Himachal Pradesh High Court
Unknown vs State Of Himachal Pradesh And Others on 28 September, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.:1007 of 2019 a/w .
CWPOA Nos. 3163, 3627, 4374, 6355, 6368, 6392, 6400, 7039 of 2019 & CWP No. 1562 of 2020, CWPOA Nos. 588, 3092, 4268, 4631,5321, 5481, 5604 and 6641 of 2020.
Reserved on : 13.09.2023
of
Decided on : 28.09.2023
1. CWPOA No. 1007 of 2019
rt
Bhagat Ram and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
2. CWPOA No. 3163 of 2019
Santosh Raj Sharma and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
3. CWPOA No. 3627 of 2019
Kali Dass Sharma and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
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4. CWPOA No. 4374 of 2019
Karma Nand and Others. ....Petitioners.
.
Versus
State of Himachal Pradesh and Others. ...Respondents.
5. CWPOA No. 6355 of 2019
Nikka Ram and Others. ....Petitioners.
of
Versus
State of Himachal Pradesh and Others. ...Respondents.
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6. CWPOA No. 6368 of 2019
Om Chand and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
7. CWPOA No. 6392 of 2019
Jeet Kumar. ....Petitioner.
Versus
State of Himachal Pradesh and Others. ...Respondents.
8. CWPOA No. 6400 of 2019
Satish Kumar. ....Petitioner.
Versus
State of Himachal Pradesh and Others. ...Respondents.
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9. CWPOA No. 7039 of 2019
Mukesh Chand and Another ....Petitioners.
.
Versus
State of Himachal Pradesh and Others. ...Respondents.
10. CWP No. 1562 of 2020
of
Aan Dass. ....Petitioner.
Versus
State of Himachal Pradesh and Others.
rt ...Respondents. 11. CWPOA No. 588 of 2020 Geeta Ram and Others. ....Petitioners. Versus State of Himachal Pradesh and Others. ...Respondents. 12. CWPOA No. 3092 of 2020 Mukul Kumar and Others. ...Petitioners. Versus State of Himachal Pradesh and Others. ...Respondents. 13. CWPOA No. 4268 of 2020 Pratap Chand and Others. ....Petitioners. Versus State of Himachal Pradesh and Others. ...Respondents. ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 4 14. CWPOA No. 4631 of 2020 . Mohinder Singh and Others. ....Petitioners. Versus State of Himachal Pradesh and Another. ...Respondents. 15. CWPOA No. 5321 of 2020 of Ram Sain and Others. ....Petitioners. Versus rt State of Himachal Pradesh and Others. ...Respondents. 16. CWPOA No. 5481 of 2020 Jafar Mohamed. ....Petitioner. Versus State of Himachal Pradesh and Another. ...Respondents. 17. CWPOA No. 5604 of 2020 Sher Singh and Others. ..... Petitioners Versus State of Himachal Pradesh and Others. ...Respondents. 18. CWPOA No. 6641 of 2020 Bhupinder Singh. ....Petitioner. Versus
The State of Himachal Pradesh and Others. ...Respondents.
::: Downloaded on - 28/09/2023 20:36:41 :::CIS 5Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 Yes .
For the petitioner(s) : Mr. Bhuvnesh Sharma, Senior
Advocate, with Mr. Parv Sharma
& Mr.Shekhar Badola,Advocates,
Mr. Daleep Singh Kaith,
Advocate and Mr. Vikas
Rajput, Advocate, for the
of
respective petitioners in the
respective petitions.
For the respondents
rt : Mr. Pushpender Jaswal,
Additional Advocate General
with Mr. Gautam Sood, Mr.
Rahul Thakur and Ms.
Priyanka Chauhan, Deputy
Advocate Generals, for the
respective respondents-State, in all the petitions.
Satyen Vaidya, Judge All these petitions are being decided by a common judgment as the identical question of facts and law are involved.
2. Petitioners are Laboratory Attendants in the Department of Higher Education, Government of Himachal Pradesh. Some of them are directly recruited and others have been promoted from Class-IV grade.
1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/09/2023 20:36:41 :::CIS 6Petitioners are posted in various Government Senior Secondary Schools and Government Degree Colleges .
throughout the State.
3. The Recruitment and Promotion Rules for the post of Laboratory Attendants, Class-III (Non-Gazetted) have been notified by the State Government on of 03.08.2000 (for short, "2000 Rules"). The pay scale applicable to the post of Laboratory Attendant was Rs.
rt 3120-5160. 25% of the total cadre strength is to be filled in by direct recruitment and remaining 75% by way of promotion, failing which by direct recruitment. The feeder category is amongst Class-IV Peons, Chowkidars, Sweepers, Malis and other similar employees who have passed matriculation or its equivalent examination with science subjects from a recognized Board/University and possess five years regular service or regular combined with continuous ad hoc (rendered upto 31.03.1998) service, if any, in the grade. The minimum educational qualification for direct recruits is matriculation or its equivalent examination with Science from a recognized Board/University or matriculation with diploma of ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 7 Laboratory Attendant or its equivalent from a recognized Board/Institute.
