Himachal Pradesh High Court
State Of Himachal Pradesh And Others vs Abhinav Soni And Others on 27 July, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 720 of 2011 .
Reserved on: 14.07.2015
Decided on: 27.07.2015
State of Himachal Pradesh and others ...Appellants.
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Versus
Abhinav Soni and others ...Respondents.
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Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the appellants: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General.
For the respondents: Mr. Ajay Mohan Goel, Advocate.
Mansoor Ahmad Mir, Chief Justice.
Appellantswrit respondents, by the medium of this Letters Patent Appeal, have questioned the judgment and order, dated 30.08.2011, made by the Writ Court/learned Single Judge ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 2 : in CWP No. 124 of 2011, titled as Abhinav Soni and others .
versus State of H.P. and others, whereby the writ petition filed by the writ petitionersrespondents herein came to be allowed and the writ petitionersrespondents herein were held entitled to Non Practicing Allowance (for short "NPA") with effect from of 01.01.2011, i.e. date of presentation of the writ petition (for short "the impugned judgment").
rt
2. Selection process was drawn by the writ respondentsappellants herein for appointment of Veterinary Officers on contract basis in terms of the advertisement notices.
Writ petitionersrespondents herein participated, were selected, came to be appointed on contract basis and their remuneration was fixed at ` 8,000/ per month.
3. The grievance projected by the writ petitioners respondents herein in the writ petition is that they are entitled to grant of NPA in view of the fact that they have been banned from private practice, thus, are entitled to NPA, which was not granted to them. Para 7 of the writ petition specifies that the State has also appointed MBBS Doctors, i.e. Medical Officers, on ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 3 : contract basis, were given 25% NPA in terms of Annexures P5, .
P6 and P7 to the writ petition. The writ petitioners respondents herein filed representation before the concerned authorities, which was rejected in terms of Annexure P14 to the writ petition despite the fact that the recommendation was made of by the authorities, constraining them to file the writ petition wherein they have prayed for grant of NPA and other reliefs on rt the grounds taken in the memo of writ petition.
4. In terms of the Service Rules read with the terms and conditions contained in the orders, the officers, who are not permitted to go for private practice, are entitled to NPA.
5. The writ petitionersrespondents herein have annexed Annexures P1 to P12 with the writ petition in order to support their case that they are entitled to NPA. Annexure P13 is the representation, which stands rejected vide order, dated 09.11.2010 (Annexure P14).
6. The writ respondentsappellants herein have filed reply and have not denied the fact that the Medical Officers appointed on contract basis are getting NPA.
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7. The writ respondentsappellants herein have not .
been able to justify as to how the MBBS Doctors/Medical Officers appointed on contract basis are being granted the benefit of NPA.
8. The writ respondentsappellants herein have not of specifically averred how the Veterinary Officers appointed on contract basis and the Veterinary Officers appointed on regular rt basis are discharging different duties and responsibilities.
9. While going through the order of appointment on contract basis, one comes to an inescapable conclusion that the Veterinary Officers appointed on contract basis are discharging the same job and responsibilities, which the Veterinary Officers appointed on regular basis are discharging.
10. The Writ Court/learned Single Judge, after examining the pleadings and the law applicable, held that the writ petitionersrespondents herein are entitled to NPA from the date of presentation of the writ petition, i.e. with effect from 01.01.2011, which has been questioned by the writ respondents appellants herein by the medium of this appeal.
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11. We have gone through the impugned judgment.
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Though, the judgments cited and discussed in the impugned judgment are not applicable and are virtually against the writ petitionersrespondents herein, but in paras 23 and 24 of the impugned judgment, the Writ Court/learned Single Judge has of discussed how the Veterinary Officers appointed on contract basis are entitled to NPA while keeping in view the fact that the rt Veterinary Officers appointed on regular basis and the MBBS Doctors/Medical Officers appointed on regular basis/contract basis are enjoying the benefit of NPA.
12. Admittedly, the job of the Veterinary Officers appointed on contract basis and the Veterinary Officers appointed on regular basis is one and the same, their responsibilities are same and in terms of the appointment orders, they have been prohibited from indulging in private practice. Thus, the action of the writ respondentsappellants herein is discriminatory.
13. The MBBS Doctors/Medical Officers, who are also appointed on contract basis, have been granted the benefit of ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 6 : NPA. They have obtained the same degree, are having same .
qualifications, then, how NPA can be granted to one category of doctors, who are dealing with human beings and not to another category of the doctors, who are dealing with animals.
