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Allahabad High Court · body

2017 DIGILAW 2434 (ALL)

STATE OF U. P. v. RAM NARAYAN SRIVSTVA

2017-10-27

DILIP B.BHOSALE, VIVEK CHAUDHARY

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JUDGMENT By the Court.—The appellant State Government has filed this bunch of special appeals challenging the judgment and order of learned single Judge allowing the writ petitions filed by the respondents herein. 2. By the writ petitions filed between the year 1997 to 2006, the respondents claimed that they were working in various capacity as Workman Agent or Workmen and Technicians in State Public Works Department and sought parity with the similar cadres of the Central Public Works Department by seeking certain increments in their pay-scales. The prayers in the writ petitions were to give equal pay-scale of Rs. 1200-1800 with effect from 1.1.1986 and thereafter Rs. 4000-6000/- with effect from 1.1.1996. Certain other orders have been challenged by some persons claiming that their pay-scales had been wrongly reduced. The claim is on the basis that in the report of Fourth Pay Commission given in the year 1986, another cadre of Work Supervisor and Junior Engineers working in the Central Public Works Department were granted those scales. The petitioners claimed that they were putting in same work as was being put in by the concerned cadre in Central Public Works Department. Strong reliance was placed upon letters dated 22.2.1990 and 4.12.1993 of the Chief Engineer of State Public works Department wherein he had recommended parity in pay-scale to be given with the cadre of Central Public Works Department. Further reliance is placed on the report of Equivalence Committee. Though in the said report a better pay-scale is provided but the same is not equivalent to the cadre of Central Public Works Department. 3. Submission on behalf of the State Government is that there is no parity between the work conducted by the respondents with those working in cadre of Central Public Works Department. State has also claimed that respondents have miserably failed to prove on record that they are conducting same work as was being conducted by persons in Central Public Works Department. Submission of State further is that the letters of the Chief Engineer, on the basis of which the impugned order been passed, nowhere compares the working of the claimants with that of the Central Public Works Department and further the said letters are only recommendations of the Chief Engineer which are not binding on the State Government. Submission of State further is that the letters of the Chief Engineer, on the basis of which the impugned order been passed, nowhere compares the working of the claimants with that of the Central Public Works Department and further the said letters are only recommendations of the Chief Engineer which are not binding on the State Government. State further claims that for granting equal pay-scales, necessary ingredients are: uniformity of recruitment process, same qualification and same nature of work. It strongly denies any parity and further denies that the respondents could prove on record that any such parity exists. The State Government further claims that it is for the State Government alone to look into the issue of parity and for the said purpose, it had appointed an Expert Body namely Equivalence Committee, which also did not recommend parity in pay-scale. Hence learned Single Judge has wrongly issued mandamus granting parity by the impugned order. The State has also taken the ground of limitation as it submits that writ petitions have been filed on the basis of Fourth Pay Commission while thereafter two more Pay Commissions have given their reports and thus, petitions have been filed after about 8 years of arising of cause of action. 4. A perusal of the judgment of the learned Single Judge reveals that the same has been passed strongly relying upon letter of the Chief Engineer of the State Public Works Department. The learned Single Judge found as hereinunder : “Learned State counsel appearing on behalf of the Government contended that the post of Work Agent and Work Supervisor cannot be equated as the qualification of the Work Supervisor is Intermediate and the said post fell under category ‘’C’ employee. The contention seems to be devoid of merit for the simple reason that the nature of the job of the Work Agent and Work Supervisor is the same. There may be different sources of recruitment under the two Governments but the fact remains that the nature of the work of both the incumbents is the same. As referred to earlier, the Chief Engineer recommended for a higher scale in case of the Work Agents as the said post was supervisory in nature. There may be different sources of recruitment under the two Governments but the fact remains that the nature of the work of both the incumbents is the same. As referred to earlier, the Chief Engineer recommended for a higher scale in case of the Work Agents as the said post was supervisory in nature. The petitioners acquired experience ranging from 9 to 20 years and same of them were even regularised on the basis of merit and the length of their service.Vide another letter dated 22.2.1990, the Chief Engineer wrote to the Government that all the work charge employees