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Allahabad High Court · body

2020 DIGILAW 127 (ALL)

Sayed Hasan Imtiyaz Rizvi v. State of U. P.

2020-01-10

MANISH MATHUR

body2020
ORDER : Manish Mathur, J. 1. Heard Ms. Renu Mishra learned counsel for petitioner and the learned State Counsel appearing on behalf of opposite parties. 2. Petition has been filed against order dated 1st July, 1996 thereby refusing petitioner's claim for grant of pay scale of Rs. 2000-3200 in parity with that of Research Assistant in departments other than secretariat. 3. Learned counsel for petitioner has submitted that petitioner was appointed on the post of Research Assistant in U.P. civil secretariat, department of education in August, 1984 in the pay scale of Rs. 570-1100. She has drawn attention to paragraph 4 to 6 of the writ petition indicating the fact that prior to 1991, the scales of pay with regard to Research Assistants admissible in the secretariat and in the office of legal remembrancer were the same and discrepancy actually occurred vide order dated 6th February, 1991 whereafter the pay of scale of petitioner was revised to Rs. 1400-2600 while that of Research Assistants in the legal remembrancer office was revised to Rs. 1640-2900 with effect from 1st January, 1986. 4. Learned counsel for petitioner has drawn attention to the impugned order dated 1st July, 1996 rejecting claim of petitioner. It has been submitted that the impugned rejection order is completely non speaking in nature and indicates non-application of mind by the authority concerned. It has also been submitted that earlier the present petition had been dismissed vide judgment and order dated 2nd November, 2006 on the ground that this court should not sit as court of appeal and examine recommendations made by the Pay Commission which is sole and exclusive jurisdiction of State Government and orders pertaining to same are passed by the authorities concerned on the basis of nature of duties, qualifications, source of recruitment, responsibilities, manner of working etc. Relevant portion of the judgment and order dated 2nd November, 2006 is as follows:- "The High Court vested with powers under Article 226 of the Constitution of India, should not sit as a Court of appeal and examine the recommendations, which have been made by the Pay Commission, or the Samta Samiti or anomaly committee. If the recommendations have been made on existing grounds, this Court should not exercise its jurisdiction to disturb the same, sanctioning different pay scales to different employees working in different departments, is also the sole and exclusive discretion of State Govt. If the recommendations have been made on existing grounds, this Court should not exercise its jurisdiction to disturb the same, sanctioning different pay scales to different employees working in different departments, is also the sole and exclusive discretion of State Govt. i.e. the appointing authority and it cannot be disputed that after considering the various facts and circumstances and considering the recommendations of the committees constituted for the purposes, prerogative was exercised for fixing the pay scale, which is fixed on basis of nature of duties, qualifications, source of recruitment, responsibilities, manner of working etc. etc. If there is no difference in the above, discrimination in scale of pay can not be made on the ground that employees are working in different departments. In the present case, it appears that all these facts, which were brought to the notice by the petitioner, himself, were considered and thereafter, pay scales were fixed. The representation of the petitioner was rejected." 5. The aforesaid judgment was thereafter challenged in Special Appeal No. 16 of 2007 and was allowed by means of judgment and order dated 9th January, 2007 with the observation that once discrimination is proved by the petitioner, onus ensues upon the State to justify its action which is required to produce material and reasons on the basis of which pay scales demanded were refused and determined otherwise. Relevant portion of the judgment and order passed in Special Appeal is as follows:- "Considering the aforesaid facts and circumstances of the case we with utmost respect express our disagreement with the view taken by the learned Single Judge. When a challenge is made in the court saying that the determination has not been done in correct manner and it suffers from the vice of illegality or discrimination, though the primary onus lies upon the appellant/petitioner to prove that there had been some sort of discrimination or illegality but thereafter the onus shifts upon the State to justify its action, the State, thus, was required to produce such material and reasons on the basis of which the Pay scales demanded were refused and determined otherwise." 6. Learned counsel for petitioner has drawn attention to the supplementary affidavit dated 12th October, 2015 in which chart regarding pay parity and disparity has been annexed in which it has been indicated that petitioners and Research Assistants employed in the department of legal remembrancer were granted the same pay scale up till 1991. Qualification, nature of duties and responsibilities have also been indicated in the said chart, as per which, petitioner's required qualification is graduate along with degree in Library Science and reviews matter pertaining to libraries in the entire state. The qualifications required for Research Assistant in the department of legal remembrancer is indicated as graduate with the same nature of duty. As such it has been submitted that once petitioner was granted the same pay scale right up till the year 1991 and performs the same nature of duties with some qualifications, there was no justification for grant of different pay scale, which therefore amounts to discrimination. 7. Learned State Counsel appearing on behalf of opposite parties however has defended the alleged anomaly by drawing attention to the supplementary counter affidavit filed on behalf of opposite parties in which it has been stated that qualification for post of Research Assistant in the office of Secretary, Law is L.L.B. along with a degree in Library Science with a minimum of four years experience while qualification for post of Research Assistant, such as petitioner, is graduation along with a degree in library science and 3 years experience. It has also been stated that post of Research Assistant in the office of Secretary, Law has higher responsibilities and liabilities. As such it has been submitted that both the posts having different qualification and nature of duties do not require the same pay scale. 