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2014 DIGILAW 458 (UTT)

Chandra Punetha v. State of Uttarakhand

2014-10-14

J.C.S.RAWAT, U.D.CHAUBE

body2014
Judgment : J.C.S. Rawat, Chairman 1. Petitioners have filed this petition for seeking following relief: “In view of the facts mentioned in para 4 above, the applicants prayed that this Hon'ble Tribunal may graciously be pleased: (i)To set aside the order dated 25.11.2010 passed by the respondent No.4, contained as Annexure No.1 to the petition. (ii) To issue any other order or direction, directing respondents to grant the pay scale of Rs 4000-6000/- w.e.f. 1.1.1996 and Rs. 5200-20200/- after implementation of 6th Pay Commission to the applicants (Work Agent), for which the applicants are entitled in accordance with law.” 2. The factual matrix of the case is that the petitioners had been working on the post of the Work Agent in the Public Works Department since long and their services have been regularized by different orders right from 1997 to 2006. According to 5th Pay Commission, the Government placed the• post of the Work Agents along with the post of Mate in the pay scale of RS. 2610-3540/- and the Mates are promoted to the post of Work Agent. The duties and functions of the Work Agents are to control and supervise the work and functions of Wiremen, Lift operators and Mates and as such they are at a higher position than the Mates, but they have been treated at par at the pay scale by the 5th Pay Commission report. In fact the work and duties of the Work Agents are similar and identical to that of the Junior Engineers and there is no post in between a Junior Engineer and a Work Agent. Earlier the Work Agents had a similar and identical work like the work of Supervisor and they were placed in the pay scale of RS.3015-4509/-. Keeping in view of the duties and the work of the Work Agents, they made a representation to the Chief Engineer, P.W.D. and the Chief Engineer after considering the request of all the Work Agents, recommended the case of Work Agents for re-fixation of their pay scales by means of letter dated 4.12.1993( Annexure-5 to the C. P.). Keeping in view of the duties and the work of the Work Agents, they made a representation to the Chief Engineer, P.W.D. and the Chief Engineer after considering the request of all the Work Agents, recommended the case of Work Agents for re-fixation of their pay scales by means of letter dated 4.12.1993( Annexure-5 to the C. P.). When the representation of the Chief Engineer was not conceded by the Government, the Work Agents made subsequent representation before the State Government of U.P. In the meantime the State of Uttarakhand was carved out from the State of U. P. and some of the WorkAgents, who are the petitioners in this claim petition, filed this claim petition before this Court and some of the Work Agents, who were in the State of U. P. filed a writ petition before the Hon'ble Allahabad High Court, Lucknow Bench. The petition was decided in favour of the Work Agents and they were granted higher pay scale of Supervisor by Hon'ble Allahabad High Court. Pursuant to the directions of the judgment of the Hon'ble High Court, State of U.P. has granted the pay scale to the Work Agents accordingly. The petitioners have filed the pay slip (Annexure-6) in which it is specifically mentioned that pursuant to the order of the Hon'ble Supreme Court as well as of Hon'ble High Court, the employees indicated in the judgment are given benefits of the pay scale as directed w.e.f. 1.1.1986 and 1.1.1996 respectively. The petitioners have further alleged that they are also entitled to the same benefits which their counterparts are availing in the State of U.P. by virtue of a writ petition. 3. Before filing this claim petition, a writ petition was filed before the Hon’ble Uttarakhand High Court bearing No.185/2010(S/S) in which the Hon'ble Court directed to the respondents to take decision on the representation of the petitioners within a period of eight weeks from the date of the production of the certified copy of the order by a speaking and reasoned order. According to the petitioners, respondents rejected the representation vide order dated 25.11.2010. 4. Written Statement was filed on behalf of respondents. The respondents have mainly contested the petition on the ground that the petitioners are getting the pay scale of RS.2610-3540/- in accordance with the Government order. According to the petitioners, respondents rejected the representation vide order dated 25.11.2010. 4. Written Statement was filed on behalf of respondents. The respondents have mainly contested the petition on the ground that the petitioners are getting the pay scale of RS.2610-3540/- in accordance with the Government order. The 6th Pay Commission which came into effect from 1.1.2006, the Samta Samiti has recommended their pay scales at the rate of Rs. 4440-7440/- and grade pay RS.1400/- and they are getting the revised pay as per order. The petitioners cannot be granted the pay scale of RS.5200-20200/- on the ground that this pay scale was only admissible to those employees who were getting Rs.4500-7000/- before the enforcement of 6th Pay commission. The petition of the petitioners is time barred. It was further alleged that the Supervisors Cadre is a dying cadre, hence the parity cannot be claimed with the said cadre. The respondents have denied all the allegations made in the claim petition and it was further alleged that the petitioners are not entitled to any relief as claimed by them. 5. We have heard learned counsel for the parties and perused the record. 