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2021 DIGILAW 443 (JHR)

Jolsan Kujur v. State of Jharkhand

2021-06-16

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. The instant writ petition has been filed under Article 226 of the Constitution of India seeking following reliefs: (i). For issuance of an appropriate writ(s), order(s) or direction(s) in the nature of certiorari for quashing part of Rule-13 of the Rajendra Institute of Medical Science Regulation, 2014 (Annexure-6); as the same is ultra vires to Articles 14 and 16 of the Constitution of India, since as per Rule-13 of the Rajendra Institute of Medical Science Regulation, 2014 (hereinafter referred as “RIMS Regulation 2014”), the Doctors (including trainee/intern Doctors) working in the RIMS, Ranchi have been given the salary and other allowances at par with All India Medical Sciences, however, in the same rule salary of other employee i.e. class III and Class IV employees of RIMS will be as per the pay scale decided by the State Government from time to time is arbitrary and not sustainable in eyes of law. (ii). For issuance of an appropriate writ(s), order(s) or direction(s) in the nature of mandamus commanding upon the respondents to fix the pay scale and other allowances of the petitioners (Class III employees of RIMS, Ranchi) at par and equivalent to the employees of All India Medical Science) (hereinafter referred as AIIMS) and other similar institution, since the qualifications, experiences, and nature of work of petitioners are exactly similar to employees of AIIMS and other institutions, but the pay-scale of the petitioners are much below than employees of AIIMS and other institutions managed by Central Govt. 3. The brief facts of the case, which are required to be referred herein, as per the pleadings made in the writ petition, read hereunder as: In pursuance to the advertisement being Advertisement No. 5414 dated 20.09.2003 issued from the office of Director, RIMS, Ranchi, for contractual appointment on the posts of Lab Technicians, Pharmacists, O.T. Assistant, Dresser, the writ petitioners applied and were appointed on the said posts. Consequently, they joined their respective posts in the month of February and March, 2006 in Rajendra Institute of Medical Sciences, Ranchi (in short “RIMS, Ranchi”) and continued to discharge their duties to the satisfaction of the authorities of the RIMS, Ranchi. Consequently, they joined their respective posts in the month of February and March, 2006 in Rajendra Institute of Medical Sciences, Ranchi (in short “RIMS, Ranchi”) and continued to discharge their duties to the satisfaction of the authorities of the RIMS, Ranchi. In the year 2015, the respondent-RIMS further floated an advertisement as contained in Memo No. 7583 dated 07.11.2015 for regular appointment of Paramedicals (Lab Technicians, Pharmacists, O.T. Assistant and Dresser), who have work experience of eight years on the respective posts. The writ petitioners, fulfilling all eligibility criteria, applied for and on being found successful were appointed in the regular establishment of RIMS, Ranchi, as would be evident from letter as contained in Memo No. 8854 dated 26.12.2015. Since then they are working on the said posts to the satisfaction to the authorities of RIMS, Ranchi. It is the case of the writ petitioners that the pay-scale as well as Dearness Allowance (D.A.) was fixed by the RIMS, Ranchi in the light of notification dated 25.03.2009 as contained in Memo No. 965 issued under the signature of Secretary, Department of Planning-cum-Finance, Government of Jharkhand. Thereafter, again the pay-scale as well as D.A. of the writ petitioners was fixed in the light of resolution dated 20.04.2013 as contained in Memo No. 995 issued under the Signature of Principal Secretary, Govt. of Jharkhand by the order of H.E., the Governor, Jharkhand. In the year 2014, the State Government came up with a regulation, namely, Rajendra Institute of Medical Sciences Regulation, 2014 (hereinafter referred to as “Regulation, 2014”) published in the official Gazette of the State Government dated 22.09.2014. Rule -13 of the said Regulation, 2014 speaks about salary and other allowances of the RIMS employees. According to the writ petitioners, in pursuance to the Rule 13 of Regulation, 2014, the pay-scale and other allowances of the doctors working under RIMS has been decided to be extended at par with the doctors working in All India Institute of Medical Sciences, New Delhi (in short ‘AIIMS, New Delhi”) but the pay-scale which the other employees (Class III employees) are getting at AIIMS, New Delhi has been denied to such employees at RIMS, Ranchi stating that the employees working under RIMS will be entitled to the pay-scale as has been fixed by the State Government. 4. 4. The writ petitioners being aggrieved with that part of Rule-13 of Regulation, 2014, has approached this Court by filing the instant writ petition inter alia on the ground that when Rule, 13 of Regulation, 2014 though speaks about pay-scale of the doctors working at RIMS, Ranchi to be at par with the doctors working at AIIMS, New Delhi but denies pay-scale to the Class III employees working under RIMS, Ranchi at par with the Class III employees working under AIIMS, New Delhi, which is nothing but an arbitrary exercise of power and hits the provisions of Article 14 of the Constitution of India and, therefore, the said part of Rule 13 is ultra vires and as such the same has been sought to be struck down. 5. Mr. Piyush Chitresh, A.C. to learned A.G., learned counsel appearing for the respondents-State has submitted that it is not the case where the question of ultra vires of the part of