Patna High Court
The State Of Bihar & Anr vs Bihar State Basic Health Worke on 4 December, 2008
Author: Chandramauli Kr.Prasad
Bench: Chandramauli Kr.Prasad, Ravi Ranjan
Letters Patent Appeal No.313 OF 1998 Against the impugned judgement and order dated 26.3.1996
passed by a learned Single Judge of this Court in CWJC No. 6096 of 1992;
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1.The State of Bihar through Chief Secretary, Government of Bihar Old Secretariat, Patna
2. Health Commissioner, Government of Bihar Patna Appellants Versus
1.Bihar Sate Basic Health Workers (Nyuntam) Sangh through its President Sri Braj Kishore Narain Singh, resident of Chitragupta Path,Chandmari Road, Patna.
2.Braj Kishore Narain Singh, son of late Chhedi Singh at present residing at Chitragupta Path, Chandmari Road, Patna-20
3.Sriniwas Prasad Srivastava, son of Sri Jai Mangal Lall, resident of Sahpur Patti, P.O. Shahpurpatti District-Bhojpur-----Respondents
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For Appellants:- Mr. Lalit Kishore,Additional Advocate General NO.III & Mr. Ravindra Kumar Priyadarshi Advocate.
For Respondent No.1:-Mr. Umesh Pd. Singh,Senior Advocate For Respondents 2 & 3:-Mr. Madhuresh Prasad, Advocate P R E S E N T The Hon'ble Mr. Justice Chandramauli Kr.Prasad The Hon'ble Mr. Justice Dr.Ravi Ranjan Prasad & Ranjan,JJ:-State of Bihar and its Officers aggrieved by the order dated 26th of March, 1996 passed by a learned Single Judge in CWJC No. 6090 of 1992, have preferred this appeal under Clause 10 of the Letters Patent. By the impugned order the learned Single Judge had directed that Basic 2 Health Workers be placed in the same scale of pay as that of the Auxiliary Health Workers.
Petitioner No.1-Respondent no.1 herein is a Union of the Basic Health Workers and petitioner Nos.2 and 3- respondent nos.2 and 3 herein are its President and General Secretary and working as Basic Health Workers. Qualification prescribed for appointment as Auxiliary Health Worker is passing of matriculation examination and two years training. Its scale of pay at the relevant time was Rs.240-396. In the year 1974 post of Basic Health Workers were created. Qualification for appointment for this post was passing of the matriculation examination with Science in second division and after selection the candidate was required to undergo ten and half months intensive training. Its scale of pay was Rs.220-315, i.e. lower than the scale of pay of Auxiliary Health Workers i.e. Rs.240-396/-.
Alleging that Basic Health Workers and Auxiliary Health Workers perform same functions, the Association of Basic Health Workers and their Office bearers filed writ application claiming parity in pay with Auxiliary Health Workers 3 It was averred by the writ petitioners that though the training of Auxiliary Health Workers were for two years but under the crash programme of the Government of India the Basic Health Workers were given training for ten and half months and the entire syllabus was completed during the short period. Thereafter according to the writ petitioners' examination was taken and only the successful candidates were appointed to the post of Basic Health workers.
According to the writ petitioners the attention of the Pay Anomaly Committee was drawn to the anomaly between scale of pay of Auxiliary Health Workers and Basic Health Workers but the Committee while submitting its report in 1984 did not advert to this anomaly and the report is silent on that.
Association of Basic Health Workers in the year 1985 represented before the State Government to grant its members the same scale of pay as that of Auxiliary Health Workers. On the basis of the aforesaid representation the State Government in the department of Health submitted a memorandum for consideration by the 5th Pay Revision Committee recommending that scale of pay 4 of Basic Health Workers be made equal to Auxiliary Health Workers. While doing so, it observed that qualification for appointment of Basic Health Workers is passing of matriculation examination with Science in second division with ten and half months incentive training programme whereas that of Auxiliary Health Workers is simply matriculate with two years training programme. Memorandum sent for consideration of the 5th Pay Revision Committee went on to say that the qualification for appointment of Basic Health Workers is higher than Auxiliary Health Workers and both perform same nature of work. Fifth Pay Revision Committee considered the memorandum of the Health Department and finding no justification to treat Basic Health Workers equal in the pay scale with that of Auxiliary Health Workers turned down the memorandum. While doing so, the Committee observed that since Basic Health Workers and Auxiliary Health Workers had never been in the same scale of pay, the Basic Health Workers should not be given the pay scale of Auxiliary Health Workers.