6. It is an admitted fact that the State of U. P. has taken a decision long back that the State Government agrees to grant its State employees the pay parity of Central Government. The pay parity has to be determined according to the designation of the post in the establishment of both the Governments. H was also decided at that time, if any post is not available in the Central Government or any additional post is available in the State Government, then an equivalence committee would be constituted to decide the pay parity of the employees and the employee will get the salary according to the Government order. Pursuant to the said decision, after the Central Pay Commission, the equivalence committees were constituted and they gave their recommendations to the State Government regarding pay parity of the post. The Mate is to be promoted as Work Agent after getting some experience and he becomes equivalent to the Work Agent also. However, the Work Agent supervises the work of the Mate, Electrician and other similar employees. Thus, they are in direct subordination of the Work Agents. When the Work Agent gets expertise in his work, he can be promoted to the higher post. However, the Work Agent supervises the work of the Mate, Electrician and other similar employees. Thus, they are in direct subordination of the Work Agents. When the Work Agent gets expertise in his work, he can be promoted to the higher post. It is no doubt that the pay of the Mate cannot be equivalent with the Work Agent. 7. A similar controversy arose before the Hon'ble Allahabad High Court, Lucknow Bench in writ petition No. 3933/2004 with connected writ petition bearing Nos. 3932(S/S)2004, 3931(S/S), 460(S/S)2004, 3976(S/S)1997 & 3660(S/S)2001 (pg.70) when the Work Agents sought a mandamus commanding the respondents to place them to the post of Work Agents employed in the U.P. Public Works Department in the pay scale of RS.1200-2040/- revised as Rs. 4000-6000 w.e.f. 1.1.1996 with all future consequential benefits. The Hon'ble Aliahabad High Court while deciding this issue has held as under:- “It is noteworthy that the Government of U.P. issued a ‘Sankalp’ on 14.10.1988 (Annexure13 to writ petition No. 3976(SIS) of 1997) and declared that the State Government had, in principle, agreed to grant its State employees the pay parity of the Central Government. The parity had to be according to the designation of the posts prevalent in the administration of two governments. However, if the designation of a post of the State Government was not similar in the hierarchy of the Central Government, the parity had to be granted by the Equivalence committee constituted for the purpose keeping in view various factors of the jobs particularly the nature of the work. The Equivalence Committee was also authorized to reduce the number of pay scales and it was also authorized to prescribe its own procedure for the purpose of comparability The Equivalence Committee in the matter of Electricians and Work Agents working in the Public Works Department of the State Government granted pay scale of Rs. 775-1025/-. However, the association of the employees moved a representation through the Chief Engineer and on having considered the genuineness of their claim for better pay scale, he recommended to the Government that the nature of the work of the Work Agent is supervisory and therefore, higher pay scale would be justified. This recommendation was made by the Acting Chief Engineer, Lok Nirman Vibhag vide his letter dated 4.12.1993. Perusal of this letter would reveal that the recommendation was based on a rational. This recommendation was made by the Acting Chief Engineer, Lok Nirman Vibhag vide his letter dated 4.12.1993. Perusal of this letter would reveal that the recommendation was based on a rational. It was revealed in the said letter that the post of Work Agent is a promotional post from the cadre of Mates who are engaged on daily wages basis. It was added further that with the passage of time, such Mates acquire expertise and they are then promoted to the post of Work Agent with a view to supervise the work of Mates, Electricians and Wiremen. Along with his letter, the Acting Chief Engineer enclosed the representation of 12 Work Agents who are petitioners before this Court and specifically disclosed the length of their service at that juncture which ranged from 9 to 20 years. These Work Agents working in various wings of the department supervise the work of Mates, Wiremen, Lift Operators and Electricians. Whereas the Wiremen and Lift Operators have now been inducted in the