Allahabad High Court
Sushil Kumar Gautam And 16 Others vs State Of U.P. And 2 Others on 2 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2548
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD (AF.R.) Court No. - 5 Case :- WRIT - A No. - 20277 of 2019 Petitioner :- Sushil Kumar Gautam And 16 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- B.S. Pandey Counsel for Respondent :- C.S.C. Hon'ble Saral Srivastava,J.
1. The petitioners by means of present writ petition have prayed for the following relief:-
"(i) Issue writ, order or direction the nature of mandamus directing the respondents to grant sanction upgrading the petitioners' grade pay from Rs.1800/- to Rs.1900/- w.e.f. 16.11.2011 when the Mates of P.W.D. and other departments were extended the benefits of grade pay Rs.1900/-.
(ii) Issue writ, order, or direction in the nature of mandamus directing the respondents to pay the arrears of upgraded grade pay since 16.11.2011 with interest till date of its actual payment and revise their pay/pension accordingly."
2. The case of the petitioners is that petitioner no.1 was appointed as Beldar on compassionate ground in January 1993 and was promoted on the post of Mate in the year 1999 and since then he is continuing in Muzafar Nagar Division Ganga Canal, Muzaffar Nagar. Petitioner no.2 was appointed as Mate on compassionate ground on 04.06.1990 in Tubewell Division. The petitioners no.3 to 13 were appointed as Mate on 21.02.2009, 20.01.1990, 09.05.1989, 10.02.2009, 22.01.2006, 05.02.2009, 30.07.2003, 20.02.2009, 11.02.2009, 09.06.2003 and 19.06.1995 respectively in Muzaffar Nagar. The petitioners no.14 and 15 were appointed on 01.08.2003 and 26.11.1999 in Muzaffar Nagar while petitioners no.16 and 17 were appointed in Etah on 06.02.1980 and 08.01.1981. Petitioner no.17 has retired on 31.01.2019 from Irrigation Division, Etah and he is getting the pension on grade pay of Rs.1800/-. Thus, all the petitioners are working in Irrigation Department in the State of U.P.
3. It is stated that a Government Order dated 16.11.2011 was issued by Special Secretary, UP Government, Lucknow in respect of class IV employees of Public Works Department (hereinafter referred to as 'PWD') of State of U.P. providing grade pay of Rs.1900/- with amended pay scale of Rs.5200-20200/- on the basis of the report of 6th Pay Commission and recommendation of Pay Committee (2008) under G.O. dated 08.09.2010.
4. The State of U.P. issued another Government Order dated 30.03.2016 based on the Pay Committee recommendation with an amendment in the pay scale for the post of Daftari, Jamadar (Orderly), Cyclostyle Operator, Photostat Operator, and Head Gardner, etc. granting them grade pay of Rs.1900/-.
5. Further, the case of petitioners is that on 26.07.2016, Pramukh Abhiyanta (Engineer-in-Chief), Irrigation Department, U.P., Lucknow sent a letter to Deputy Secretary, Irrigation and Water Resources, UP, Lucknow requesting him to approve upgrading the grade pay from Rs.1800/- to Rs.1900/- on the basis of Government Order dated 30.06.2016 which has provided the benefit of grade pay of Rs.1900/- to class IV employees.
6. It is also stated that the State Government issued another Government Order dated 29.05.2017 providing grade pay of Rs.1900/- to class IV employees working in Drainage & Tubewell Divisions at Meerut, Ghazipur, and Lucknow and in various other districts which are part of irrigation department and accordingly, grade pay of Rs.1900/- to class IV employees working in aforesaid divisions has been fixed.
7. It is also stated that Executive Engineer wrote a letter to Finance Controller in the office of Engineer-in-Chief, Irrigation, and Water Resources, UP, Lucknow requesting him to clarify as to whether class IV employees of Muzaffar Nagar Division be also extended the benefit of grade pay of Rs.1900/-. The State Government on 29.05.2018 sought a report from the office of Engineer-in-Chief and Head of Department, Irrigation and Water Resources, UP, Lucknow for extending the benefit of grade pay of Rs.1900/-.