14. How distinction can be made between a MBBS of Doctor, who deals with human being and a Veterinary Officer, who is also having the same qualification and same degree, but rt is dealing with animals.
15. Thus, it appears that the decision made by the writ respondentsappellants herein is not sustainable in the eyes of law, rather, is discriminatory.
16. The Apex Court in a case titled as K.C. Bajaj and others versus Union of India and others, reported in (2014) 3 Supreme Court Cases 777, has dealt with the history of NPA. It is apt to reproduce paras 9, 10 and 28 of the judgment herein:
"9. Paras 5.0, 5.2 to 6.0, 10.3, 10.4, 11.1, 11.2, 11.3 and 12 of order dated 18.5.2002 passed by the High Court read as under:
"5.0. History of grant of NPA clearly shows that the same was being granted in lieu of ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 7 : private practice. It was also granted having regard to availability of less .
promotional avenue and late entry in the service, NPA was granted in terms of Fundamental Rule 9(21)(a)(i) read with Fundamental Rule 9(21)(a)(ii), which read thus: "9. Unless there be something repugnant in the subject of context the of terms defined in this Chapter are used in the Rules in the sense here explained * * * (21)(a) "Pay" means the amount rt drawn monthly by a Government servant as
(i) the pay other than special pay or pay granted in view of the personal qualifications which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by the President.' * * * 5.2. It also appears that the Ministry of Health and Family Welfare in terms of the instructions, as contained in the letter dated 741998, categorically stated that N.P.A. be treated to be a pay by way of service benefits including retirement benefits. It is also beyond any cavil of doubt that 25% of the basic pay was recommended towards payment of NPA by the 5th CPC, which was accepted by the ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 8 : Government of India in terms of its circular letter dated 741998.
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5.3. By reason of the aforementioned recommendations, an attempt had been made to bring pre111986 retirees and post111986 at par having regard to the fact that the rates of their pension were slightly different. By reason of the said recommendation, the slab system, which of was prevailing thitherto having been given a go by and in place thereof payment of 25% of the basic pay as NPA w.e.f. 111996 was recommended. In other rt words, a revolutionary step was taken by the 5th CPC by making recommendations so that the retiral benefits is enhanced not only for pre111986 retirees but also post 111986 retirees at par.
5.4. In para 137.13 of its Report, the 5th CPC clearly stated that it was desirable to grant complete parity in pension to all past pensioners irrespective of the date of their retirement, but having regard to the fact that the same was not found to be feasible and having regard to the considerable financial implications, a suggestion was made that the process of bridging the gap in the matter of payment of pension would be fulfillled if certain additional reliefs be granted in addition to the recommendations of the Fourth Central Pay Commission (in short, '4th CPC') in terms whereof the past pensioners were granted additional relief in addition to the consolidation of their pension.
5.5. Yet again in para 137.14 of its Report, the 5th CPC recommended that as a follow up of their basic objective of parity, the ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 9 : pension of all pre111986 retirees should be updated by notional fixation of their .
pay as on 111986 by adopting the same formula as for the service benefits. Pursuant whereto, all the past pensioners of pre111986 were to be brought on a common platform so as to grant them the benefit of the revision of pay scale as recommended by 4th CPC as on 111986. It was further laid down that all pre of 111986 pensioners, who had been brought on to the 4th CPC by notional fixation of their pay and who had retired after 111986, the recommendation was rt that the consolidated pension would not be less than 50% of the minimum pay of the post as revised by the 5th CPC.
6.0. It is, therefore, evident that the 5th CPC recommendations were to bring all the pensioners whether pre111986 retirees or post111986 on a common platform. The recommendations in no uncertain terms suggest that the payment of pension of pre111986 retirees and post111986 retirees should be the same.
The Central Government admittedly acted in terms of the aforementioned recommendations by determining the pension, which was not less than 50% of the minimum of their pay in the revised payscale of the post held by the pensioners at the time of retirement w.e.f. 111986. For the said purpose, the minimum of the pay revised in the 5th CPC of the post concerned was determined were with 25% of the pay as NPA was added and 50% thereof had been taken as revised minimum pension as per the qualifying service.
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10.3. It is difficult for us to accept the contention that despite the fact that NPA .
shall form part of pay so far as post 111986 retirees are concerned, the same would not form part of pay despite provisions in the Fundamental Rules so far as pre111986 retirees are concerned. The 5th CPC has taken into consideration, as noticed hereinbefore, the history of grant of NPA and wherefrom it is evident of that NPA became part of pay.
