Himachal Pradesh High Court
State Of Himachal Pradesh & Others vs Dr. Suman Sharma on 22 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2710 of 2018 a/w CWP Nos. 2816, 2817 & 2818 and 2820, 2821, 2822, 2823 of .
2018 and COPCT Nos. 612 and 650 of 2020 Reserved on: 17.09.2020 Decided on: 22.09.2020 CWP No.2710/2018 State of Himachal Pradesh & others ...Petitioners.
Versus
Dr. Suman Sharma ....Respondent.
CWP No.2816/2018
State of Himachal Pradesh & others ...Petitioners.
Versus
Akhilesh Kumar Srivastava ....Respondent.
CWP No.2817/2018
Principal Secretary Department of Ayurveda & others ...Petitioners.
Versus
Kulwant Singh Himalya ....Respondent.
CWP No.2818/2018
Principal Secretary Department of Ayurveda & others ...Petitioners.
Versus
Navneet Sharma ....Respondent.
CWP No.2820/2018
Principal Secretary Department of Ayurveda & others ...Petitioners.
Versus
Anjana Mishra ....Respondent.
CWP No.2821/2018
State of H.P & others ...Petitioners.
Versus
Seema Sukhla ....Respondent.
CWP No.2822/2018
Principal Secretary Department of Ayurveda & others ...Petitioners.
Versus
Rajika Gupta ....Respondent.
CWP No.2823/2018
Principal Secretary Department of Ayurveda & others ...Petitioners.
::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 2 Versus Vijayant Bhardwaj ....Respondent. COPCT No.612/2020 . Vijyant Bhardwaj ...Petitioner. Versus Sanjay Gupta ....Respondent. COPCT No.650/2020 Akhilesh Kumar Srivastava ...Petitioner. Versus Sanjay Gupta ....Respondent Coram
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
For the petitioner(s) r : Mr. Ashok Sharma, Advocate General with Mr. Ranjan Sharma, Mr. Vikas Rathour & Mr. Desh Raj Thakur, Additional Advocates General and Ms. Seema Sharma, Mr. Bhupinder Thakur & Ms. Svaneel Jaswal, Deputy Advocates General, for the petitioners-State in CWP Nos.2710, 2816 to 2818 and 2820 to 2823 and for the respondents in COPCT Nos.612 and 650 of 2020 For the respondent(s) : Ms. Komal Chaudhary, Advocate, for the respondent(s) in CWP Nos. 2710, 2816 to 2818 and 2820 to 2823 of 2018 and for the petitioners in COPCT Nos. 612 and 650 of 2020.
(Through video conference) Jyotsna Rewal Dua (J) Respondents in all these connected writ petitions (CWP Nos.
2710, 2816 to 2818 and 2820 to 2823 of 2018) were the original petitioners, who were successful before learned erstwhile Himachal Pradesh Administrative Tribunal in claiming the Grade Pay of Rs.6600/- w.e.f.
7.8.2012. Feeling aggrieved against the decision rendered by learned Tribunal, petitioner-State/original respondent has preferred these writ petitions.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 32. Undisputed factual position:
Since all these petitions involve common questions of law and .
facts, therefore, these are being taken up together for decision. For convenience, facts of CWP No.2710/2018 titled as State of Himachal Pradesh & others Vs. Dr. Suman Sharma, are being referred hereinafter.
2(i) Respondent was appointed as Ayurvedic Medical Officer in April 1995. She was transferred to Rajiv Gandhi Government Post Graduate Ayurvedic College Paprola as Lecturer in May 2008. Further channel of promotion from the post of Lecturer in Department of Ayurveda is to the post of Senior Lecturer. Recruitment and Promotion Rules for the post of Senior Lecturers were notified by the State on 5.3.2012. Relevant particulars for the post of Senior Lecturer under R&P Rules are as under:-
'Senior Lecturer.