8. Pursuant to the said letter, Senior Staff Officer on behalf of Engineer-in-Chief, Irrigation, and Water Resources, UP, Lucknow sent a report on 09.07.2018 recommending for grant of grade pay of Rs.1900/- to the petitioners. Similar, recommendations have been made by Senior Staff Officer to Deputy Secretary, Irrigation and Water Resources, UP, Lucknow on 02.11.2018, 10.12.2018, and 18.12.2018 but the State Government did not pay any heed to the recommendations of Engineer in Chief for extending the benefit of grade pay to the petitioners.
9. In the aforesaid backdrop, the petitioners have prayed for the above relief.
10. In the counter affidavit, respondents have not denied the fact that by Government Order dated 16.11.2011, the benefit of grade pay has been extended to the employees of PWD for the post of Mate and other posts like Carpenter, Mistri, Plumber, Painter, Pump Operator, Welder, Fitter and Turner, and other employees. The respondents have also not denied the averments made in paragraph 9 of the writ petition that the benefit of grade pay of Rs.1900/- has been extended to the employees of the Irrigation Department in respect to Meerut, Ghazipur, and Lucknow divisions. Paragraphs 5 and 6 of the counter affidavit are extracted herein-below:-
"5. That in reply to the contents of paragraphs nos.6 and 7 of the writ petition it is stated that the Government Order dated 16.11.2011 was issued by the State Government for Public Works Department by which the pay band has been fixed for the post of Mate and other posts like Carpenter, Mistri, Plumber, Painter, Pump Operator, Welder, Fitter, Turner, etc. The aforesaid Government Order does not apply to the petitioners because the petitioners are working in Irrigation Department and governed by separate rules. Similarly, the Government Order dated 30.03.20169 is also not applicable in the case of the petitioners.
6. That in reply to the contents of paragraphs nos.8 and 9 of the writ petition it is stated that the Senior Staff Officer of the Department has recommended the case of the petitioners to provide the pay scale of Rs.1900 but the same is still pending before the State Government and on the mere recommendation the petitioners have no right to claim the aforesaid pay scale. It is further stated that the Government Order dated 29.05.2017 is only applicable to Class-IV employees of the Irrigation Department particularly holding the post of Daftari, Zildsaaj, Machine Operator, Jamadar, and Pradhan Mali."
11. Learned counsel for the petitioners has submitted that the benefit of grade pay has been extended to Mate of PWD who are employees of State Government by order dated 16.11.2011 on the basis of the report of 6th Pay Commission and recommendation of Pay Committee (2008) under G.O. dated 08.09.2010. The action of the respondents in not extending the same benefit to the petitioners is illegal and arbitrary.
12. He further submits that the benefit of grade pay of Rs.1900/- has been extended to employees of Irrigation Department for Meerut, Ghazipur, and Lucknow divisions, and the petitioners are identically situated as they are also employees of Irrigation Department, posted at Muzaffar Nagar, therefore, they cannot be denied the benefit of grade pay of Rs.1900/- which has been extended to the employees of the same department. He further submits that several recommendations have been made by Engineer in Chief to Deputy Secretary, Irrigation Department recommending for grant of grade pay of Rs.1900/- to the petitioners but respondents are sleeping over the matter and have not yet extended the benefit of grade pay of Rs.1900/- which the petitioners are entitled to w.e.f. 16.11.2011 i.e. from the date such benefit has been extended to class IV employees of PWD.
13. Thus, the submission in nutshell is that the action of respondents in not extending grade pay of Rs.1900/- to the petitioners is arbitrary and discriminatory and defeats the very object of the right to equality enshrined in Article 14 of the Constitution of India.
