Allahabad High Court
State Leprosy Medical Employees ... vs State Of Uttar Pradesh Through ... on 28 April, 2006
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Shri H.N. Shukla, learned Counsel for the petitioners and Shri M.S. Pipersenia, learned Standing Counsel for respondents.
2. The State Leprosy Medical Employees Association and its Secretary Shri Brahmachari Rai have filed this writ petition for a direction commanding the respondents including State of U.P. through Principal Secretary Medical (Health and Family Planning), Chief Secretary; Government of U.P. and Finance Secretary; Government of U.P. to provide to the Health Educators of the State Leprosy Department, working in the pay scale of Rs. 1400-2300/- upto 1.1.1996 and Rs. 4500-7000 after the revision of pay scale, the pay scale of Rs. 1640-2900/- from 1.1.86 to 1.1.1996 and Rs. 5500-9000 after 1.1.1996, as are applicable and paid to the similarly situated employees of the Central Government.
3. The members of the petitioner's association are serving as Health Educators in the District Level Office of Leprosy (D.L.O.) and Leprosy Control Unit (L.C.U.), under the National Leprosy Eradication Programme launched in the year 1954-55. All the petitioners are non-medical assistants/para Medical Workers in the State Leprosy Eradication Programme for which the essential qualification is Intermediate (Science) and four months training as per instructions issued by the General Bureau of Health Intelligence Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, New Delhi.
4. The National Leprosy Eradication Programme, received a fresh outlook, with the welfare of the leprosy victims also as part of the programme and was given a new name and style of National Leprosy Elimination Programme, 1984. The programme is funded by the World Bank and the scheme is sponsored by the Central Government.
5. The State Government has made the U.P. Leprosy Paramedical Subordinate Employees Service Rules, 1994, providing for source of recruitment of Health Educators, only by promotion from amongst substantively appointed Non-Medical Supervisors, who have completed one year of service as such, on the first day of the year of recruitment. The Non-Medical Supervisors are appointed by promotion from amongst substantively appointed Non-Medical Assistants, who have completed five years of service as such, on the first day of the year of the recruitment. A Health Educator, as such, has to work for at least six years including five years as Non-Medical Assistants for receiving second promotion as Health Educator.
6. It is contended that whereas in the Central Government the Health Educators are placed in the pay scale of Rs. 1640-2900, in pursuance of the recommendation of the 4th Pay Commission, the State Government had provided the pay scale of Rs. 1400-2300/- only. The General Secretary, Rajkiya Kustha Chikitsa Karmchari Sangh, U.P. made a representation on 25.3.1994, to provide the Health Educators in U.P., the same pay scale as it is applicable to the Health Educators working in the Central Government. The corresponding revised pay scale of the State Government and Central Government employees w.e.f. 1.1.1996 are Rs. 4500-7000/- and Rs. 5500-9000/- respectively. The representation was forwarded by the Director General, Medical and Health Services, U.P. to the Chief Secretary, Government of U.P. on 22.4.1996 with favourable recommendations. In this letter the Director General, Medical and Health Services wrote to the Chief Secretary, Government of U.P. that on the recommendation of the department, the State Government by Government Order dated 13.6.1991 has provided central pay scale to Non-Medical Assistants-2590 and Non-Medical Supervisors-541, however, the Health Educators-43 (69 in the pay scale) and Physiotherapy Technician-44 have not been provided the central pay scale so far. The Director General reminded the State Government that the National Leprosy Elimination Programme is sponsored by the Central Government on hundred percent basis and that educational qualifications, duties and responsibilities of the employees are also fixed in accordance with the policy laid down by the Central Government. A reminder was sent by the Director General, National Programme, Supervision and Assessment, U.P. Lucknow to the Principal Secretary, Government of U.P. on 29.7.1999, for providing the pay scales to 81 posts of Health Educators and 56 posts of Physiotherapy Technicians, in the same pay scale as they are applicable to the Central Government.
7. In the counter affidavit of Dr. B.K. Srivastava, Joint Director, Leprosy, Government of U.P. it is stated in paragraph 6 that the qualifications of Health Educators laid down by Government of India by its letter dated 10.4.1977, for direct recruitment is Graduate from a University or higher education preferable in Bio-Science, Social Work and Health Education. The Health Educators in the State Leprosy Cadre hold lesser qualifications. In paragraph 11 it is stated that in the Government of India the post is filled by direct recruitment while in the State it is filled by promotion by Non-Medical Supervisors. Thus there is no parity in the qualifications. In para 16 it is stated that in General Health Care System, the cadre of Swasthya Shiksha Adhikari is a separate cadre apart from that of Para Medical Personnels and that the recruitment of Swasthya Shiksha Adhikari is made through UP Public Service Commission. In para 21 it is stated that the Government of India implements the National Leprosy Elimination Programme through the State Government and the leprosy para medical staff in the Central Government only exist in Central and Regional Leprosy Teaching and Research Institute and their job responsibilities are more technical than of the Health Educators of State leprosy cadre. It is contended in para 22 that there is no parity between the two cadres.
