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Himachal Pradesh High Court · body

2012 DIGILAW 6 (HP)

Ashwani Kumar Kalta v. State Of H. P.

2012-01-02

SANJAY KAROL

body2012
JUDGMENT : Sanjay Karol, J. Petitioner has prayed mainly for the following reliefs: A) This Hon’ble Court may be pleased to issue writ of certiorari quashing Annexure P-17 dated 19.10.2010/25.10.2010 as well as decision of the Service Committee dated 21.7.2010 mentioned in Annexure P 17 after directing the Respondents to produce the said decision on record by issuance of writ of Mandamus. B) This Hon’ble Court may be pleased to issue a writ of Mandamus directing the respondents to grant to the petitioner the revised pay scale of Deputy District Attorney in Prosecution Department i.e. Rs.7880-13500 with effect from 1.1.1996 with interest @ 18% per annum. 2. Annexure P-17 is the order dated 19th/25th October, 2010 which reads as under:- HIMUDA NIGAM VIHAR, SHIMLA -2 NO. HIMUDA:5-67/2008-Admn.(loose) Dated Shimla-2, the 19th October, 2010/25.10.2010 From: CEO-cum-Secretary, HIMUDA, Shimla -2 To Shri A.K. Kalta, Sr. Law Officer, HIMUDA, Shimla -2 Subject: Revision of pay scale from Rs. 7220-11660 to Rs. 7880-13500 of Law Officer. Memo: The above mentioned matter was placed before the 'Service Committee' in its meeting held on 21.7.2010 for consideration and same was rejected. This is for your information. Sd/ -CEO-cum-Secretary, HIMUDA, Shimla -2 3. This order is unreasoned and can be quashed on this short ground alone. But I find that issues raised by the petitioner needs to be settled for all times. 4. Facts are not in dispute. On 10.2.1987, petitioner joined office of Himachal Pradesh Housing Board as a Law Officer. His pay was fixed in the pay scale of Rs. 825-1580, which also was the pay scale payable to the Deputy District Attorneys in the Department of Prosecution, Govt. of Himachal Pradesh. Undisputedly on 1.1.1986, petitioners pay scale was revised from Rs. .825-1580 to Rs. .2000-3500. Petitioner made a grievance about such revision, as it was not kept at par with the revised pay scale payable to the Deputy District Attorneys. On his representation, by taking into account all attending facts and circumstances particularly qualifications, duties, responsibilities which persons holding similar posts were required to discharge, respondents revised the pay scale to Rs. .2200-4000, in terms of order dated 8.12.1995 w.e.f. 1.1.1986. Monetary benefits in terms of such revision were also disbursed to the petitioner. On his representation, by taking into account all attending facts and circumstances particularly qualifications, duties, responsibilities which persons holding similar posts were required to discharge, respondents revised the pay scale to Rs. .2200-4000, in terms of order dated 8.12.1995 w.e.f. 1.1.1986. Monetary benefits in terms of such revision were also disbursed to the petitioner. Respondents thus accepted the position that duties, responsibilities and the qualification of Law Officer in the Himachal Pradesh Housing Board is equivalent to that of the Deputy District Attorneys in the Department of Prosecution. 5. Pay scales of Deputy District Attorneys in the Department of Prosecution and of the petitioner were again revised in the year 1998, w.e.f. 1.1.1996, when again respondents committed same mistake. Whereas pay scale of Deputy District Attorneys was revised from Rs. .2200-4000 to Rs. .7880-13500, petitioners pay scale was revised only to Rs. .7220-11660. As such, he again made a representation on 5.9.2003 bringing out his grievances. 6. It is seen that in the meanwhile post of Law Officer was upgraded to that of Sr. Law Officer which is equivalent to the post of District Attorney in the Department of Prosecution, Government of Himachal Pradesh. Pay scale of both these posts is also same, i.e. Rs. .10025-15100. This is evident from office order dated 25.8.2005 (Annexure P-4). It is not in dispute that Annexure P-4 stands implemented in totality and benefit thereof disbursed to the petitioner, which fact is also evident from office order dated 31.8.2005 (Annexure P-5). As such, even as per the respondents' own understanding, not once but twice, duties, responsibilities and qualifications of incumbents of both the posts, i.e. Law Officer in the office of H.P. Housing Board {its successor i.e. HIMUDA (respondent No.3)} and that of District Attorney/Deputy District Attorney in the Department of Prosecution, Govt. of Himachal Pradesh are similar. 7. Surprisingly, inspite of issuance of orders (Annexures P-4 & P-5), respondents have now dismissed petitioners representation dated 5.9.2003 and this is inspite of the fact that Board of Directors of respondent No. 3 itself had approved payment of petitioners revised pay scale from Rs. .7220-11660 to Rs. .7880-13500 which is evident from Annexure P-13. 8 Thus it is seen that petitioner has not been accorded benefit of revised pay scale only for the period 1.1.1996 to 31.8.2005. 9. The Apex Court in Union of India (UOI) and Others Vs. .7220-11660 to Rs. .7880-13500 which is evident from Annexure P-13. 8 Thus it is seen that petitioner has not been accorded benefit of revised pay scale only for the period 1.1.1996 to 31.8.2005. 9. The Apex Court in Union of India (UOI) and Others Vs. Dineshan K.K., (2008) 1 SCC 586 , has held as under:- 12. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors., a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India. Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right. 13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association. Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene. 10. Respondents themselves considered the two posts to be at par, not once but twice, and benefit of equivalent pay scale was accorded to the petitioner. Respondents have not come out with any cogent and convincing material, justifying diversion from this stand and that too for a short period. In fact respondent No. 3 has already approved and recommended the same. It is also seen that the entire money is actually to be disbursed by respondent No. 3 and there is no financial burden upon Govt. of Himachal Pradesh. 11. As such, for all the aforesaid reasons, present petition is allowed. Impugned order dated 19th/25th October, 2010 (Annexure P-17) is quashed. Petitioner is held entitled to pay scale of Rs. .7880-13500 for the period 1.1.1996 to 31.8.2005. Difference in arrears be positively disbursed within a period of three months from the date of receipt of certified copy of this judgment, failing which, then thereafter petitioner shall be entitled to interest @ 9%, which shall be personally recovered from the erring official(s). With the aforesaid observations, petition stands disposed of, so also the pending application(s), if any.