14. Learned Standing Counsel has contended that the Government Order dated 16.11.2011 has been issued in respect of Mate of PWD, and since the petitioners are employees of Irrigation Department which is different from PWD, therefore, the petitioners cannot claim parity with employees of PWD. He further submits that recommendation made in favour of petitioners by Engineer-in-Chief for grant of benefit of grade pay of Rs.1900/- is pending with State Government. He further submits that fixation of pay is the domain of State Government and, various considerations are involved for extending the benefit of grade pay, therefore, this Court should refrain from issuing any direction for granting the benefit of grade pay to the petitioners.
15. I have heard learned counsel for the petitioners and learned Standing Counsel for respondents no.1 to 3.
16. The facts as emanates from the record is that the petitioners are employees of the Irrigation Department which is a department of State of UP. The benefit of grade pay of Rs.1900/- has been extended to employees of PWD w.e.f. 16.11.2011. Similarly, the benefit of grade pay of Rs.1900/- has been extended to Mate working in Drainage & Tubewell Divisions of Meerut, Ghazipur, and Lucknow by Government Order dated 29.05.2017. The petitioners are identically situated of their counterparts working at Meerut, Ghazipur, and Lucknow Division in Irrigation Department. The Government Order dated 29.05.2017 extending the benefit of grade pay to the irrigation department is extracted herein-below:-
"संख्या-1030/17-27-सिं0-7-19(7)/ प्रेषक शम्भू नाथ, सचिव, उत्तर प्रदेश शासन।
सेवा में, प्रमुख अभियन्ता एवं विभागाध्यक्ष, सिंचाई एवं जल संसाधन विभाग, उ0प्र0 लखनऊ सिंचाई एवं जल संसाधन अनुभाग-7 लखनऊः दिनांक 29 मई, 2017 विषयः- उत्तर प्रदेश सचिवालय की भाँति सचिवालय से इतर राजकीय विभागों के चतुर्थ श्रेणी कर्मचारियों को ग्रेड वेतन रु0 1900/- दिये जाने से सम्बन्धित मुख्य सचिव समिति को सन्दर्भित प्रकरण पर दी गयी संस्तुतियों पर लिये गये निर्णय के कार्यान्वयन के सम्बन्ध में।
महोदय, उपर्युक्त विषयक वरिष्ठ स्टाफ अधिकारी (अधि0-5) कार्यालय प्रमुख अभियन्ता, सिंचाई विभाग, उ0प्र0 लखनऊ के पत्र संख्या 964/अधि0-5/चतुर्थ श्रेणी, दिनांक 20-07-20-07-2016 एवं पत्र संख्या-जी-109/अधि0-5/लखनऊ, दिनांक 27-03-2017 का कृपया सन्दर्भ ग्रहण करने का कष्ट करें।
2- इस सम्बन्ध में मुझे यह कहने का निदेश हुआ है कि सिंचाई विभाग में चतुर्थ श्रेणी के दफ्तरी, जिल्दसाज/साइक्लोस्टाइल आपरेटर (डुप्लीकेटिंग मशीन आपरेटर), जमादार तथा प्रधान माली के पदों, जिन पर चतुर्थ श्रेणी के निम्नतम पद से पदोन्नति किये जाने की व्यवस्था वर्तमान में विद्यामन है। ऐसे चतुर्थ श्रेणी के उक्त पदों पर, वित्त विभाग के शासनादेश संख्या-21/2016/वे0आ0-2-397/दस-2016-8(मु0स0स0)/2011 टी0सी0 दिनांक 30 मार्च, 2016 द्वारा की गयी व्यवस्था के क्रम में वर्तमान में अनुमन्य वेतन बैण्ड-1 रु0-5200-20200 एवं ग्रेड वेतन रु0 1800/- के स्थान पर उच्चीकृत/संशोधित वेतन बैण्ड-1 रु0- 5200-20200 एवं ग्रेड वेतन रु0 1900/- इस आदेश के निर्गत किये जाने की तिथि से, अनुमन्य किये जाने की श्री राज्यपाल महोदय सहर्ष स्वीकृत प्रदान करते हैं।
3- यह आदेश वित्त विभाग के अशासकीय संख्या-वे0आ0-2-528/दस-2017, दिनांक 24-05-2017, में प्राप्त उनकी सहमति से निर्गत किये जा रहे हैं।
भवदीय ह0अप0 (शम्भू नाथ) सचिव।"
17. At this point, it would be apt to refer few judgments of the Apex Court wherein the Apex Court has held that where all things are equal i.e. where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. In the case of Randhir Singh Versus Union of India and Others 1982 (1) SCC 618, the Apex Court allowed the writ petition under Article 32 of the Constitution of India filed by Driver-Constable in Delhi Police Force under Delhi Administration who demanded that his pay scale should at least be the same as the scale of pay of other drivers in the service of the Delhi Administration. Paragraphs 6 and 8 of the said judgment are extracted herein-below:-
"6. The counter-affidavit does not explain how the case of the drivers in the Police Force is different from that of the drivers in other departments and what special factors weighed in fixing a lower scale of pay for them. Apparently in the view of the respondents, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers duties and responsibilities. We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their powers, duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Article 39(d) of the Constitution proclaims ''equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'To each according to his need', it must at least mean 'equal pay for equal work'. "The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance" (vide: International Labour Law by Istvan Szaszy p. 265). The preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled". Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle 'Equal pay for Equal work' is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer."