working on various posts for a long period were entitled to get the pay-scale of Sub-Station Attendant-cum-Supervisor. A copy of this letter is Annexure-1 on the record of writ petition No. 3976 (S/S) of 1997. The petitioners’ claim of their work, duties and functions being similar, equivalent and identical to that of Work Supervisors cannot be brushed aside merely because the petitioners here in the State of U.P. are categorised as Group ‘’D’ employees. If the job is one, the nomenclature or the qualification may not mar the petitioners’ prospects of getting a better pay-scale. The Work Agents are appointed after they acquire expertise and experience in their respective field. It has not been disputed by the State Government that the Work Agent is to supervise and control over the employees holding the post of Mate, Wireman, Lift Operator, Helper, Carpenter, Plumber etc and the Chief Engineer of the Public Works Department had recommended better pay-scale in view of the function of the Work Agent and Work Supervisor being similar, identical and equal. None except the Chief Engineer of Public Works Department can know better about the identification of the two posts. He is the best authority to compare and identify the nature of work of a Work Agent and a Work Supervisor. Therefore, his recommendation carries greater significance.” (Emphasis supplied) 5. A perusal of the letters of the Chief Engineer does not indicate that he made any comparison on the basis of principles settled in law or made any factual comparison of the two cadres. The basis of recommendation of the Chief Engineer is that the State Government had announced a policy of giving parity with employees of Central Government. A perusal of the letters of the Chief Engineer does not indicate that he made any comparison on the basis of principles settled in law or made any factual comparison of the two cadres. The basis of recommendation of the Chief Engineer is that the State Government had announced a policy of giving parity with employees of Central Government. The learned Single Judge failed to appreciate that before granting any parity of pay-scale, it was must to inspect that cadres being compared for equal pay, should be performing work which, besides being functionally equally, should be of same quality and sensitivity; should have similar power, duties and responsibilities; the work should be qualitatively and quantitatively same and of the same labour and responsibility; the process and qualifications for recruitment should be similar and at both places there should be same hierarchy in service etc. The Chief Engineer did not conduct any such exercise. Even the learned Single Judge failed to refer to any material which can indicate that any such material was placed by petitioner before him. No doubt, the State Government had in the year 1988, made an announcement of giving pay-scale at par with the employees of Central Government. To give effect to the said announcement it had constituted an Equivalence Committee by order dated 14.10.1988. In the report of the said Equivalence Committee, though a better pay-scale was provided, but, it also did not grant parity with the Central Government cadre. The report of the said Equivalence Committee is not challenged by the respondents in the writ petitions. In absence of any challenge to the report the findings in the same, that parity cannot be granted, cannot be disputed by the respondents. The letters of the chief Engineer are at best recommendatory and cannot bind the State Government or its Expert Body that is Equivalence Committee. The same cannot have an overriding effect over the Equivalence Committee or the State Government, more so, when the said letters do not provide any reason or consideration for making recommendation of parity in pay-scale. It goes without saying that no rights can accrue in the respondents, for getting a writ of mandamus issued from this Court, merely on the basis of such recommendation of the Chief Engineer. 6. It goes without saying that no rights can accrue in the respondents, for getting a writ of mandamus issued from this Court, merely on the basis of such recommendation of the Chief Engineer. 6. The law regarding the parity in pay-scale and the grounds on which the Court can interfere in the same is well-settled by large numbers of decisions. Reference is made to the three leading judgments on the issue. First, in the case of State of Haryana and another v. Haryana Civil Secretariate Personal Staff Association, 2002 (6) SCC 72 , wherein, Apex Court has observed as under : 8. From the discussions in the impugned judgment, it is clear to us that the High Court has ignored certain settled principles of law for determination of the claim on parity of pay-scale by a section of Government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same designation under the Central Government. Such comparison by a section of employees of State Government with employees of Central Government based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was unrebutted. The appellants in their counter-affidavit have taken the specific stand that no comparison between the two sections of employees is possible since the qualifications prescribed for the PAs in the Central Secretariat are different from the PAs in the State Civil