Uttarakhand High Court
Rajnish Jindal & Others ............. ... vs State Of Uttarakhand & Others on 5 June, 2020
Equivalent citations: AIRONLINE 2020 UTR 201
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 715 of 2016 (S/S)
Rajnish Jindal & others ............. Petitioners
Versus
State of Uttarakhand & others ............. Respondents
with Writ Petition No. 716 of 2016 (S/S) Aditya Rathi & others ............. Petitioners Versus State of Uttarakhand & others ............. Respondents Mr. Sanjay Bhatt, Advocate for the petitioner(s). Mr. P.C. Bisht, Standing Counsel for the respondent State. Ms. Menka Tripathi, Advocate for respondent no. 3.
List of cases referred:
1. (2017) 1 SCC 148, State of Punjab & others Vs Jagjit Singh & others.
2. A.I.R. 1982 SC 879, Randhir Singh Vs Union of India & others.
[Per: Hon'ble Lok Pal Singh, J.] Both the writ petitions, under Article 226 of the Constitution of India, have been filed by the petitioners seeking writ in the nature of mandamus commanding the respondents to sanction the revised pay scale of Rs.9300- 34800 with grade pay of Rs.4600/- w.e.f. 31.05.2010 in favour of the petitioners with all consequential benefits, including arrears of revised salary at par to the similarly placed persons namely Assistant Review Officers working in the same establishment / institution, in terms of Government Orders.
22) Since identical questions of law and facts are involved in the aforementioned writ petitions, therefore, the same are taken up together and are being decided by this common judgment for the sake of brevity and convenience.
3) Brief facts leading to filing of aforementioned writ petitions are that an advertisement dated 30.12.2007 was issued by the Uttarakhand Public Service Commission to fill up 30 posts of Lower Division Assistants and 11 posts of Console Operator-cum-Data Entry Assistants in the establishment of High Court of Uttarakhand at Nainital. The posts so advertised carried the same pay scale of Rs.4500-7000 with similar qualification of bachelor's degree from a University established by law in India. However, the additional qualification for the post of Console Operator-cum-Data Entry Assistant was that a candidate must possess DOEACC "A" level or equivalent postgraduate diploma from UGC approved University / Government Polytechnic and also possess speed of not less than 8000 key depression per hour. Though the selection process was initiated by the Uttarakhand Public Service Commission, but the same was taken over by the High Court and Console Operator-cum-Data Entry Assistants were selected and appointed prior to the appointment of Lower Division Assistant. From 2008 to 2010, the pay scale of both the categories of posts was same. However, in the year 2010, nomenclature of the post of Lower Division Assistant was changed to that of Assistant Review Officer and consequently their pay scale was also revised in the pay band of Rs.9300-34800 with grade pay of Rs.4200 3 with retrospective effect i.e. 31.05.2010, whereas the pay scale of the Console Operator-cum-Data Entry Assistant remained in the same pay band of Rs.5200-20200 with grade pay of Rs.2800.
4) Feeling dissatisfied, the petitioners moved a joint representation before the Registrar General of the Court on 09.05.2011 seeking enhancement of pay scale and parity of pay scale with the Asstt. Review Officers (hereinafter referred to as ARO), inter alia, to move to the Government / Secretariat of Uttarakhand to take notice of the grievances of the petitioners and to issue Government Orders for enhancement of minimum of pay scale of Console Operator-cum-Data Entry Assistant (hereinafter referred to as Console Operator). It was categorically stated in said representation that the Console Operator and ARO were appointed by same selection process and in the same pay scale. Console Operators are having better qualification to that of ARO and are performing similar work in the same institution, therefore, there cannot be disparity in the pay scale of Console Operator and ARO. On 17.11.2011, a letter was issued by the Registrar General of this Court to the Law Department seeking to revise the pay scale of Console Operator in the pay scale equivalent to that of ARO. In reply, the Law Department referred the letter of Finance Department dated 19.07.2012 and requested vide letter dated 31.07.2012 to submit a proposal as desired by the Finance Department.