10.4. It is not a case where cutoff date has been fixed. The Central Government is rt entitled for the purpose of determination of pension pursuant to the policy decision to fix a cutoff date. It is also true that such a cutoff date cannot be held to be arbitrary and irrational, as it was not picked out of a hat. However, in the instant case, we are not concerned with any cutoff date, but we are concerned with the question as to whether despite recommendations of the 5th CPC, a discrimination can be made.
The very fact that the Central Government accepts that the emoluments would mean basic pay + NPA in view of its definition as existing in the Rule 9(21)(a)(i) of the Fundamental Rules, there cannot be any reason whatsoever as to why NPA shall be considered to be a part of pay for post 111986 retirees and not for pre111986 retirees.
* * * 11.1. We may, in this connection, notice that emoluments has been defined in Rule 33 of CCS (Pension) Rules, 1972 in the following terms: '33. Emoluments. The expression "emoluments" means basic pay as defined in Rule 9(21)(a)(i) of the ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 11 : Fundamental Rules which a Government servant is receiving .
immediately before his retirement or on the date of his death and will also include Non Practising Allowance granted to the Medical Officer in lieu of private practice.' Thus, even in terms of the aforementioned definition, NPA would be part of pay.
of 11.2. In D.S. Nakara and Ors. v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145, it is stated: (SCC pp. 33031, rt para 42) '42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved.
We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalization was considered necessary for augmenting social security in old age to ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 12 : government servants then those who retired earlier cannot be worse off .
than those who retired later.
Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise of equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just rt succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service.' 11.3. Yet again in V. Kasturi v. SBI, (1998) 8 SCC 30 : 1999 SCC (L&S) 78, the Apex Court pointed that in D.S. Nakara's case, (1983) 1 SCC 305 : 1983 SCC (L&S) 145, a distinction has been made between a new scheme and a liberalized pension scheme. When a new scheme come into force, the same may not apply to the persons who had retired prior thereto, but when there is a revision in the existing scheme by way of upward revision, the scheme should be applied.
12. For the reasons aforementioned, the impugned order cannot be sustained, which is set aside accordingly. These writ petitions are allowed. However, in the facts and circumstances of the case, there shall be no orders as to cost."
10. The aforementioned order of the Delhi High Court was challenged by the ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 13 : respondents by filing special leave petitions, which were converted into Civil .
Appeal Nos. 197274 of 2003. During the pendency of the appeals, other similarly situated doctors made representations for grant of benefit in terms of the High Court's order. Thereupon, the Government of India made a reference to the Attorney General and sought his opinion on the question whether judgment of the Delhi of High Court was correct and should be accepted. The Attorney General considered the relevant rules, the Office Memorandums and gave detailed opinion, rt which reads thus:
"OPINION Sub: Regarding the inclusion of Non Practising Allowance (NPA) to Pensioners Doctors in the calculation of pension.
1. Doctors in the Central Government who retired prior to 111996 are aggrieved by the Office Memorandum dated 29101999 issued by the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pensions and Pensioners Welfare [hereinafter referred to as 'MoPP'] which inter alia provides that Non Practising Allowance [NPA] is not to be taken into consideration after refixation of their pay and as a result NPA is not to be added to the minimum of the revised scale of pay as on 111996 in cases where pension is to be stepped up to 50% in terms of the earlier OM dated 17121998.::: Downloaded on - 15/04/2017 18:38:29 :::HCHP
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2. As per the Rule 9(21)(a)(i) of the Fundamental Rules, NPA forms a .
part of the pay of a government doctor and is taken into account for computing dearness allowance, entitlement of IADA for sanctioning advances under GFRs, house building Advance and other allowances as well as for calculation of retrial benefits.
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3. By an Office Memorandum dated 27101997 issued by MoPP, the Government decided to accept the rt modified parity formula while implementing the recommendations of the Vth Pay Commission Government servants who retired before 111986 [i.e. before the implementation of the IVth Pay Commission] and those who retire before 111996 [i.e. before implementation of the Vth Pay Commission] were sought to be brought at par by the notional fixation of pay of the first category as of 111986 and thereafter consolidation of their pension as on 111996.