Pay Scale: Rs.10300-34800+ 4800/- Grade Pay. Method of recruitment; 100% by way of promotion, failing which by direct recruitment on regular basis or by recruitment on contract basis as the case may be-----------------------.
Mode of recruitment; by way of promotion from amongst the Lecturers possessing three years regular service or regular combined with continuous adhoc service rendered, if any in the Grade...................... ' 2(ii) Post of Reader with Pay-Scale of Rs.10300-34800 + 5000/-
Grade Pay is the next promotion available to the feeder category post of Senior Lecturer. Recruitment and Promotion Rules for the post of Reader (Class-I Gazetted) provide filling up of this post 100% by way of promotion from amongst Senior Lecturers having five years regular or regular combined with continuous ad-hoc service, if any, in the Grade, failing which by promotion from amongst the Senior Lecturer of the concerned Specialty having eight years regular service or regular combined with continuous ad hoc ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 4 service, if any, as Senior Lecturer and Lecturer in the concerned specialty combined, which shall also include two years essential service as Senior .
Lecturer in the concerned Specialty.
2(iii) The respondent was promoted to the post of Senior Lecturer in the Pay Band of Rs.10300-34800 + 4800 Grade Pay on 3.6.2011. Posts of Lecturers and Senior Lecturers of Ayurvedic College Paprola were amalgamated and re-designated as Lecturer in the Pay-Structure of Rs.10300- 34800 + 5000/- Grade Pay vide notification dated 7.8.2012. Notification dated 27.9.2012, was issued by the Finance Department of the Government of Himachal Pradesh notifying following pay schedule in the Department of Ayurveda.
4. DEPARTMENT OF AYURVEDA Sr. No Name of the Pay Band Grade Pay Remarks, if Date from category/post. any. which applicable 1 Trainder Dals (i) 4900- 1400 6700 Already 10680 initial start existing
(ii) 4900- 1800 This PB & 10680 GP will be 01.10.2012 given after 2 years of regular service.
2 Lecturer (Ayur. (I) 10300- 5000 18450 Already
College) 34800 initial start existing
(ii) 15600- 5400 This PB &
39100 GP will be 01.10.2012
given after 2
years of
regular
service.
3 Reader/Assista 15600- 6600 ----------- 01.10.2012
nt Professor/ 39100
(Ayur. College)
4 Professor 15600- 7800 ----------- 01.10.2012
(Ayur. College) 39100
::: Downloaded on - 22/09/2020 20:19:17 :::HCHP
5
The table extracted above shows that merged category of Lecturer in Ayurvedic College was granted two types of pay-scales (i) Pay .
Band of Rs. 10300-34800 + 5000 Grade Pay and (ii) Pay Band of Rs. 15600- 39100 + 5400 Grade Pay, admissible after two years of regular service as Lecturer w.e.f. 1.10.2012. Readers/Assistant Professors in the Ayurvedic College were placed in the Pay-Band of Rs.15600-39100 with Grade Pay of Rs.6600/- w.e.f. 1.10.2012.
2(iv) Notification dated 7.8.2012 amalgamating posts of Senior Lecturers and Lecturers was rescinded by the State vide notification dated 13.3.2013. Thereby earlier existing posts of Lecturers and Senior Lecturers were restored alongwith their respective pay bands and grade pay. Respondent continued as Senior Lecturer initially in the pay band of Rs.10300-34800 + 4800 Grade Pay. After two years of regular service, she continued in the Pay Band of Rs.15600-39100 with Grade Pay of Rs.5400/-.
