Fasihullah Khan And Others vs State Of U.P. And Another on 26 April, 2019

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Allahabad High Court

Fasihullah Khan And Others vs State Of U.P. And Another on 26 April, 2019

Bench: Sudhir Agarwal





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 22.1.2019
 
Delivered on  26.4.2019
 
Court No. - 34
 

 
Case :- WRIT - A No. - 61161 of 2011
 

 
Petitioner :- Fasihullah Khan And Others
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- S.P. Mishra, A.Khare, Siddarth Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Satyendra Kumar, Advocate for petitioners and Sri Prashant Mathur, learned Standing Counsel for State.

2. Repeatedly in this petition, time was granted to respondent to file counter affidavit but they chose not to do so and since this matter is pending since 2011, therefore, we find no occasion to keep it pending and instead proceed to decide it finally.

3. This writ petition under Article 226 of Constitution has been filed by fourteen petitioners working as Surveillance Inspector, Department of Health and Family Welfare. A writ of certiorari has been prayed by petitioner for quashing order dated 18.08.2011 passed by Director General Family Welfare U.P., Lucknow (hereinafter referred to as "DGFW"), rejecting petitioners' representation with regard to revision and increase of their pay-scales. Petitioners have also prayed by way of amendment, for issue of a writ, order or direction of suitable nature quashing Notification dated 19.12.2011 and Circular dated 29.11.2012, insofar as the same has resulted in equating Basic Health Workers (Male) with Surveillance Inspectors (redesignated as Health Supervisors). They have also prayed that respondents should modify the Scheme and sanction pay-scale higher to petitioners than that available to Basic Health Worker (Male) with effect from 23.07.1981 with all consequential benefits. A mandamus has also been sought directing respondents to enhance pay-scale available to Surveillance Inspectors (those coming from the category of Health Supervisor) with effect from 23.07.1981 and lastly, it is prayed that a mandamus be issued directing respondents to sanction pay-scale of Rs. 570-1100/- to petitioners with effect from 23.07.1981; Rs. 1640-2900/- from 01.01.1986; Rs. 6500-10,500/- with effect from 01.01.1996 and Rs. 8000-16,500/- with effect from 01.01.2006.

4. Facts in brief, giving rise to present writ petition are that post of Surveillance Inspector was created on 01.12.1960 and that of House Visitor was created on 15.12.1960, in the Health Department of State of U.P. The work of Surveillance Inspector was to supervise House Visitor and hence, supervisory in nature. Pay-scale of Surveillance Inspector initially was Rs. 120-210/- while that of House Visitor, it was Rs. -120-50/-. Aforesaid status in the mater of pay-scale continued upto 22.07.1981. With effect from 23.07.1981, a new Scheme namely, Multiple Health Worker Scheme (hereinafter referred to as "MHWS") came into existence and therein, Surveillance Inspectors were adjusted in the Scheme with pay-scale of Rs. 470-735/- and House Visitors were adjusted with pay-scale of Rs. 354-550/-. Pay-scales of House Visitors, however, subsequently were revised with effect from 23.07.1981 to Rs. 470-735/- making them in equal with Surveillance Inspectors. This was done vide Government Order dated 23.10.2009 and pay-scales, retrospectively, were revised as under:

S.No. With Effect From Pay-scale 1 01.07.1979 Rs. 400-474/-

23.07.1981 Rs. 470-650/-

23.01.1986 Rs. 1360-1800/-

5. The above increase was made only in respect to the cadre of House Visitors and not Surveillance Inspectors and this also ignored the fact that Surveillance Inspectors were supervising the work of House Visitors, therefore, it was discriminatory. Consequently, petitioners moved application dated 26.04.2010 and requested for corresponding revision in their pay-scales also. Above representation was forwarded to higher authorities. When no action was taken, petitioners came to this Court in Writ Petition No. 32389 of 2011 which was disposed of vide judgment dated 30.05.2011 directing respondent-competent authority to take a final decision on petitioners' representation. Said order reads as under:-

"Petitioner submits that on account of issuance of Government Order dated 23.10.2009 disparity in the pay scale has arisen and effect of the same as has been stated by the petitioner is incumbent who are getting similar pay scale they will function as supervisory staff of the Surveillance Inspectors. Petitioner has stated that in this background he has made request to the Chief Medical Officer, who in its turn further recommended the matter to the Director General, Family Welfare Lucknow U.P. on 26.04.2010. Petitioner submits that till today disparity in question has not been remedied and same remains continues to be in existence.

