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2014 DIGILAW 1387 (ALL)

Sudhir Kumar Srivastava v. State of U. P.

2014-04-29

MAHESH CHANDRA TRIPATHI

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JUDGMENT Mahesh Chandra Tripathi, J. 1. Heard learned counsel for the petitioner and learned standing counsel. Learned counsel for the petitioner states that this Court vide order dated 23.7.1998 has decided the controversy in detail. The State was aggrieved with the order passed by this Court dated 23.7.1998 and filed the Special Appeal No. 131/1999 and the Hon'ble Division Bench vide order dated 18.9.1999 had disposed of with the following observation : "In view of the above fact that Hon'ble single Judge mentioned in his order that no counter-affidavit was filed, when it was already filed, may be due to mistake of the Registry it was not transmitted to Hon'ble single Judge, or he could not notice the counter-affidavit, if it was transmitted, it would be appropriate that the case should be heard and decided afresh in accordance with law. In view of the aforesaid reason, and without delving into the merits of the case we are of the view that the case should be heard and decided afresh. Hence, this special appeal is allowed to the extent that the order passed by Hon'ble single Judge be set aside, which is accordingly set aside, and the case be remitted to Hon'ble single Judge to be decided afresh on merits after taking into account the averments made in the counter-affidavit as well as rejoinder affidavit, which may be filled by the respondents, before hearing." 2. The learned counsel for the petitioner states that in compliance of the order passed in the special appeal, the State has filed the detailed counter-affidavit and denied the rights of the petitioner and the pay scale. 3. By means of the present writ petition the petitioner has prayed for quashing of the order dated 1.11.1995 by which his representation has been rejected by the Director Animal Husbandry, U.P. Lucknow which is contained in Annexure-11 to the writ petition and for issuance of a writ in the nature of mandamus commanding the opposite parties to fix his scale of pay as  Rs. 1,400-2,300 or scale higher to that as admissible to the plant mechanics/operators and his case is to be considered in the light of the benefit, which had been conferred to one Kapendra Singh and further for a direction for fixing the pay of the petitioner considering entire length of service with effect from the date of his initial employment and for payment of the difference in the pay scales from the date of his initial employment treating the petitioner to have been fitted in the pay scale of  Rs. 515-860 at the time of the initial appointment. It is further prayed that the opposite parties be directed to fix the pay of petitioner keeping in view of the upward revision in pay scale of the persons initially fitted in the pay scale of  Rs. 515-860. 4. The brief facts of the case are that a scheme was sponsored by the State of U.P. known as "Deep Freezing Semen Scheme" in the Department of Animal Husbandry U.P. and in this regard several plants were set up in different districts of U.P. for liquidification of Nitrogen. In connection with the above scheme the Government of Uttar Pradesh had sanctioned three posts of liquid nitrogen plant mechanic/operator in the scale of  Rs. 470-735 for the said plant at Rae Bareli vide D.O. Letter dated 17.9.1986. The requisite educational qualification were also fixed the candidate must have three years diploma course in mechanical engineering. The petitioner found to be suitable for the said post as he had requisite three years diploma course from Hewett Polytechnic, Lucknow in the year 1983 and was given appointment vide order dated 17.2.1987, issued by the Pariyojna Adhikari (Project Officer), Rae Bareilly. By the above order the petitioner was appointed as Liquid Nitrogen Plant Mechanic/Operator in the pay scale of  Rs. 470-735 on temporary basis alongwith dearness and other allowances. Later on, pursuant to the recommendation of the pay Commission, the pay scale of  Rs. 470-735 was revised to  Rs. 1,200-2,040 by the State Government in the year of 1986. Again the pay scale of mechanic/operator appointed in the initial scale of  Rs. 515-860 were revised to  Rs. 1,400-2,300. 5. It has been argued by the learned counsel for the petitioner that there is no distinction between the appointees appointed in the above post in the scale of  Rs. 1,200-2,040 by the State Government in the year of 1986. Again the pay scale of mechanic/operator appointed in the initial scale of  Rs. 515-860 were revised to  Rs. 1,400-2,300. 5. It has been argued by the learned counsel for the petitioner that there is no distinction between the appointees appointed in the above post in the scale of  Rs. 470-735 like the petitioner and those appointed in the initial pay scale of  Rs. 515-860. There is a complete equation of educational qualifications and performance of duties of the person posted in either of the above referred two scales of pay. He further contended that discriminatory treatment being given to the petitioner will be highlighted by the fact that one Kapendra Singh, who was appointed by order dated 11.8.1989 to work under the project for the Deep Freezing Semen Scheme at Allahabad as plant mechanic under the Chief Veterinary Officer was given the pay scale of  Rs. 1,400-2,300 although he is designated only as a plant mechanic and is only a diploma holder of three years and he is performing the same duties as are being performed by the petitioner. He is also junior in service tenure as compared to the petitioner as he was appointed on 11.8.1989 while the petitioner was appointed on 17.2.1987. In this regard the petitioner made a representation