2(v) Claiming entitlement to Grade Pay of Rs.6600/-, respondent instituted a writ petition before this Court. This petition was allowed by erstwhile H.P. Administrative Tribunal as TA No.5707/2015 vide judgment dated 27.11.2017. Learned Tribunal while allowing all companion petitions vide this common judgment held that disparity, anomaly and discrepancy in the pay scales is required to be redressed by the State. There was no occasion for the State to reject the cases for grant of grade-pay of Rs.6600/- to the posts of Senior Lecturer Ayurveda. This grade pay had already been granted by the Punjab Government to its posts of Reader, Assistant Professor and Senior ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 6 Lecturer. Respondent (original writ petitioner) was Senior Lecturer discharging the same duties, which were being discharged by her counter-
.
parts, thus was entitled to the same pay-band and grade-pay. Non grant of that pay-scale of Senior Lecturer to the respondent, which was granted by the Punjab Government had created anomaly in her pay structure, which had to be removed. Accordingly, the writ petitions were allowed and State was directed to consider the cases of the original petitioners for grant of grade-pay of Rs.6600/- w.e.f. 7.8.2012 with all consequential benefits.
Aggrieved State has preferred the instant writ petitions praying for setting aside the common judgment passed by the learned Tribunal in all these connected petitions.
3. Submissions Grievance of the respondent/original writ petitioners 3(i) The grievance of the respondent as highlighted in the writ petition and as canvassed by learned counsel for the respondent is with regard to alleged wrong denial of Grade Pay of Rs.6600/- to her. Respondent asserts that Government of Punjab had granted Grade-Pay of Rs.6600/- to its posts of Reader/Assistant Professor/Senior Lecturer. State of Himachal Pradesh also follows Punjab pattern of pay scales, hence, petitioner-State ought to release the Grade Pay of Rs.6600/- in her favour. Relevant extract of the notification dated 21.12.2011 issued by the Government of Punjab & relied upon by the respondent is extracted hereinafter:-
::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 7Name of Pre- Revised scale of pay w.e.f. Revised scale of pay w.e.f.
the post revise 1.1.2006 1.12.2011
d scale
Pay Grade Initial Pay Grade Initial
of pay
Band Pay Pay band Pay Pay
.
Lecturer/Ju 7000- 10300- 4400 17420 15600- 5400 21000
nior 10980 34800 39100
Lecturer/De
monstrator
Reader/Assis 7220- 10300- 4800 18250 15600- 6600 25250
tant 11320 34800 39100
Professor/Se
nior Lecturer
Professor/As 7220- 10300- 5000 18450 15600- 7800 31520
sociate 11660 34800 39100
Professor
3(ii) It is also asserted that respondent has to be treated as Assistant
Professor in terms of Petitioner-State's notification dated 27.3.1991 whereunder post of Assistant Professor was re-designated as Senior Lecturer and it was mentioned in the notification that persons rendering the services against the re-designated post will be granted the same pay-scale, which were being released prior to such re-designation. It is further contended by learned counsel for the respondent that State of Himachal Pradesh in its notification dated 27.9.2012, has released the Grade Pay of Rs.6600/- to the posts of Reader/Assistant Professor. Post of Senior Lecturer held by the respondent is equivalent to that of Reader/Assistant Professor, therefore, Grade Pay of Rs.6600/- is required to be released in her favour.
Stand of State.
3(iii) Learned Additional Advocate General has opposed the claim of the respondent on the ground that Punjab pattern of pay-scales is taken into consideration by the State of Himachal Pradesh for revision of pay scales of ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 8 State Government employees on a broader perspective. However, the pay-
scales are actually notified and released by the petitioner-State after examining .
its own staffing pattern, Recruitment & Promotion Rules, method of recruitment, prescribed educational qualifications, geographical/traditional/territorial conditions and financial resources.
Government of Himachal Pradesh is not legally bound to follow the Punjab pattern of pay-scales. Grade Pay of Rs.6600/- is admissible to the post of Reader/Assistant Professor and not to the post of Senior Lecturer in Ayurvedic College in the State.
3(iv) Post of Senior Lecturer is a feeder category post for promotion to the post of Reader. Respondent cannot claim the Grade-Pay, which is attached to promotional post of Reader. Learned Additional Advocate General has also denied that the post of Senior Lecturer against which the respondent is presently posted is equivalent to the post of Assistant Professor or Reader.