18. In the case of State of Kerala Versus B. Renjith Kumar and Others (2008) 12 SCC 219, the Apex Court dismissed the Civil Appeal filed by the State of Kerala and affirmed the judgment of Kerala High Court who has allowed the writ petition filed by Presiding Officer, Industrial Tribunals claiming pay parity with District Judges. Paragraphs 21 and 22 of the said judgment is reproduced herein-below:-
"21. The principle of "equal pay for equal work" has been considered, explained and applied in a catena of decisions of this Court. The doctrine of "equal pay for equal work" was originally propounded as part of the Directive Principles of State policy in Article 39(d) of the Constitution. Thus, having regard to the Constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of "equal pay for equal work" has assumed the status of fundamental right. (see Randhir Singh v. Union of India (1982) 1 SCC 618 and D.S. Nakara v. Union of India (1983) 1 SCC 305].
22. In the latest judgment, a two-Judge Bench this Court in the case of Union of India v. Dineshan K.K. (2008) 1 SCC 586 held that if the necessary material on the basis whereof the claim for parity of pay scale is made is available on record with necessary proof and that there is equal work of equal quality and all other relevant factors are fulfilled the decision of the Central Government denying the benefits of same rank and pay structure to a Radio Mechanic in Assam Rifles as was given to other Central Paramilitary Forces was held to be clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution."
19. In the case of Food Corporation of India and Ors. Versus Ashis Kumar Ganguly and Others 2009 (7) SCC 734, the Apex Court dismissed the Civil Appeal filed by Food Corporation of India and affirmed the judgement of Calcutta High Court whereby he directed to grant advance increment to 57 deputationist employees. Paragraph 36 and 37 of the said judgment is reproduced herein-below:-
"36. Submission of the learned Additional Solicitor General that Article 14 of the Constitution of India postulates a valid classification cannot be said to have any application in the instant case. The High Court, in our opinion, has rightly found that in the matter of grant of benefits under the proviso appended to Regulation 81, all the employees were similarly situated.
37. In a case of this nature, legal right of the respondents emanated from violation of the equality clause contained in Article 14. If they were otherwise similarly situated, there was absolutely no reason why having regard to the provisions contained in Article 39-A of the Constitution of India, the respondents should be treated differently. It is, therefore, not a case where persons differently situated are being treated differently as was submitted by Mr. Sharan."
20. Thus, from the aforesaid judgments, it can be safely culled out that the Apex Court has held that it is the bounden duty of the State to treat similarly situated employees equally, and if it discriminates similarly situated employees that will frustrate the object of equality that is enshrined in Article 14 of the Constitution of India.
21. The Apex Court also has recognized that though Article 39B is not part of Chapter III of the Constitution of India which deals with fundamental rights, the principles enshrined under Article 39B which is directive principle has assumed the status of the fundamental right, and hence are enforceable by the courts.
