Gujarat High Court
Kamlesh T. Dalal (Kamlesh Thakorlal ... vs State Of Gujarat on 11 December, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/3477/2019 ORDER DATED: 11/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3477 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 5400 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 5588 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12341 of 2021
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KAMLESH T. DALAL (KAMLESH THAKORLAL DALAL) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 16,19,8
MR ROHIT N PATEL(6045) for the Petitioner(s) No.
1,10,11,12,13,14,15,16.1,17,18,19.1,2,20,21,22,3,4,5,6,7,8.1,9
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
RAJVI PATEL(9620) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/12/2024
ORAL ORDER
1. Heard Mr. Rohit N. Patel, the learned advocate appearing for the petitioners, Ms. Pooja Ashar, the learned advocate appearing for the respondent No.1 - State and Ms. Rajvi Patel, the learned advocate appearing for the respondent No.2.
2. Since the issue involved in all the captioned petitions is self-same, are heard analogously and are being disposed of by Page 1 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined this common order. For the sake of convenience, Special Civil Application No.3477 of 2019 is treated as lead matter.
3. The petitioners herein are retired employees of the Gujarat Industrial Development Corporation (for short 'GIDC') have initially joined the service of the respondent No.2 as Additional Assistant Engineer. All the petitioners retired and are seeking benefit of arrears of revised pay-scale from 1.1.1986 to 1.4.1999 (notional pay) in accordance with the circular issued by the General Administrative Department - respondent State dated 22.8.2014. The respondent - State has extended the benefit of said circular to the similarly situated employees.
4. The Finance Department of the respondent - State issued a Government Resolution dated 28.7.2015 wherein it is stated that as per the decision dated 31.3.2014 rendered in the Letters Patent Appeal No.834 of 2012 in the Special Civil Application No.5210 of 1995 the effect of the pay-scale from Page 2 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined 1.1.1986 (notional pay) and payment of arrears should be made from dated 1.4.1992. The said benefit was extended to the Additional Assistant Engineers of Narmada Water Resources, Water Supply and Kalpsar Department.
5. It is submitted that the said judgment is subject matter of Appeal before the Hon'ble Apex Court which is pending adjudication.
6. The General Secretary of GIDC Employees Union made a representation on 07.09.2015 to the respondent no.2 for giving the benefits of revised pay scale to the petitioners w.e.f. 01-01- 1986 which is duly produced at Annexure-D.
7. On 10.12.2015, the Union issued a letter to the respondent No.2 reiterating the aforesaid which is duly produced at Annexure-H.
8. The Gujarat State Board Corporation/Government Page 3 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined enterprises Karmachari Maha Mandal issued a recommendation to the respondent no.2 to implement the judgment and order passed by the Honorable High Court in Civil Application No.6971/2012 in Letters Patent Appeal No.834/2012 in the Special Civil Application No.52 10/1995 and give effect of revised pay scale to the Additional Assistant Engineer from 01.01.1986 to 01.04.1992 (Notional Pay) because it is applicable to those who are similarly situated employees like the petitioners and the order passed in the LPA.
9. The Industries and Mines Department communicated on 9.8.2016 to the respondent No.2 that the benefit of revised pay-scale can be granted to the Narmada Water Resources, Water Supply and Kalpsar Department that the said benefit cannot be extended to the employees of the Road and Building Department, Panchayat Department and the employees of the Board and Corporation, the question does not arise. The said communication is duly produced at Annexure-L.
10. In light of the ratio laid down in the Letters Patent Page 4 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined Appeal No.834 of 2012 in the Special Civil Application No.5210 of 1995 the petitioners herein are seeking the benefit of Circular dated 22.8.2014 and being aggrieved by non-grant of the said benefit have approached this Court praying for the following reliefs :-
"(A) To allow this petition.
(B) Be pleased to quash and set aside the impugned orders dated 25.02.2016, 18.06.2018 and 09.08.2017 (Annexures K, L&M) by issuing a writ, order and direction under article 226 of Constitution of India.
(C) Be pleased to direct the respondents authority to pay/grant the benefits of revised pay scale from 01.01.1986 not from 01.04.1992 and revise the retirement benefits and also pay the arrears of the said benefits with 18% interest p.a. (D) Be pleased to pass any other order as deem fit and proper."
