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2022 DIGILAW 190 (UTT)

Madhav Prasad Dobhal v. State of Uttarakhand

2022-07-07

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Briefly stated facts are that the petitioners’ before this Court had been appointed in the Department of Medical Health and Family Welfare, on the post of Lab Technicians, as against their respective dates of their appointment. They have contended, that after their respective appointments made, they have been working with the respondents with an unblemished service records. 2. Because of the fact, that there was a disparity in the payment of the scale of salary, which was made admissible to be paid to the Lab Technicians, like that of the petitioners, who were serving in the Medical Department, and qua their counterparts, who were working with the Central Government or with the other State Governments. 3. To remove this disparity in scale, the Government had issued a Government Order on 15th April 2010, whereby the scale of the employees of petitioner cadre, was upgraded from Rs.4000- 6000, it was revised to be made payable to Rs.5200- 20200, with the grade pay admissible and payable on it of Rs.2400, which was further enhanced revised to Rs.9300- 34800, with the grade pay of Rs.4200. 4. The similar upgraded pay scale, as enforced to be made payable by the Government Order of 15th April, 2010, in relation to the Lab Technicians serving in the Medical Department, as compare to that of the similar cadre employees of the Central Government, as it was to be similarly made applicable to the X-Ray Technicians, working with the State Government, by virtue of the Government Order which was issued on 27th October 2010, in fact the purpose and benevolent purpose of the Government Order dated 27th October 2010, was to remove the disparity salary payable, in the payment of the scale between the Lab Technicians and that of the X-Ray Technicians and Dental Hygienist, working with the State Government. 5. The category of the Technicians, who had been working with the respondent/State, has been classified into three wider classes of Technicians i.e. (1). Technicians serving with the Medical Department (2). The Lab Technicians and (3). Dental Hygienist. 5. The category of the Technicians, who had been working with the respondent/State, has been classified into three wider classes of Technicians i.e. (1). Technicians serving with the Medical Department (2). The Lab Technicians and (3). Dental Hygienist. Though the scale which was made payable to Lab Technicians, and the Technicians in the Medical Department, as compare to that of the Central Government, was enhanced and upgraded, but the similar pay scale with regards to the post of the Technicians, which were upgraded by the Government Order of 15th April 2020 and 27th October 2010, but no decision of upgradation in payment of scale was taken in relation to the remaining third type of technicians i.e the Lab Technicians, the cadre to which the petitioners’ belong. They had been agitating their claim persistently, before the State Government by filing their representation, but no decision was taken, on the same. 6. Two of the similar Lab Technicians cadre employees have preferred a writ petition, before this Court being Writ Petition (S/S) No.118 of 2012, “Pawan Kashyap and another Vs. State of Uttarakhand & others”, the coordinate Bench of this Court, instead of venturing on the merits of the matter had rather disposed of the writ petition by a judgment dated 24th January 2012, thereby directing the respondent no.3, to take a decision in the matter qua the claim of the payment of the increased grade pay, as it has been made applicable to the other class of Technicians, to be similarly made applicable to the Lab Technicians working in the Government Hospital. In fact, for the purposes of deciding the present controversy, the extract of the entire judgment of 24th January, 2012, is required to be extracted in the present judgment in order to substantiate their claim, which was raised by the petitioners therein, it was in relation to the claiming of the equivalence of the scale as it was made payable to two other branches of Technicians. The judgment, as such, rendered by the coordinate Bench of this Court is extracted hereunder:- “Heard learned counsel for the parties. Learned counsel for the petitioners submitted that petitioners are working as Lab Technicians in the Government Hospital. The State Government vide Government Order dated 27.10.2010, revised the pay scale of the post of X Ray Technician from 4500-7000 (5200-20200) (Grade Pay 2800) to 9300-34800 (Grade Pay 4200) w.e.f. 01.09.2010. Learned counsel for the petitioners submitted that petitioners are working as Lab Technicians in the Government Hospital. The State Government vide Government Order dated 27.10.2010, revised the pay scale of the post of X Ray Technician from 4500-7000 (5200-20200) (Grade Pay 2800) to 9300-34800 (Grade Pay 4200) w.e.f. 01.09.2010. Similarly, the pay scale of Dental Hygienist was also upgraded. The petitioners being the Lab Technicians, moved their representations before the State Government for revision of their pay scale. The State Government ordered for submitting such proposal through Director General, Medical Health, and