and Rs. 115-225 respectively. While the required educational qualification for recruitment of Lower Division Assistant in the Circle Office was intermediate, the educational qualification required for the appointment of Assistant in the Mufassil establishment was only matriculation with knowledge of typing. Subsequently, by a Government resolution dated 30.12.1971, the scale of pay of the Lower Division Assistant employed in the circle cadre was fixed in the scale of Rs. 240-396 and the scale of pay for the upper division assistant employed in the circle cadre was fixed at Rs. 340-490 with effect from 2.6.1976. Pursuant to the recommendation of the 4th Pay Revision Committee, the scale of pay for all the Clerks/Assistants working in different mufassils offices was fixed at Rs. 680-860/- and the pay scale for Secretariat Assistant was fixed at Rs. 730 -1080 with effect from 1.4.1987. 8. Later, in the year 1997, upon demand of the Employees Association for grant of central pay scales, a Fitment Committee was constituted to recommend the scales of the employees in the Forest Department. Before the Fitment Committee could submit its report, the Upper Division Assistants who were employed in the circle office of the forest, also filed their representations claiming prompt revision of their pay scales. The Fitment Committee upon considering the fact that the scale of pay for the upper division assistants was not promptly revised since the 3rd Pay Revision Committee's recommendation came into effect, had recommended the pay scale of Rs. 5000-8000 for the Assistants working in the Circle Office. The Fitment Committee upon considering the fact that the scale of pay for the upper division assistants was not promptly revised since the 3rd Pay Revision Committee's recommendation came into effect, had recommended the pay scale of Rs. 5000-8000 for the Assistants working in the Circle Office. Such recommendation was made on the basis of the higher educational qualification as required for the assistants who were appointed in the circle cadre and the long experience of the members of such cadre. 9. Following the recommendation of the Fitment Committee, the State Government had issued a resolution dated 8.2.1999 whereby the revised scales of pay was made applicable to the employees of the State Government. However, the scale of pay for the Assistants in the Circle Cadre of the Forest Department was not mentioned in the aforesaid resolution, though a direction was issued to the concerned department to examine such cases where it has not been possible to fix suitable scales of pay for the posts on fixed, consolidated rates of pay or time scales of pay and after examining their prescribed qualifications, nature of duties, revised scales and other relevant factors, refer each such case to the Finance Department for appropriate advice. 10. It was in the light of the above resolution of the State Government that the Department of Forest prepared a proposal to grant the pay scale of Rs. 5000-8000 to the Assistant of Circle Office and forwarded the same to the Finance Department of the State Government vide its letter dated 8.10.2001 and thereafter, vide the impugned notification (Annexure-3) of the Finance Department, the scale of pay for the Assistant of the Circle Cadre of the Forest Department who were appointed prior to 1.4.1981, was fixed at Rs. 5000-8000 with certain conditions namely, that the pay scale granted to these employees of dying/closed cadre would be personal to them and as they retire/or die, the post shall be transferred in the Mufassil establishment. 11. Thus, from 1.4.1981, a two tier structure of Ministerial Employee was constituted namely, Secretariat establishment and Mufassil establishment. While ministerial employees of mufassil establishment were placed in single scale of Rs. 580-860/-, those in the Secretariat establishment were placed in the higher pay scale of Rs. 730-1080. 12. The scale of the employees who were appointed after 1.4.1981 in the circle cadre of the Forest Department, was fixed at Rs. 580-860. 13. While ministerial employees of mufassil establishment were placed in single scale of Rs. 580-860/-, those in the Secretariat establishment were placed in the higher pay scale of Rs. 730-1080. 12. The scale of the employees who were appointed after 1.4.1981 in the circle cadre of the Forest Department, was fixed at Rs. 580-860. 13. The contention of the learned Counsel for the respondents is that the petitioners who were appointed after 1.4.1981, had joined the services with the knowledge that their scale of pay was fixed at Rs. 580-860/-. This scale of pay was one of the conditions for their appointment which they had accepted by submitting their joining in their post. The petitioners cannot equate themselves with the Assistants who were appointed prior to 1.4.1981 in view of the fact that the pay scales of such appointees was at a higher scale of Rs. 240-390 and 340-490. 