Gujarat High Court
Jm Shah vs State Of Gujarat & 2 on 12 January, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/7785/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7785 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JM SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner(s) No. 1
MR PRANAV TRIVEDI, AGP for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 12/01/2016
ORAL JUDGMENT
1. The petitioner, a retired employee of the BJ Medical College, Ahmedabad, has filed this petition seeking a relief that the Page 1 of 10 HC-NIC Page 1 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT petitioner be placed in the pay scale of Rs. 170-250 from the initial date of appointment with all consequential benefits.
2. The case has longish history. Briefly stated, the facts are as under:
The petitioner was appointed as the micro photographer in the BJ Medical College initially on 18.08.1962. He was regularly appointed to the said post on 31.01.1963, which carried the pay scale of Rs. 55-130. Case of the petitioner is that, the pay scale attached to the post was not commensurate with the qualification, duties and responsibilities attached to the said post. According to the petitioner, various other Government organizations had sanctioned posts of photographer which carried much higher pay scale than that of the petitioner and the petitioner, therefore, could have been equated at least with such post and granted equivalence in pay scale.
3. The petitioner first time raised the issue in the year 1963 where, writing a letter to the Government of Gujarat pointing out the injustice being done to him. Even the Din of the Medical College, Ahmedabad, under his letter dated 11.11.1963, recommended the case of the petitioner. It was pointed out that, the pay scale for the post of photographer in Medical Colleges was Rs. 80-120, which was, later on revised to Rs. 125-160 and that, therefore, the petitioner should be placed in the said pay scale of Rs. 125-160. On 17.03.1964, the Professor of Pathology, BJ Medical College, represented the Government Page 2 of 10 HC-NIC Page 2 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT pointing out that the other departments carry the post of photographer with much higher salary scale and that, therefore, the petitioner be placed in the revised pay scale of Rs. 160-330. There were other such recommendatory letters written by the employers also, we need not, however, take detail note of all of them. On 16.02.1966, the Government wrote to the Din of the BJ Medical College that the pay scale of the petitioner for the post of the petitioner cannot be revised.
4. Finally, the petitioner approached the High Court by filing Special Civil Application No. 1482 of 1982 which was disposed of by a judgement dated 02.07.1996 directing the respondent authorities to pass the speaking order with respect to the grievances of the petitioner. Such order came to be passed on 20.08.1996. Request of the petitioner for revision of the pay scale was not accepted. The petitioner, thereupon, filed this fresh petition.
5. Learned counsel Mr. Pathak taking me painstakingly through the different recommendatory letters issued by the authorities of the BJ Medical College contended that the duties and responsibilities of the post of Micro Photographer in the BJ Medical College was much higher than the duties and responsibilities of the photographer in other departments of the Government. Despite which, such posts carried higher pay scales. He submitted that the injustice done to the petitioner was perpetuated and the anomaly was not removed by the successive Page 3 of 10 HC-NIC Page 3 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT pay commission. Counsel placed heavy reliance on the decision of Supreme Court in case of Randhir Singh vs. Union of India and ors. reported in AIR 1982 SC 879, in which, on the principles of "equal pay for equal work", the Supreme Court granted pay parity to the drivers in different departments of the Government. It was held that the principal of "equal pay for equal work" would apply to cases of unequal scales of pay based on no qualification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
6. On the other hand, learned AGP Mr. Pranav Trivedi opposed the petition contending that the petitioner accepted his appointment to the post in question which carried a specified pay scale. He accepted the pay revision in the same scale. He cannot raise grievance about such pay scales that too at this distant point of time. He submitted that principal of "equal pay for equal work" would not apply in the present case.
7. Having heard learned counsel for the parties and having perused the documents on record, it is by now well settled through series of judgements of the Supreme Court that principal of "equal pay for equal work" cannot be applied in abstract. It is principally the task of the expert bodies such as the pay commissions to take into account various relevant aspects of the matter before recommending pay scales for different posts under the Government. Some of the relevant considerations would be the Page 4 of 10 HC-NIC Page 4 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT qualifications, the nature of duties to be performed by the appointee, the workload and such other similar factors. Ordinarily, the Court would not interfere with the recommendations of the expert bodies and substitute its own judgement by supplying pay scales different from those recommended by the pay commission and accepted by the Government.