He submitted that the State is running a four tier teaching system in the Ayurvedic College whereas relief claimed by the respondent is based on maintaining three tier system.
4. Observations:
Regarding following the Punjab Pattern of Pay-Scale.
4(i) Reliance upon the notification dated 21.12.2011 issued by State of Punjab for claiming Grade Pay of Rs.6600/- is misplaced. This notification was issued by Government of Punjab and not by Government of Himachal Pradesh. Even though petitioner-State has admitted that by and large it takes ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 9 into consideration the Punjab pattern of pay-scale. But the fact cannot be lost sight of that the petitioner-State examines the matter of pay-scales in view of .
it own staffing pattern, Recruitment & Promotion Rules, method of recruitment, educational qualifications, geographical/traditional/territorial conditions and financial resources and then fixes the pay-scales for its employees by framing statutory Rules under Article 309 of Constitution of India. Government of Himachal Pradesh is not legally bound to follow Punjab pattern pay-scales.
In (1999) 3 SCC 217 titled State of H.P. vs. P.D. Attri and others, Hon'ble Apex Court held that even if State of Himachal Pradesh as per policy & practice has been adopting pay-scales for its employees as sanctioned from time to time by States of Punjab and Haryana yet State of Himachal Pradesh is not bound to follow it or if it had adopted rules and regulations applicable to employees of other State even then it is not bound to follow every change brought in the rules and regulations in the other State.
Every State has its own individualistic way of governance under the Constitution. No law commands it to follow pay scales granted by any other State. Relevant paras of the judgment are extracted hereinafter:-
"5. The Case of the respondents is not based on any Constitutional or any other legal provisions when they claim parity with the posts similarly designated in the Punjab and Haryana High court and their pay-scales from the same date. They do not allege any violation of any Constitutional provision or any other provision of law. They say it is so because of "accepts policy and common practice" which according to them are undisputed. We do not think we can import such vague principles while interpreting the provisions of law. India is a union of States. Each State has its own individualistic way of governance under the Constitution. One State is not bound to follow the rules and regulations applicable to the employees of the other State or if it had adopted the same rules and ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 10 regulations, it is not bound to follow every change brought in the rules and regulations in the other State. The question then arises before us is if the State of Himachal Pradesh has to follow every change brought in the States of Punjab and Haryana in regard to the rules and regulations applicable to the employees in the States of Punjab and Haryana. The answer has to be .
in negative. No argument is needed for that as anyone having basic knowledge of the Constitution would not argue otherwise, True, the State as per "policy and practice' had been adopting the same pay-scales for the employees of the High court as sanctioned from time to time for the employees of the Punjab and Haryana High court and it may even now follow to grant pay-scales but is certainly not bound to follow. No law commands it to do so.
6 The State of Punjab was reorganised into States of Punjab, Haryana and Chandigarh. Chandigarh, to begin with, was a Union Territory and was given the status of full Statehood in 1970. Since employees of the composite States of Punjab were taken in various Departments of the State of Himachal Pradesh in order to safeguard the seniority, pay-scales etc. , the State of Himachal Pradesh followed the Punjab pattern of pay-scales. After attaining the status of full statehood, High court of Himachal Pradesh formulated its own rules and regulations for its employees. It adopted the pattern of Punjab and Haryana High court rules of their employees. When Punjab and Haryana High court gave effect to certain portion of its Rules from 25/9/1985 by notification dated 23/1/1986 as a result of which redesignation of the posts of Senior Translators and Junior Translators were equated to the posts in Punjab Civil Secretariat, in the Himachal Pradesh High court similar effect was given to in its rules for its employees.