Submissions on behalf of the petitioners :- Page 5 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024
NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined
11. Mr. Rohit N. Patel, the learned advocate appearing for the petitioners submits that the petitioners herein are retired employees of the GIDC joined the service as Additional Assistant Engineer. It is submitted that the respondent No.2 issued and order No.GIDC/PLA/ROP/100 dated 11.10.1993 revising the pay-scale of the Additional Assistant Engineer from Rs.1400-2300 to Rs.1640-EB-75-2900 w.e.f. 1.4.1992 which is approved by the Government.
11.1 It is submitted that the petitioners herein are entitled to the benefit of the pay-scale from 1.1.1986 to 1.4.1992 (notional) in accordance with the benefit extended to the Additional Assistant Engineers of Narmada Water Resources, Water Supply and Kalpsar Department.
11.2 It is submitted that the petitioners herein made various representations to the respondent No.2 for grant of the said benefit, as referred above.
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NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined 11.3 Reliance is placed on the ratio as laid down in the LPA No.834 of 2012 in the Special Civil Application No.5210 of 1995 dated 31.3.2014 wherein it is held that the benefit of revised pay-scale of Additional Assistant Engineer be granted w.e.f. 1.1.1986 to 1.4.1992 and actual payment be made from 1.4.1992 and payment of arrears of revised pay-scale should be made 31.8.2015.
11.4 It is submitted that the Karmachari Maha Mandal issued recommendation letter to the respondent No.2 to implement the said judgment/order rendered in the LPA No.834 of 2012. 11.5 It is submitted that the petitioners herein are entitled to the same pay-scale and non-granting of same is violative of Articles 14 and 16 of the Constitution of India. 11.6 It is submitted that on 25.2.2016 (page-35) (Annexure- J), 18.6.2018 (page-36) (Annexure-K) and 9.8.2017 (page-37) (Annexure-L) whereby the respondent No.2 by the said communications has declined to consider the representations Page 7 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined made by the petitioners wherein reliance is placed on the order passed in the LPA No.834 of 2012 in the Special Civil Application No.5210 of 1995, Civil Application No..6971 of 2012 whereby by the Government Resolution dated 28.7.2015 benefit is extended to the employees of Narmada Water Resources, Water Supply and Kalpsar Department and Additional Assistant Engineers of the said Department are granted the said benefit.
11.7 The said order passed in the LPA is subject matter of Appeal before the Hon'ble Apex Court. By communication dated 18.6.2018 it is stated that the respondent No.2 asked for guidance from the respondent State by communication dated 8.7.2017 it is informed that the Additional Assistant Engineers of the respondent No.2 are not entitled to the benefit of the said Government Resolution, in view thereof no further action is required to be taken by the respondent No.2 (page-36). 11.8 By communication dated 9.8.2017 the respondent No.2 Page 8 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined stated that the Government Resolution dated 28.7.2015 is applicable to the Narmada Water Resources, Water Supply and Kalpsar Department. With respect to the representation dated 16.2.2007 it is stated that the said Resolution is applicable to the aforesaid departments. The said Government Resolution is not applicable to the Road and Building Department as also Panchayat, Board. The aforesaid communication issued by the respondent No.2 has given rise to the filing of the present petition.
11.9 Placing reliance on the aforesaid, it is submitted that the petitioners herein are entitled to the benefit and that the impugned orders, as referred above, are required to be quashed and set aside and the petitioners be granted the revised pay-scale w.e.f. 1.1.1986 and not from 1.4.1992 and revised retirement benefits and arrears at the rate of 18% be granted.
Submissions on behalf of the respondent No.2 :-
12. Ms. Rajvi Patel, the learned advocate appearing for the Page 9 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined respondent No.2 relied on the affidavit-in-reply filed by the respondent No.2 and submitted that the respondent No.2 is an undertaking of the Government of Gujarat meaning thereby the actions are governed by its parent organization i.e. Industries and Mines Department, in view thereof the communications impugned are in compliance with the directions issued by the R & B Department as well as the applicability of the issues regarding the policy decision. It is submitted that the Corporation had earlier sought direction from the R & B Department vide letter dated 16.2.2017. By Letter vide letter No.GID/10/2017/402/G dated 9.8.2017 the respondent Department provided with the necessary details. It is submitted that the reliance placed by the petitioner on the order passed in the LPA No.834 of 2012 is with respect to those Additional Assistant Engineers working under Narmada Water Resources, Water Supply and Kalpsar Department which does not include the respondent No.2.
