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2017 DIGILAW 2570 (ALL)

Satendra Narayan Singh v. State of U. P.

2017-11-07

SANGEETA CHANDRA

body2017
JUDGMENT : 1. This writ petition has been filed by the petitioners, five in number were working as Stenographers in various Divisional Offices of the Public Works Department, challenging the order dated 13.01.2002 passed by respondent No. 2, Director, Establishment Review Bureau, Department of Finance, Government of U.P. A further prayer has been made for issuance of a mandamus commanding the respondents to ensure that petitioners are paid the Pay-Scale of Rs. 570-1100/-from the date similarly situated counterparts, posted in the Circle Offices, are being paid the same. 2. The case as set up by the petitioners in the writ petition is that by means of a Notification issued by the Government accepting the recommendations of the Second Pay Commission on 29.09.1981, a policy decision was taken with regard to Pay-Scale admissible to Stenographers. The Stenographers working in the Pay-Scale of Rs. 250-425/-were given General Pay Revision in Pay Scale of Rs. 470-735/- and Stenographers working in the Pay -Scale of Rs. 300-500/-were given General Pay Revision in the Pay Scale of Rs. 515816/-. The Selection Grade of Rs. 680-920/-was made admissible on the basis of rendering continuous satisfactory service of 10 years to such Stenographers also. In Clause 3 of paragraph 4 of the said Notification, it was mentioned that all those Stenographers, who were attached with heads of Minor Departments placed in the Pay Scale of Rs. 840-2400/- and Stenographers attached in office of the District Magistrate, District Judge and Members of the Tribunal and Chairman of Cooperative Tribunal be also give Pay Scale of Rs.570-1100/-. Such Stenographers as were attached to the office of the District Magistrate and District Judge would not be given Special Pay however. With respect to Stenographers attached to Divisional Commissioners, Heads of the Major Departments and Chairman of Tribunals excluding Cooperative Tribunal, the Pay Scale of Rs. 625-1316/- be given. 3. Claiming benefits of the Notification dated 29.09.1981, one Writ Petition No. 5389 of 1982 was filed by Bajrangi Pandey and others, which was dismissed by a Hon'ble Single Judge and against the order passed by the Writ Court dated 06.09.1994, Special Appeal No. 724 of 1994 was filed by Bajrangi Pandey and Ram Mohan Singh. 625-1316/- be given. 3. Claiming benefits of the Notification dated 29.09.1981, one Writ Petition No. 5389 of 1982 was filed by Bajrangi Pandey and others, which was dismissed by a Hon'ble Single Judge and against the order passed by the Writ Court dated 06.09.1994, Special Appeal No. 724 of 1994 was filed by Bajrangi Pandey and Ram Mohan Singh. The Division Bench after considering the Notification issued on 29.09.1981 came to the conclusion that the petitioners, who were working in Circle Offices and were attached to Superintending Engineer were infact attached to Heads of Minor Departments working in the Pay Scale of Rs. 840-2400/-, and therefore, were entitled for Pay Scale of Rs. 570-1100/- w.e.f. 01.01.1979, as per Clause 3 of para 4 of the said Notification. Thus it was held by the Division Bench on 10.09.2002 that those Stenographers, who were in the Pay Scale of Rs. 250-425/-, but were attached with the Office of Heads of Minor Departments like, Superintending Engineer in Circle Offices, were entitled to Pay Scale of Rs. 570-1100/-. 4. Against the judgment and order dated 10.09.2002, the State Government filed a Special Leave Petition (CC) No. 140 of 2004, which was dismissed on 08.03.2004 by the Hon'ble Supreme Court. The order dated 10.09.2002 become final. Other similarly situated employees, Mahesh Kumar Sharma and 13 others, working in various Circle Offices of Public Works Department also filed a writ petition, namely, Writ Petition No. 49857 of 2004, which was allowed on 24.04.2004 by the Hon'ble Single Judge placing reliance upon the judgment and order dated 10.09.2002 in Special Appeal No. 724 of 1994. 5. The State Government thereafter filed a Special Appeal No. 596 of 2005, which was dismissed by this Court on 23.10.2008 on the ground that Special Leave Petition against the similar order had already been dismissed by the Hon'ble Supreme Court on 08.03.2004. 