22. Applying the principles enunciated by the Apex Court in the aforesaid judgments, this Court is of the opinion that the action of respondents in not granting the benefit of grade pay of Rs.1900/- to the petitioners is violative of Article 14 of the Constitution since such benefit has been extended to Mate of PWD by Government Order dated 16.11.2011 and also employees of Irrigation Department working in Meerut, Ghazipur and Lucknow divisions.
23. So far as the argument of learned Standing Counsel that fixation of pay is purely the domain of the executive, as various considerations are involved in the fixation of pay, therefore, the Court should refrain from issuing any direction to the State and leave it open to the State to take the appropriate decision. It is settled in law that pay fixation is purely executive function and should be left to the expert to decide on it, but in a case where it emanates from the record that the action of the State is arbitrary and discriminatory to its employees in denying their rightful claim, this Court is not denuded of the power to issue a command to the State under Article 226 of the Constitution of India to treat all similarly situated employees equally. It would be apt to refer to the judgement of the Apex Court in the case of K.T. Veerappa and Others Versus State of Karnataka and Others (2006) 9 SCC 406. Paragraph 13 the said judgment is reproduced herein-below:-
"13. He next contended that fixation of pay and parity in duties is the function of the Executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance in the case of State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 and Union of India v. S.B. Vohra (2004) 2 SCC 150. There is no dispute nor can there be any to the principles as settled in the case of State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors."
24. Similarly, in the case of Haryana State Minor Irrigation Tubewells Corporation and Others Versus G.S. Uppal and Others 2008 (7) SCC 375, the Apex Court has held that when the decision of the administrative authority of pay fixation and pay parity is unreasonable, unjust and prejudicial to a section of employees, the Court can interfere with the said decision. Paragraph 21 of the said judgment is reproduced herein-below:-
"21. There is no dispute nor can there be any to the principle as settled in the above-cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. [see K.T. Veerappa v. State of Karnataka (2006) 9 SCC 406]"
25. In the case in hand, the benefit of grade pay of Rs.1900/- has been extended to Mate of PWD w.e.f. 16.11.2011. The petitioners are also employees of State. Though the departments are different, but the nature of the job performed by them is similar to the nature of the job performed by Mate working in PWD. This fact is discernible from the record as the benefit of grade pay has been extended by the State of U.P. to Mate working in Irrigation Department in Meerut, Ghazipur and Lucknow Divisions, and also from several recommendations which have been made by Engineer-in-Chief to Deputy Secretary, Irrigation Department by placing reliance upon Government Order dated 16.11.2011 extending the benefit of grade pay of Rs.1900/- to Mate of PWD. Thus, from the facts detailed above, the only conclusion which can be drawn is that the nature and duty performed by Mate of Irrigation Department are similar to Mate of PWD and, therefore, they are also entitled to benefit of grade pay of Rs.1900/- to the petitioners.
26. Since the State Government is sleeping over the matter since 20 July 2016 when the recommendation was made by Engineer-in-Chief to Deputy Secretary, Irrigation Department, and petitioners are facing financial loss on account of the inaction of the State Government, therefore, applying the principles laid down by the Apex Court in the cases of G.S. Uppal (supra) and K.T. Veerappa (supra), this Court is of the opinion that it is a fit case where the Court should intervene and exercise its power under Article 226 of the Constitution of India commanding the respondents to extend the benefit of grade pay of Rs.1900/- to the petitioners.
27. For the reasons given above, the writ petition is allowed and a writ of mandamus is issued commanding respondents no.1 & 2 to extend the benefit of grade pay of Rs.1900/- to the petitioners w.e.f. 16.11.2011 when such benefit has been extended to Mate of PWD. It is further directed to the respondents to fix the pay of petitioners on the basis of grade pay of Rs.1900/- and also calculate arrears of salary w.e.f. 16.11.2011 and pay the same to the petitioners within three months from the date of production of the copy of this order before them.
Order Date :- 2.8.2021 SS