As Chief Medical Officer, J.P. Nagar has already referred the matter to the Director General, Family Welfare Lucknow U.P. and as it has been contended that till today Director General, Family Welfare Lucknow U.P. has not taken any decision as such Director General, Family Welfare Lucknow U.P. is directed to appropriate decision on the same preferably within four months from the date of presentation of certified copy of the order passed by this Court.

With the above direction present present writ petition is disposed of."

6. Pursuant thereto, DGFW has passed impugned order dated 18.08.2011 rejecting claim of petitioners', hence this writ petition.

7. By way of amendment, petitioners have also brought on record certain further facts and we may narrate the same, in brief, as under.

8. By Government Order dated 23.07.1981, a Scheme of Multi Purpose Workers (hereinafter referred to as "MPW") was implemented according to which in rural area, upon each 5000 of rural population, one Health Worker (Male) and one Health Worker (Female) was to be appointed; and upon four Health Workers, one Supervisor was to be appointed who would supervise the Health Workers.

9. There were already existing Health Schemes in which people were working in different cadres namely, Basic Health Worker (Rs.185-265/-), House Visitor (105-265/-), Vaccinator (Rs. 170-225/-), Family Welfare (Food Assistant) (Rs. 230-385/-) and Health Assistant (Rs. 230-385/-). These cadres were in respect of health facilities for male. Similarly, for women, there was cadre of ANA (Rs. 105-259/-). For supervision of aforesaid cadres, persons working in following categories were directed to be merged as Health Supervisor (Male) and Health Supervisor (Female):

S.No. Health Supervisor(Male) Pay-scale 1 Family Welfare Health Assistant (Higher Pay-scale) Rs. 200-500/-

Health Inspector Rs. 280-460/-

Senior Malaria Inspector Rs. 300-500/-

Malaria Inspector Rs. 230-385/-

Small Pox Supervisor Rs. 230-385/-

Surveillance Inspector Rs. 230-385/-

Health Supervisor(Female) Pay-scale 7 Female Health Inspector Rs. 250-425/-

10. It was also provided in para-7 of aforesaid Government order that revision of all categories was under consideration with State Government and, therefore, presently, pay-scales currently available shall be continued. Para-7 of Government Order reads as under:-

^^7- pwafd mDr ;kstuk ds vUrxZr LokLF; Ik;Zos{kd ,oa LokLF; dk;ZdrkZ ds inksa Ikj lek;ksftr fd;s tkus okys fofHkUu dk;Zdzeksa ds deZpkfj;ksa dh iqujhf{kr osrueku fn;s tkus dk ekeyk 'kklu ds fopkjk/khu gSaA vr% mDr deZpkjh vHkh orZeku osruekuksa esa gh jgsxhA bl ;kstuk esa lek;ksftr fd;s tkus okys deZpkfj;ksa dk osru vkfn vkxkeh vkns'kksa rd mlh ys[kk'kh"kZd vkgfjr fd;k tk;sxk ftlds orZeku le; esa vkgfjr fd;k tkrk jgk gSA"""

"7. Since the matter of giving revised pay-scales to the employees falling under different programmes for adjusting the posts of Health Supervisor and Health Worker under the said scheme is pending with the government; hence, the said employees shall remain in the present pay-scales as of now. The salaries etc. of the employees to be adjusted in the scheme shall be, until further orders, drawn from the same account head from which they are presently drawn."

