Allahabad High Court
State Of U.P.Through Prin. Secy.P.W.D. ... vs Sanjay Kumar Saxena And Another on 18 July, 2019
Bench: Ajai Lamba, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL No. - 27 of 2012 Appellant :- State Of U.P.Through Prin. Secy.P.W.D. Lko.& Ors. Respondent :- Sanjay Kumar Saxena And Another Counsel for Appellant :- C.S.C Counsel for Respondent :- Ravi P. Singh Hon'ble Ajai Lamba,J.
Hon'ble Narendra Kumar Johari,J.
(ORAL)
1. State of U.P. through Principal Secretary, Public Works Department and four other State functionaries have preferred this special appeal challenging order dated 11.08.2011 rendered by learned Single Judge in Writ Petition No.5067 (SS) of 2011 titled 'Sanjay Kumar Saxena and Another Vs. State of U.P. and Others.
2. Learned counsel for the respondents/writ petitioners has not appeared.
The appeal relates to the year 2012. 7 years have gone by. We find no justifiable reason to await appearance of the counsel and adjourn the case.
In the above circumstances, with the assistance of learned counsel for the appellants/State Shri V.P. Nag, we have gone through the pleadings and contents of the impugned order.
We have also considered the law on the issue.
3. It appears that the respondents/writ petitioners filed the petition for issuance of a writ in the nature of mandamus directing respondents to provide benefit of judgment dated 13.09.2005 rendered in Writ Petition No.3932 (SS) of 2004 titled 'Ram Narayan Srivastava and others Vs. State of U.P. and others.
Vide the impugned order, the relief prayed for has been granted in the following terms:-
"Heard Mr. Ravi Pratap Singh, learned counsel for the petitioner and learned Standing Counsel for opposite parties.
The controversy raised through the instant writ petition has been settled by this Court through the judgment and order dated 13.9.23005 passed in bunch of writ petitions, leading case of which is writ petition No. 3932 (SS) of 2004 : Ram Narayan Srivastava and others versus State of U.P. and others, whereby this Hon'ble Court has held that the petitioners are held entitled to draw their salary in the pay-scale of Rs.1200-1800 with effect from the pay-scale being implemented in the State of U.P. and Rs. 4000-6000 with effect from 01.01.1996 and a writ of mandamus was issued to the State Government to implement the aforesaid pay-scales in case of the petitioners of that writ petition.
In light of the aforesaid decision of this Court, the writ petition is allowed in terms of the aforesaid judgment (supra) and the petitioners of this writ petition will also be entitled for the benefit of the order passed in the above writ petition. No order as to costs."
4. We have gone through contents of decision rendered in Writ Petition No.3932 (SS) of 2004 (supra). It appears that the writ petitioners sought pay-scale etc., in parity with some of the cadres in Central Public Works Department w.e.f. 01.01.1996. The writ petition was allowed. In such circumstances, even vide impugned order, the writ petition was allowed in terms of judgment rendered in Writ Petition No.3932 (SS) of 2004 (supra).
5. Shri V.P. Nag, learned counsel for the appellants/State, has pointed out that in fact scores of writ petitions were decided vide judgment rendered in the lead case viz. Writ Petition No.3932 (SSS) of 2004 (supra). The said judgment came to be challenged by virtue of Special Appeal No.57 of 2006 titled State of U.P. Vs. Ram Narayan Srivastava'. The special appeal has been allowed vide judgment dated 27.10.2017. In such circumstances, even the appeal under consideration is required to be allowed, and the writ petition dismissed.
6. We have considered the contention of learned counsel for the appellants/State.
In Special Appeal No. 57 of 2006 (supra), legality of judgment rendered in Writ Petition No.3932 (SS) of 2004 (supra) was considered. The following has been held by Division Bench of this Court in Paras - 6 to 11 :-
"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. Vs. 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. 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. 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 Vs. 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. Vs. 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'. 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 case 12).
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. 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 case 6).
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. 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."
7. Considering the above extracted portion of the judgment, it becomes evident that case of the appellants is covered in their favour by virtue of judgment rendered by Division Bench of this Court in Special Appeal No.57 of 2006 (supra). In such circumstances, we have no hesitation in holding that the instant appeal deserves to be allowed.
8. In view of the above, the appeal is allowed.
Judgment rendered by learned Single Judge dated 11.08.2011 in Writ Petition No.5067 (SS) of 2011 (supra) is hereby set aside. Consequently, the writ petition is dismissed.
Order Date :- 18.7.2019 Nishant/-