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4. The case as set out by the petitioners is that on 01.01.1986, they were made entitled to the pay scale of Rs. 950-1800. It was revised to Rs. 3120-5160 w.e.f.
03.08.2000. On 01.01.2006, the pay scale applicable to of the petitioners was revised to Rs. 5910-20200 +1900 as Grade Pay. Their grievance is that by virtue of H.P. Civil rt Services (Category/Post-wise pay) Rules 2012, as notified on 27.09.2012 (for short "2012 Rules"), the State Government revised the pay scales of all other categories of its employees except the category of Laboratory Attendant in the Department of Higher Education.
5. Petitioners have submitted that till 01.01.2006, their pay scales were in parity with the scales granted to the Clerks as also the Junior Technicians. By virtue of 2012 Rules, the pay scale of Clerk was revised to Rs. 10300-34800 + Rs. 3200 as Grade Pay and the pay scale of Junior Technicians was revised by allowing them grade pay of Rs. 2400.
According to the petitioners, they have been ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 8 discriminated. The classification drawn by the respondents is not reasonable and has no intelligible .
differentia.
6. Another claim that has been raised by the petitioners is with respect to re-designation of the post of Laboratory Attendant to that of Laboratory Assistant as of has allegedly been done in the Departments of Technical Education, Horticulture and Health in the State of rt Himachal Pradesh.
7. Further grievance of the petitioners is that they have no promotional avenues. Even the benefit of Assured Career Progression Scheme, has not been made available to them.
8. Petitioners have also pleaded that they have regularly been performing the duties of Clerks in their respective institutions at the asking of superior officer(s).
On such count also, petitioners have claimed parity with the scale of the Clerks.
9. Respondents have contested the claim of the petitioners, on the ground that the petitioners cannot seek parity with other categories like Clerks as the cadre ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 9 of Clerks is entirely different. The matters regarding pay scale are decided by the Government after taking into .
consideration the category of the employees, nature of duties, responsibilities and qualifications etc. According to respondents, the nature of duties, R&P rules and qualifications for the category of Clerks are entirely of different than the category of petitioners. It has further been submitted that two posts carrying the same pay rt scale at a particular time does not justify grant of same pay scale after general revision of pay scales. The State can deviate in financial matters concerning its employees by taking a particular view in consideration of the factors such as cadre, qualification, nature of duties and responsibilities attached to a particular post etc. The fact that the category of petitioners have been divested from the benefit of Assured Career Progression Scheme has been denied. It has also been denied that the Laboratory Attendants have no avenues for promotion.
10. I have heard learned counsel for the parties and have also gone through the record of the case carefully.
::: Downloaded on - 28/09/2023 20:36:41 :::CIS 1011. The scope of judicial review in the matters concerning grant of pay scales, its revision and related .
issues is well defined. The Court should interfere only when the administrative action is palpably unreasonable, unjustified and prejudicial to a section of employees.
Reference in this regard can be made to the judgment of passed by Hon'ble Supreme Court in Haryana State Minor Irrigation Tubewells Corporation and others rt Vs. G.S. Uppal and Others, (2008) 7 SCC 375, it has been held as under:-
"21. There is no dispute nor can there be any to the principle as settled in the above-cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited.
However, it is also equally well-settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors."
12. Similarly, in Shiba Kumar Dutta and Others Vs. Union of India and Others, (1997) 3 SCC 545, Hon'ble Supreme Court has deprecated the practice ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 11 adopted for invidious discrimination and denial of equal treatment by the employers to its employees.
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13. Equally settled is the proposition that the decision as to fixation of pay and its revision vis-a-vis various categories of its employees is exclusive domain of the government. These are the matters to be decided of by the experts and it is not for the Court to substitute its own opinion. Similarly in the cases of parity in pay scales rt on the basis of nature of duties and responsibilities, it has been repeatedly held that the expert job cannot be undertaken by the Court and in case of any challenge being made on the ground of disparity the burden of proof in establishing parity in pay scales and nature of duties as also responsibilities is on the person claiming such right.
14. In Punjab State Power Corporation Limited Vs. Rajesh Kumar Jindal and Others, (2019) 3 SCC 547, it has been held as under:-
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:-::: Downloaded on - 28/09/2023 20:36:41 :::CIS 12
(i) The nature and duties of a post;
(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 (vide Union of India and Another v.
P.K. Roy and Others.
23. The burden of proof in establishing parity in pay scales of 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 rt 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 ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 13 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 of and State of M.P. and Others v. Ramesh Chandra Bajpai (2009) 13 SCC 635)".