which was not decided and thereafter, he filed a writ petition (CM. Writ Petition No. 2878 of 1995 (S/S) which was decided vide order dated 17.8.95 directing the opposite parties to dispose of the representation of the petitioner within three months from the date of certified copy of this order alongwith the copy of representation is produced before the opposite parties No. 1 to 3. I have perused the decision made on the representation of the petitioner vide order dated 11.1.1995. For proper adjudication of the present matter, it is essential to discuss the main demand of the petitioner, the same are enumerated as under : "(i) the petitioner was working in the scale of  Rs. 1,200-2,040 while in other place the employees of the said post were getting  Rs. 1,400-2,300. (ii) he had requisite three years diploma mechanical engineering course. (iii) he has demanded the scale of pay of  Rs. 1,400-2,300 on the basis of equal work and equal qualification." 6. 1,200-2,040 while in other place the employees of the said post were getting  Rs. 1,400-2,300. (ii) he had requisite three years diploma mechanical engineering course. (iii) he has demanded the scale of pay of  Rs. 1,400-2,300 on the basis of equal work and equal qualification." 6. The claim of the petitioner was dealt by indicating that only three posts of plant operator/mechanic were sanctioned at D.F.S. Rai Bareilly vide order dated 17.9.1986 and the petitioner's appointment was made on the basis of the interview held by the duly constituted selection committee and thereafter on the basis of the pay Rationalisation Committee the pay scale of  Rs. 470-735 was revised to the scale of  Rs. 1,200-2,040, hence the petitioner cannot get higher pay scale than  Rs. 1,200-2,040. With regard to the third point it has been indicated that the same was not acceptable as the post of Plant Operator/Mechanic was Ex-cadre post and there was no seniority of the same and the Plant Operator/Mechanic at D.F.S. Rae Bareilly was separate post hence the claim of the petitioner for the scale of pay of  Rs. 1,400-2,300 was not sustainable. 7. The question for consideration before this Court is that when the duties, qualifications, nature of work and service condition of both posts i.e., the Plant Operator/Mechanic at D.F.S., Rae Bareilly and at Allahabad and other places were the same, why discrimination has been made between all these posts and further why the claim of the petitioner for the scale of  Rs. 1,400-2,300 was not found acceptable by the department. 8. The Hon'ble Apex Court in the matter of Randhir Singh v. Union of India and others, AIR 1982 SC 879 and Union of India and another v. R.G. Kashikar and another, AIR 1986 SC 431 , it is held that the principle of equal pay for equal work is applicable when two sets of employees of the similar situation are getting different pay scales. In the instant matter the nomenclature is the same i.e., Plant Mechanic/Operator, the educational qualification is also the same, and the mode of recruitment is also the same and their nature of duties are also the same. Both the Plant Mechanic/Operator working in the scale of  Rs. 1,200-2,040 and 1,400-2,300 are discharging the similar function and duties. 9. In the instant matter the nomenclature is the same i.e., Plant Mechanic/Operator, the educational qualification is also the same, and the mode of recruitment is also the same and their nature of duties are also the same. Both the Plant Mechanic/Operator working in the scale of  Rs. 1,200-2,040 and 1,400-2,300 are discharging the similar function and duties. 9. The Hon'ble Apex Court in the case of V. Markendeya and others v. State of Andhra Pradesh and others, 1989 (3) SCC 191 , has made the observations that "the principle of equal pay for equal work is not an abstract one, it is open to the State to prescribe scales of pay for different cadres having regard to nature, duties, responsibilities and educational qualification. Different grades are laid down in service with varying qualification for entry into particular grade. Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres. Further, it is observed that in view of the above discussion we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifications, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution and the court will strike down the discrimination and grant relief to the aggrieved employees". 10. Learned counsel for the petitioner states that whole case has been set out on the basis of discrimination in which he had made in para 14 of the writ petition that one Kapendra Singh who was appointed on 11.8.1989 to work under the Project in Deep Freezing Semen Scheme at Allahabad as Plant Mechanic Officer and was given the pay scale of  Rs. 1,400-2,300 although he was designated only as a Plant Mechanic and was only diploma holder of three years from the Government Polytechnic and the petitioner was also similarly situated and it has also been averred that Sri Kapendra Singh was admittedly much junior in service compared to the petitioner. In view of the great discrimination, the petitioner was compelled to move an application dated 7.9.1990 to the Upar Nideshalaya P.N.U.P. indicating such discrimination, but finally same has been rejected in most cursory manner. 11. In view of the great discrimination, the petitioner was compelled to move an application dated 7.9.1990 to the Upar Nideshalaya P.N.U.P. indicating such discrimination, but finally same has been rejected in most cursory manner. 11. Learned standing counsel has admitted that it is duty of the Expert Bodies like the Pay Commission to grant pay scale to particular class of employees and no one else can judge better than the expert bodies and he further argued that there are other various factor i.e., duties, educational qualifications, their nature, which empowers the department to create distinction while providing the pay scale. 