thereafter, Director General, Medical Health, recommended the claim of the Lab Technicians and other similar employees to the State Government vide order dated 16.07.2011, however no decision has yet been taken by the State Government. Learned counsel for the petitioners submitted that this petition may be decided with the direction to the respondent No. 1 and 3 to take a decision in the matter at the earliest. Learned Brief Holder appearing for the State has also given his consent to the above prayer made by learned counsel for the petitioner. Considering the facts and circumstances of the case, I hereby direct the respondent no.3 to take a decision in the matter, with regard to the present petitioners, within a period of six weeks from the date of production of certified copy of the order. Afterwards, the decision so taken, shall be communicated by respondent No.3 to the respondent No.1, who within six weeks thereafter, shall take final decision in the matter.” 7. In pursuance to the decision taken by the coordinate Bench on 24th January 2012, the petitioners therein in the said writ petition, under the light of the judgment of the coordinate Bench, had represented their case by filing a representation and consequently the State has taken a decision on the same vide its Order no. 308/XXXVIII-03-13-06writ/2012, on 28th March 2013. In fact, the decision, which was taken, it was observed that on account of there being a disparity as per paragraph No.29, of the Financial Handbook, the claim of the petitioners as Lab Technicians, was rejected by the decision taken by the Chief Secretary on 28th March 2013. 308/XXXVIII-03-13-06writ/2012, on 28th March 2013. In fact, the decision, which was taken, it was observed that on account of there being a disparity as per paragraph No.29, of the Financial Handbook, the claim of the petitioners as Lab Technicians, was rejected by the decision taken by the Chief Secretary on 28th March 2013. The relevant reasoning assigned for rejecting the claim is extracted hereunder:- D;ksafd foRrh; vf/kdkjksa ds Áfrfu/kk;u iSjk 29 esa fufgr Ákfo/kkukuqlkjA foRrh; vf/kdkj dsoy farm foHkkx dh vuqefr ls gh Áfrfufgr fd;s tk ldrs gSaA vr% ek0 mPp U;k;ky; uSuhrky }kjk fjV ;kfpdk la[;k&118 ¼,l0,l0½@2012 iou d';Ik o vU; cuke jkT; o vU; ij ikfjr vkns'k fnukad 24-01-2012 ,oa foRr ¼os0vk0&lk0fu0½ vuqHkkx&7 ds mijksDr 'kklukns'k fnukad 19-07-2012 ds vkyksd esa fpfdRlk LokLF; ,oa ifjokj dY;k.k foHkkx ds vUrxZr ySc VSDuhf'k;u dk osrueku iqujhf{kr fd;s tkus ds ÁLrko dk vkSfpR; u ik;s tkus ds dkj.k ,r}kjk fuLrkfjr fd;k tkrk gSA** 8. Being aggrieved against the said order of 28th March 2013, in fact, it is was a second phase of litigation, which was agitated by the Lab Technicians, for the grant of an equivalence in their grade pay as made admissible to the persons working in the similar cadre with the Government of India. The writ petition which was preferred, before this Court being Writ Petition (S/S) No.811 of 2013, “Pawan Kashyap and others Vs. State of Uttarakhand & others”. The coordinate Bench of this Court vide its judgment dated 4th June 2014, after apparently finding, that in the three branches of the technicians i.e. Lab Technicians, X-Ray Technicians and Dental hygienist, since they were similar branch of the same Technicians, working in the different fields, the Court observed that there has to be a parity in scale which has to be maintained, in the payment of the grade pay as it was revised by the State Government, from time to time. Thus, the Court observed that denial of parity of higher pay scale to the petitioners who too are the technicians or the technicians of the all the three branches, would be violative of Article 14 of the Constitution of India, and accordingly, based upon the aforesaid principles, and the logic assigned by the coordinate Bench, the coordinate Bench by the judgment of 4th June 2014, had allowed the writ petition, and the impugned office Memorandum under challenge therein of 28th March 2013, which was rendered by the respondent No.1, was quashed; along with the consequential letter of 19th July 2012. Simultaneously, a writ of mandamus was issued to the respondents to pay the scale of Rs,9300-34800, with the grade pay of Rs.4200, to the petitioners therein i.e. obviously and logically too it would be including the technicians belonging to all the three disciplines, which has been referred to above, as it has been given in other Government Hospitals w.e.f. 15th April 2010, i.e. the date from which, it was given to the dental hygienist and another branch of technicians. The relevant part of the judgment of 4th June 2014, is extracted hereunder:- “8. Therefore, the writ petition succeeds. The impugned office memo dated 28.03.2013 issued by respondent No. 1 and letter dated 19.07.2012 issued by respondent No. 3 are hereby quashed. A mandamus is issued to the respondents to give pay scale of Rs. 9300- 34800 (Grade Pay Rs. 4200) to the petitioners, as being given to the other Technicians in other Government Hospitals w.e.f. 15.04.2010 i.e. from the date which was given to the Dental Hygienist. It is further made clear that the order passed by this Court shall be complied with, within a period of three months from today.” 