45) It is alleged in the writ petition that the Law Department admitted the fact that 100 posts of Lower Division Assistant (now ARO) and 15 posts of Console Operators were created vide G.O. dated 02.05.2001 in the same pay scale and the pay scale of ARO has been revised in the grade pay of Rs.4200, whereas the grade pay of Console Operator is only Rs.2800. The Law Department, therefore, agreed in principle to upgrade the pay scale of working Console Operators with the grade pay of Rs.4200, as personal pay, equivalent to ARO. It is also alleged that in response to the G.O. dated 19.07.2012 several proposals were prepared and sent by this Court to the State Government in order to provide same grade pay to the Console Operators, equivalent to the grade pay which is being paid to the ARO. However, till date no final decision could be taken.
6) It is further alleged that in response to G.O. dated 31.07.2012, the High Court of Uttarakhand Information Technology (I.T.) Cadre Service Rules, 2012 (in short Rules of 2012) were framed by this Court. Schedule 2 of the Rules of 2012 indicates that the pay scale of Assistant Programmer (equivalent to ARO) will be Rs.9300-34800 with a grade pay of Rs.4200 and the note clause further indicates that the working Console Operators will be merged into Assistant Programmer and the post of Console Operator will be declared as dying cadre. It is contended that taking into consideration the G.O. dated 19.07.2012, clause (3) further indicates that the pay scale of working 07 Console Operators will be upgraded in the pay 5 band of Rs.9300-34800 with grade pay of Rs.4200, as personal pay, alike AROs w.e.f. 31.05.2010. It is also contended that in response to the letter dated 31.07.2012 issued by the Law Department and in view of Rules framed under Article 229(2) of the Constitution of India, the Registrar General of this Court wrote a letter to the Principal Secretary (Law) cum L.R., Govt. of Uttarakhand on 04.01.2013, stating therein that in pursuance of earlier letter dated 19.07.2012 read with letter dated 31.07.2012 issued by the State Government, this Court has framed Rules of 2012. A request has been made to the State Government to take necessary steps for the approval of the Rules of 2012.
7) On 19.05.2015, an Office Memorandum was issued on behalf of this Court wherein it has been provided that in order to provide better pay-scale and to provide probable chances of promotions in future the Console Operators may be merged in the cadre of ARO and the cadre of Console Operator may be declared as dying cadre after the merger and the Console Operators be placed at the bottom of the cadre of ARO. It was further provided that the length of service of the Console Operators may be saved. Thereafter, vide the said Office Memorandum options were invited from the petitioners for their merger in the cadre of ARO on or before 02.06.2015, as directed by this Court on 15.05.2015. Pursuant to Office Memorandum dated 19.05.2015, the petitioners submitted their options for their merger in the cadre of ARO. It is specifically alleged that the petitioners have been repeatedly asking for revision 6 of pay scale w.e.f. 31.05.2010 in the pay scale equivalent to the pay scale of ARO and the said request of the petitioners was principally agreed by the State Government in its G.O. dated 19.07.2012 as well as by this Court while framing Rules of 2012, but till date no decision has been taken at the level of respondents. It is contended that vide G.O. dated 19.07.2012, the State Government has made recommendation for upgradation of pay scale of the working Console Operators equivalent to the pay scale of ARO and an alternative recommendation was also made to look for some other option. It is stated that so far as the recommendation for upgradation of pay scale is concerned, there is no objection on behalf of either of the respondents to this extent, but surprisingly till date the petitioners have not been given benefit of revised pay scale.
8) It is also alleged that before issuing Office Memorandum dated 19.05.2015 in some internal letters, office of respondent no. 3 observed that the petitioners are performing the work of office clerks / ministerial staff at various sections since their appointment and are performing the work of regular court staff. The office clerk post at the bottom level is ARO which carries pay scale of Rs.9300- 34800 with grade pay of Rs.4600. It is contended that the petitioners were indicted in service in the pay scale of Rs.4500-9000 equivalent to ARO and are made to perform the same duties to that of ARO but the pay scale of ARO has been revised w.e.f. 31.05.2010 and now the ARO are receiving pay with the grade pay of Rs.4600, whereas the petitioners are still receiving grade pay of Rs.2800, as such 7 the petitioners were deprived of their right to equal pay for equal work which is not permissible in the eyes of law.
