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Himachal Pradesh High Court · body

2013 DIGILAW 209 (HP)

PREM PARKASH KHATRI v. STATE OF HIMACHAL PRADESH

2013-04-01

RAJIV SHARMA

body2013
JUDGMENT RAJIV SHARMA - 1. Petitioner was appointed as Artist Modeller on 2.06.1966 in the pay scale of Rs.120-10-250/-. He joined his duties on 10.06.1966. The pay scale of Rs.120-250/- was revised w.e.f. 01.02.1968 to Rs.250-25-550/-. On further revision, the pay scale was revised to Rs.620-1200/- w.e.f. 01.01.1978. The petitioner was placed in the pay scale of Rs.1500-2640/- w.e.f. 01.01.1986. In the State of Punjab, 50% of the posts of Artist, Modeller/Artist-cum-Modeller were placed in the pay scale of Rs.2000-3500/- and were designated as Senior Modellers as per notification, dated 21.08.1990. The petitioner made a representation for placing him in the pay scale of Rs.2000-3500/- on Punjab pattern. Case of the petitioner was strongly recommended by the respondent No. 2 to respondent No. 1 by referring to the notification, dated 21.08.1990 on 17.03.1997. The same recommendations were reiterated by the Director, Medical Education, Himachal Pradesh vide letter, dated 27.07.2000. The respondent No. 3 has also strongly recommended the case of the petitioner on 05.09.2002. The Director, Medical Education, Himachal Pradesh again recommended the case of the petitioner on 12.09.2002. The Secretary Finance has taken up the matter with the Director, Research & Medical Education, Punjab, Chandigarh on 19.04.2006. The Director, Research and Medical Education, Punjab informed the Principal Secretary (Finance), Government of Himachal Pradesh on 08.05.2006 that the Finance Department has revised the pay scale of the categories of Artist, Modeller and Artist-Cum-Modeller from Rs.620-1200/- to Rs.1500- 2640/- w.e.f. 01.01.1986 by clubbing them and made a provision of placing 50% of the above three categories of posts in the pay scale of vide notification, dated Rs.2000-3500/- 21.08.1990. In the State of Punjab, the posts of Artist, Modeller and Artist-Cum-Modeller were placed in the pay scale of Rs.2000-3500/- vide office order, dated 21.10.1992 and they were designated as Senior Modellers. 2. The grievance of the petitioner was not redressed by the respondents. He approached this Court by way of CWP No. 4597 of 2010. The same was disposed of on 25.10.2010. Thereafter, the case of the petitioner was rejected by the respondent No. 1 on 03.11.2011. What emerges from the facts enumerated hereinabove, is that the petitioner was getting the pay scale on Punjab pattern w.e.f. 01.02.1968. The State of Punjab has clubbed the three categories of posts, i.e., Artist, Modeller and Artist-Cum-Modeller. The same was disposed of on 25.10.2010. Thereafter, the case of the petitioner was rejected by the respondent No. 1 on 03.11.2011. What emerges from the facts enumerated hereinabove, is that the petitioner was getting the pay scale on Punjab pattern w.e.f. 01.02.1968. The State of Punjab has clubbed the three categories of posts, i.e., Artist, Modeller and Artist-Cum-Modeller. The State of Punjab has granted the pay scale of Rs.2000-3500/- to 50% of posts of Artist, Modeller and Artist-cum-Modeller and they were designated as Senior Modellers. While recommending the case of the petitioner, the respondent No. 2 has mentioned the letter, dated 21.08.1990, issued by the State of Punjab. On the basis of the clarification sought by the Secretary Finance, it was clarified that the Finance Department has revised the pay scale of three categories of posts, i.e., Artist, Modeller and Artist-Cum-Modeller from to w.e.f. 01.01.1986 by Rs.620-1200/- Rs.1500-2640/- clubbing them and has also made a provision of placing 50% posts of these categories in the pay scale of 2000-3500/-. However, the fact of the matter is that despite letter, dated 08.05.2006, case of the petitioner has arbitrarily been rejected vide Annexure P-15 on 03.11.2011. 3. It is not in dispute that the State of Himachal Pradesh follows Punjab Pattern in releasing the pay scales. The petitioner is discharging the same duties which are being discharged by the Artist, Modeller and Artist-Cum-Modeller in the State of Punjab. The nomenclature of the post in the State of Himachal Pradesh is Artist and Artist Modeller and in the State of Punjab, the nomenclature of the post is Artist, Modeller and Artist-Cum-Modeller. The respondents have not denied that the functions and duties discharged by the petitioner vis-a-vis his counter parts in the State of Punjab are the same. 4. Ms. Meenakshi Sharma, learned Additional Advocate General has vehemently argued that there are only two posts of Artist and one post of Artist Modeller. She then contended that the petitioner cannot be placed in the pay scale of Rs.2000-3500/-. She also argued that the principle of 50:50 cannot be applied to a single