(English Translation by Court)

11. In the second Pay Commission, pay-scales of Multi Purpose Health Workers were examined and recommendations were made as under :-

S. No. Name of post under the multi-purpose worker scheme Name of present post or service adjusted in the multi-purpose worker scheme Present pay-scale New pay-scale 2 3 4 6

1.

Health Supervisor (Male)

a) Health Inspector

b) Family Welfare Health Assistant (Higher Pay-scale)

c) Small Pox Supervisor

d) Surveillance Inspector 280-460 230-385 300-500 230-385 230-385 470-15-575-Efficiency Bar-15-650-17-701- Efficiency Bar-17-735

---Same---

2. Health Supervisor (Female) Female Health Inspector 250-425

---Same---

3. Health Worker (Male)

a) Basic Health Worker

b) House Visitor

c) Vaccinator

d) Trachoma Health Assistant

e) Family Welfare Health Assistant (Lower Pay-Scale) 185-265

-Same-

170-225 230-385 230-285 354-10-424-Efficiency Bar-10-45412-514- Efficiency Bar-12-550

---Same---

4. Health Worker(Female)

a) ANM

b) Family Welfare Karyakarti 185-265 185-265 250-320 3541-10-424- Efficiency Bar-10-454-12-514- Efficiency Bar-0-12-550

12. A writ petition was filed by U.P. Pariwar Kalyan Swashth Sahayak Sangh i.e. Writ Petition No. 4281 of 1984 connected with Writ Petition No. 3008 of 1984, challenging order dated 23.07.1981. It was allowed vide judgment dated 02.04.1985 and operative part of judgment reads as under:-

"In the result, the writ petitions are allowed. The letter dated 23.7.1981 Annexure 3 to the writ petition appointing the petitioners in the category of Health workers and Annexure 4 to the petition, fixing the pay scale of the petitioners at Rs. 400-615 being violative of Articles 14 and 16 of the Constitution of India are quashed. Respondent No.1 is directed by means of a writ of mandamus to direct the member of the petitioner's Association and their individual petitioner Khushival Rani as Health Supervisor under the Multi purpose scheme and pay the salary and allowances to them as per permissible to the Health Supervisors, from the date of appointment of the said petitioners in the rank of Health Workers. The Association and the individual petitioner shall be entitled to Rs. 200/- each as cost."

13. Another Writ Petition No. 15904 of 1983 was filed seeking a writ of mandamus for granting to petitioners same pay as paid to Family Planning Health Assistants. This writ petition was also allowed vide judgment dated 11.03.1988 and operative part of said judgment reads as under :-

"From the chart report of Pay Commission, minutes of officials of Medical and Health Department, it stands out unmistakenly that the petitioners who were worker at village level and performed same duty and work as Family Planning Health Assistants were t par in every respect. In absence of any valid reason the Government was not justified in denying them the pay which it granted to Family Planning Health Assistants. The argument of learned Standing Counsel that principle of equal pay for equal work cannot apply to Special pay granted to an employee appears to be devoid of any substance. Special pay in paragraph (25) of Chapter II of Volume II of Financial Handbook means 'an addition of the nature of pay to the emoluments of a post or of a Government servant, granted in consideration of (a) the specially arduous nature of the duties; or (b) a specific addition to the work of responsibility; or (c) the unhealthiness of the locality in which the work is performed. Therefore, special pay can be granted if the conditions mentioned in the rule are satisfied; But the order does not disclose any reason for grant of special pay to Family Planning Health Assistants who otherwise do same work s other workers. As is clear from the Rule it is correlated with nature and responsibility of work of an employee or post. If the Government was of opinion that a Family Planning Assistant work was such which needed special pay then there appears no justification for not granting special pay to workers of same class who do the same work. The petitioners could not be treated differently in matters of pay or even special pay.

In the result this petition succeeds and is allowed. A direction is issued to opposite parties to pay the same salary to petitioners as is being paid to Family Planning Health Assistants. There shall be no order as to costs."