9. As a consequence of the implications of the judgment dated 4th June 2014, in fact the State Government had proceeded to issue a Government Order No.1953(1)/XXVIII-3-2015-104/206, dated 17th December 2015, in fact, while holding the entitlement of the payment of the revised pay scale to the Technicians of Rs.9300- 34800, with a grade pay of Rs.4800, but the same has been made applicable from the date of the issuance of the Government Order itself i.e. 17.12.2015. It is this part of the order, which has been agitated by the petitioners’, as to be an illegal, because they contended, that in case if any parity of scale, as it was envisaged to be extended to the petitioners, the Lab Technicians, if it was to be equally made payable like other trade of technicians, it was to be made payable w.e.f. 15th April 2010, when the same was granted to the other branches of Technicians i.e. Dental Hygienist, and the petitioners could not be discriminated by extending the benefit with effect from the date of the issuance of the Government Order dated 17th December 2015. In view of that apparent anomaly, and the discrimination, which was meted out to the petitioners, the petitioners have prayed for the following relief:- “A To issue a writ order or direction in the nature of certiorari for quashing the impugned Government Order dated 17.12.2015 issued by the Respondent No. 1 (Annexure No. 17 to the writ petition) in so far as it provides that the benefit of upgraded pay scale of Rs. 9300-34800 (Grade Pay of Rs. 4200) will be admissible with immediate effect. B. To issue a writ order or direction in the nature of mandamus declaring the action of Respondents in non-granting the pay scale of Rs. 9300-34800 (Grade Pay Rs. 4200) to the petitioners from due date i.e. 15.4.2010 when the same was granted to other Technicians, as arbitrary and illegal and also violative of Judgement dated 4.6.2014 (Annexure No. 16 to the writ petition). C. To issue a writ order or direction in the nature of mandamus commanding the Respondent No. I to forthwith grant the pay scale of Rs. 9300-34800 (Grade Pay Rs. 4200) to the petitioners from due date i.e. 15.4.2010 when the same was granted to other Technicians, as has also been directed by this Hon'ble Court vide Judgement dated 4.6.2014 (Annexure No. 16 to the writ petition). D. To issue a writ order or direction in the nature of mandamus commanding the Respondents to grant all consequential benefits to the petitioners. E. To issue any other writ order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case. F. Award the cost of the writ petition in favour of the petitioners. 10. E. To issue any other writ order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case. F. Award the cost of the writ petition in favour of the petitioners. 10. In fact, in principle, in a nutshell if the relief is summarized, there simple contention, was that they would be entitled to be paid with the similar revised pay scale, as settled to be paid by the judgment of the coordinate Bench of this Court with effect from 15th April 2010, and not from the prospective effect, as a consequence of the enforcement of the Government Order dated 17th December 2015, because the petitioners were not at fault at any juncture, rather they had been discriminated by the State. 11. The issue remained pending before this Court, and during the intervening period, as against the judgment of the coordinate Bench dated 04th June 2014, where a disparity was an issue which, was sought to be eradicated in the payment of the revised grade pay, to the other two branches of the Technicians. The matter was taken up before the Division Bench by the State, by preferring a Special Appeal being Special Appeal No.43 of 2015, “State of Uttarakhand Vs. Pawan Kashyap and others”. However, the Division Bench while it was ceased with the matter on 26th September, 2018, on the basis of the statement made by the State Counsel, that the Special Appeal has been rendered infructuous due to the certain subsequent development, though no reason has been given therein, as to which were the subsequent development, which was taken into consideration, when the Special Appeal was dismissed on 26th September 2018. 12. This Court is of the opinion, that as a consequence of the dismissal of the Special Appeal on 26th September 2018, may be for whatsoever reasons at least its impact would be, that the principles of parity with regards to the payment of the revised grade pay of Rs.9300-34800, with the grade pay of Rs.4200, to be made payable to the Technicians of all three branches, as that it has been paid to the Dental Hygienist with effect from 15th April 2010, was expected to be equally made payable to the branch of Lab Technicians, to which the petitioners’ belong with effect from 15th April 2010. Since the same was not remitted, the issue remained pending consideration in the present writ petition. 13. In another limb of proceedings, which was carried, and it too entailed a determination of the impact of the Government Order of 17th December, 2015, whereby the revised pay scale, with the grade pay of Rs.4200, was made applicable with the prospective effect from the date of the issuance of the Government Order itself. 