12.1 It is submitted that the impugned communications are in Page 10 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined due compliance with the directions issued by the respondent No.1 herein.
12.2 Reliance is placed on further affidavit-in-reply which is placed on record at page-58. Placing reliance on the same reiterated and it is submitted that, it is well settled principles that different posts having different pay-scale does not create the right of parity. Since the State Government which is the competent authority consciously decided to equate two posts of two departments, the respondent No.2 cannot by-pass the same and on its own adopt and extend the benefit to its employees. 12.3 It is submitted that the principle of equal pay for equal work would not be applicable in the facts of the present case merely on the ground that, both the subject and reference posts have the same nomenclature as the same belong to different establishments having different management and governed by the separate Act.
12.4 It is submitted that the matter of pay revision and the Page 11 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined date from which service benefits should be given, are questions falling within domain of executive government whose decision in such matters are final and binding upon the respondent No.2 - GIDC.
12.5 It is lastly submitted that the benefits as prayed for cannot be extended, the same being decided by the respondent
- State and the respondent No.2 GIDC is bound by the letter dated 9.8.2017 issued by the Industries and Mines Department of the respondent - State.
12.6 Answering the contentions raised by Mr. Rohit Patel, the learned advocate appearing for the petitioner seeking parity with the order passed in the LPA No.834 of 2012, placing reliance on the chart it is submitted that pay-scale of Assistant Engineers revised from 1640-2900 to Rs.2000-3200 w.e.f. 1.1.1986 in the year 1991 and pay scale of Additional Assistant Engineers revised from Rs.1400-2300 to Rs.1640-2900 w.e.f. 1.4.1992 in the year 1992 :-
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NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined (A) It is submitted that the Special Civil Application No.451 of 1991, was preferred as the pay-scale of Additional Assistant Engineer was not revised which petition came to be withdrawn on Assurance of the respondent - State to revise the pay-scale of the said petitioner.
(B) In the Special Civil Application No.5210 of 1995, wherein the Additional Assistant Engineer Association sought revision of pay-scale w.e.f. 1.1.1986, seeking parity with Junior Geologists and Assistant Engineer of the same Department i.e. Narmada Water Supply Department which came to be dismissed by order dated 28.3.2012.
(C) The aforesaid was subject matter of appeal being LPA No.834 of 2012, wherein it was held that the petitioners members were of the same Department and hence members of the same Department ought to be treated equally and in view thereof the benefits were granted to the of the Association with effect from 1.1.1986. It is submitted that the members of Page 13 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined the petitioner association also includes Additional Assistant Engineer of Road and Building Department wherein they were extended the benefit of the said pay-scale placing reliance on the Circular dated 28.7.2015 which is duly produced at Annexure-C to the petition.
12.7 Placing reliance on the aforesaid submissions, it is submitted that the Circular dated 28.7.2015 issued by the Finance Department, State of Gujarat and the Circular dated 13.9.2019 was issued by the Road and Building Department does not apply to the respondent Corporation. The resolution issued by the respondent State in the Narmada Water Resources and Water Resources Services does not automatically apply to the Corporation and the employees of the Corporation.
12.8 It is submitted that the respondent Corporation has not passed any resolution nor has it framed any rules to adopt the decision with respect to the revision of the pay-scale applicable Page 14 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined to Additional Assistant Engineer w.e.f. 1.1.1986 as applicable to the aforesaid Department.
12.9 Placing reliance on the aforesaid submissions, reliance is placed on the order passed in the Special Civil Application No.9620 of 2015 wherein it is held that the decision to implement or not to implement any recommendations by the Pay Commission more particularly the same involve financial implications, depends on several factors and such decision can be taken only by the concerned body, organization or the establishment. It falls within the realm of discretion of the said organization and that it is not justified for the Court to bind the employees of the said organization with the view of the Court.
