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2013 DIGILAW 948 (PNJ)

Krishan Chand v. State of Haryana

2013-07-26

RAJIV NARAIN RAINA

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Mr. Rajiv Narain Raina, J.:- The petitioners, who are Inspectors in Haryana Roadways, State Transport, Haryana have approached this Court under Articles 226 of the Constitution of India with a prayer for issuance of a mandamus to the respondent- State to grant them the pay grade equivalent to the Inspectors working in other departments of the State. Their claim is founded on the assertion that the status and qualifications of the petitioners and the Inspectors working in various departments are identical and they perform similar nature of duties. 2. The contention of the learned counsel for the petitioners is that the pay scale of Inspectors of the departments of State including Transport department was almost equal up to 01.01.2006. However, an anomaly arose during the revision of pay scales w.e.f 01.01.2006. They complain that when at one point of time the petitioners and the Inspectors working in other departments were equated in the matter of qualification and pay scale, then they cannot be discriminated against by giving grade pay of Rs.3200/- in place of Rs.3600/- as granted to the Inspectors of other departments i.e. Excise, Forest and Labour. 3. The argument of learned counsel is that since the petitioners possess the same qualifications and their nature of duties is the same, therefore, they are entitled to the same grade pay as that of various departments on the principle of equal pay for equal work. In support of their claim, reliance has been placed on the observations of the Supreme Court in cases Randhir Singh v. Union of India and others, AIR 1982 Supreme Court 879 and Inder Singh and others v. Vyas Muni Mishra and others, 1987(4) S.L.R.550. 4. In Randhir Singh’s case (supra), it was observed that equation of posts and equation of pay are matters primarily for the executive/Government and expert bodies like the Pay Commission to enter upon and not for Courts to dabble in but where things are manifestly clear, that is, where all possible relevant considerations are the same in almost every manner, persons holding identical posts are entitled to the same pay on the principle of ‘equal pay for equal work’. 5. 5. Similarly, in Inder Singh’s case (supra), it was held that the two posts, one being the promotional post and the other being the feeder post, will be beyond the jurisdiction of the Court to implement the principle of equal pay for equal work inasmuch as such implementation will practically result in the amalgamation of the two posts leading to great administrative difficulties. But, when two groups of persons are in the same, or similar posts performing the same kind of work, either in the same or in the different Government departments, the Court may in suitable cases direct equal pay by way of removing unreasonable discrimination and treating the two groups, similarly situated, equally. 6. There is hardly any quarrel with regard to the aforesaid observations, but, to the mind of this Court, the same would not come to the rescue of the petitioners in the present controversy. The aforesaid decisions are not applicable in this case in view of the later case-law in State of U.P. and others versus J.P.Chaurasia, 1989 (1) SCC 121 and State of Haryana and another versus Haryana Civil Secretariat Personal Staff Association, 2002 (6) SCC 72 , wherein their Lordships have ruled that equation of posts or equation of pay falls within the domain of the executive and it should be left to be determined by expert bodies. Suffice it to say that if the petitioners have sufficient material to claim parity in pay scales, the appropriate recourse for them would be to approach the Competent Authority and not the judicial forum. 7. In State of Haryana and another v. Civil Secretariat Personal Staff Association (supra), it was ruled as under:- “The claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. 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, some of which have been noted in Secy. Finance Deptt. case, 1993 Supp (1) SCC 153, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. While taking a decision in the matter, several relevant factors, some of which have been noted in Secy. Finance Deptt. case, 1993 Supp (1) SCC 153, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. 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. 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, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. The courts 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 the order passed by the Government to be unsustainable, ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. In the present case, the High Court has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre.” 8. Not only that, again the Supreme Court considered an identical matter in case Union of India Versus Arun Jyoti Kundu and others, [2008(1) Law Herald (SC) 477] : (2007) 7 Supreme Court Cases 472 and observed as under:- “It was open to the Government to extend a benefit to a set of its employees with effect from a particular day on the basis of some anomaly found in the report of the Fifth Pay Commission. In such a case there would arise no discrimination because the very implementation of the Fifth Pay Commission. Report would not entitle the respondents to any