Allahabad High Court
Shahjade vs Chairman, Rajya Krishi Utpadan Mandi ... on 22 January, 2014
Bench: Arun Tandon, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 10 Case :- WRIT - A No. - 30319 of 2001 Petitioner :- Shahjade Respondent :- Chairman, Rajya Krishi Utpadan Mandi Parishad Counsel for Petitioner :- Shekhar Srivastava Counsel for Respondent :- B.D. Mandhyan,S.C.,Satish Mandhyan Hon'ble Arun Tandon,J.
Hon'ble Surya Prakash Kesarwani,J.
We have heard Shri Shekhar Srivastava, learned counsel for the petitioner and Shri B.D. Mandhyan assisted by Satish Mandhyan, learned counsel for the respondents.
The petitioner before this Court seeks quashing of the order dated 22.5.2001 passed by Chairman, Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow, respondent No.1 as well as for a writ of mandamus directing the respondents to provide the highest pay-scale i.e., Rs.3000-4500 w.e.f. 1.1.1986 on the principle of equal pay for equal work.
The facts in short leading to the present writ petition are as follows:
The petitioner was appointed as Marketing Inspector in the Agriculture Department of the State of Uttar Pradesh. He was sent on deputation to Krishi Utpadan Mandi Parishad constituted under Mandi Samiti Adhiniyam, 1964 (hereinafter referred to as the 'Adhiniyam'). The petitioner was assigned duties of the Secretary Krishi Utpadan Mandi Samiti at Kanpur.
In exercise of power under section 25-A and Section 26-X of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964, the State Agricultural Produce Markets Board with previous approval of the State Government notified The Uttar Pradesh Agricultural Produce Market Committees (Centralised) Services Regulations, 1984. Under Regulation-4 of the said Regulations centralized services for the market committees consisting of the cadres and posts as mentioned were created.
The dispute pertains to the office of the Secretaries, the cadre whereof has been provided as follows :
1.Secretaries-
1.Secretaries, Class-I
2.Secretaries, Class-II
3.Secretaries, Class-III, Grade-I
4.Secretaries, Class-III, Grade-II
5.Secretaries, Class-III, Grade-III The regulation relevant for the purposes of this petition provide as under :
Regulation-6 provides for strength of the service and of each category of posts there and the scales of pay shall be such as may be determined by the Board from time to time.
Provided that scales of pay shall be such as may be recommended from time to time by the Commission and approved by the State Government.
Regulation-6 (2) further provides that all the existing posts under the Market Committee covered by the Centralised Service shall form the present strength of the Service.
Regulation-10 provides for the Sources of Recruitment- which may be made either-
1.from open market (By direct recruitment ) ;
2.by promotion :
Provides that any posts required to be filled by direct recruitment, may, in the discretion of the Board, be filled by taking persons on deputation.
Regulation-13- provides for source and method of recruitment for each category of the post. The mode and manner of the vacancies and the procedure of selection by direct recruitment has been provided under Regulation-14 and 16, while Regulation-17 lays down the procedure for promotion.
Regulation-19 provides for the constitution of committee for retention and reversion of employees on deputation with the Mandi Parishad and on the recommendation of the selection committee to pass orders for the employees on deputation to become the members of the cadre under clause (b) of sub- section (2) of Section 23-A. It was also provided that if no orders are passed within six months of the enforcement of these regulations, all such servants shall be deemed to be suitable and shall become members of the cadre.
From the record it is apparent that on 27.11.1996 an order was passed by the Director, Mandi Parishad disclosing the absorption of the petitioner under the Centralised Service Regulations, 1984 and of his being made permanent as Secretary Grade-III, Class-II w.e.f. 1.8.1987. A copy of the order is enclosed as Annexure-10 to the writ petition and the name of the petitioner finds place at serial No.19 of this order. The order is not under challenge.