When the Punjab and Haryana High court gave effect to those rules from 23/1/1975, the State government did not agree to the recommendations of the chief justice of the Himachal Pradesh High court to follow the same suit. It is true that till now, Himachal Pradesh High court has been following the rules applicable to the employees of the Punjab and Haryana High court and it may go on following those rules as may be amended by the punjab and Haryana High court from time to time, but certainly it is not bound to so follow. No law commands the State government to follow the rules applicable to the employees of the Punjab and Haryana High court to the employees of the Himachal Pradesh High court. That being the position, it is not necessary for us to examine different qualifications for appointment to the posts of Translators and Junior Translators that may exist between Punjab and Haryana High court and the Himachal Pradesh High court and also as to the mode of their recruitment/placement in the service. Moreover, any change in the pay-scale following Punjab and Haryana High court can set in motion chain reaction for other employees which may give rise to multiplicity of litigation among various categories of employees. Rules of each High court have to be examined independently. There cannot be any such law that Himachal Pradesh High court has to suo motu follow the same rules as applicable to the employees working in the Punjab and Haryana High court".
::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 11It will also be apposite to refer here to a judgment rendered on 16.10.2014 by a Single Bench of this Court in CWP No.8425/2010 titled .
Balvinder Singh Mahal Vs. State of H.P. and others to the effect that State of Himachal Pradesh is not required to follow Punjab or any other Government's pattern of pay scale. Relevant paras of the judgment are extracted hereunder:-
"7. In view of the exposition of law in P.D. Attri's case (supra), it has to be seen as to whether the petitioner has been able to establish violation of any constitutional or any other legal provision when he has laid claim based upon parity with the posts with similarly situate persons in the State of Punjab and claiming pay scales granted in the said State.
8.The petitioner nowhere in the petition has made even whisper regarding the nature of the work done by him so as to compare it with his counterparts in State of Punjab. Further, he has not even mentioned the educational qualifications, the working conditions and other relevant factors so as to make it possible for this Court to come to a conclusion with regard to similarity in the nature of work performed by the petitioner vis-a- vis his counterparts in the adjoining State of Punjab. The petitioner has simply relied upon the judgment of the Hon'ble Supreme Court in Union of India versus Dineshan K.K. (2008) 1 SCC 586, State of Kerala versus B.Renjith Kumar and others (2008) 12 SCC 219 and Hukam Chand Gupta versus Director General, Indian Council of Agricultural Research and others(2012) 12 SCC 666.
9. No doubt, the aforesaid cases deal with the doctrine of equal pay for equal work, but the same is not an abstract doctrine capable of being enforced in a Court of law. However, this principle has no mathematical application in every case and a number of factors have to be considered before applying this principle. This principle requires consideration of various dimensions of a given job and normally the applicability of this principle must be left to be evaluated and determined by an expert body and the Court should not interfere till it is satisfied that the necessary material on the basis whereof the claim 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."
In (2017) 4 SCC 449 titled Secretary Mahatama Gandhi Mission and another vs. Bhartiya Kamgar Sena and others in following paras, it was held that even the recommendations of pay commission are not binding on the Government of India. They are meant for administrative guidance. The Government of India may reject or accept the recommendations ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 12 either fully or partly. Even if Government of India accepts that recommendations of Pay Commission, then also it has no authority to compel .
the States to adopt structure applicable to Government of India.
"60. The Sixth Pay Commission appointed by the Government of India is only a body entrusted with the job of making an assessment of the need to revise the pay structure of the employees of the Government of India and to suggest appropriate measures for revision of the pay structure. The recommendations of the pay commission are not binding on the Government of India, much less any other body. They are only meant for administrative guidance of the Government of India. The Government of India may accept or reject the recommendations either fully or partly, though it has never happened that the recommendations of the pay commission are completely rejected by the Government so far.
61. Once the Government of India accepted the recommendations of the pay commission and issued orders signifying its acceptance, it became the decision of the Government of India. That decision of the Government of India created a right in favour of its employees to receive pay in terms of the recommendations of the Sixth Pay Commission and the Government of India is obliged to pay.