8. In the rejoinder affidavit of Shri Brahmachari Rai, it is stated that the qualifications of the Health Educators to be appointed by promotion in the Central Government are Matriculation or equivalent qualification from any Board or University and 6/4 months of para medical worker (leprosy) and two months training as Health Educator. It is contended that the minimum qualification for promotion to the post of Health Educator in Central Government is lesser than the minimum qualification prescribed for Health Educator in State of U.P. and that the Health Educators of U.P. are more qualified.
9. Shri H.N. Shukla submits that there is clear discrimination in the pay scales between similarly situated employees with same duties and responsibilities. He submits that minimum qualifications for filling up the posts by promotion in the Central Government is only matriculation as against the minimum qualification in the State cadre of Intermediate with Science and that with same duties and responsibilities, the discrimination is violative of Article 14 and 16 of the Constitution of India. Shri Shukla states that there is no reason whatsoever to deny the same pay scales as are applicable to the Central Government, and has relied upon the recommendations made by the concerned authorities in 1996, 1999 and thereafter by the Director General, Medical and Health Services to the Secretary., Medical Health and Family Welfare, Government of U.P. on 14.8.2002. In the last recommendation dated 14.8.2002 there is reference to 71 posts of Health Educators and 47 posts of Physiotherapists.
10. The Standing Counsel has disputed the contentions. He submits that the qualifications for appointment and the nature of duties and responsibilities of the post are different. There is no discrimination at all and that just because the funds of the scheme arc provided by the Central Government, the claim for parity is the pay scales is not sustainable. The fixation of pay scales is essentially an executive function. It is the job of experts, to evaluate the duties and responsibilities attached to the posts, strain of work, experience involved, training required, responsibilities undertaken, mental and physical requirements and other relevant factors.
11. In Shyam Babu Verma and Ors. v. Union of India and Ors. the Supreme Court held that it is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them.
12. In State Bank of India and Ors. v. K.F. Subbaiah and Ors. relying upon Delhi Veterinary Association v. Union of India , the Supreme Court held in paragraph 23 as follows:
Ordinarily, a pay structure is evolved keeping in mind several factors, for example (i) method of recruitment, (ii) level at which recruitment is made, (Hi) the hierarchy of service in a given cadre, (iv) minimum educational/ technical qualifications required, (v) avenue of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, and (x) the employer's capacity to pay etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause unavoidable ripples; in other cadres as well, (See Secry., Finance Deptt. v. W.B. Registration Service Assn.)
13. In State of U.P. v. Section Officer Brotherhood the Supreme Court followed Union of India v. S.B. Vohra and held that judicial review in the matter of pay scales and pay parity is a highly complex and developing subject. It is not possible to lay down the standards. Ordinarily the Court does not exercise powers of the statutory authorities and allow the statutory authorities at the first instance to perform their own functions. The fixation of scale of pay, it was held in para 26, in favour of one class of employees has a spiraling effect and it is important that in the matter as regards fixation of scale of pay of officers working in different High Courts must be examined by expert body like Pay Commission or any other body and in the absence thereof the High Court under Article 229 of the Constitution of India. The Supreme Court as such left the matter of the intricacy of fixing pay scales and its cascading effects to the expert bodies.
14. In Rajasthan High Court v. Babu Lal Arora the Supreme Court held that the service conditions of the employees and their promotions and pay scales are not governed by any general principles of justice and fair play but by the service rules. The discretion, if any, can arise only amongst equals and not between those, who are in different cadres.
15. In Government of West Bengal v. Tarun K. Roy the Supreme Court observed in paragraph 14 as follows;
Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.
16. In the present case though the Central Government gives grant to the State Government under the National Leprosy Elimination Programme, the petitioners are the State Government employment and that their service conditions are regulated by the U.P. Leprosy Paramedical Subordinate Employees Service Rules, 1994. The qualifications for appointment as Health Educator is only by way of promotion of Non-Medical Supervisors, who have completed one year of service. The Non-Medical Supervisors are promoted from Non-Medical Assistants with five yours of service. The minimum qualification is Intermediate (Science). In the Central Government there are two source of appointment of Health Educators namely by promotion of those, who have passed Matriculation or equivalent examination from any Board or University with 6/4 months' training as Paramedical Worker (leprosy) and two months training as Health Educator or by direct recruitment of a graduate from any University with preference to candidates having higher qualification in Health Education, Bioscience and Social Work.
17. The Health Educators in Government of India are required to work in Central and Regional Leprosy Teaching and Research Institutes with more technical responsibilities than the Health Educators of the State Leprosy Cadre.
18. The Health Educators in Central and State Governments work under the same programme. There qualifications, duties and responsibilities, however, are different. The Court does not possess the expertise nor would like to venture into the job of studying the commonalities of qualifications, recruitment procedures, avenues of promotion, duties and responsibilities etc. The Supreme Court has held that such exercise should only be made by the expert bodies, as it has a cascading effect in the service and on other cadres. The Court would also not like to assess the employers' capacity to pay the increased salaries. There may be various Central Government schemes implemented through the State Government. Any order passed in this matter may adversely affect such employment, causing financial burden on the State Government. Although the Court is conscious of the fact that there are several recommendations made by the department to the State Government, the counter affidavit of Joint Director, Leprosy dated 11.5.2005 clearly rejects such request.
The writ petition is consequently dismissed, with no order as to costs.