pay-scales of RS.2750-4400 and 3050-4590, the pay scale of Work Agent was fixed as 2610-3540. It is significant to note that there is no post of Work Agent in the establishment of Central Government but there are two kinds of Supervisors, Work Supervisor and the Work Supervisors (Diploma Holder). According to the Fourth Pay Commission, the pay scale of Work Supervisor under the Central Government, as is evident from letter (Annexure1 to WP. No. 3976(S/S) of 1997) dated 22.2.1990 of Chief Engineer was RS.1200-2040 and that of Work Supervisor (diploma holder) RS.1640-2900. Admittedly, the petitioners are not Diploma Holders and that is why they have not claimed the parity of their pay scale put they have asserted that their job is equivalent to that of Work Supervisor and therefore, their demand for the pay scale of RS.1200-2040 w.e.f. 1.1.1986 and Rs.4000-6000 w.e.f. 1.1.1996 appears to be sustainable.” The Hon'ble Allahabad High Court had granted the relief to the petitioners and the petition was allowed with a direction that the Work Agents are entitled to get a pay scale of RS.1200-2400/- w.e.f. the pay scale implemented in the State of U.P. and Rs. 4000-6000/- w.e.f. 1.1.1996 with all future benefits. 8. 4000-6000/- w.e.f. 1.1.1996 with all future benefits. 8. Though the petition was filed before the creation of the State of Uttarakhand before the Hon'ble Allahabad High Court but it was decided after creation of the State of Uttarakhand in the year 2005. Petitioners in the present claim petition and the petitioners in that writ petition are governed by the same set of rules and are from the main stream of the erstwhile State of U.P and some of them had been regularized by the State of U.P. and some of them had been regularized by the State of Uttarakhand. All the persons, either the petitioners of the claim petition or of the writ petition, are in the similarly situated position. If the claim petitioners are denied, it would be an injustice to the petitioners. As we have pointed out that a pay slip of one of the employee, which has been annexed, specifically mentioned that pursuant to the order of the Hon'ble Supreme Court and the Hon'ble High Court the new pay scales have been granted to the employees though the judgment of the Hon'ble Apex Court has not been filed before us in spite of our insistence. We would like to mention here that in such a situation we can invoke the principle of stare decisis which is based on the public policy. The policy is based on assumption that certainty, predictability and stability in the law are the major objectives of the legal system i.e. that the parties should be able to regulate their conduct and enter into relationships with reasonable assurance governing the rules of law. If the Courts start changing their view frequently, then there will be a lack of uncertainty in the law which is not good for the health of the public at large. Though, the judgment rendered by the Hon'ble Allahabad High Court has a persuasive value to the Court of Uttarakhand but some of the employees of U.P. have been allocated to the State of Uttarakhand under Section 73 of the Reorganization Act. Thus, this double standard for some employees would be against the public policy though the doctrine of Stare Decisis has an exception that if the demands of the changed facts and circumstances dictated by forceful factors supported by logic amply justify the need for a fresh look. Thus, this double standard for some employees would be against the public policy though the doctrine of Stare Decisis has an exception that if the demands of the changed facts and circumstances dictated by forceful factors supported by logic amply justify the need for a fresh look. The principle of stare decisis needs to stand by decided cases to uphold precedents to maintain former adjudication. This principle is expressed in the maxim “stare decisis et non quieta movere” which means to stand by decisions and not to disturb what is settled. The principle of stare decisis is not a dogmatic rule allergic to law and reason. While invoking the principle of stare decisis we have to keep in mind that no factual or circumstantial change has taken place and the conditions which were prescribed at the time of the delivery of the judgment by the another Court are same at present,. the rule of stare decisis would apply. 9. In view of the above we find that the matter is squarely covered by the judgment of Hon'ble Aliahabad High Court rendered in writ petition No. 3933/2004 and the petition is liable to be allowed. Petitioners are entitled to the pay scale of Rs.4000-6000/- w.e.f. 1.1.1996 and Rs. 5200-20200/- after implementation of 6th Pay Commission. The order dated 25.11.2010 passed by the respondent No.4, contained as Annexure No.1 is liable to be set aside. ORDER 10. The claim petition is hereby allowed. Petitioners are entitled to the pay scale of Rs.4000-6000/- w.e.f. 1.1.1996 and Rs. 5200-20200/- after implementation of 6th Pay Commission. The order dated 25.11.2010 passed by the respondent No.4, contained as Annexure No.1 is hereby quashed.