6. It is the case of the petitioners that Stenographers working in various Circle Offices under the Superintending Engineer in Public Works Department were thus held entitled to the Pay Scale of Rs. 570-1100/- w.e.f. 01.07.1979, but the judgments of this Court were not being complied with, and therefore, Contempt Petition No. 337 of 2009 was filed, wherein Secretary, Public Works Department filed an affidavit of compliance on 16.12.2009 stating therein that those Stenographers, who were appointed subsequent to 1996 have already been given Pay Scale of Rs. 570-1100/- w.e.f. 01.07.1979, but the judgments of this Court were not being complied with, and therefore, Contempt Petition No. 337 of 2009 was filed, wherein Secretary, Public Works Department filed an affidavit of compliance on 16.12.2009 stating therein that those Stenographers, who were appointed subsequent to 1996 have already been given Pay Scale of Rs. 570-1100/- as revised from time to time. The order of the Court was confined only to those Stenographers, who were appointed prior to 31.12.1985 and the Department had identified 28 such Stenographers and had paid them the said Pay Scale along with arrears. The Contempt Petition was thereafter disposed of with a direction that if similarly placed Stenographers are still left out, they may approach this Court. 7. The case of the petitioners is that the Chief Engineer Bundelkhand, Public Works Department allowed the Pay Scale of Rs.570-1100/- to one Vinod Kumar Sharma and Jaideep Khare on 28.03.2011, and the petitioners being senior to Vinod Kumar Sharma and Jaideep Khare, but attached to Divisional offices made representations to the Director, Establishment Review Bureau, Finance Department for extension of similar benefits to the petitioners on the ground that their dates of appointment were earlier to the dates of appointment of Vinod Kumar Sharma and Jaideep Khare, and they were also performing same work i.e. same nature of duties and responsibilities as Vinod Kumar Sharma and Jaideep Khare. Even writ petitioners in Writ Petition No. 49857 of 2004 (Mahesh Kumar Sharma and others vs. State of U.P. and others) were doing similar work although in Circle Offices. 8. When their representations were not decided, the petitioners approached this Court in Writ Petition No. 54418 of 2011, which was finally disposed of on 20.09.2011 by this Court issuing a direction to the respondent No.2 to pass appropriate orders. The petitioners thereafter were compelled to filed Contempt Petition No. 307 of 2012 and only after issuance of notice, the respondent No. 2 has passed the impugned order dated 13.01.2012 rejecting the case of the petitioners. 9. It is the case of the petitioners that the impugned order has been passed in hot haste, without appreciating the issue, and has been filed as annexure to the affidavit of compliance filed in the aforesaid Contempt Petition. 9. It is the case of the petitioners that the impugned order has been passed in hot haste, without appreciating the issue, and has been filed as annexure to the affidavit of compliance filed in the aforesaid Contempt Petition. It has been mentioned therein that under the Notification dated 29.09.1981, the Pay Scale of Rs.570-1100/- was made admissible to Stenographers working in Pay Scale of Rs. 250-425/- only in case such Stenographers were attached to the office of District Magistrate, District Judge, Chairman of the Cooperative Tribunal, or Heads of Minor Departments including the office of Superintending Engineer, which is a Circle Office, as interpreted by this Court in its judgments passed earlier in this regard. The petitioners were working in Divisional Offices. Their Appointing Authority was the Executive Engineer and not the Superintending Engineer. As per Rules, their method of recruitment was different from Stenographers appointed in Circle Offices. Stenographers working in Circle Offices were in fact promoted from Stenographers working in Divisional Offices and the nature of work and duties of Stenographers attached to Superintending Engineer were certainly more onerous. 10. The petitioners in paragraphs 20 to 22 of the writ petition have stated that as per the Notification dated 29.09.1981, Stenographers working in Circle Offices had already been granted Pay Scale of Rs. 570-1100/- in view of the litigation undertaken by them. Although, there was a requirement that Stenographers working in Divisional Offices should be promoted, in fact no such practice was being followed and vacancies of Stenographers in Circle Offices were being filled up by Direct Recruitment since the very beginning. 