62 The fact that the Government of India accepted the recommendations of the Sixth Pay Commission (for that matter any pay commission) does not either oblige the States to follow the pattern of the revised pay structure adopted by the Government of India or create any right in favour of the employees of the State or other bodies falling within the legislative authority of the State. The Government of India has no authority either under the Constitution or under any law to compel the States or their instrumentalities to adopt the pay structure applicable to the employees of the Government of India."
In Civil Appeal No.2016/2020, titled Union of India and others Vs. M.V. Mohanan Nair, decided on 5.03.2020, Hon'ble Apex Court held that Court should not interfere with the recommendations of the expert body. When the Government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the Court would have a serious impact on the public exchequer. It was observed that it is the function of the Government which normally acts on the recommendations of the Pay Commission, which is the proper authority to ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 13 decide upon the issues and decision of experts bodies like the Pay Commission is not ordinarily subject to judicial review.
.
Therefore, Grade Pay of Rs.6600/- cannot be released to the respondent merely on the ground that Punjab Government grants this grade pay to its Senior Lecturer/Assistant Professor/Reader. Punjab pattern of pay scales will not be ipso facto binding upon the petitioner-State.
4(ii) Regarding Equation of posts Hon'ble Apex Court in (2019) 3 SCC 547 titled Punjab State Power Corporation Limited Vs. Rajesh Kumar Jindal and others outlined following factors, which are to be kept in view while fixing the pay-structure:-
i) Method of recruitment
ii) level at which recruitment is made.
iii) the hierarchy of service in a given cadre
iv) minimum required educational/technical qualifications
v) avenues of promotional
vi) nature of duties & responsibilities
vii) employer's capacity to pay
It will be apposite to refer following paras from Punjab State Power Corporation Limited case (supra) wherein it was held that various factors determine the issue of equivalence & equation of posts. Burden of proof in establishing parity in pay scales & nature of duties & responsibilities is on the person claiming such right. The conclusion arrived at by experts are not susceptible to judicial review.
"21. It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative:-
(i) The nature and duties of a post;::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 14
(ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;
(iii) The minimum qualifications, if any, prescribed for recruitment to the post; and .
(iv) The salary of the post.
23 The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales. After referring to number of judgments and observing that it is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against, this Court, in SAIL, held as under:-
"22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine of "equal pay for equal work" as enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum.
The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on the person claiming such right. (Vide U.P. State Sugar Corpn. Ltd. and Another v. Sant Raj Singh and Others, 2006 9 SCC 82, Union of India and Another v. Mahajabeen Akhtar, 2008 1 SCC 368, Union of India v. Dineshan K.K, 2008 1 SCC 586, Union of India and Others v.
Hiranmoy Sen and Others, 2008 1 SCC 630, Official Liquidator v. Dayanand and Others, 2008 10 SCC 1, U.P. SEB and Another v. Aziz Ahmad, 2009 2 SCC 606 and State of M.P. and Others v. Ramesh Chandra Bajpai, 2009 13 SCC 635).
31 Though the above arguments of the respondents appear to be attractive, when considered in the light of the well settled principles, we find no merit in the contention. Equation of posts and revision of pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. As pointed out earlier, the Pay Anomaly Committee has given elaborate reasons for revising the pay scales of the Head Clerks at Rs.2000-3500/- and Internal Auditors at Rs.1800-3200/-. The conclusion arrived at by the experts/Pay Anomaly Committee are not susceptible to judicial review and the courts are not to interfere with the decision of the Government which is based on the opinion of the experts."::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 15
In (2019) 4 SCC 113 titled Punjab State Electricity Board and another Vs. Thana Singh and others, it was held that it would be for the .
employer to classify its employees/posts on the basis of qualifications, duties & responsibilities of the posts concerned and to prescribe different pay scales accordingly. Article 14 of Constitution of India would get attracted only if there is discrimination between same set of employees not otherwise. And even to prove this discrimination, burden will be on the person claiming parity, who has to discharge it by producing material before the Court.