14. The gist of the submission of the respondents is that prior to 1.4.1981, Assistants of the Mufassil cadre who were appointed in the higher pay scale of Rs. 240-390 and 340-490, which scale was also applicable to the office of the circle cadre and their recruitment qualification was also higher and as such, their service conditions was quite different in comparison to the service conditions of the petitioners. Thus, the distinction which has been sought to be made between the petitioners and those assistants who were appointed prior to 1.4.1981 in the matter of pay scales, is on the ground that the educational qualification for the latter group was higher than the petitioners and that the pay scale of the latter group was fixed at a higher pay scale prio to 1.4.1981. 15. It is not denied by the respondents that prior to 1.1.1996, the scale of pay for all the Assistants in Circle Cadre was fixed at equal scale of Rs. 4000-6060. It is also not disputed that no promotion to the post of Upper Division Assistant having bet n made from the Lower Division Assistant, those who were appointed prior to 1.4.1981, continued to remain in the Lower Division Group. The grade in which the petitioners are working, is the same grade in which the Assistants appointed prior to 1.4.1981, are also working. The eligibility therefore for higher pay scales could be only either by upgradation of the post or promotion to a higher post. The grade in which the petitioners are working, is the same grade in which the Assistants appointed prior to 1.4.1981, are also working. The eligibility therefore for higher pay scales could be only either by upgradation of the post or promotion to a higher post. This apparently is not the ground on which the higher pay scales have been fixed for those who were appointed prior to 1.4.1981. 16. In the present case, as it appears, even while maintaining, the Assistants appointed prior to 1.4.1981 in the Lower Division Assistant Cadre, their scale of pay has been enhanced from 1.1.1996. Apparently, the respondents have created a class within the class by fixing a cut-off date at the entry level. 17. The respondents have sought to rely upon the recommendation of the Fitment Committee. The Fitment Committee recommendation do, not prescribe any cut-off date much less the date 1.1.1996 from which higher scale has been made effective for the employees who were appointed prior to 1.4.1981. 18. It is also to be noted that even if, according to the respondents, that scale of pay of the Assistants employed prior to 1.4.1981, was fixed at a higher scale, but the admitted fact is that after the subsequent pay revision, the scale of pay for all the Assistants, was fixed at Rs. 580-860 and thereby, a common scale was fixed for all the Assistants, in the department. After revision of the pay scales, the distinction between those assistants who were employed in the different establishments of the department namely, Secretariat Cadre, Mufassil Cadre and Circle Cadre appear to have been obliterated irrespective of the fact that the required educational qualification in some establishment was at a higher level and that, the were drawing higher pay scale and the assistants who were appointed prior to 1.4.1981 or after, were clubbed as a single class. 19. The principle of equal pay for equal work which has now assumed the status of fundamental right, would strictly apply in the facts and circumstances of the present case. There being no qualitative difference in the nature of functions and duties attached to the petitioners and to those assistants who are employed prior to 1.4.1981, carving a class out of the same class of employees, would be in violation of Article 14 of the Constitution of India. There being no qualitative difference in the nature of functions and duties attached to the petitioners and to those assistants who are employed prior to 1.4.1981, carving a class out of the same class of employees, would be in violation of Article 14 of the Constitution of India. By fixing a common recognized pay scales of all the Assistants working in the different establishments under the Forest Department, the parity amongst the Assistants has been recognized and accepted by the respondent State. The disparity of treatment between the same class of employees by fixing a arbitrary cut-off date, has therefore to be deemed as illegal and as an administrative excess. 20. The decision to enhance the pay scales for a section of the Assistants working as Lower Division Assistants in the same department, as per the impugned order (Annexure-3), even though projected by the respondents to be executive decision and administrative in nature, yet, for the reasons explained above, such decision is unreasonable, unjust and prejudicial to the section of the employees and is therefore amenable to a judicial review. 21. In the light of the above facts and circumstances and discussions made above, the concerned authorities of the respondent State Government are directed to reconsider the matter and fix a uniform pay scale for the Assistants employed in the Forest Department including the petitioners and anomalies which has been created by the impugned notification (Annexure-3). The concerned authorities of the respondents are expected to take an appropriate decision in compliance of this order preferably within a period of six months from the date of this order. With these observations, this writ application is disposed of. Let a copy of this order be given to the learned Counsel for the respondent State.