Secretariat. Even assuming that there was no specific rebuttal of the averment in the writ petition, that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities, the qualifications for recruitment to the posts of PAs in the State Civil Secretariat with those of PAs of the Central Secretariat. xxx xxx xxx 10. It is to be kept in mind that 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. xxx xxx xxx 10. It is to be kept in mind that 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 by this Court in the decided case, 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, It is also to be kept in mind that 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 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. That is not to say that the matter is not justiciable or that the Courts cannot entertain any proceeding against such administrative decision taken by the Government. 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 then 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. As noted earlier, in the present case ‘the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. As noted earlier, in the present case ‘the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It 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, 7. Another judgment is the case of State of Haryana and others v. Charantjit Singh and others, 2006 (9) SCC 321 , wherein again it is held that there may be quantitative difference as regards the reliability and responsibility of the functions attached to a job and even in said cases there cannot be any parity. Lastly, the entire case law on the issue is again considered by the Hon’ble Supreme Court in the case of State of Punjab v. Jagjit Singh and others, 2017 (1) SCC 148 , wherein, the Apex Court considered at length the criteria and thereafter in para-42 has given in detail the criteria required to be looked into. Some of them are : “42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of ‘’equal pay for equal work’. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of ‘’equal pay for equal work’ was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of ‘’equal pay for equal work’. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of ‘’equal pay for equal work’. Our consideration, has led us to the following deductions : 42.1 The ‘’onus of proof’, of parity in the duties and responsibilities of the subject post with the reference post, under the principle of ‘’equal pay for equal work’, lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case 10, Union Territory Administration, Chandigarh v. Manju Mathur 15, the Steel Authority of India Limited case 16, and the National Aluminum Company Limited case 18). 42.3 The principle of ‘’equal pay for equal work’, applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case 1). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case3, the Mewa Ram Kanojia case5, the Grih Kalyan Kendra Workers’ Union case6 and the S.C. Chandra case12). 42.4 Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of ‘’equal pay for equal work’ (see - the Randhir Singh case1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association9, and the Hukum Chand Gupta case17). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature. 42.5 In determining equality of functions and responsibilities, under the principle of ‘’equal pay for equal work’, it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature. 42.5 In determining equality of functions and responsibilities, under the principle of ‘’equal pay for equal work’, it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case3 and the State Bank of India case8). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of ‘’equal pay for equal work’ (see - State of U.P. v. J.P. Chaurasia4, and the Grih Kalyan Kendra Workers’ Union case6). 42.8 If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case5, and Government of W.B. v. Tarun K. Roy11). In such a cause, the principle of ‘’equal pay for equal work’, cannot be invoked. 42.10 A comparison between the subject post and the reference post, under the principle of ‘’equal pay for equal work’, cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case23). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand13).” 8. In the present case, as is apparent from the perusal of the judgment of learned Single Judge as well as letters of the Chief Engineer, on which learned Single Judge relied upon, the aforesaid criterion have not been taken into consideration. Hence the judgment of the learned Single Judge is squarely in the teeth of the aforesaid judgments of the Apex Court. 9. Hence the judgment of the learned Single Judge is squarely in the teeth of the aforesaid judgments of the Apex Court. 9. Even before this Court respondents could not place any such material by which any parity in services/responsibility and the Central Government employees could be found. 10. In view of the aforesaid facts and circumstances of the case, it is apparent that learned Single Judge could not have allowed the writ petitions. The respondents have failed to prove their parity and cannot be granted pay-scales equally to that of the Central Government cadres. Hence the order of learned single Judge is hereby set aside. 11. All the appeals are allowed and the writ petitions are dismissed. No orders as to cost.