9) It is specifically alleged that pursuant to the G.O. dated 19.07.2012, respondent no. 3 first proceeded with the creation of I.T. cadre by merging Console Operators in the post of Asstt. Programmer (equivalent to ARO) and then proceeded with the merger of working Console Operator in the cadre of ARO. It is also alleged that since the State Government has already given its concurrence for revision of pay scale of working Console Operator there is no occasion for the respondents not to provide grade pay equivalent to ARO and keep the matter pending for years together. It is alleged that the delay in taking final decision with regard to upgradation of pay scale of the petitioners is causing great financial hardship to the petitioners. Apart from this, the petitioners are made to discharge same duties to that of ARO who were appointment subsequent to the petitioners despite the fact that the petitioners have better qualification. Petitioners were receiving equal pay till 31.05.2010 and their legitimate claim of revision of pay scale was acceded in principle by the respondent nos. 1 and 2, as such, now they cannot retract from the said position.
10) Counter affidavit has been filed on behalf of respondent no. 3 stating therein that the petitioners are trying to equate the post of Lower Division Assistant (now ARO) and Console Operator-cum-Data Entry Assistant (Console Operators) merely on the basis of common 8 advertisement issued for recruitment and similar initial pay scale. It is averred that merely on the basis that a common advertisement was published by the Uttarakhand Public Service Commission for the said two posts and the initial pay scale of the said two posts being equal, the said two posts cannot be put at par. It is also averred that there was no occasion for the petitioners to work as technical staff at High Court. As to the allegation that the petitioners were not included in the proposed IT cadre rules, it is stated that the petitioners will not be able to compete with the regularly recruited technical staff and there may not be reasonable chances for their promotion in said cadre and they may also not be able to contribute much towards the development of Information Technology at the High Court. It is contended that under such circumstances it was found suitable to merge the 07 sanctioned posts of Console Operators into the cadre of ARO in the High Court establishment as after such exercise the number of ARO cadre will increase, as also the promotional avenues for the petitioners. Besides this the State Government will also not have any additional burden as the said posts are already sanctioned. It is also averred that after the merger the Console Operator-cum-Data Entry Assistant cadre may be declared dying cadre and upon merger the petitioners may be placed at the bottom of the cadre of ARO and their past length of service may be saved.
11) It has been specifically averred in the counter affidavit that proposal in this regard was put in the form of recommendation before the Full Court on 23.04.2015. It 9 was considered and decided in the Full Court meeting held on 28.09.2015 that 07 Console Operators working in the High Court be merged in the cadre of ARO and the State Government may be moved to approve the aforesaid merger and to declare the cadre of the Console Operator- cum-Data Entry Assistant as dying cadre after such merger and the vacant 08 posts of Console Operators need not be merged. In reply to the fact that representations were made by the petitioners for increase in their pay-scale, it has been stated that said representations were sent to the State Government and the State Government vide G.O. dated 19.07.2012, provided that the present incumbents of the post of Console Operators may be given grade pay of Rs.4200 or equivalent to the Lower Division Assistants (LDA) and this cadre be declared as dying cadre or final decision be taken by the Pay Anomaly Committee upon receipt of the alternate proposal from the High Court. It was also averred that level one meeting was held with the State Government regarding merger of Console Operator to the cadre of ARO proposing the merger to the post for approval and for taking appropriate action. After the Level One meeting, the State Government had given its consent to the proposal. In respect of the regulations being sought by the State Government, it has already been informed to the State Government vide letter dated 01.03.2016 that the Console Operator have