8. In case of Government of Andhra Pradesh and another vs. P.Hari Hara Prasad and ors reported in AIR 2002 SC 3645, the Supreme Court turned down the claim of the employee of the subordinate Courts of pay parity of the assistants and stenographers of State Secretariat. It was observed that:
"4. First we would consider the case in respect of employees of subordinate courts. The pay scales claimed by them on the basis of Government Order of 1971 have been accepted by the High Court holding that posts in two services are identical and the officials in two different services perform same nature of duties. The two set of employees are governed by different Rules and, therefore, their pay scales and other conditions of service are to be governed by the respective Rules applicable to them. Ordinarily, it is not permissible to go into the nature of duties of employees while exercising writ jurisdiction under Article 226 of the Constitution of India and on that basis direct grant of pay scales which are applicable to employees of a different service. The question of grant of parity of pay to the employee s of the courts came up for consideration before a three Judge Bench in State of Maharashtra v. Association of Court Stenos., P.A., P.S. & Anr. [(2002) 2 SCC 141]. Referring to the decision in Supreme Court Employees' Welfare Association v. Union of India & Anr. [(1989) 4 SCC 187], it has been held therein that the judgment of the High Court in Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT exercise of its jurisdiction under Article 226 issuing writ of mandamus directing a particular scale to be given to the courts stenographers, Personal Assistants and Personal Secretaries attached to the Hon'ble Judges of the High Court cannot be sustained. It has further been held that it is no doubt true that the doctrine of "equal pay for equal work" is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary jurisdiction under Article 226 to examine the nature of work discharged by the staff attached to the Hon'ble Judges of the Court and direct grant of any particular pay scales to such employees. The position is almost same here."
8.1 In case of State of Haryana and anr vs. Tilak Raj and ors. reported in AIR 2003 SC 2658, the Supreme Court turned down the claim of the daily wagers for salary on par with the permanent staff observing that:
" "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."
8.2 In case of State Bank of India and ors. vs. K.P.Subbaiah and ors. reported in (2003) 11 SCC 646, it was observed that the fixation of pay scale is essentially a function of the executive. They are closely interlinked with the evaluation of the duties and responsibilities attached to the posts and the pay scales are normally linked with conclusions arrived at by the Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT expert bodies like the Pay Commission. The Supreme Court observed as under:
"20. The fixation of pay scales is essentially a function of the executive. They are closely inter-linked with evaluation of duties and responsibilities attached to the posts and the pay scales are normally linked with conclusions arrived at by expert bodies like the Pay Commission.
21. The degrees of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the tasks, hazard attendant on work and fatigue involved are some of the relevant factors which go into the process of fixing the pay scale. [See Delhi Veterinary Association v. Union of India and Ors. (1984 (3) SCC 1)].
22. As noted above, a pay scale has different stages starting with initial pay and ending with ceiling pay. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage, but also the additional amounts to which he is entitled as allowances e.g. D.A. etc. Therefore, when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced.
23. Ordinarily, a pay structure is evolved keeping in mind several factors, for example (i) method of recruitment, (ii) level at which recruitment is made, (iii) 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, (x) 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 avoidable ripples in other cadres as Page 7 of 10 HC-NIC Page 7 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT well. [See Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. (AIR 1992 SC1203)]."
8.3 In case of Union of India vs. Tarit Ranjan Das reported in (2003) 11 SCC 658, the Supreme Court observed that the equality is not based on designation or the nature of work, there are several other factors like responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy and the qualifications required which are equally relevant. It was observed as under:
"9. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any data. It is trite law that it is not open for any Court to sit in judgment as on appeal over the conclusion of the Commission. Further the Tribunal and the High Court proceeded as if it was the employer who was to show that there was no equality in the work. On the contrary the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like, responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy, the qualification required which are equally relevant.
10. ... ... ... ... ...
11. In the case of State of U.P. vs. J.P. Chaurasia 1989 (1) SCC 121 ) it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts by the Competent Authorities constituted for the purpose and Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT Courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. vs. Pramod Bhartiya 1993 (1) SCC 539 ) by a three-Judge Bench of this Court. In the case of Shyam Babu Verma vs. Union of India 1994 (2) SCC 521 ) a claim for equal pay by a group of Pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable."
9. It can thus be seen that when establishing various factors such as identity of duties, responsibilities, workload, qualification etc. of two posts in question merely because they carry similar designation would not be the ground for claiming parity with other department altogether. Merely because the parent department of the petitioner placed is case and recommended that he be placed in higher pay scale would not be sufficient to uphold his ground for pay parity. His case was considered by the Government and, it appears, was also considered earlier by the pay commissions.
10. No case for pay parity is made out. Petition is, therefore, dismissed.
Page 9 of 10 HC-NIC Page 9 of 10 Created On Thu Jan 14 02:05:37 IST 2016 C/SCA/7785/1997 JUDGMENT (AKIL KURESHI, J.) Jyoti Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Jan 14 02:05:37 IST 2016