12.10 Reliance is also placed on the ratio as laid down in the decision in the case of Punjab State Electricity Board and Ors., vs. Thana Singh and Ors., reported in AIR 2019 SC 354. Placing reliance on the same, it is submitted that the person Page 15 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined claiming parity must provide material to the Court to prove their nature of duties and functions are similar and that they are entitled to the benefit of such pay-scale. 12.11 Placing reliance on the aforesaid, it is submitted that the petitioners have failed to place on record as to how the petitioners are seeking parity with the pay-scale of Additional Assistant Engineers of Narmada Water Resources, Water Supply and Kalpsar Department. It is submitted that the prayers as prayed for against the respondent No.2 are such that the same are not tenable and the petition be dismissed in limine.
13. Ms. Pooja Ashar, the learned advocate appearing for the respondent No.1 - State supported the submissions advanced by Ms. Patel, the learned advocate appearing for the respondent No.2 and submitted that the said circular issued by the GAD dated 28.7.2015 subsequent thereto the circular issued by the Road and Building Department dated 13.9.2019, the Page 16 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined parental department of the respondent No.2 is Industries and Mines Department which has not issued the said circular. 13.1 It is submitted that the respondent No.2 is an undertaking of the respondent No.1 - State and governed by the actions and directions of the aforesaid department. It is submitted that in view thereof the respondent - State declined by communication dated 16.2.2017 provided necessary directions stating that the said benefit cannot be extended to the petitioners herein.
14. Mr. Patel, the learned advocate appearing for the petitioners in rejoinder has also placed on record the details of the Additional Assistant Engineers in the Narmada Water Resources, Water Supply and Kalpsar Department wherein the said benefit is extended. It is submitted that in light of the ratio as laid down by the Hon'ble Apex Court in 2013 PWD Workers, applying the said ratio all the departments are required to grant the benefit of the pay-scale in all the Page 17 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined departments.
14.1 Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for in the present petition be allowed.
Analysis :-
15. Having heard the learned advocates appearing for the respective parties, upon perusal of the documents on record and the facts of the present case, the following emerges;
That the petitioners herein have retired from the respondent No.2 upon attaining the age of superannuation as Additional Assistant Engineers. The pay-scale for the post of Additional Assistant Engineer came to be revised from Rs.1400- 2300 to Rs.1640-EB-75-2900 w.e.f. 1.4.1992 by Circular dated 11.10.1993 issued by the respondent No.2. The petitioners herein are seeking the pay-scale of Additional Assistant Engineers extended to the Additional Assistant Engineers, Narmada and Water Resources and Water Supply Irrigation Page 18 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined Department which came to be revised w.e.f. 1.1.1986 by Circular dated 28.7.2015 issued by the Finance Department of the respondent - State. The GIDC Employees Union by communication dated 10.12.2015 and 21.12.2015 sought the benefit of the said Circular dated 28.7.2015 qua the employees of the GIDC. The respondent No.2 - GIDC sought clarification from the respondent No.1 by letter dated 16.2.2017 with respect to the applicability of the said Circular dated 28.7.2015 to which by communication dated 9.8.2017 it was stated that the said circular is only for Additional Assistant Engineer of the Narmada and Water Resources and Water Supply Irrigation Department and not approved for the respondent No.2 - Corporation.
15.1 It is the stance of the respondent No.2 that the petitioners are not entitled to the benefit of the said pay-scale which was extended to the employees of the aforesaid departments.
16. It is not in dispute that the respondent No.2 is an Page 19 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined independent local authority which is distinct from the State Government and has its own rules and regulations including service conditions of the employees appointed by the respondent Corporation. The respondent No.2 is an undertaking governed by the the actions and directions of its parents organization, Industries and Mines Department. As stated above, the respondent No.1 has stated that the said circular dated 28.7.2015 is not applicable to the respondent No.2 and the respondent No.2 has also not adopted the said circular.
17. The Special Civil Application No.451 of 1991 was preferred as the pay-scale of the Additional Assistant Engineers was not revised which came to be withdrawn upon assurance by the respondent - State to revise the pay-scale of the petitioners.