Association of the Basic Health Workers thereafter agitated the matter before the Pay 5 Anomaly Removal Committee. It considered the grievance of the Basic Health Workers and in paragraph 13.67.5 has observed as follows:-
"13.67.5- Besides these Associations several memorandums have come from individual B.H.Ws or their local details of which needs not be stated here. The main points raised by them are only being summed up. The basic health workers are matriculates with science and have two years training. A copy of the detailed syllabus for the training of B.H.Ws has also been shown. Some have claimed the higher scale of Rs.1200-1800/- on the grounds of parity with A.N.M. on the grounds that she is the female counter part of the B.H.Ws whereas others have stated their claim for the next higher scale of Rs.1320- 2040/- on the grounds that the Basic Health Workers are performing the same duties and functioning ( Or even more) as Auxiliary Health Workers. This last category of contenders have received a fillip from the memorandum presented the Health Department to the fifth Pay Revision Committee referred to earlier. The Memorandum states that the basic health worker is the best trained health worker out of the three categories of health workers,namely, (a) Health worker(b) A.H.W. and (c) B.H.W yet the pay scale of B.H.W. is lower than the A.H.W. which needs rectifying by stepping up the B.H.W. to the pre revised scale of Rs.680-965/-. However, while making its report this pay anomalies Committee once again took the view that since B.H.Ws and A.H.Ws had never been in the same scale of pay, the B.H.Ws cannot be granted a pay scale at part with the A.H.Ws."
(underlining ours) 6 Association thereafter made representation after representation before the State Government but when no decision was taken they filed CWJC No. 3149 of 1991 and by order dated 14.8.1991 the writ application was disposed of with liberty to file representation before the Health Commissioner, who in turn was directed to dispose of the same within stipulated time. This also did not yield any result and the writ petitioners thereafter filed the present writ application which has given rise to the impugned order.
The learned Single Judge observed that Basic Health Workers and Auxiliary Health Workers are doing same nature of work and they are entitled to same scale of pay, in view of the constitutional mandate under Article 16 and 39(d) of the Constitution of India. While doing so, the learned Single Judge observed as follows:-
"It is of course true that the Court will not and cannot decide whether the nature of work which is performed by these two categories of employees is the same. But in this case the Court can proceed on the basis of clear findings of the relevant authorities namely the Health Commissioner and the Deputy Secretary, Health Department, that both categories of employees namely, A.H.Ws and B.H.Ws are doing the same nature of work. There is 7 also no denial of the fact that they are not doing the same work in the counter affidavit filed by the respondents. As such, this Court on the basis of the materials comes to the conclusion that both the categories of employees are doing the same nature of work.
Now, if same work is done the same scale of has to be offered. This principle under Article 39(d) of the Constitution of India has been elevated to the status of a fundamental right by the supreme Court. In several judgments of the Apex Court, it has been held that mere artificial difference between two groups of employees cannot stand in the way giving the treatment equal pay for equal work particularly when both categories of employees are doing the same nature of work. Reference may be made to the judgment of the Supreme Court in the case of Dhirender Chamoli and another Vs. State of U.P. reported 1986) 1 SCC page 637 in the case of Surinder Singh and another versus Engineer-in- Chief, C.P.W.D. and others, reported in 1986) 1 SCC page 639, and in the case of Jaipal and others versus The State of Haryana and others, reported in A.I.R. 1988 Supreme Court page 1504."
Mr. Lalit Kishore, Additional Advocate General No.III appearing on behalf of the appellants submits that Basic Health Workers cannot be equated with that of Auxiliary Health Workers. He points out that minimum qualification for appointment of Auxiliary Health Workers is passing of matriculation examination and two years training whereas that of Basic Health Workers is passing of the matriculation examination with science only. He 8 points out that after selection the Basic Health Workers are sent for training for 10 and half months and, as such, even if they are doing the same work, the quality and value of work are entirely different. He also emphasizes that right from the very beginning the Basic Health Workers and Auxiliary Health Workers were treated differently having different scale of pay. He submits that memorandum of the Health Department, the foundation of learned Single Judge's Judgement was considered and rejected by the Pay Revision Committee as also the pay Revision Anomaly Committee and hence, this Court in exercise of its power of judicial review ought not to have directed that the Basic Health Workers be placed in the same scale of pay as that of Auxiliary Health Workers.