14. The said matter was taken up in the Writ Petition (S/S) No.2210 of 2016, “Manoj Joshi and others Vs. State of Uttarakhand & others”, and the coordinate Bench of this Court while allowing the writ petition on 20th February 2018, and that too on the basis of the judgment rendered by the Hon’ble Apex Court as reported in 1991 (volume 2) SCC page 708, “Ex. Capt. K. Balasubramanian & others Vs. State of Tamil Nadu and others”. The coordinate Bench in the judgment dated 20th February 2018, had only touched to the question of change of qualification, by applying the principles of severability. In fact this judgment of 20th February 2018, was not at all disturbing the basic principles, which was laid down by the judgment of the coordinate Bench, in its judgment of 4th June 2014, though, both the judgments of 4th June 2014, or that of the another judgment of coordinate Bench of 22nd February 2018, were considering the propriety of the same Government Order dated 7th December 2015, but from the different prospective. The judgment of 04th June 2014, was from the prospective of a parity of scale which was to be maintained in the payment of the revised grade pay to the three disciplines of technicians, where as the judgment of 20th February 2018, it was qua the question of change in the qualification, but in either of the circumstances of the two judgment of the coordinate Benches of 4th June 2014 and that of 20th February 2018, it was rather scrutinizing the propriety of the Government Order of 7th December 2015, the applicability of which has been upheld by the decision of the Division Bench, referred to above. 15. 15. This Court is of the view that the consequential effect of the decision taken, qua the determination which had been made with regards to the implications of the Government Order dated 17th December 2015, in fact the petitioners’ case, after the dismissal of the Special Appeal preferred by the State, by the judgment of 26th September 2018, the wider principles which had been laid down by the coordinate Bench, of maintaining the parity in the grant of pay scale amongst same cadre of technicians, qua the same which has been paid to the another branch of technicians i.e. the Dental Hygienist, with effect from 15th April 2010. The same would have been made also applicable and the Government Order of 17th December 2015, so far it was relating to the payment of the enhanced scale, and the grade pay, could not have been made applicable prospectively by creating a discrimination as amongst the similar cadre or group of employees, who though might had been engaged in the different disciplines and as such the disparity which was being maintained by the Government Order of 17th December 2015, which was not a subject matter ever touched by the earlier two coordinate Benches, while allowing the writ petitions. 16. This Court is of the view that owing to the principles of the judgments of the coordinate Bench dated 4th June 2014, which widely envisaged that the extension of benefit of the revised pay scale has to be equally applied, to all the similar cadre of the employees of Technicians and that too with effect from 15th April 2010, as it has been made payable to one of the branch of the Dental Hygienist, hence no distinction as such in extension of benefit of the revised pay scale to the Technicians of the two other left over branches i.e. Lab Technicians and the X-Ray Technicians, could be created by virtue of the executive directions issued by the State Government by a Government Order dated 17th December 2015. 17. In that eventuality, and particularly considering the implications of the decision already taken by the coordinate Benches of this Court, the writ petition would stand allowed. 17. In that eventuality, and particularly considering the implications of the decision already taken by the coordinate Benches of this Court, the writ petition would stand allowed. A writ of mandamus is issued to the respondents that the benefit of the extension of the revised pay scale as it has been made applicable by the Government Order dated 17th December 2015, would be made applicable in relation to two other cadre of technicians with effect from 15th April 2010, to the petitioners cadre of technicians also, as it has been paid to the Dental Hygienist, based on the principle, which was decided by the coordinate Bench vide its judgment of 4th June 2014. 18. Accordingly, the writ petition is allowed. A writ of mandamus is issued to the respondents to pay to the petitioners who were working as a Lab Technicians, all the benefit of the revised pay scale, as enforced by the Government Order dated 17th December 2015 with effect from 15th April 2010, as it has already been paid to the other branches of Technicians for example Dental Hygienist, as it has been upheld by the coordinate Bench vide its judgment dated 4th June 2014. 19. It is further directed that the respondents would calculate the arrears payable to the petitioners with effect from 15th April 2010, and would ensure to remit it to the petitioners within a period of two months from the date of the production of a certified copy of the judgment, but so far as the benefit of the revised pay scale is concerned based on the Government Order dated 17th December, 2015, that would be made applicable forthwith to the petitioners in the same fashion as it has been paid to the other branch of technicians of dental hygienist.