18. On perusal of the order passed in the LPA No.834 of 2012, upon which reliance is placed by the learned advocate appearing for the petitioners seeking parity with appellants of Page 20 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined the said Appeal, in para-2.3 it is recorded by the Hon'ble Division Bench that the said circular dated 28.7.2015 which was issued by the Finance Department for granting of benefit of the revised pay-scale to the employees of the Narmada and Water Resources and Water Supply Irrigation Department w.e.f. 1.1.1986 and 1.4.1992. Upon perusal of the said order it also emerges that the Appeal was allowed on the ground that the petitioners were members of the same Department and it was directed to be treated equally and that the members of the Association who were granted the benefit w.e.f. 1.1.1986 the appellants in LPA were required to be granted the same benefit wherein all the appellants were members of the Association including the Additional Assistant Engineers of the Road and Building Department.
19. Position of law :-
This Court deems it fit to refer to the position of law, as referred by Ms. Patel, the learned advocate appearing for the Page 21 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined respondent No.2 :-
(A) In the case of Punjab State Electricity Board Versus Thana Singh, reported in AIR 2019 SC 354, paragraphs 1, 6, 7, 11, 15, 16, 21 and 27 read thus :-
"1. Leave granted.
6. The learned Single Judge allowed the writ petition holding that the Sub Fire Officers are within Group XII that included Head Clerks, Head Clerk-cum-Divisional Accountants, Internal Auditors, etc. therefore, Sub Fire Officers cannot be denied same scales of pay when increased for other three classes of persons within Group XII. However, the learned Single Judge rejected the respondent's plea claiming parity with the employees of the State Government. Observing that the respondents are to be treated on par with other three classes within Group XII of the Board, the learned Single Judge allowed the writ petition.
7. The Division Bench of the High Court dismissed the appeal filed by the appellant-Board holding that there is no basis for differently treating the Sub Fire Officers included in Group XII. The Division Bench has referred to the letter dated 25.03.1991 of the Superintendent Engineer, GNDTP, Bhatinda stating that the cadre of Sub Fire Officers is a small one with limited chances of promotion to the higher posts i.e. Fire Officers and that by revising the scale of Sub Fire Officers on par with others, there will not be much Page 22 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined financial burden on the Board. Being aggrieved, the appellant-Board is before us.
11. It is fairly well settled that equation of pay scales must be left to the Government and on the decision of the experts and the Court should not interfere with it. Observing that equation of pay scales of posts must be left to the Government and the experts, in Steel Authority of India Limited and Others v. Dibyendu Bhattacharya (2011) 11 SCC 122, this Court held as under:-
"26. In Union of India and Others v. S.L. Dutta and Another (1991) 1 SCC 505, Union of India and Others v. N.Y. Apte and Others (1998) 6 SCC 741, State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353, this Court held that the determination that two posts are equal or not, is a job of the Expert Committee and the court should not interfere with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous considerations. More so, it is an executive function to fix the service conditions, etc. and lies within the exclusive domain of the rule-making authority. (See also T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi Devasthanams and Others (2009) 1 SCC 546.)"
15. In the year 1988, though the post of Sub Fire Officers has been included in Group XII in one category as that of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors, the nature of work, duties, responsibilities and initial qualifications for recruitment and manner of recruitment to each post are different since all these posts belong to different cadre. The respondents cannot claim as a matter of right that they should be given the similar pay scale as are given to the categories of posts such as Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Page 23 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined Auditors.
16. For considering the equation of posts, the following factors had been held to be determinative:-
1. The nature and duties of a post;
2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;
3. The minimum qualifications, if any, prescribed for recruitment to the post; and
4. The salary of the post (vide Union of India and Another v.
P.K. Roy and Others AIR 1968 SC 850).
21. Burden of establishing parity in pay scale and employment is on the person claiming such right. There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale. As pointed out earlier, the burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities. In the writ petition, respondents have only claimed parity of pay scale with those of the employees working under the Punjab Government which was not accepted by the learned Single Judge. Determination of parity or disparity in duties and responsibilities is a complex issue and the same should be left to the expert body. When the expert body considered revision of pay for various posts, it did not revise the pay scale of Sub Fire Officers. When the expert body has taken such a view, it is not for the courts to substitute its views and interfere with the same and Page 24 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined take a different view.