In answer thereto Mr. Umesh Prasad Singh, Senior Advocate, appearing on behalf of respondent no.1 and Mr. Madhuresh Prasad, representing respondent nos.2 and 3 contend that the qualification for appointment of Basic Health Workers is passing of the matriculation examination with science whereas the qualification prescribed of Auxiliary Health Workers is simply 9 matriculation. They point out that after selection Basic Health Workers are sent for training for ten and half months and the training undergone by them during this period is equal to two years training undertaken by the Auxiliary Health Workers. They point out that the syllabus of the training of Auxiliary Health Workers and Basic Health Workers is one and the same. Hence according to them there is no justification to treat them differently.
Having appreciated the rival submission, we find substance in the submission of Mr. Lalit Kishore. From the pleading of the party, it is evident that the scale of pay of the Basic Health Workers had right from inception been lower than that of Auxiliary Health Workers. Not only this, the qualification for appointment of the Basic Health Workers is passing of the matriculation examination with Science and after selection they are sent for ten and half months training whereas Auxiliary Health Workers' qualification is simple matriculate but they are eligible for appointment only when they have undergone training of two years. The plea of the Basic Health Workers that in ten and half months they undergo incentive training and that training is equal to the training 10 undertaken by the Auxiliary Health Workers before the appointment does not appeal to us at all. Training undertaken by a candidate for two years and those for ten and half months cannot be comparable. Thus the value and quality of work done by the Basic Health Workers have to be assumed to be different than that of Auxiliary Health Workers.
In view of differentiation between qualification and resultant quality and value of work the Basic Health Workers and Auxiliary Health Workers, the question before us is as to whether the learned Single Judge was right in directing the Basic Health Workers to be placed in the same scale of pay as that of Auxiliary Health Workers.
It is well settled principle of law hallowed by time and sanctified by judicial precedents that interference by the Court in matter of grant of scale of pay is to be resorted to in exceptional circumstances and proper forum for the same is the expert body like the Pay Revision Committee or Pay Revision Anomaly Committee.
Reference in this connection can be made to a decision of the Supreme Court in the case of State of U.P. Vs.J.P.Chaurasia(AIR 1989 Supreme Court 19) in which it has been observed as follows: 11
"The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should not try to tinker with such equivalece unless it is shown that it was made with extraneous consideration."
(underlining ours) This question also came up for consideration before the Supreme Court in the case of State of Haryana and another vs. Tilak Raj and others (2003) 6 SCC 123) in which it has been held as follows :
"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."12
The Supreme Court had the occasion to consider this question in little detail in the case of S.C. Chandra and others vs. State of Jharkhand and others (2007) 8 SCC 279) and on consideration of its earlier authorities, it came to the conclusion that fixation of pay scale is delicate mechanism which requires various consideration including financial resources, educational qualification, mode of appointment etc. and it has a cascading effect. It has been further observed in the said case that only because the nature of work is same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work would not apply.
It is apt to reproduce the relevant paragraphs of the judgment from the said case:
"The principle of equal pay for equal work was propounded by the Court in certain decisions in the 1980s e.g. Dhirendra Chamoli V. State of U.P., Surinder Singh v. Engineer-in-Chief, CPWD, Randhir Singh Vs. Union of India, etc. this was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli case this Court granted to the casual, daily-rated employees the same pay scale as regular employees.
It appears that subsequently it was realized that the application of the principle of equal pay for equal work was 13 creating havoc. All over India different groups were claiming parity in pay with other groups e.g. government employees of one State were claiming parity with government employees of another state.
Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
In our opinion, fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups ( and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the Court itself granting higher pay).
It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of education qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. of W.B. V. Tarun K. Roy."