4. A number of representations were received by the Government from Government servants who retired prior to 111996 and they claimed parity with government servants who retired after 111996. By Office Memorandum dated 17121998, issued by MoPP, the Government of India sought to achieve parity between pre111996 retirees and post111996 retirees. By the aforesaid OM, it was provided that ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 15 : pension/family pension of pre 111996 retirees would be stepped .
upto 50% / 30% of the minimum of the corresponding revised scale of pay in respect of that post as on 111996. Thus, all retired government officers retiring from a particular post were to be given pension which was comparable to a large extent. This decision of the of Government finds some support from the judgment of the Supreme Court in D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC rt (L&S)145.
5. Like all retired government servants, government doctors of the Central Health Scheme were also given benefit of stepping up of their pension to 50% of the minimum revised scale of pay as on 111996 by including NPA being granted to the government doctors in that scale of pay and such stepped pension was in fact paid to them.
6. However, subsequently on 29101999, as mentioned herein above, the MoPP issued Office Memorandum making a technical distinction between pay and scale of pay and provided that since NPA cannot be given while stepping the pension up to 50%.
7. The government doctors who retire after 111996 would get benefit of NPA as it forms a part of their pay.
Hence, just on the basis only of date of retirement, there would be wide disparity between pension of ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 16 : government doctors, i.e. who retired prior to 111996 would get much .
less pension then those who retire after 111996.
8. The distinction between 'pay' and 'scale of pay' made out in the Office Memorandum dated 29101999 to deny benefit of NPA for the purpose of stepping up of the pension to 50%, of is purely technical and mechanical distinction and does not take into account the special position of NPA qua a Government doctor.
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9. NPA is a matter of right of government doctor and is meant as a compensation for denial of private practice. The scale of pay prescribed...... department of the Government of India and does not account the special feature of Central Health Service. In Central Health Service, NPA de jure and de facto is a part of the scale of pay as it is inevitably linked to the basic pay.
Simply because NPA is not formally included in the scale of pay of the government doctors and taken as a separate element, it cannot be said that NPA has to be ignored altogether for stepping up of pension. NPA is a separate element only because scales of pay of government servants are of general application and not meant for individual services. However, if an element is inevitably a part of the pay, as NPA is, in effect it has to be construed as a scale of pay.
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10. Since, NPA for government doctors is a part of their pay, it .
would be discriminatory if retired government doctors are denied benefit of stepping up of their pension without reference to the NPA presently given to serving doctors and those who retire after 111996. In fact,denial of NPA to pre111996 retired government doctors would of fall foul of the guarantee of equality under Article 14 of the Constitution.
11. The fixation of pension and rt stepping up of the same to 50% of the revised scale of pay for pre111996 retirees as provided by the Government of India in its Official Memorandum dated 17121998 was meant to achieve parity amongst all retired government servants, including government doctors. The comparison of pension being paid to the government doctors who retired prior to 111996 has to be made with the pension to be paid to government doctors who retired after 111996. If the latter category is given benefit of NPA for calculation of their pension, the former category cannot be denied the same by reference to a general scale of pay governing all government servants without considering the special feature of government doctors.
12. The Delhi High Court in its order dated 1852002 in K.C. Garg v. Union of India, WP(C) No. 7322 of 2001 has quashed the Office Memorandum dated 29101999. In the said order, the High Court has ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 18 : quite rightly observed that the benefit sought to be given by the earlier OM .
dated 17121998 was wrongly taken away by the OM dated 29101999. The High Court has observed that in view of the stated objectives of the Government to provide parity in pension amongst government doctors, NPA would have to be necessarily taken into account for of stepping up of pension to 50% of the revised scale of pay has been held to be ultra vires the Constitution. rt13. The Government of India has filed an SLP against the order of the Delhi High Court dated 1852002.
The reason for grant of leave in this case is the conflicting decisions of the Delhi High Court and the Chennai Bench of the Central Administrative Tribunal on one hand and the Principal Bench of the Central Administrative Tribunal, New Delhi on the other. I have no hesitation in opining that the judgment of Justice S.B. Sinha, now a judge of the Supreme Court is correct and should be accepted in preference to the view of the Principal Bench of the Central Administrative Tribunal, Delhi. Consequently steps will have to be taken with regard to the pending Special Leave Petition."
11 to 27. ..................
28. In view of the above discussion, we hold that the ratio of the Digambar's case (1995) 4 SCC 683, cannot be invoked to justify the pick and choose methodology adopted by the Union of India in resisting ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 19 : the claim of similarly situated doctors that NPA payable to them shall be taken into .
consideration for calculating the pension.