27. Respondents have not produced any material to show that there is any similarity/identity between the posts of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors in terms of the nature of duties, responsibilities, qualifications and mode of recruitment etc. to apply the principle of parity of pay scale. The learned Single Judge did not keep in view that the nature of duties and responsibilities performed by the Sub Fire Officers are different and parity cannot be claimed merely on the ground that they are categorised in one group. The judgment of the learned Single Judge and the impugned judgment of the Division Bench cannot be sustained and are liable to be set aside." (B) In the case of Vaidya Rosemary Hazkial Ghodhara vs. Ahmedabad Municipal Corporation, order dated 5.2.2018 passed in the Special Civil Application No.9620 of 2015, paragraphs No.27, 53 to 59 read thus :-
"27. At the outset, it is relevant and necessary to note that neither the petitioner has specifically averred, stated and asserted that the pay scale of Rs.800013500 and Rs.930034800 is applicable to and/or adopted by the respondent corporation for its employees since 22.7.1996 or w.e.f. any date thereafter. The learned counsel for the petitioner could not show any provision under BPMC Act Page 25 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined and/or Panchayat Act which prescribe that the resolution issued by the State, in exercise of power under Panchayat Act, for employees in Panchayat Service and/or the service conditions of panchayat employees under Panchayat Service Rules and/or pay scales under Panchayat Services automatically apply to Municipal Corporation and to the employees under Municipal Corporation. Actually, the petitioner has not even pleaded such case. There is nothing on record to establish that said pay scale is applicable to Medical Officers in ClassIII employed by Municipal Corporation and/or that the Medical Officers employed in ClassIII by the Corporation are paid salary in said pay scale and that the employee is deprived of said benefit and is discriminated. Such case is not pleased even by the petitioner. All that he has claimed is that Government issued above mentioned notification.
53. The decision to implement or to not implement any recommendations by pay commission, particularly recommendations which involve financial implications, depends on several factors and such decision can be taken only by concerned body, organisation or the establishment. Such decision would depend upon various factors such as setup of the establishment, number of employees, their existing salary and service conditions and above all the financial burden which would be Page 26 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined imposed visavis financial condition of the establishment or organization or local authority and recurring liability.
54. The decision related to said subject would fall within realm of discretion of the organization and it would not be justified for the Court to bind the employ with Court's view or wisdom or decision and direct any local authority or any autonomous body to adopt and implement any resolution issued by the Government though such resolution is not issued in respect of such independent and autonomous and distinct body (e.g. municipal corporation) and/or by ignoring the fact that such body / establishment (e.g. respondent corporation) is not covered within purview of such resolution / notification and the Government itself, in its wisdom, has not covered such autonomous body (e.g. respondent corporation) within purview of such resolution or recommendation. When the Government did not include the corporation within the ambit of the resolution / notification, this Court would not and cannot issue direction to corporation to adopt and implement such resolution/notification.
55. Unless and until corporation independently and on its own motion and after assessing and evaluating relevant factors accepts, adopts and implements such Page 27 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined resolution / notification, the petitioner would not be entitled for any benefits in accordance with said resolution / notification and any direction to the corporation to grant benefit to the petitioner in accordance with said resolution / notification cannot be passed and cannot be granted by the Court.
56. The petitioner has also made reference of recommendation by Tikoo Commission and she has claimed benefit of said recommendation. However, it is overlooked that the said recommendations are made in respect of government employees. The said recommendations are made after considering and examining existing pay scales, service conditions, financial burden, job specifications, etc. of government establishment and government employees and with regard to corporation's establishment and corporations services, posts, job specifications and other relevant factors. The said recommendations are not made in respect of and/or are not applicable to the corporation and its employees.
Thus, the aspects discussed above are equally
applicable in respect of the said recommendations
as well. Hence, any directions as claimed with
reference to said recommendations.
57. Having regard to the facts of the case and in light of
the foregoing discussion and more particularly in light
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NEUTRAL CITATION
C/SCA/3477/2019 ORDER DATED: 11/12/2024
undefined
of the fact that there is nothing in the government
resolution dated 25.7.1996 and the office order dated
11.11.2015 and the government resolution dated
22.10.1997 that the decision / policy declared by the said
resolution or notification or office order is
applicable to the respondent corporation and it is binding to
the said corporation, the benefit prayed for by the petitioner cannot be granted.