the provision of Regulation, 2014 can be looked into as the writ petitioners have not pleaded in the writ petition that the said part of the provision of the Regulation, 2014, by which the writ petitioners are aggrieved, is ultra vires to which provision of law. According to him, if the writ petitioners are not getting the pay-scale at par with the class III employees working under AIIMS, New Delhi the Rule framed under Regulation, 2014 ought not be declared ultra vires by this Court on this ground. He further submits that in Rule 13 of Regulation, 2014 the reason has been explained, why the doctors working at RIMS, Ranchi is being extended at par pay-scale and allowances with the doctors working at AIIMS, New Delhi, stating that several times after publication of advertisement inviting applications for appointment on the post of doctors because of not offering of proper pay-scale (pay anomaly) the doctors did not turn up, as such the pay and allowances of the doctors has been fixed at par with doctors working at AIIMS, Delhi so that well qualified and well experienced doctors may make their application for appointment as doctors under RIMS, Ranchi. While taking such decision based upon that reasoning whereas the rule making authority has decided that the other employees will get the pay-scale at par with the employees of State Government; hence, there is no illegality in the said Rule. While taking such decision based upon that reasoning whereas the rule making authority has decided that the other employees will get the pay-scale at par with the employees of State Government; hence, there is no illegality in the said Rule. It is further submission of the respondents-State that if the Class III employees working under RIMS, Ranchi will be extended pay-scale at par with the Class III employees working under AIIMS, New Delhi that will lead to discrimination amongst the employees working under State Government. Otherwise also the Class III employees working under RIMS, Ranchi cannot demand as a matter of right that a particular pay-scale is required to be fixed and if it has not been fixed, the said provision will be ultra vires. In view of such submission, prayer has been made that the instant writ petition is fit to be dismissed. 6. We have heard learned counsel for the parties and perused the documents available on record. The admitted fact in this case is that the writ petitioners were initially appointed in the year 2006 on contract basis in RIMS, Ranchi on the posts of Lab Technicians, Pharmacists, O.T. Assistant etc. in pursuance to the advertisement being Advertisement No. 5414 dated 20.09.2003 published from the office of Director, RIMS. Thereafter, in the year 2015 the respondent-RIMS floated an advertisement as contained in Memo No. 7583 dated 07.11.2015 for regular appointment of experienced Para-medicals (Lab Technicians, Pharmacists, Operation Theatre Assistant, Dresser). Pursuant thereto, the writ petitioners applied for and after going through the selection process were appointed under the regular establishment of RIMS, Ranchi vide Memo No. 8854 dated 26.12.2015. The writ petitioners were granted pay-scale in the light of notification dated 25.03.2009 as contained in Memo No. 965 issued under the signature of Secretary, Department of Planning-cum-Finance, Government of Jharkhand. While the writ petitioners were working as such, the State Government came out with a regulation, namely, Rajendra Institute of Medical Science Regulation, 2014 published in the Official Gazette of the State Government dated 22.09.2014. The writ petitioners herein are aggrieved with part of Rule 13 which deals with the salary and allowances and working hours of the RIMS employees i.e., doctors and other employees serving in RIMS. The writ petitioners herein are aggrieved with part of Rule 13 which deals with the salary and allowances and working hours of the RIMS employees i.e., doctors and other employees serving in RIMS. For ready reference, relevant portion of Rule 13 of Regulation, 2014 is quoted hereunder as: 13.“ dfeZ;kasds osru] HkRrs ,oa dk;kZof/k laru ,oa HkRrs bl fofu;e dh vuqlw LFkku ds dfeZ;ksa ds osph III ds vuqlkj gksaru ,oa HkRrs dk fu/kkZj.k vf[ky Hkkjrh; vk;q xhA osfoZKku LFkku ¼AIIMS½] ubZ fnYyh ds vuq:i fd;k x;k gSA ,s lalk blfy, fd;k tk jgk gS fd vus{kf.kd lafDr dksa ckj 'kSoxZ ds in ij fu;qgsf=r djus ds ckotwn Hkh mfpr osru rq foKkiu vkearueku ugha ¼osxfr½ jgus ds dkj.k fpfdRld ugha feyrs gSa folaA ijUrq fjEl esa dk;Zjr vU; deZpkjh@dfeZ;kasdk osrueku jkT; ljdkj }kjk jpuk ds vuqlkj gh nsxkA” The writ petitioners are aggrieved with the part of aforesaid Rule whereby and whereunder, it has been stated that pay-scale of the employees, other than doctors, working under RIMS will be fixed by the State Government and therefore, the instant writ petition has been filed for declaring the said part of the Rule 13 under Regulation, 2014 to be ultra vires. According to the writ petitioners, the said provision should be declared ultra vires considering the fact that the doctors working under the RIMS has been decided to be extended pay-scale at par with the doctors working at AIIMS, New Delhi, but such decision has been taken keeping the fact into consideration that due to lesser pay-scale the well qualified and experienced doctors are not offering their candidature for consideration of their appointment under RIMS. The grievance of the writ petitioners is that when the pay-scale and other allowances of the doctors working at RIMS can be fixed at par with the pay-scale of the doctors working under AIIMS, why discrimination towards the other employees by not extending the pay-scale at par with the pay-scale of Class III employees working in AIIMS, New Delhi. 