The petitioner earlier filed writ petition before this Court being Civil Misc. Writ Petition No.2742 of 2000 contending therein that he was entitled to the highest pay scale admissible to the post of Secretary on the principle of equal pay for equal work. It was contended on behalf of the petitioner that the representation made for the purpose have not been considered. The writ petition was decided by the Court vide order dated 27.2.2000, requiring the Chairman to consider and decide the representation of the petitioner.
The Chairman under the order dated 22.5.2001 has rejected the request made by the petitioner after recording that under the Regulation of 1984, the cadre of Secretary was divided into the following categories :
1.Secretary Grade-I
2.Secretary Grade-II
3.Secretary Grade-III and
4.Secretary Grade-IV However, under U.P. Krishi Utpadan Mandi Centralised Services (Amendment ) Regulation 1991, was published on 15.3.1991, and the Centralised Services Regulation has been categorised, as has been mentioned in Regulation-4 which has already been quoted above. It has further been held that the petitioner was made permanent is working as Secretary Grade-III (Class-3) in the pay-scale of Rs.2900-16,400. It has further been recorded that in accordance with the Regulations, as amended upto date different qualifications and different pay-scales have been prescribed in respect of the different cadre posts of Secretaries as has been mentioned in the Regulation-1984. At the time of his absorption, the petitioner was working on a post equivalent to that of supervisor Secretary however, he was absorbed in the higher cadre and higher class of the Secretary. His salary had been fixed and is being paid accordingly. It has been recorded that he cannot claim equality with the Secretaries, who have been appointed in Class-I by direct recruitment. The petitioner cannot claim parity with such direct recruits of Class-I. The Chairman has also categorically recorded that channel of promotion has been provided to the Secretaries working in the lower grade under Regulation of 1984. The Director has further held that It is not the case of the petitioner that any person lower in the seniority list than the petitioner is being paid higher salary.
Not being satisfied with the order so passed, the petitioner has filed the present writ petition with the prayer for quashing the order dated 22.5.2001 and for payment of salary in the highest pay-scale of Rs.3000-4500.
This writ petition was decided by a Division Bench of this Court under the order dated 23.4.2002. It was allowed and a direction to grant pay-scale of Rs.3000-4500 to the petitioner w.e.f. 1.1.1986 along with all other consequential benefits to the petitioner was issued.
A review application was filed on behalf of the Mandi Samiti, which was rejected by a reasoned order dated 23.5.2003.
The Mandi Parishad not being satisfied with the orders so passed, filed Civil Appeal No.5289-5290 of 2004 (Chairman, Rajya Krishi Utpadan Mandi Parishad v. Shahjadey) before the Apex Court. The civil appeal has been allowed under the judgment dated 3.5.2011. The Apex Court has held that the services of the person holding the post of Secretary, is governed by Regulations of 1984. Regulation-4 of Regulations 1984 provides for different classes and Grades of Secretaries. The Apex Court held that the classification has not been under challenged nor was struck down by the High Court and in absence thereof the direction to pay the salary in the higher scale was not justified. The civil appeal was allowed. The matter was remanded to the High Court with an opportunity to the petitioner to seek amendment in the writ petition for the purposes to challenging Regulation-4 and other Regulations ( a copy of the judgment of the Apex Court is on record ).
The petitioner accordingly filed an amendment application seeking a declaration that of Regulation-4 of The Uttar Pradesh Agricultural Produce Market Committees (Centralised) Services Regulations, 1984 as ultra-vires and for the same be quashed.The amendment application has been allowed under order of the Court dated 29.10.2012.
In view of what has been recorded above, it is necessary for us to examine the challenge to Regulation-4 of the Regulations of 1984, first inasmuch as on the said issue would depend the entire fate of the petition.
We may at the very outset record that no other provision of Regulation 1984 has been subjected to challenge.