Such an approach by the Union of India is exfacie arbitrary, unjust and has resulted in violation of Article 14 of the Constitution.
17. The ratio laid down in para 28 of the judgment of (supra) squarely applies to the instant case because the State writ respondentsappellants herein have also made pick and rt choose methodology, which is not justifiable.
18. The Statewrit respondentsappellants herein have made the policy to fill up the posts on contract basis instead of regular basis, is not the fault of the writ petitionersrespondents herein and they cannot be denied the rights, to which they are entitled to. Thus, the writ petitionersrespondents herein are appointee of selection process and are not the back door entries.
19. The Apex Court in Chairman, Railway Board and others versus C.R. Rangadhamaiah and others, reported in (1997) 6 Supreme Court Cases 623, has also laid down the tests as to how an act of the State can be said to be discriminatory.
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20. The Apex Court has discussed the issue in the case .
titled as State of Haryana versus Charanjit Singh and others etc. etc., reported in AIR 2006 Supreme Court 161. It is apt to reproduce paras 14, 15 and 17 of the judgment herein:
"14. In the case of Sandeep Kumar & Ors.
of v. State of Uttar Pradesh & Ors., reported in (1993) Supp (1) SCC 525, regularisation was refused but equal pay rt was granted on the admitted position that the concerned workmen were doing the same work.
15. In the case of Bhagwan Dass & Ors. v. State of Haryana & Ors., reported in (1987) 4 SCC 634, this Court held that if the duties and functions of the temporary appointees and regular employees are similar there cannot be discrimination in pay merely on the ground of difference in modes of selection. It was held that the burden of proving similarity in the nature of work was on the aggrieved worker. We are unable to agree with the view that there cannot be discrimination in pay on the ground of differences in modes of selection. As has been correctly laid down in Jasmer Singh's case (supra) persons selected by a Selection Committee on the basis of merit with due regard to seniority can be granted a higher pay scale as they have been evaluated by competent authority and in such cases payment of a higher pay scale cannot be challenged.
Jasmer Singh's case has been noted with approval in Tarun K. Roy's case.
16. ...............
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17. Having considered the authorities and the submissions we are of the view that the .
authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law.
Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal of work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case.
Article
rt 14 permits reasonable
classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 22 : justifies a difference in pay scales. A mere nomenclature designating a person as say .
a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The of application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that rt the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 23 : doctrine of equal pay for equal work applies without examining any relevant .
factors."
21. The Apex Court in another case titled as State of Punjab & Anr. versus Surjit Singh & Ors., reported in 2009 AIR SCW 6759, has discussed the judgments made by the Apex of Court right from the year 1960 upto 2009 and has discussed the concept of equal pay for equal work. It is apt to reproduce paras rt 38, 40 and 42 herein:
"38. Reliance placed by Mr. Gupta on Haryana State Minor Irrigation Tubewells Corpn. v. G.S. Uppal, [(2008) 7 SCC 375 at 384] is equally meritless. In that case, the question involved was application of the recommendations of the Pay Revision Committee. As a discriminatory treatment was meted out to the appellants therein, this Court interfered opining that the decision of the Government is unreasonable, unjust and prejudicial.
39. ...............
40. Yet again, we may also notice that another Bench of this Court in State of Haryana v. Tilak Raj & Ors., [(2003) 6 SCC 123] has clearly laid down the law in the following terms:
"11. A scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers cannot be held to ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 24 : hold any posts to claim even any comparison with the regular and .
permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clearcut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a of par with the other group vis'vis an alleged discrimination. No material was placed before the High Court as rtto the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one.
12. "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."
41. ..........................
42. Therein the leave was granted purported to be on the basis of the benefit of regular payscale granted by other department in terms of the decision of the High court in Gurmukh Singh vs. State of Punjab [C.W.P. No. 9623 of 1993 decided on 12.4.1994]. The main plank of the case of the workmen therein was that they had been not only working for a long time it was urged that their regular counterparts ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 25 : were holding similar posts and their postings are being interchanged with .