14. State Government preferred Civil Appeal No. 1753-54 of 1990 against judgment dated 11.03.1988 but it was dismissed by Supreme Court vide judgment dated 09.10.1990.

15. Thereafter, to give effect to aforesaid judgment, U.P. Health Workers and Health Supervisors (Regulation of Pay) Act, 1996 (hereinafter referred to as "Act, 1996") was enacted by President of India exercising power conferred by Section 3 of U.P. State Legislature (Delegation of Powers) Act, 1995 (hereinafter referred to as "Act, 1995"). Pay-scales of various categories provided by Act, 1996, vide Section 3 reads as under :-

"3. Pay of Health Workers and Health Supervisors - (1) The scales of pay admissible to Health Worker (Male), Health Worker (Female), Health Supervisor (Male) and Health Supervisor (Female), under the Multipurpose Workers Scheme shall be as follows: -

(i) With effect from July 23, 1981 -

(a) Health Worker (Male) and Health Worker (Female) Rs. 400-10-450-12-474-EB-12-570-E-15-615

(b) Health Supervisor (Male) and Health Supervisor (Female) Rs. 470-15-575-EB-15-650-17-701-EB-17-735

(ii) With effect from January 1, 1986 -

(a) Health Worker (Male) and Health Worker (Female) Rs. 975-25-1150-EB-30-1660

(b) Health Supervisor (Male) and Health Supervisor (Female) Rs. 1350-30-1440-40-1800-EB-50-2200 (2) The State Government may from time to time, by notification, revise or modify the scales of pay specified in sub-section (1)."

16. By Section 5, aforesaid Act, 1996 was given overriding effect and by Section 7 power to remove difficulties was also conferred upon Government. Sections-5 and 7 read as under :-

"5. Overriding effect - The provisions of this Act shall have effect notwithstanding anything contained in any judgment, decree or order of any court or in the orders of the State Government and the scales of pay specified in Section 3 shall be deemed to be and always to have been admissible to Health Worker (male), Health Worker (female), Health Supervisor (male) and Health Supervisor (female) as if the provisions of this Act were in force at all material times."

"7. Power to remove difficulties - (1) If any difficulty arises in giving effect to the provisions of this Act by reason of anything contained in this Act, the State Government may, by a notified order, direct that this Act shall have effect subject to such adaptations whether by way of modification, addition or omission as it may deem necessary or expedient for removing the difficulty.

(2) An order under sub-section (1) may be made with retrospective effect from a date not earlier than July 23, 1981 but such order shall not be made after the expiration of the period of two years from May 1, 1995.

(3) Every order made under sub-section (1) shall be laid, as soon as may be, before both the Houses of the State Legislature and the provisions of sub-section (1) of Section 23-A of the Uttar Pradesh General Clauses Act, 1904 shall apply as they apply in respect of rules made by the State Government under any Uttar Pradesh Act."

17. In exercise of power under Section 3(2) of Act, 1996, Government issued a Notification dated 23.10.2009 and therein pay-scales of various categories of workers were modified as under:-

Column-2

1.

With effect from 01.07.1979

a) Health Worker (Male) Health Worker (Female) 400-10-450-12-474-Efficiency Bar-12-570-15-615

2. With effect from 23.07.1981

a) Health Worker (Male) and Health Worker (Female)

b) Health Worker (Male) and Health Worker (Female) 470-15-575-Efficiency Bar-12-15-17-701-Efficiency Bar-735 470-15-575-Efficiency Bar-15-650-17-701-Efficiency Bar-735

3. With effect from 01.01.1986

a) Health Worker (Male) and Health Worker (Female)

b) Health Worker (Male) and Health Worker (Female) 1350-30-1440-40-1800-Efficiency Bar-50-2200 1350-30-1440-40-1800-Efficiency Bar-50-2200

18. Again, modification was made in exercise of power under Section- 3(2) of Act, 1996 by notification dated 19.12.2011, as under :-

S.No.

1.

With effect from 23.07.1981