From the amendment application, we find that Regulation-4 of the Regulations 1984 is challenged on two grounds (a) that the petitioner was selected as a member of Centralized Services. He was not classified in any class or grade of Secretary. The classification of the cadre of Secretaries under Regulation-4 is violative of Article 13 of the Constitution and Section 24 of the Krishi Utpadan Mandi Adhiniyam,1964. (b) the duties of Secretaries irrespective of the classification are same, therefore, there can be no difference in the salaries of the classification of the cadre of Secretary under Regulation -4 only for providing different pay-scale is patently arbitrary.
We may record that the vires of a statutory regulation can be challenged only on two grounds (a) it is an excess of the power conferred under the Statute (b) it is in violation of any fundamental rights guaranteed by the Constitution of India. Ground no.1 has not been pressed nor has stated to have been violated in any manner nor that the Regulation of 1984 suffer for want of authority, we may record that power to create centralised services and to promote different grades flows from Section 23-A read with Section 25-A and 26-X of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964. Sub Section (2A) of Section 23-A declares that every person, who becomes a member of the cadre under sub-section (2) shall hold office by the same tenure and at the same remuneration and upon the same terms and conditions with same rights and privileges as to pension, gratuity and other matters as he could have been entitled to, on the said date but, for the constitution of the cadre and shall continue to be so entitled until his employment as a member of the cadre is terminated or until his remuneration or other terms and conditions of service are reivsed or altered by the Board under or in pursuance of any law or in accordance with any provision which for the time being governs his service.
It is which reference to this power that the order dated 27.11.1996 had been issued for the absorption of the petitioner and his being made permanent Secretary Grade III (Class-2).
So far as the challenge on the bifurcation of the cadre of Secretary under Regulation-4 on the ground that it violates Article 13 of the Constitution of India is concerned , we may only record that under Regulations of 1984 an hierarchy of post of Secretary's has been created. A right for being considered for promotion from lower class/grade to higher within the category of Secretaries has been provided under Regulation-10 read with Regulation-13. For a Secretary of Class-3 Grade-II to be promoted as Secretary Class-3 Grade I five years continuous service as on the first date of the year of recruitment has been provided for. The post of Secretary Class-3 Grade-I are to be filled up by way of promotion 100%.
As already noticed above, the power to lay down the strength and the pay-scale to each category of posts has been conferred under Regulation -6 upon the Board and such pay-scales have to be the one as recommended from time to time and approved by the State Government.
So far as the plea of violation of Article 14 is concerned, suffice it to refer the judgment of the Apex Court in the case of State of Haryana & Ors. Vs. Jasmer Singh & Ors.,(1996) 11 SCC 77, the Hon'ble Supreme Court considered the provisions of Article 39 (d), 14 and 16 of the Constitution and held that the principle of 'equal pay for equal work' is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organisation. there may be differences in educational or technical qualifications, which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify difference in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that the good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. The evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any malafides , its evaluation should be accepted.
In view of the aforesaid, the challenge to the classification o the ground it violates the principles of equal pay for equal work appears to be wholly misconceived. The Regulation provides hierarchy qua the different categories of post of Secretaries and merely because the Secretaries belonging to as of the categories can be posted in any Mandi Samiti because of the deletion of the categories of the modes will make no difference in the matter of salary admissible to the possible classification under Regulation-4. The order absorbing the petitioner as senior Grade III Class II dated 2.7.1996 was accepted by the petitioner by open eyes and has not been questioned even in the petition.
In the totality and circumstances of the record, we do not find any substance and plea raised by the learned counsel for the petitioner with regard to the challenge to the vires of Regulation-4.
In view of the aforesaid facts and the reasons recorded, we repel the challenge to the vires of Regulation-4 of the The Uttar Pradesh Agricultural Produce Market Committees (Centralised) Services Regulations, 1984.
Since, the challenge to Regulation-4 fails, the question of higher pay-scale being granted to the petitioner fails. No relief can be granted.
The writ petition is dismissed.
Order Date :- 22.1.2014 Ak/