Determination of parity or disparity in duties & responsibilities is a complex issue and same should be left to the expert body. Relevant paras are as under:-
"18. The appellant-Board being an autonomous body governed by its own regulations, it was for the Board to classify its employees/posts on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, the Board would be justified in prescribing different pay scales. Article 14 of the Constitution of India would be applicable only when a discrimination is made out between the persons who are similarly situated and not otherwise. It is the duty of an employee seeking parity of pay to prove and establish that they have been discriminated. In State of Haryana and Another v. Tilak Raj and Others, 2003 6 SCC 123, this Court held that:
"11..... To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-à-vis an alleged discrimination."
"20. Burden of establishing parity in pay scale and employment is on the person claiming such right. There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale. As pointed out earlier, the burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities. In the writ petition, respondents have only claimed parity of pay scale with those of the employees working under the Punjab Government which was not accepted by the learned Single Judge. Determination of parity or disparity in duties and responsibilities is a complex issue and the same should be left to the expert body. When the expert body considered revision of pay for various posts, it did not revise the pay scale of Sub Fire Officers. When the expert body has taken such a view, it is not for the courts to substitute its views and interfere with the same and take a different view.::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 16
24. In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the .
respondents claiming parity with the employees of the State Government.
25 The learned Single Judge, however, proceeded under the erroneous footing that merely because Sub Fire Officers were categorised in Group XII, they were entitled parity of scale of pay with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors.
Inclusion of posts of Sub Fire Officers in Group XII may not be a determinative factor to hold that the Sub Fire Officers are equal with Head Clerks, Head Clerk-cum-Divisional Accountants, and Internal Auditors. Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, nature, quality of work and duties and that the status of both the posts are identical. Observing that it is not always impermissible to provide two different pay scales in the same cadre, this Court, in SAIL, held as under:-
"29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre r on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others, 1989 1 SCC 121and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others, 1989 2 SCC
235.) "Non-uniformities would not in all events violate Article 14."
Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Others v. State of Bihar and Others, Associate Banks Officers Assn. v. SBI and Others, and Official Liquidator v. Dayanand)".
Respondent has not demonstrated that factors required to be considered while fixing the pay-scales were not examined by the State.
Absolutely no material has been placed on record to justify the assertions that there is anomaly in the pay-structure of the post of Senior Lecturer or that the post is required to be equated to the post of Reader/Assistant Professor. Claim for entitlement to Grade Pay of Rs.6600/- has not been substantiated.
4(iii) Grade pay is being claimed is admissible only on promotion.
Respondent, a Senior Lecturer is desirous of Grade Pay of Rs.6600/-, which she is claiming w.e.f. 7.8.2012 as against Grade Pay of Rs.5400/- being granted to her. Record shows that Grade Pay of Rs.6600/- is ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 17 admissible to the post of Reader, which post becomes available to a Senior Lecturer only on promotion. Respondent is presently working as Senior .
Lecturer and as such falls in the feeder category for promotion to the post of Reader. She therefore cannot be granted grade pay admissible to a higher post. Even the notification dated 21.12.2011 alongwith notification dated 27.3.1991 do not import such connotations of equivalence of posts, which the petitioner is reading into them. Grade-pay of Rs.6600/- in the petitioner-State is admissible only against the post of Reader, which is a promotional avenue available to a Senior Lecturer. Respondent, a Senior Lecturer, cannot legally claim the grade-pay admissible to the promotional post of Reader. She will only become entitled for the grade-pay of Rs.6600/- on her promotion as Reader. In this regard, reference can be made to a decision in Civil Appeal No.9124/2014 titled State of Himachal Pradesh & another Vs. Tilak Raj, where Hon'ble Apex Court held as under:-
"21. In our opinion, facts in the present case are absolutely different.
