Bombay High Court
Pandurang Trimbak Yeole And Ors. vs The Personnel Officer, Hindustan ... on 22 September, 1989
Equivalent citations: [1990(60)FLR390], (1994)IIILLJ456BOM
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT C. Mookerjee, C.J.
1. While the Petitioners No. 1 to 3 were serving in Grade 'E' Workers' Scale of Hindustan Aeronautics Ltd., Nasik Division, Ozar, they were prompted as officers in the Scale 1. It is not disputed that their promotions have taken place on or after 1st April, 1978. Respondent Nos. 1 & 2, the officers of Hindustan Aeronautics Ltd., purported to fix the pay of the petitioners No. 1 to 3 in terms of paragraph (ii) of the Company's Personnel Circular No. 403/327 dated 5th January 1979 on the subject of fixation of pay of employees in Group 'E' promoted to Grade I consequent on the revision of wage/salary structure vide Exh. 'E' to the writ petition. Said paragraph (ii) reads as follows:-
"(ii) Promotion on or after 1st April, 1978.
A sum of Rs. 170/- will first be deducted from the pay drawn in the revised pay-scale of Group-E. This amount will be increased by Rs.22/- representing one notional increment in Group-E. Pay in Grade-1 will be fixed in the revised pay-scale of that grade a stage next above the amount arrived at as above".
2. The broad submission made on behalf of the petitioners is that the said instructions contained in paragraph (ii) of the Company's Personnel Circular dated 5th January, 1979 were arbitrary and unreasonable. The direction for deducting a sum of Rs. 170/-from the pay drawn by the petitioners in Group 'E' and then for adding a sum of Rs.22/- for the purpose of fixation of their pay in the Grade 1 was illegal. In the absence of any rational basis for making such deduction, the petitioners complain that they ought to have been given full protection of last pay drawn by them in Group 'E' for the purpose of fixation of their pay in the promoted Scale 1 of the Company.
3. In support of their contention, the petitioners have relied upon the decision of a Division Bench in the case of R.P. Pai v. Union of India and Ors. reported in 1985 (3) Services Law Reporter, Page 45. The said reported decision is inapplicable to the facts of the present case. While making the rule absolute, the Division Bench in the said case of R.P. Pai v. Union of India and Ors. (supra) has observed in paragraph 8 of their Judgment that nothing had been pointed out to the learned Judges to show that criterion on guideline has been provided for fixation of lower pay under fundamental Rule 35 in respect of the promoted persons who had come up in the writ petition in the said reported case. Before us, the fixation of pay of the petitioners Nos. 1 to 3 has been purported to be done in terms of this Circular of the Company dated 5th January, 1979 mentioned hereinabove. Therefore, the moot question is whether the criterion laid down for determination of pay in Grade 1 of promotees, like the petitioners, effective on or after 1st April 1978 was reasonable and valid. The decision of a Single Judge of the Gujarat High Court in the case of Gujarat State Deputy Engineers' Association and Ors. v. State of Gujarat and Ors. 1983 (3) SLR page 38 is also distinguishable inasmuch as in the said case the provisions of rule 41(b) and note 7 of the Bombay Civil Services Rules came up for consideration. Said Civil Services Rules, admittedly, are not attracted in the present case.
4. The decision of the Supreme Court in the case of State of Andhra Pradesh and Ors. etc., v, C. Sreenivasa Rao and Ors. etc., reported in 1989-II LLJ 149 which was also placed before us on behalf of the petitioners is of no assistance to the petitioners of the case. In the said case of State of Andhra Pradesh v. G. Sreenivasa Rao (supra) the Supreme Court while recognising that ordinarily grant of higher pay to a junior would ex facie be arbitrary held that if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine.
5. We now examine the reasons put forward by the respondents in relation to the aforesaid circular inter alia for ignoring a sum of Rs.170/- from the pay drawn in Group 'E' for the purpose of fixation of initial pay in Scale 1 for those who were promoted on or after 1st April, 1978. In the affidavit affirmed by Mr. M.K. Pisharam on behalf of respondents Nos. 1 & 2 it has been pointed out that at the relevant time the workmen of the company were divided into 5 categories having 5 different scales of pay. With effect from 1st October, 1973 the pay-scale of 'E' Group of workers were revised and it had been agreed between the Company and their workmen that certain minimum amounts would be paid as dearness allowances to the workmen. Rs. 1707- was agreed to be irreducible minimum D.A. in case of workmen in- the pay slab 330-570. At the relevant time, the workmen in the 'E' Group were within the said category. The wage scale of the workers had again been revised in 1978 pursuant to a settlement dated 13th September, 1978. The prescribed revised scale for 'E' Group of workmen was fixed at Rs. 525-21-630-22-960. The sum payable as D.A. was merged with the revised pay for 'E' category workmen.
6. It has been further pointed out in the said affidavit affirmed on behalf of respondent Nos. I & 2 and at the time of hearing of this matter, that the wages of the officers, including those, in the Scale 1, has been revised with effect from 1st July, 1973 and again with effect from 1st September, 1977. With effect from 1st September 1977 the revised scale prescribed for Grade 1 Officers was 650-35-1035. Unlike in the case of 'E' category workmen, the amount drawn as dearness allowance had not been merged in the revised pay-scale for Grade 1 Officers.
7. There could not be any fixed principle for the purpose of pay fixation in case of a promotion from a lower to a higher scale of pay. Promotion in the instant case was a voluntary one. At the same time, it is usually the practice to provide for guidelines or rules for fixation of pay of those who move from a lower to a higher scale. Such guidelines must be reasonable and not arbitrary. At the same time unless it is shown that in prescribing such guidelines or rules for pay fixation the authorities had acted ex facie wrongly, the Court cannot assume itself the power to prescribe scales or to devise the ways in which hardship, real or imaginary, could be mitigated by prescribing certain set of rules.
8. We are satisfied in the instant case that the Circular providing the method of fixation of pay for those who had been promoted, like the petitioners, after the 1st April, 1978 was not arbitrary by reason of the fact that it had taken cognisance of the very relevant factor that while fixing the scales prescribed for Group 'E' workmen with effect from 1st April, 1978, dearness allowance had been merged in the revised scale. Similar benefit of merging D.A. with pay had not been extended to the officers of Scale 1 while fixing their revised payscale with effect from 1st September 1977. The learned Counsel appearing on behalf of respondent Nos. 1 & 2 rightly submitted before us that in the event while being promoted from Grade 1 for workmen to Scale 1 prescribed for the officers, the petitioners and other workmen in 'E' category were allowed to carry forward and obtain protection in respect of their entire pay drawn in the lower scale, the same would have resulted in great inequalities particularly towards those who had either been promoted or appointed prior to the date on which the prescribed scale for Group 'E' workmen came to be revised by merging p.A. therein. Therefore, the very object of leaving out consideration the said sum of Rs.170/- for pay fixation in the case of the petitioners and similarly situated officers in Scale I was to prevent inequality between the petitioners and those who had already been promoted.
9. For foregoing reasons, we hold that the petitioners are not entitled to any relief in the instant case. We may record that in arriving at the total pay packet of the petitioners in Scale 1, there was no diminution from the pay packet drawn by them in Group 'E' scale for workmen. But their aggregate pay as Officers in Scale 1 was higher.
We accordingly discharge the rule.
There shall be no order as to costs.