11. Moreover, it has been submitted by the petitioners that as per Government Order dated 05.12.1994 issued on the basis of recommendations of the Equivalence Committee 1989, the Pay Scale of Stenographers were determined on the basis of their seniority, irrespective of their posting in Divisional Offices or Circle Offices. It had been clarified in the Government Order dated 05.12.2004 that if a junior Stenographer was attached to an Officer getting higher Pay Scale, the said junior Stenographer shall not be entitled to higher Pay Scale on that ground alone. 12. It has been averred by the petitioners that the petitioners are senior to certain Stenographers, who were working in Circle Offices, like Vinod Kumar Sharma and Jaideep Khare. 12. It has been averred by the petitioners that the petitioners are senior to certain Stenographers, who were working in Circle Offices, like Vinod Kumar Sharma and Jaideep Khare. It has also been averred by the petitioners that Lipik Vargiya Adhishthan Niyamawali, 1965, the service Rules, which governed appointment of clerical staff in Public Works Department, provides the same Pay Scale for Stenographers working in Circle Offices and in Provincial/Divisional Offices i.e. Pay Scale of Rs. 120-250/-, and also it does not provide any separate method of recruitment or educational qualification for such Stenographers working in Divisional and Circle Offices. The Authorities have created an artificial classification beyond what has been prescribed under the Service Rules of 1965, although the Service Rules of 1965 have not been amended till date. 13. It this the case of the petitioners that they were appointed prior to the Notification dated 29.09.1981 and enjoyed the same Pay Scale as Stenographers attached to Circle Offices and performed the same duties, and therefore, they were entitled to same Pay Scale. Their seniority has been disregarded by the respondents. 14. In the counter affidavit filed on behalf of Public Works Department, the contents of the writ petition have not been specifically denied insofar as they relate to Government Order dated 05.12.1994. However, the contents of the impugned order dated 13.01.2012 issued by the respondent No. 2 has been tried to be defended on the ground that in the initial round of litigation, Stenographers from Circle Offices had approached this Court. Now the petitioners belong to Divisional Offices and the nature of duties required in the Divisional Offices are different from the nature of duties performed by Stenographers in Circle Offices. It has been pointed out that Vinod Kumar Sharma had been granted the Pay Scale of Rs.570-1100/- erroneously and the said order has been corrected thereafter. It has further been pointed out that the Notification dated 29.09.1981 has not been challenged by the petitioners and insofar as petitioners are concerned, the same is binding and cannot be ignored by the State respondents. 15. In the rejoinder affidavit filed by the petitioners, the submissions made in the writ petition are reiterated and information received through Right to Information application made by one similarly situated Stenographer from Divisional Office on 11.11.2010 has been brought on record. 15. In the rejoinder affidavit filed by the petitioners, the submissions made in the writ petition are reiterated and information received through Right to Information application made by one similarly situated Stenographer from Divisional Office on 11.11.2010 has been brought on record. In this information provided by the Public Information Officer, Public Works Department, it has been stated that as on date of issuance of said information, there is no difference in Pay Scale of Stenographers working in the Circle Offices from Stenographers working in Divisional Offices and whenever Stenographers from Divisional Offices are attached to higher Offices, their Pay Scale is not enhanced. 16. It is the case of the petitioners that in the matter of appointment and posting, an employee has hardly any role to play and higher Pay Scale cannot be denied on the ground that the said employee is posted in inferior offices while, others are posted in higher offices. The artificial classification in one single cadre of Stenographers made by the respondents only for the purpose of grant of Lower Pay Scale to the petitioner is arbitrary and liable to be quashed. It has been pointed out that if two stenographers are appointed on the same date and one is posted in the office of Executive Engineer and other posted in the office of Superintending Engineer, only by virtue of being posted in Circle Offices, one of them would not be entitled to higher Pay Scale. 