In the case of Government of W.B. Vs. Tarun K.Roy and others ( 2004 Volume 1 SCC 347) the Supreme Court examined the concept of equal pay for equal work in the light of the constitutional provision under Article 14 and 39 (d) of the 14 Constitution of India and observed that doctrine of equal pay for equal work does not come into picture only because the nature of the work is same, irrespective of educational qualification or irrespective of the source of recruitment or other relevant considerations. According to the Supreme Court the very fact that from the very beginning two different pay scales are maintained itself is suggestive of the fact that duties and functions are also different.
It is apt to quote paragraphs 14 and 22 in this regard:
"Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an education qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher education qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.
The very fact that from the very beginning two different pay scales were being maintained is itself suggestive of the fact that the duties and functions are also different. In fact it is not disputed that of the two posts the post of Sub- Assistant Engineer is a higher post."
(unederlining ours) 15 The Supreme Court also considered this question in the case of State of Bihar & others Vs. Bihar Veterinary Association and others (2008(2) PLJR(SC) 176) and observed that disturbing the recommendation of the pay scale shall have cascading effect and the Court in exercise of its power of judicial review shall be slow to do that.
Relevant portion of the judgment of the Supreme Court reads as follows:-
"Therefore, it was not proper to have disturbed this finding nor was it correct on the part of the learned Single Judge as well as the Division Bench of the High Court to have interfered with the same. If the Courts start disturbing the recommendations of the pay scale in a particular class of service then it is likely to have cascading effect on all related service which may result into multifarious litigation. The Fitment Committee has undertaken the exercise and recommended the wholesale revision of the pay scale in the State of Bihar and if one class of service is to be picked up and granted higher pay scale as is available in the central Government then the whole balance will be disturbed and other services are likely to be affected and it will result in complex situation in the State and may lead to ruination of the finances of the State. Therefore, interference by the learned Single Judge as well as the Division Bench of the High Court with the recommendation of the Fitment Committee was not warranted."
From the authorities of the Supreme Court referred to above, it is evident that only because the nature of work is the same, irrespective of 16 educational qualification, mode of recruitment, experience and other relevant factors, the principle of equal pay for equal work would not apply. Further the scale of pay of two posts being different from the very beginning is a relevant consideration. Not only this, the writ Court while exercising its power of judicial review shall not disturb the recommendation of the Pay Revision Committee as the same shall have cascading effect on all related services. The equal nature of work itself does not mean that the value and quality of the work rendered by two categories of persons are same and hence entitled to the same scale of pay on the principle of equal pay for equal work. When the value and quality of the work is different, it is sufficient to make distinction between two categories.
The judgment of the learned Single Judge when tested on the aforesaid anvil, we are constrained to observe that the learned Single Judge while directing that the Basic Health Workers be placed in the same scale of pay as that of the Auxiliary Health Workers did not take into account the aforesaid principles. It allowed the writ application relying on the memorandum of the Health 17 Department, which said that both Auxiliary Health Workers and Basic Health Workers are doing equal work and Basic Health Workers' qualification is higher. It did not take into account that memorandum of the Health Department vis-à-vis the Basic Health Workers was considered by the Pay Revision Committee and Pay Anomaly Removal Committee and was turned down. Further the Basic Health Workers' qualification of passing the matriculation examination in science in second division will not mean that the qualification prescribed for their appointment is higher than that of Auxiliary Health Workers. Auxiliary Health Workers before appointment have to undergo training of two years and as observed earlier ten and half months training and that too after selection for appointment is not comparable to the two years training undertaken by the Auxiliary Health Workers. Auxiliary Health Workers and Basic Health Workers right from inception have been given different scales of pay. Their grievance was considered by the Pay Revision Committee as also Pay Revision Anomaly Committee and was rejected. In the face of what we have found above, we are of the opinion that the learned Single Judge erred in 18 exercising the power of judicial review in directing that the Basic Health Workers be placed in the same scale of pay as that of the Auxiliary Health Workers.
Needless to state that in case in future the Association of the Basic Health Workers raise grievance for making their salary equal to that of Auxiliary Health Workers before the Pay Revision Committee, it shall decide the same in accordance with law without being influenced by the observations made by us in this judgment.
In the result, the appeal is allowed; impugned judgment of the learned Single Judge is set aside.
However, there shall be no order as to cost.
(Chandramauli Kr.Prasad,J) (Dr.Ravi Ranjan,J.) Patna High Court Dated the 4th December,2008 A.Kumar/AFR