58. There is no justification in the demand by the petitioner and the relief prayed for by her. Any case for the said benefit is not made out.
59. The petition fails and deserves to be rejected and is accordingly rejected. Notice is discharged."
(C) In the decision of the Hon'ble Apex Court in the case of State Of Gujarat Versus P.A.Bhatt, reported in 2023 AIR SC 2164 wherein the Hon'ble Apex Court has held that Allopathy doctors and doctors of indigenous medicine cannot be said to be performing equal work and they are not entitled to equal pay. Paragraphs 36 and 37 read thus :-
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NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined "36. In Director of Elementary Education, Odisha vs. Pramod Kumar Sahoo, (2019) 10 SCC 674 this Court held that the classification based upon educational qualification for the grant of higher pay scale, is a valid classification. This Court relied upon the decision in Shyam Babu Verma (supra).
37. Therefore, it is clear that the classification based upon educational qualification is not violative of Articles 14 and 16 of the Constitution. Hence, our answer to Issue No.1 will be in favour of the State and against the respondents. Question No.2: Whether Allopathy doctors and the respondents practicing alternative systems of medicine can be said to be performing "equal work" so as to be entitled to "equal pay"."
20. It is also apposite to deal with the judgments relied by Mr. Patel, the learned advocate appearing for the petitioners.
Reliance is placed on the order passed in the SCA No.18621 of 2016. On perusal of the said order, it emerges that the petitioners herein are granted the benefit of the pay- scale revised w.e.f. 1.1.1986 wherein they were in the Narmada Water Resources, Water Supply and Kalpsar Department.
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NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined The ratio laid down in AIR 2023 SC 2164, SCA No.8816 of 2020 and (1982) 1 SCC 618 is not in dispute wherein the principle of equal pay for equal work comes into play and that there should not be any irrational classification.
21. This Court has also perused the documents that are produced on record by Mr. Patel, the learned advocate appearing for the petitioners wherein the benefit is extended to the Additional Assistant Engineers of Narmada Water Resources, Water Supply and Kalpsar Department who fall within the Road and Building Department. The petitioners herein are the employees of respondent No.2 GIDC which has its own rules and regulations and is an undertaking of Government of Gujarat meaning thereby the action undertaken by the respondent No.2 are governed by its parent organization i.e. Industries and Mines Department. The order passed in the Letters Patent Appeal No.834 of 2012 does not include the respondent No.2.
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NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined Nothing is placed on record to show that the petitioners herein who have superannuated were performing the same duty as that of those Additional Assistant Engineers of the Narmada Water Resources, Water Supply and Kalpsar Department. Merely contending in the petition does not accrue any right in favour of the petitioners, the same has to be substantiated by way of documentary proof to show that the petitioners are deprived of equal pay-scale which is extended to the employees of the Departments as referred above. Having failed to demonstrate the same, the aforesaid judgments are not applicable in the facts of the present case.
22. In light of the aforesaid, in the facts of the present case, considering the position of law, as referred above, the documents that are produced on record, the prayers as prayed for in the present petition are such, this Court is not inclined to grant the same wherein the communications dated 25.2.2016, 18.6.2018 and 9.8.2017 which are issued by the respondent No.2 are in line with the communication issued by Page 32 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024 NEUTRAL CITATION C/SCA/3477/2019 ORDER DATED: 11/12/2024 undefined the respondent No.1 dated 9.8.2017 wherein the respondent No.2 is categorically informed that the benefit of pay-scale granted to the Additional Assistant Engineers of the Narmada Water Resources, Water Supply and Kalpsar Department are not applicable to the respondent No.2 and the respondent No.2 has also stated which is not in dispute that the respondent No.2 has its own rules and regulations and has not adopted the said Government Resolution.
23. In view thereof, no case is made out to exercise extraordinary jurisdiction under Article 226 of the Constitution of India, hence the petitions fail and the same are dismissed.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 33 of 33 Uploaded by K.K. SAIYED(HC00169) on Tue Dec 24 2024 Downloaded on : Fri Dec 27 22:17:06 IST 2024