12. Learned counsel for the petitioner also relied the judgment of the Hon'ble Apex Court in Arindam Chattopadhyay and others v. State of West Bengal, (2013) 4 SCC 152 of which paras 10 and 11 as follows : "10. We have considered the respective submissions. The applicability of the doctrine of equality, enshrined in Articles 14 and 16 of the Constitution, in the matter of pay and allowances was explained in Randhir Singh v. Union of India, (1982) 1 SCC 618 , in the following words : 'It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims equal pay for 'equal work for both men and women' as a directive principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'socialist' must mean something. Even if it does not mean 'to each according to his need', it must at least mean equal pay for equal work. The principle of 'equal pay for equal work' is expressly recognised by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance' (vide International Labour Law by Istvan Szaszy, p. 265). In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance' (vide International Labour Law by Istvan Szaszy, p. 265). The Preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled . Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer." 11. Though the judgment in Selvaraj v. Lt. Governor of Island, Port Blair and others (supra) can be distinguished on the ground that in the order passed by the competent authority requiring the appellant, who was holding the post of primary teacher, to look after the duties of Secretary (Scouts), it was mentioned that pay will be drawn against the post of Secretary (Scouts) under general fundamental rules, the principles laid down in State of West Bengal and others v. Pantha Chatterjee and others has direct bearing on the question arising in this appeal. The respondents in that case were appointed as part-time Border Wing Home Guards. They filed writ petition before the Calcutta High Court with the complaint that they were being discriminated vis-à-vis other regular Border Wing Home Guards of West Bengal and the Border Security Force Personnel despite the fact that they were performing similar duties and discharging same responsibilities. The learned single Judge referred to the judgments in Bhagwan Dass v. State of Haryana, (1987) 4 SCC 634 : Daily Rated Casual Labour v. Union of India and Delhi Transport Corporation v. Mazdoor Congress, and held that the respondents are entitled to the same benefits as are admissible to the permanent Border Wing Home Guards. The learned single Judge referred to the judgments in Bhagwan Dass v. State of Haryana, (1987) 4 SCC 634 : Daily Rated Casual Labour v. Union of India and Delhi Transport Corporation v. Mazdoor Congress, and held that the respondents are entitled to the same benefits as are admissible to the permanent Border Wing Home Guards. The Division Bench of the High Court agreed with the learned single Judge and dismissed the appeal filed by the State of West Bengal with some modification." 13. In the instant matter the Pay Commission has already fixed pay scale of  Rs. 515-860 which has been granted to the Plant Mechanic/Operator working in the department of Animal Husbandry but unfortunately the other post having similar nature of duties, educational qualifications and job performance have been denied the same pay scale and have been getting lower scale of pay, i.e.,  Rs. 470-735 without any valid reason. This discrimination in the pay scale has no nexus with the object. The post in both the pay scales carry the equal burden of work and similar nature of duties as already indicated above. In view of this, I see no ground to discriminate between the petitioner working as Plant Mechanic/Operator and other persons like Kapendra Singh who was given appointment in the year 1989, i.e., much after the appointment of the petitioner, in the scale of  Rs. 1,400-2,300. 14. In the present matter the nomenclature is the same, i.e., Plant Mechanic/Operator education/qualification is also same. It is also pertinent to mention that the mode of recruitment were also similar in nature. The work, which were assigned to the petitioner as well as to Kapendra Singh were also similar. 15. Therefore, as indicated above, in these circumstances, the denial of same pay scale to the petitioner is arbitrary and cannot be sustained and there is no rational behind discrimination of the post in both the cases, they carry the same burden of work and similar nature for duty as already indicated above. 16. In view of the above, I see no ground to discriminate between petitioner, who is working as Plant Mechanic/Operator and other persons like Kapendra Singh, who has been given an appointment in the year 1989 much after appointment of the petitioner in the pay scale of  Rs. 1,400-2,300. 17. In view of the above, the writ petition is allowed. 18. In view of the above, I see no ground to discriminate between petitioner, who is working as Plant Mechanic/Operator and other persons like Kapendra Singh, who has been given an appointment in the year 1989 much after appointment of the petitioner in the pay scale of  Rs. 1,400-2,300. 17. In view of the above, the writ petition is allowed. 18. The order dated 1.11.1995 (Annexure-11) is hereby quashed. The respondent Nos. 1 and 2 are directed to grant pay scale of  Rs. 515-860 in place of  Rs. 470-735 prior to 1.1.1986 and go on giving the corresponding benefit of the pay scale as and when revised in future on the post of Plant Mechanic/Operator w.e.f. the date of his appointment. There shall be no order as to costs. This order shall be complied with within 90 days from the date of the production of the copy of this order.