17. It has also been stated that after the judgment and order passed in Special Appeal No. 724 of 1994 and Special Appeal No. 596 of 2005, there was no need to challenge the Notification dated 29.09.1981 as in the affidavit of compliance filed by Secretary, Public Works Department in the Contempt Petition, it had been admitted by the respondents themselves that the Notification dated 29.09.1981 had introduced an artificial classification and now all Stenographers are getting the same Pay Scale. 18. The petitioners have also brought on record the information supplied by the Public Information Officer dated 02.03.2012 in response to a Right to Information application stating therein that Pay Scale of a Stenographer would not depend on the Pay Scale of the officer with whom he is attached. 19. 18. The petitioners have also brought on record the information supplied by the Public Information Officer dated 02.03.2012 in response to a Right to Information application stating therein that Pay Scale of a Stenographer would not depend on the Pay Scale of the officer with whom he is attached. 19. The counsel for the petitioners while arguing the case relied upon the judgment and order dated 10.09.2002 passed in Special Appeal No. 724 of 1994 and the judgment and order dated 23.10.2008 passed in Special Appeal No. 596 of 2005; State of U.P. Vs. Mahesh Kumar Sharma and another. The petitioners have also placed before this Court a copy of the Clerical Cadre Establishment Rules of 1965 and judgments rendered by the Hon'ble Supreme Court in State of Haryana and others Vs. Charanjit Singh and others, 2006 (9) SCC 321 ; Union of India Vs. Dineshan K.K., 2008 (1) SCC 586 and Union of India and others Vs. Rajesh Kumar Gond and others, 2013 (3) ESC 548. 20. The learned counsel for the petitioners has argued that the mode of recruitment and educational qualifications of Stenographers engaged in the Provincial Division under the Executive Engineer are the same as the mode of recruitment and educational qualifications of Stenographers engaged in the Circle Office under the Superintending Engineer. It has also been their case that as per Rules of 1965, the Pay Scale of Stenographers working in Provincial Division offices under the Executive Engineers was the same as that of the Stenographers working in the Circle office under the Superintending Engineer. In fact, till 01.07.1979 both the categories of Stenographers enjoyed similar Pay Scale. It was only after issuance of the Notification dated 29.09.1981 when an artificial classification was sought to be created which has no basis in law and facts. 21. The learned Standing Counsel has relied upon paragraphs-17 and 20 of the counter affidavit and has argued that with regard to the Stenographers working in the Circle Office, there were two judgments of this Court. One in the case of Bajrangi Pandey and another in the case of Mahesh Kumar Sharma, and thereafter the orders passed in Contempt Petition which had to be followed/complied with. One in the case of Bajrangi Pandey and another in the case of Mahesh Kumar Sharma, and thereafter the orders passed in Contempt Petition which had to be followed/complied with. With respect to the petitioners, however, the Notification dated 29th of September, 1981 has not been interpreted by any Competent Court to give the same Pay Scale to the Stenographers working in the Provincial Divisional Office as is admissible and payable to the Stenographers working in the Circle Office under the Superintending Engineer. 22. Having heard the rival submissions and having gone through the impugned order passed by respondent No. 2, this Court finds that respondent No. 2 has taken several grounds for rejection of the claim of the petitioners. Only one of the grounds has been emphasised by the learned counsel for the petitioners. 23. The respondent No. 2 has referred to earlier litigation and written submissions of office of the Engineer-in-Chief that the status and responsibilities of Stenographers working in the Divisional Offices is different from the status and responsibilities of Stenographers working in the Circle Offices. 