The qualifications of the respondents before this Court and Shri Gurdev, who had filed the aforestated suit are different. It is clear that the respondents had prayed for pay scale which was being given to persons holding a promotional post by contending that the nature of work was similar. It is pertinent to note that pay scale of Laboratory Attendants in different departments are different and the qualifications of the respondents are also different. As Laboratory Attendants, the respondents were in the pay scale of Rs.750-1350 (revised) whereas upon getting promotion to the post of Laboratory Assistant, they would be getting pay scale of Rs.950- 1800 (revised). It is , thus, clear that the posts of Laboratory Attendant and Laboratory Assistant are different and therefore, the respondents could not have been paid scale which was being paid to the persons belonging to a higher cadre.
22. It is also clear that disputed question of facts were involved in the petitions because according to the respondents, who were petitioners before the High Court, nature of work done by them was similar to that of the work of other Laboratory Attendants or Laboratory Assistants. Without looking at the nature of work done by persons working in different cadres in different departments, one cannot jump to a conclusion that all these petitions were doing similar type of work simply because in a civil suit, one ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 18 particular person had succeeded after adducing evidence. There is nothing on record to show that the High Court had examined the nature of work done by the respondents and other persons who were getting higher pay scale. The High Court had also not considered the fact that qualifications required for appointment to both the posts were different. In our opinion, .
the High Court should not have entertained all these petitions where disputed questions of fact were required to be examined. Without examining relevant evidence regarding exact nature of work, working conditions and other relevant factors, it is not possible to come to a conclusion with regard to similarity in the nature of work done by persons belonging to different cadres and normally such exercise should not be carried out by the High Court under its writ jurisdiction. It is settled law that the work of fixing pay scale is left to an expert body like Pay Commission or other similar body, as held by this Court in several cases, including the case of S.C. Chandra Vs. State of Jharkhand (2007) 8 SCC
279. Moreover, qualifications, experience, etc. are also required to be examined before fixing pay scales. Such an exercise was not carried out in this case by the High Court."
Therefore to hold that there was anomaly in pay-scale of the respondent on the ground that the pay-scale granted by the State of Himachal Pradesh to the post of Senior Lecturer was different than was being granted by the Punjab Government, is not justified. Petitioner-State is not legally bound to follow Punjab Pattern of pay-structure. In Punjab, grade pay of Rs.6600/-
is admissible to the posts of Reader/Assistant Professor/Senior Lecturer, whereas in the petitioner-State Grade Pay of Rs.6600/- is admissible to the post of Reader, which is a promotional post meant to be filled in from feeder category post of Senior Lecturers. Post of Senior Lecturer held by the respondent cannot be equated to that of Assistant Professor or Reader to enable her to claim Grade Pay of Rs.6600/-. On her promotion as Senior Lecturer, respondent was placed in pay-band of Rs.10300-34800/- + 4800 Grade-pay, vide notification dated 3.6.2011. Posts of Lecturers and Senior Lecturers were merged and re-designated as Lecturer vide notification dated 7.8.2012. Vide notification dated 27.9.2012, Pay Band of Rs.10300-34800 + ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP 19 5000/- Grade Pay as initial start and pay band of Rs.15600-39100 +5400/-
Grade Pay after two years of regular service was notified for the posts of .
Lecturer, which the respondent is presently drawing. This grade-pay and pay-
band has been protected even after issuance of notification dated 13.3.2013, whereby the amalgamation notification for the posts of Senior Lecturer with that of Lecturer was rescinded. Claim of respondent a Senior Lecturer to the Grade Pay of Rs.6600/- admissible to the promotional post of Reader is not made out.
For the foregoing reasons, we allow these writ petitions. The Common judgments passed by the erstwhile learned H.P. Administrative Tribunal in these connected writ petitions are quashed and set aside. Pending miscellaneous application, if any, shall also stand disposed of.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua), Judge 22nd September 2020(rohit) ::: Downloaded on - 22/09/2020 20:19:17 :::HCHP