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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."
15. In Punjab State Electricity Board and Another Vs. Thana Singh and Others, (2019) 4 SCC 113, Hon'ble Supreme Court has held that it is for the ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 14 employer to classify its employees/posts on the basis of qualifications, duties and responsibilities of the posts .
concerned and to prescribe different pay scales accordingly. Article 14 of the Constitution of India, would get attracted only if there is discrimination between same set of employees not otherwise.
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16. A Division Bench of this Court while deciding LPA No. 445 of 2012, vide its judgment dated rt 21.11.2016 after placing reliance on State of Punjab and Others Vs. Jagjit Singh and Others, Civil Appeal No. 213 of 2013, decided on 26.10.2016, have observed as under:-
"27. However, the aforesaid submissions of the petitioners cannot be accepted in teeth of the ratio laid down by Hon'ble Supreme Court in Jagjit Singh's case supra, wherein the Hon'ble Supreme Court has categorically held that 'onus of proof' of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay & equal work', lies on the person who claims it and it is for him to establish that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post. For this purpose the employees concerned with whom equation as is sought should be performing work, which besides being functionally equal should be of same quality and sensitivity.::: Downloaded on - 28/09/2023 20:36:41 :::CIS 15
28. Further, in determining equality of functions and responsibilities, it would be necessary to keep in mind that the duties of the two posts should be of equal sensitivity and .
qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification and therefore, pay differentiation would be legitimate and permissible. Therefore, the person holding the same rank/designation but having dissimilar powers, duties and responsibilities can be placed in different scales of pay, of and cannot claim the benefit of the principle of 'equal pay for equal work'.
rt29. It has been reiterated in Jagjit Singh case (supra) that parity in pay, under the aforesaid principal of 'equal pay for equal work' cannot be claimed merely on the ground, that an earlier point of time, the subject post and the reference post were placed in the same pay scale. The principle 'equal pay for equal work' is applicable only when it is shown, that the incumbent of the subject post and the reference post discharge similar duties and responsibilities while claiming parity in pay scales under principle of 'equal pay for equal work' equation in the nature of duties is of paramount importance and there is no comparison between one set of employees in one organization and another set of employees in different organisations, there can be no question of equation of pay scale under this principle."
17. In view of above exposition of law, the defence raised on behalf of the respondents that they have the prerogative and right to classify various categories of its employees for the purposes of grant of pay scales ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 16 requires to be upheld. Noticeably, in the fact of the instant petitions, petitioners have not placed on record .
any quantifiable data to suggest that by application of requisite parameters, the post of Laboratory Attendant was equivalent to the post of Clerk or Junior Technician or any other category of employees for that matter.
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18. Having observed as above, in my considered view, the facts in the instant petitions are required to be rt looked at from another perspective also.
19. Till the general revision of pay scales on 01.01.2006, the pay scale allowed to the category of petitioners was the same as granted to the Clerks and Junior Technicians. The disparity arose when 2012 Rules were enforced. Evidently, these rules have been framed in exercise of powers vested in the State by virtue of proviso to Article 309 of the Constitution of India.
20. The 2012 Rules by themselves do not suggest, as to what, was the purpose of such revision.
Respondents in their reply have submitted in general terms that it is their prerogative to grant a particular pay scale to a particular category of employees. The ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 17 parameters on which the exercise was undertaken to revise the pay scale vide 2012 Rules, have not been spelt .
out. There is no explanation much less any plausible reason which had weighed with respondents to deny revision of pay scale to the category of petitioners on enforcement of 2012 Rules.
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21. Notwithstanding all other aspect, it cannot remain unnoticed that one of the important factors for rt revising pay scale is the rise in price index. The assumption to that effect will not be unfounded and unreasonable. That being so, it is not understandable, as to how, an exception has been carved in the case of Laboratory Attendants.
22. This Court is not at all suggesting the revision of pay scale in the case of petitioners at a particular rate, however, the observations are being made on the premise that in case the necessary exercise had not been undertaken, the vulnerability of administrative action to judicial review cannot be avoided.
23. In my considered view, interference is required by this court to the limited extent by issuing suitable ::: Downloaded on - 28/09/2023 20:36:41 :::CIS 18 direction to the respondents as under. These petitions are accordingly disposed of with directions to the .
respondents to reconsider the case of the petitioners for suitable revision in their pay scale, keeping in view the rise in price index, if such factor was applied as one of the parameters while granting revision of pay scales to of other categories under 2012 Rules. The entire exercise will be completed within eight weeks.
24. rtList for compliance on 06.12.2023.
25. Pending miscellaneous application(s), if any, shall also stand disposed of.
(Satyen Vaidya)
28th September, 2023 Judge
(sushma)
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