24. The petitioners' case has been rejected also on the ground that the policy decision taken on 29.09.1981 had provided that Stenographers working in the Pay Scale of 250-425/- shall be given Pay Scale of Rs. 570-1100/-only if they are attached to Offices of Minor Heads of Department or to the Office of the District Magistrate, or to the Office of the District Judge, or to the office of the Chairman, Co-operative Tribunal. As per Financial Hand Book, Volume II, Parts 2 to 4 (Revised Edition of 1968-69, page 367) the fact of the Superintending Engineer of Circle Office having been granted the status of a Head of Department, had escaped notice of the Government when Notification dated 29.09.1981 was issued. It was this fact, which was brought out in the earlier round of litigation and all employees, who had approached this Court earlier were working as Stenographers in Circle Offices only. 25. On the one hand, Superintending Engineers heading Circle Offices are working in the Grade Pay of Rs. 8700/-, whereas Executive Engineers heading in Divisional Offices are not designated as Heads of Department and are not getting the same Grade Pay, in fact, they are getting lesser Grade Pay of Rs.6600/- only. Therefore, the status of Stenographers attached to them cannot be said to be the same. 26. 8700/-, whereas Executive Engineers heading in Divisional Offices are not designated as Heads of Department and are not getting the same Grade Pay, in fact, they are getting lesser Grade Pay of Rs.6600/- only. Therefore, the status of Stenographers attached to them cannot be said to be the same. 26. Also, the order issued on 28.03.2011 for Vinod Kumar Sharma giving him same Pay Scale as Stenographer working in Circle Offices was found to have been mistakenly issued, and therefore, the same has been cancelled. Vinod Kumar Sharma, the alleged junior of the petitioners is thus not getting the Pay Scale as mentioned by the petitioners, and therefore, the petitioners cannot claim the same Pay Scale on the basis of being senior to Vinod Kumar Sharma. 27. It has also been mentioned in the order impugned that in pursuance to acceptance of recommendations of Vetan Samiti 1997-98 and the Chief Secretary Committee thereafter, the cadre of Stenographers has been divided on the basis of percentage and Pay Scales have also been accordingly adjusted and in this regard Circulars have been issued on 24.04.2002 and 08.09.2011. The orders dated 24.04.2002 and 08.09.2011 having been issued and all Stenographers now being given Pay Scale on the basis of percentage of posts as mentioned therein, there was no need to issue any further orders in this regard as the petitioners were not suffering any more. 28. It has also been mentioned by the respondent No. 2 that the power to fix Pay Scales lies with the Government and the respondent No. 2, Director Establishment Review Bureau, Finance Department has no jurisdiction to ascertain the equivalence of post and making fixation of Pay Scale on the basis thereof. 29. Having considered the order impugned, I find that although several grounds have been taken by the respondent No. 2 for rejecting the case of the petitioners, two grounds raised by the petitioners in their representations preferred from time to time to the Authorities concerned with regard to Government Order dated 05.12.1994, and regarding their seniority and that all of them have been appointed before 1981, has not been considered at all. Moreover, the affidavit of compliance filed by the Secretary, Public Works Department in Contempt Petition No.337 of 2009 has not been referred to at all, wherein there was a specific averment that all those Stenographers, who had been appointed after 01.01.1996 had been appointed uniformly in the Pay Scale of Rs. 570-1100/-. 30. The petitioners have referred to certain judgments of the Hon'ble Supreme Court, which are as follows: (i) State of Haryana and others vs. Charanjit Singh and others, 2006 (9) SCC 321 ; (ii) Union of India vs. Dineshan K.K., 2008 (1) SCC 586 ; (iii) Union of India and others vs. Rajesh Kumar Gond and others, 2013 (3) ESC 548. 31. In State of Haryana and other vs. Charanjit Singh and others (supra), the Hon'ble Supreme Court after considering all the law with regard to Article 39(d) of the Constitution and the law as developed in the case of Dhirendra Chamoli vs. State of U.P., 1986(1) SCC 637 has explained the doctrine of "Equal Pay for Equal Work" as was originally prepounded in Randhir Singh vs. Union of India and others, 1982 (1) SCC 618 . Pay fixation is essentially an executive function made on the basis of recommendation of an Expert body, such recommendations being not justiceable and the Court being not equipped to take upon itself the task of job evaluation and equation, should not ordinarily interfere. The Court has observed further that initially the doctrine of "Equal Pay for Equal Work" had been generally applied as an absolute rule but realising 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. It was observed that equation of posts and equation of pay structure being complex matters are generally best