them. The High Court noticing the allegation of the writ petitioners that they had been discharging absolutely similar functions with the same element of responsibility and having similar qualifications as are being discharged by the regularly appointed persons which having not been specifically controverted of opined as under:
"However, no material has been placed before this Court to show as to rt what is the real difference between the duties being performed by the petitioners (daily wagers) and regular employees. The statement containing the date of joining of the petitioners shows that all of them have rendered service between one to eleven years as on the date of the filing of the petition. The fact that they are continuously in service has not been controverted by the respondents. Therefore, merely because 64 petitioners have remained absent for different durations cannot be a ground for taking the view that all the 973 petitioners are discharging duties without proper responsibility. Absence from duty may constitute a misconduct but that by itself cannot lead to an inference that whole body of employees does not discharge its duties with responsibility. In fact on a query made by the court, learned Deputy Advocate General stated at the bar that the Government is not in a position to dispense with the services of the petitioners because the same ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 26 : are necessary for maintaining the distribution and supply of the .
drinking water to the people in rural as well as urban areas. From this, it can safely be inferred that the nature of the work being performed by the petitioners is not of a casual nature or of a fixed duration. They might have been posted to work against particular projects, but, these projects of are perennial in character and there is no indication that the projects are going to be wound up by the rt Government. Continuous engagement of a large number of employees for years together is also indicative of the requirement of the manpower.
Therefore, merely because the Government has not thought it proper to sanction regular posts, it cannot be held that there is a marked distinction between the functions of the petitioners and the regular employees."
22. This Court in LPA No. 11 of 2012, titled as The Principal Secretary (Personnel) & another versus Pratap Thakur, decided on 22.09.2014, has discussed the law and enumerated the parameters for granting equal pay for equal work.
23. The perusal of the pleadings does disclose that the Statewrit respondentsappellants herein have tried to create a class among the officers, who are equal in all respects and are ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP : 27 : performing the same work/duties, have the same responsibility .
and who have joined the service after succeeding in selection process. Thus, the act of the Statewrit respondentsappellants herein is not permissible in law.
24. This Court in a batch of LPAs, LPA No. 184 of of 2011, titled as State of H.P. and others versus Dr. Jagdish Chand Panta and others, being the lead case, decided on rt 27.08.2014, while dismissing the appeals, held that discrimination was illegal. It is apt to reproduce paras 4 and 6 of the judgment herein:
"4. It appears that the benefit of NPA was allowed to the petitioners for the first time w.e.f. on 1st April, 1997 and in terms of Office Memorandum dated 10th June, 2005, the NPA was modified and again it was enhanced in terms of Office Memorandum dated 7th July, 2007. The Office Memorandum, dated 7th July, 2007 was questioned by the writ petitioners on the ground that it is discriminatory and amounts to creating a class among the officers who are equal in all respects and had prayed that the said Office Memorandum be quashed, so far as it was impugned by the writ petitioners and benefit be given to the writ petitioners without making any classification.
5. ................::: Downloaded on - 15/04/2017 18:38:29 :::HCHP
: 28 :
6. We have gone through the Office Memorandum impugned in the writ .
petitions and the discussion made by the Writ Courts. It appears that in terms of the impugned Office Memorandum, classification was made out of the same set of Officers, who are having same qualification, same rights and same title, without any justification and, therefore, the Writ Courts have rightly held that of such a classification is impermissible in law."
25. The said decision was questioned by the State before rt the Apex Court by the medium of Special Leave to Appeal (C) Nos. 1083910844/2015, which came to be dismissed on 08.07.2015.
26. Keeping in view the facts of the case read with the tests laid down by the Apex Court from time to time and the discussions made hereinabove, we are of the considered view that the Statewrit respondents have made discrimination on the following grounds:
(i) NPA has been granted to the Veterinary Officers appointed on regular basis, but not to the Veterinary Officers appointed on contract basis despite the fact that they are performing same job, are discharging same duties and responsibilities.::: Downloaded on - 15/04/2017 18:38:29 :::HCHP
: 29 :
(ii) The Medical Officers, who came to be .
appointed on contract basis, were given the benefit of NPA, but was denied to the writ petitionersrespondents herein, i.e. the Veterinary Officers appointed on contract basis.
of
27. Having said so, we hold that the Veterinary Officers appointed on contract basis are also entitled to NPA right from rt the date of filing of the writ petition, as directed by the Writ Court/learned Single Judge.
28. Viewed thus, the impugned judgment merits to be upheld on different grounds, as given hereinabove.
29. Having glance of the above discussions, the appeal is dismissed and the impugned judgment is upheld. Pending applications, if any, are also disposed of accordingly.
(Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge July 27, 2015 ( rajni ) ::: Downloaded on - 15/04/2017 18:38:29 :::HCHP