7. This Court, before considering the aforesaid submission advanced on behalf of writ petitioners vis-à-vis respondents-State, is of the view that before proceeding further, the principle laid down by Hon’ble Apex Court pertaining to interference in the statutory provision declaring it ultra vires, is required to be considered. 7. This Court, before considering the aforesaid submission advanced on behalf of writ petitioners vis-à-vis respondents-State, is of the view that before proceeding further, the principle laid down by Hon’ble Apex Court pertaining to interference in the statutory provision declaring it ultra vires, is required to be considered. The Hon’ble Apex Court in State of T.N. and Another v. P. Krishnamurthy and Others [ (2006) 4 SCC 517 ] at paragraphs 15 and 16 held as hereunder:- “15.There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: (a)Lack of legislative competence to make the subordinate legislation. (b)Violation of fundamental rights guaranteed under the Constitution of India. (c)Violation of any provision of the Constitution of India. (d)Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e)Repugnancy to the laws of the land, that is, any enactment. (f)Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 16.The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under -17 -the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity.” It is evident from aforesaid proposition of law laid down by Hon’ble Apex Court that validity of constitutionality of a provision is to be looked into by the Constitutional Court only when there is lack of legislative competence to make the subordinate legislation, violation of fundamental rights guaranteed under the Constitution of India, violation of any provision of the Constitution of India, failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act, repugnancy to the laws of the land, that is, any enactment and manifest arbitrariness/ unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). It has further been held that the Court while considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute, where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the Court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the Court should proceed with caution before declaring invalid. 8. We have proceeded to examine the validity of the part of the provision as contained under Rule 13 of the Regulation, 2014, which is under challenge in this writ petition and found therefrom that it is not the case of the writ petitioners that while framing such Rule to which the writ petitioners is aggrieved, there is lack of legislative competence to make the subordinate legislation. Furthermore, it is also not the case of the writ petitioners that by framing such Rule the same is not in conformity with the statute under which it is made or the framer of such Rule has exceeded the limits of authority conferred by the enabling Act. Further, it is also not the case of the writ petitioners that such provision is repugnant of any law. 9. However, learned counsel for the writ petitioners has argued for declaring such provision ultra vires since the same hits the provisions of Article 14 of the Constitution of India and, therefore, we have proceeded to examine as to whether the given facts the case of the writ petitioners are coming under the fold of violation of fundamental rights guaranteed under Article 14 of the Constitution of India? Admittedly, herein the writ petitioners are claiming parity with the pay-scale to be at par with the employees working at AIIMS, New Delhi. It is further admitted case that if the writ petitioners working in RIMS, Ranchi as class III employees are getting lesser pay-scale in comparison to that of the employees working in AIIMS, New Delhi, it will not come under the fold of unreasonable classification. View of this Court gets fortified by the judgment rendered by Hon’ble Apex Court in Om Narain Agarwal & Ors Vs. Nagar Palika, Shahjahanpur & Ors [ AIR 1993 SC 1440 ], wherein the Hon’ble Apex Court while dealing with the meaning of reasonable classification has been pleased to hold that right of equality of treatment applies only to equals and not to unequals. It is not in dispute that Article 14 is the fundamental right conferred to the citizen of the country as provided under the Constitution of India but it is also settled that Article 14 will only attract if there is “unreasonable classification” and it is not applicable in a case of “reasonable classification” as has been held by Hon’ble Apex Court in State of Jammu & Kashmir vs. Shri Triloki Nath Khosa and Ors., [ (1974) 1 SCC 19 wherein the Court at paragraph 20 succinctly held as under: “20. .............The challenge, at best, reflects the respondent’s opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. .............The challenge, at best, reflects the respondent’s opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld.” It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis, it was for employee concerned to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to equality, the Hon’ble Apex Court at paragraphs 29 and 30 held as under: “29. ........But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment. 30. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another.” Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [ (1981) 4 SCC 335 ], which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees’ Service Regulations was challenged, which provides for retiring age of an Air-Hostess. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees’ Service Regulations was challenged, which provides for retiring age of an Air-Hostess. The Court at paragraph 39 held as under: “39.Thus, from a detailed analysis and close examination of the eases of this Court starting from 1952 till today, the following propositions emerge :- (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 can-not be attracted. (2)Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely out of the way. (3)Article 14 certainly applies where equals are treated differently without any reasonable basis. (4) Where equals and unequals are treated differently, Article 14 would have no application. (5)Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6)In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:- (a) the nature, the mode and the manner of recruitment of a particular category from the very start, (b) the classifications of the particular category. (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possess which are not to be found in other classes, and the like.” Likewise, the Hon’ble Apex Court further in the case of Shalimar Tar Products Ltd Vs. (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possess which are not to be found in other classes, and the like.” Likewise, the Hon’ble Apex Court further in the case of Shalimar Tar Products Ltd Vs. H.C. Sharma & Ors [ AIR 1988 SC 145 ] it has been held that Article 14 has inbuilt capability and it also permits different treatment to unequals as only discrimination amongst the equals. 10. Therefore, according to our considered view, the claim of the writ petitioners at par with the Class III employees working under AIIMS, New Delhi is not falling under the fold of unreasonable classification since the writ petitioners vis-à-vis the employees working as Class III employees under AIIMS, New Delhi are in two different establishments and hence, there is no question of applicability of violation of principle of Article 14 of the Constitution of India. 11. Herein, the writ petitioners are claiming to declare the part of the Rule 13 of Regulation, 2014 to be ultra vires but ultra vires to which law, whether any statutory provision or the Constitution, the said pleading is lacking. It is admitted case of the writ petitioners that they are only claiming to declare the said part of the provision of Rule 13 of Regulation, 2014 as ultra vires since it hits Article 14 of the Constitution of India. But as has been held by Hon’ble Apex Court in the judgment referred herein above it is admitted position that merely because employees working under an establishment are getting the pay-scale lesser than the employees working under other establishments, it cannot attract the discrimination within the meaning of Article 14 of the Constitution of India. But as has been held by Hon’ble Apex Court in the judgment referred herein above it is admitted position that merely because employees working under an establishment are getting the pay-scale lesser than the employees working under other establishments, it cannot attract the discrimination within the meaning of Article 14 of the Constitution of India. Further, the case of the writ petitioners is that since the doctors working under RIMS has been decided to be paid the pay-scale at par with the doctors working in AIIMS, New Delhi, therefore that part of provision whereby the decision has been taken for the Class III employees to extend the pay-scale at par with the State Government to be declared ultra vires, the said reasoning is also not acceptable to us as RIMS, Ranchi being the autonomous authority has come out with the aforesaid Regulation extending the pay-scale to the doctors at RIMS, Ranchi making it at par with the doctors working at AIIMS, New Delhi by assigning the reason that well qualified and well experienced doctors may come and apply for different post, which is for overall improvement of RIMS, Ranchi and the people at large. But merely because such decision has been taken for doctors the same will also be extended in favour of Class III employees of the RIMS and on this ground the said provision be declared to be ultra vires, is not permissible in view of the parameter fixed by Hon’ble Apex Court in State of T.N. and Another v. P. Krishnamurthy and Others (Supra) for showing interference regarding statutory provision declaring the Rule ultra vires. 12. Otherwise also, so far as pay-scale is concerned, the same is the absolute domain of the employer, which pay-scale is to be given to employees it depends upon the concerned employer and there cannot be any judicial review by the High Court unless the employees shows that discrimination is amongst the similarly situated employees but that is not the case of the writ petitioners herein. Reference may be made to judgment rendered in Indian Drugs & Pharmaceuticals Ltd Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. [ (2007) 1 SCC 408 ], in particular paragraph 40, which reads hereunder as: “40.The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Reference may be made to judgment rendered in Indian Drugs & Pharmaceuticals Ltd Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. [ (2007) 1 SCC 408 ], in particular paragraph 40, which reads hereunder as: “40.The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment or these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional cases. The relevant case-law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. Of Police and we fully agree with the views expressed therein.” 13. This Court on the basis of discussions made herein above and in the entirety of facts and circumstances of the case, is of the considered view that writ petitioners have failed to make out a case for issuing positive direction. 14. Accordingly, the writ petition fails and is dismissed.