left to the executive and expert bodies, like Pay Commission etc. It was emphasised 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. It was emphasised 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. Enumerating a number of factors, which affect the application of the Principle of "Equal Pay for Equal Work", it was held that the principle requires consideration of various dimensions of a given job and the Court should not interfere till it is satisfied that necessary material has been placed on record on the basis whereof the Court is convinced that there was equality of work both in quantity and quality and the court is satisfied that the burden of proving that work and responsibilities are equal is discharged by the aggrieved employee. In all such cases, the most advisable thing the Court should do was to refer the dispute to the Executive Authority where extensive evidence could be led with regard to identity of posts and thus, equivalence in Pay Scale would be completely established. 32. In Union of India vs. Dineshan K.K. (supra), the Hon'ble Supreme Court was deciding a case where the Central Government had admitted that there was "apparent disparity" and "anomaly", but had not taken any corrective steps on the plea that there was an initial anomaly in the designation and the Pay Scale of the employees concerned. The respondents before the Court were Radio Mechanics and Head Constables of Assam Rifles, which admittedly was a Central Paramilitary Force. The equivalence with Central Reserve Police Force and Border Security Force had been established, both in terms of the Academic Qualifications and nature of duties, and it had also come on record that persons holding identical posts or ranks in CRPF and BSF had been given designation and Pay Scale much higher than identically situated employees in Assam Rifles. This was because rationalization of rank structure and Pay Scale of non-gazetted cadre of Assam Rifles had not taken place as was done in BSF and CRPF. 33. The Court considered the counter affidavit filed by the Central Government before the High Court in detail and came to the conclusion that on the admitted factual position, and on examination of external comparison and internal relativities, there was complete and wholesale identity between Radio Mechanics and Head Constables of Assam Rifles and CRPF and BSF. 33. The Court considered the counter affidavit filed by the Central Government before the High Court in detail and came to the conclusion that on the admitted factual position, and on examination of external comparison and internal relativities, there was complete and wholesale identity between Radio Mechanics and Head Constables of Assam Rifles and CRPF and BSF. Thus, they were held to be entitled to same Pay Scale and designations. 34. In Union of India and others vs. Rajesh Kumar Gond and others (supra), the Supreme Court was considering the case of Junior Hindi Translators working in other Departments of Central Government for equivalence with translators working in Central Secretariats and the Supreme Court held that no material was placed before the Tribunal about any functional distinction between two sets of translators. It was not brought on record that their sources of recruitment, eligibility qualifications, nature of duties were different, and therefore, the Hon'ble Supreme Court observed that there being no material as to how functional requirements of the concerned job in the Commerce Ministry was different from that in the Central Secretariat, the Juniors Hindi Translators working in Commerce Ministry were entitled to same Pay Scale as applicable to Official Language Translators in Central Secretariat. 35. This Court having considered the order impugned and the observations of the Supreme Court in the judgment cited by the petitioners, is of the considered opinion that the matter should be decided by the Government and not by the Director, Establishment Review Bureau, Finance Department. 36. The Secretary, Public Works Department is directed to look into the mode of recruitment, educational qualifications, dates of appointment of the petitioners and their seniority as well as the provisions of Government Order dated 05.12.1994 and also the compliance affidavit filed by the Secretary, Public Works Department in Contempt Petition No. 337 of 2009 and given opportunity of hearing to the petitioners and pass appropriate, reasoned and speaking order within a period of three months. 37. The impugned order is set aside and writ petition is partly allowed to this extent only.