benefit. In such a case there would arise no discrimination because the very implementation of the Fifth Pay Commission. Report would not entitle the respondents to any benefit. The fact that notwithstanding the Fifth Pay Commission not recommending, particularly, the payment of higher scale to two sets of typists, typists in English language and typists in Hindi language, the Government chose to give them relief with effect from 31-1-2000 would not justify an inference of discrimination or a finding that the authority has acted arbitrarily or unreasonably. Once the recommendations of the Pay Commission are accepted, in full, it could also give effect to it from the date recommended in that behalf. But when admittedly no provision was made in respect of the English and Hindi typists and they pointed to the anomalies and the Government on the basis of the recommendation of the Anomalies Committees decided to give them the scale with effect from 31-1-2000, it could not be held to be discriminatory or to be beyond the power of the Government. When a concession was being extended as distinct from implementing a specific recommendation of the Pay Commission with reference to a particular point of time, it is open to the Government to provide that the benefit it proposes to give, would be available only from a notified date. The very right to their benefit arose because of the decision of the Government to extend to them a particular benefit not specified in the Fifth Pay Commission Report. It is, therefore, not possible to postulate that the decision of the Government must be given retrospective effect. The recommendations of Pay Commissions are subject to acceptance or rejection. Unless the Government has accepted the recommendation to merge the cadres, the court cannot proceed on the basis of the recommendation alone or to direct the Government to accept the recommendation. Pay Commissions are constituted for evaluating duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications therefor. Although the Pay Commission is an expert body, the State in its wisdom and in furtherance of its valid policy may or may not accept its recommendations.” 9. Pay Commissions are constituted for evaluating duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications therefor. Although the Pay Commission is an expert body, the State in its wisdom and in furtherance of its valid policy may or may not accept its recommendations.” 9. The same view was again reiterated by the Supreme Court in cases State of West Bengal Versus Subhas Kumar Chatterjee, [2010(6) Law Herald (SC) 3813] : (2010) 11 SCC 694 and Rameshwar Dayal Versus Indian Railway Construction Co.Ltd. and others, (2010) 11 SCC 733 , wherein it was held that the Court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter, which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter, which is for the executive to discharge. Even the recommendations of the Pay Commissions, are subject to acceptance or rejection by the appropriate Government. The Courts cannot compel the State to accept the recommendations of the Pay Commission. It was also ruled that the State Government is under obligation to follow the statutory rules and give only such pay scales as are applicable under the statutory provisions. Neither the Government can act contrary to the rules nor can the Court direct the Government to act contrary to the rules. No mandamus lies for issuing direction to the Government to refrain from enforcing the law. No Court can issue direction to act in contravention of the rules as it would amount to compelling the authorities to violate the law. Such direction may result in destruction of the rule of law itself and lead to chaos. 10. In State of West Bengal and another’s case (supra), the Supreme Court has held as under: “17. It is now well-settled that parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying the same scale of pay. In fact, one of the functions of the Pay Commission is to identify the posts which deserve a higher scale of pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts. In fact, one of the functions of the Pay Commission is to identify the posts which deserve a higher scale of pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts. The Pay Commission has two functions; to revise the existing pay scale, by recommending revised pay scales corresponding to the pre-revised pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending upon the nature of duties and functions attached to those posts. Therefore, the mere fact that at an earlier point of time, two posts were carrying the same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale.” 11. The ratio of the law laid down by the Supreme Court in the aforementioned judgments mutatis-mutandis is fully attracted to the present case and is in complete answer to the problem in hand. In this manner, it is held that the petitioners are not entitled to claim the same grade pay assigned to the posts of Inspectors working in various other departments of the State Government, in the obtaining circumstances of the case. 12. Having regard to the aforesaid, the petitioners do not have any enforceable right. Consequently, the petition is dismissed being without any merit. 13. However, before parting with the judgment I would like to make it clear that this order will not act as a restraint on the Government in considering on its own the issue of grade pay parity.