given their consent to be merged in the cadre of ARO and they are ready to be placed at the bottom of said cadre. It is further stated that the High Court is not seeking the promotion of Console Operators to the post of ARO rather High Court is proposing the merger 10 of 07 posts of Console Operator with the cadre of ARO. It is also stated that the qualifications of the recruitment of Console Operator and ARO were similar at the time of recruitment of petitioners and they have given their options for merger with the ARO on the condition that they will be placed at the bottom of the cadre of ARO. It is specifically stated that Finance Department had treated the proposal of merger as if the Console Operators are being proposed to be promoted to the post of ARO, whereas it is not a case of promotion but of merger of the petitioners to the cadre of ARO. It is further averred that since action has already been taken upon the grievance of the petitioners at the High Court level and the matter is pending before the State Government for approval as recommended by the High Court, it is for the State Government to accept the proposal of the High Court and the delay which is being caused is at the end of the State Government as the proposal and recommendation of the High Court has already been communicated to the State Government. It is also averred that the designation of Lower Divisional Assistant has been changed to Assistant Review Officer and the pay scale of the said post had been enhanced under the orders of Hon'ble the Chief Justice on the basis of parity of the AROs with those of the Government Secretariat of Uttarakhand, as per G.O. dated 08.04.2011.
12) Respondent nos. 1 and 2 almost reiterated the averments as made by respondent no. 3 in its counter affidavit. Respondent no. 2 in para 3 of its counter affidavit has averred that the State Government vide G.O. 11 dated 19.07.2012 provided that the present incumbents of the post of CODEA (Console Operators) may be given grade pay of Rs.4200/- or equivalent to the Lower Division Assistant. It has further been averred that this cadre may be declared as dying cadre after taking final decision by the Pay Anomaly Committee upon receipt of the alternate proposal from the High Court. It is also averred that the proposal of merger of 07 posts of Console Operators with the cadre of ARO is pending now with the Government. It is stated that proposal and recommendation of the High Court about merger has already been communicated to the Finance Department. In reply to contents of para 10 of the writ petition it has been stated in para 9 of the counter affidavit that the Law Department had already communicated the letter no. 203/XXVII (7)40(16)/2011 dated 19.07.2012 of the Finance Department to the High Court about granting the grade pay of Rs.4200/- to the Console Operators.
13) In the rejoinder affidavit the petitioners have reiterated the averments made in the writ petition.
14) Heard learned counsel for the parties and perused the counter affidavits, rejoinder affidavits, supplementary counter affidavit, supplementary rejoinder affidavit as also other documents brought on record.
15) Leaned counsel for the petitioners would argue that petitioners and Lower Division Assistants (LDAs) were appointed by the same selection process initiated 12 pursuant to one advertisement dated 30.12.2007. Petitioners and LDAs were given same work in the same establishment. Pay scale of petitioners and LDAs remained same till 31.05.2010 and subsequently nomenclature of LDA was changed to that of Asstt. Review Officer (ARO) and consequently vide order dated 08.04.2011 their pay scale was upgraded in the grade pay of Rs.4200; again their pay scale was upgraded in the grade pay of Rs.4600 w.e.f. 31.05.2013. It is alleged that whereas petitioners were granted grade pay of Rs. 4200 w.e.f. 31.05.2010, they were denied the benefit of upgradation of pay scale in the Grade Pay of Rs.4600 w.e.f. 31.05.2013, from the date the same was paid to the similarly placed AROs working in the same establishment.
16) There is no denial of the fact that the petitioners do not perform similar duties as performed by the AROs in the establishment. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of 'equal work equal pay' would apply and it would not be open to the State to discriminate one class with the other in paying salary. The State Government is under a Constitutional obligation to ensure that equal pay is paid for equal work.