8. Attention has been drawn to paragraph 6 of the supplementary counter affidavit to indicate that since the Pay Equivalence Committee/Chief Secretary Committee did not find the post of Research Assistant equal to the post under central government therefore recommendation was made for giving the higher pay scale. 9. Upon consideration of submissions raised by learned counsel for parties and perusal of record, it is undisputed that petitioner working as Research Assistant in the secretariat was granted the same pay scale as Research Assistant working in the office of Secretary. Law in the State of U.P. right up till the year 1991. 9. Upon consideration of submissions raised by learned counsel for parties and perusal of record, it is undisputed that petitioner working as Research Assistant in the secretariat was granted the same pay scale as Research Assistant working in the office of Secretary. Law in the State of U.P. right up till the year 1991. The chart indicated by petitioner in the supplementary counter affidavit has not been disputed by the opposite parties. As such it is seen that the discrepancy in pay scale occurred for the first time in the year 1991 upon implementation of recommendations of 4th Pay Commission. The impugned order does not indicate any reasons whatsoever for denying the claim of petitioners regarding same pay scale. In fact the order impugned is a completely non speaking order. 10. So far as assertions made in the supplementary counter affidavit are concerned, it is evident from perusal of paragraph 6 thereof that qualifications required for the post of Research Assistant in the office of Secretary. Law in the state of U.P. is L.L.B. with degree in Library Science along with minimum four years experience while qualification required for the post of Research Assistant in Secretariat is graduation with degree in library science and three years experience. Although the post of Research Assistant in the office of Secretary, Law requires qualification of L.L.B. but upon a comparison of two posts, it is evident that the qualifications required for the both the posts in fact are graduation along with a degree in Library Science. The only difference is one year extra experience required for the post of Research Assistant in the office of Secretary, Law. As such the qualifications required for both the posts are similar. Neither the counter affidavit nor the supplementary counter affidavit indicate difference in responsibilities and liabilities of the two posts. 11. The only assertion with regard to same as indicated in paragraph 6 of the supplementary counter affidavit is that the post of Research Assistant in the office of Secretary, Law requires higher responsibilities and liabilities. The said assertion has not been explained anywhere as to what higher responsibilities and liabilities are to be undertaken by Research Assistant in the office of Secretary, Law. 12. The said assertion has not been explained anywhere as to what higher responsibilities and liabilities are to be undertaken by Research Assistant in the office of Secretary, Law. 12. As per the judgment and order dated 9th January 2007 passed in Special Appeal, the State was required to produce the material and reasons on the basis of which pay scales demanded were refused and determined otherwise. The said directions issued in special appeal are binding upon this Court. However a perusal of the supplementary counter affidavit indicates that no such reasons nor material has been brought forth by the State to substantiate their claim for permitting difference and pay scales. 13. Hon'ble the Supreme Court in the case of Union of India and others versus Jagdish Pandey and others reported in (2010) 7 SCC 689 , as cited by learned counsel for petitioner has specifically held that pay scale is a legitimate right of an employee and except for valid and proper reasons can not be varied except in accordance with law. Relevant paragraph of the aforesaid judgment is as follows:- "16. Pay scale is a legitimate right of an employee and except for valid and proper reasons it can not be varied, that only in accordance with law. None of these justifiable reasons exist in the present case. The impugned order itself does not give any reason. The expression "erroneously" used in the order can hardly justify withdrawal of such an existing right." 14. Upon a perusal of the aforesaid facts, it is clear that the opposite parties have failed to make out any justifiable reason for the anomaly in pay scales between Research Assistants working in the secretariat and the Research Assistants working in the office of Secretary, Law. 15. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, Hon'ble the Supreme Court in State of Punjab and others versus Jagjit singh and others, reported in (2017) 1 SCC 148 has held as follows:- "58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation." 16. In view of the facts indicated herein above as admitted by opposite parties that the nature of work of Research Assistant working in Secretariat and those working in office of Secretary, Law, Government of U.P. are virtually same, the aforesaid judgment rendered in the case of Jagjit Singh (supra) is squarely applicable to the present facts and circumstances. 17. No other point was pressed by learned counsel for parties. 18. In view of aforesaid, a writ in nature of Certiorari is issued quashing the order dated 1st July, 1996. A further writ in the nature of Mandamus is issued directing concerned authority to pass appropriate orders granting pay scale of Rs. 2000-3200 for the post of Research Assistant working in secretariat with effect from 1st January, 1996 to the petitioner. Orders pertaining grant of consequential benefits to petitioner upon revision of such pay scale shall also be made available within a period of four months from the date a copy of this order is produced before the said authority. 19. With the aforesaid observations, the writ petition stands allowed.