post of Artist Modeller. It is not in dispute that the petitioner was appointed as Artist Modeller and has retired in the same capacity on 28.02.2003, without even earning any promotion. She then contended that the petitioner cannot be placed in the pay scale of Rs.2000-3500/-. She also argued that the principle of 50:50 cannot be applied to a single post of Artist Modeller. It is not in dispute that the petitioner was appointed as Artist Modeller and has retired in the same capacity on 28.02.2003, without even earning any promotion. It is not the fault of the petitioner that there are only three posts of Artist and Artist Modeller in I.G.M.C., Shimla. The respondents should have taken into consideration the petitioner's length of service. The petitioner was entitled to the pay scale of Rs.2000-3500/- on the basis of his length of service w.e.f. 10.06.1986. It is not the fault of the petitioner that the cadre of Artist and Artist Modeller is very small in the State of Himachal Pradesh. The employees were put in senior pay scale in the State of Punjab on the basis 50:50 ratio to remove stagnation. The petitioner has stagnated on the same post till his superannuation. The denial of pay scale of Rs.2000-3500/- to the petitioner on Punjab pattern is wholly arbitrary. 5. What is arbitrary has been succinctly explained by their Lordships of the Hon'ble Supreme Court in Sanchit Bansal and another Vs. Joint Admission Board and others, (2012) 1 Supreme Court Cases 157 as under: "28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide." 6. Case of the petitioner has been recommended strongly by respondents No. 2 and 3 to respondent No. 1. The cogent and convincing reasons have been given while recommending the case of the petitioner for placing him in the pay scale of Rs.2000-3500/-. The nomenclature/designation of the post cannot be determined with mathematical procedure. Case of the petitioner has been recommended strongly by respondents No. 2 and 3 to respondent No. 1. The cogent and convincing reasons have been given while recommending the case of the petitioner for placing him in the pay scale of Rs.2000-3500/-. The nomenclature/designation of the post cannot be determined with mathematical procedure. What has to be seen for determining the equation of post, is the mode of recruitment, appointment, qualification, nature of work, responsibility and functionality of the post. It cannot be said that the Artist/Artist Modeller in the State of Himachal Pradesh are not discharging the same duties vis-a-vis Artist/ Modeller/Artist Modeller in the State of Punjab. The Punjab pattern followed in the State of Himachal Pradesh should be applied uniformaly. It is the prerogative of the employer to prescribe the pay scale. However, when the pay scales prescribed are arbitrary and unreasonable, the same would be violative of Articles 14 and 16 of the Constitution of India. Their Lordships of the Hon'ble Supreme Court in Union of India Vs. Dineshan K.K. (2008) 1 Supreme Court Cases 586, have held that 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. Their Lordships have held as under: "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 Secy. Finance Deptt. V. W.B. Registration Service Assn. 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 Secy. Finance Deptt. V. W.B. Registration Service Assn. and State of Haryana V. Haryana Civil Secretariat Personal Staff Assn.) 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 sough 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." 7. Their Lordships of the Hon'ble Supreme Court in Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S. Uppal and others (2008) 7 Supreme Court Cases 375 have held as under: "21. There is no dispute nor can there be any to the principle as settled in the abovecited decisions of this Court 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 the 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. (See K.T. Veerappa V. State of Karnataka)" 8. The respondents have not placed any tangible evidence on record to establish that there is any difference between the duties discharged by the petitioner vis-a-vis his counter parts in the State of Punjab. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. (See K.T. Veerappa V. State of Karnataka)" 8. The respondents have not placed any tangible evidence on record to establish that there is any difference between the duties discharged by the petitioner vis-a-vis his counter parts in the State of Punjab. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. The respondents are directed to release the pay scale of Rs.2000-3500/- to the petitioner w.e.f. 01.01.1986, as revised from time to time, within a period of eight weeks from today. The pensionary/retiral benefits of the petitioner shall also be worked out accordingly. The pending application(s), if any, also stands disposed of. No costs.