17) It has come on record that vide order dated 10.10.2016 pay scale of the Console Operators was upgraded in the grade pay of Rs.4200 w.e.f. 31.05.2010, but thereafter their pay scale was upgraded in the grade pay of Rs.4600 w.e.f. 17.12.2016 only. The sole controversy in 13 the matter is that when petitioners were granted equivalent Grade Pay of Rs. 4200 w.e.f. 31.05.2010, why were they denied the benefit of upgradation of pay scale on the Grade Pay of Rs.4600 w.e.f. 31.05.2013, i.e. the date the same has been paid to the similarly placed AROs working in the same establishment, in defiance of the Government Orders issued from time to time? It is quite surprising that when the State Government has already given its concurrence for revision of pay scale what was the occasion for respondent no. 3 in not granting revised pay scale to the petitioners at par with the AROs working in the same establishment.
18) Article 39(d) contained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women. Though Article 39 is included in the Chapter of Directive Principles of State policy, but it is fundamental in nature. The purpose of Article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay.
19) Learned counsel for the petitioners drew attention of this Court towards a decision rendered by Hon'ble Apex Court in State of Punjab & others Vs Jagjit Singh & others1. Relevant paragraph 58 of said judgment is reproduced hereunder:
"In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled 14 to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
20) Their Lordships of Hon'ble Supreme Court in Randhir Singh Vs Union of India and others2 observed as under:
"Equal pay for equal work' is not a mere demagogic slogan. It is a Constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights. So the petitioner claims; so the petitioner asserts. Article 39(d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of 'equal pay for equal work for both men and women'. Articles 14 and 19 guarantees respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and Article 32 provides the remedy for the enforcement of the fundamental rights...."
"It is true 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 where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treat 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 very, 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...."
21) Furthermore, perusal of Government Order no. 35 / XXVII(7)43(19) / 2019 dated 20.12.2019 sent by Additional Secretary (Finance), Govt. of Uttarakhand to the 15 Additional Secretary, Law Department would make it abundantly clear that the Console Operators working in the High Court on the pay scale of 5200-20200 Grade Pay 2800 have been merged in the cadre of ARO on the basis of recommendation of the Pay Anomaly Committee and are sanctioned the pay scale of 9300-34800 Grade Pay 4200 w.e.f. 31.05.2010 by G.O. no. 435 dated 10.10.2016. Government Order dated 20.12.2019 further stipulates that, in case, the pay scale on the post of ARO is enhanced / amended from time to time after being permitted the grade pay of Rs.4200 on the entry level post of ARO, then said arrangement is deemed to continue automatically and for this purpose no separate order is required to be issued.
22) Having heard learned counsel for the parties and after perusal of the documents brought on record, this Court is of the view that the petitioners, whose services were merged in the cadre of ARO, are performing duties at par with similarly situated AROs in the same establishment, but they were deprived the benefit of pay scale of Rs.9300-34800 Grade Pay 4600 w.e.f 31.05.2013, i.e. from the date the same was paid to the similarly placed AROs in the same establishment. Moreover, after issuance of the Government Order dated 20.12.2019 it is abundantly clear that the intention behind issuing said G.O. is that, in case, the pay scale on the post of ARO is enhanced / amended from time to time after being permitted the grade pay of Rs.4200 on the entry level post of ARO, then said arrangement is deemed to continue automatically and for this purpose no separate order is required to be issued at the 16 hands of the Finance Department or the State Government. Thus, the petitioners are automatically entitled to the benefit of emoluments etc. going along with said post. Non-payment of revised pay scale to the petitioners amounts to discrimination against them and is violative of Articles 14 and 16 of the Constitution. Thus, it is held that the doctrine of equal work equal pay would apply on the premise of similar work.
23) Accordingly, both the writ petitions stands allowed. A mandamus is issued to respondent no. 3 directing them to act upon on the G.O. dated 20.12.2019 in its letter and spirit and pay the revised pay scale of Rs.9300-34800 with grade pay of Rs.4600 to the petitioners w.e.f. 31.05.2013 along with all consequential benefits including arrears of revised salary at par with AROs working in the same establishment within a period of three months from today.
24) There will, however, be no order as to costs.
(Lok Pal Singh, J.) Dt. June 05, 2020.
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