Himachal Pradesh High Court
Hari Krishan Shandil S/O Sh. Salig Ram ... vs Union Of India & Ors on 18 October, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
Reportable .
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA ON THE 18th DAY OF OCTOBER, 2022 BEFORE HON'BLE MR. JUSTICE SANDEEP SHARMA CIVIL WRIT PETITION NO. 1497 OF 2021 Between:
1. HARI KRISHAN SHANDIL S/O SH. SALIG RAM Shandil R/O VILLAGE GUSAN P.O.MEHLI, TEHSIL & DISTRICT SHIMLA-171013, H.P.
2. SURENDER KUMAR S/O SH. RAM SINGH, R/O VILLAGE DART BAGLA, P.O. JALPEHAR, TEHSIL JOGINDERNAGER, DISTRICT MANDI-175015, H.P.
3. VIKRANT SHARMA S/O SH. VINOD SHARMA R/O PRABHUMAN BUILDING GREEN VALLEY DHANDA, P.O. TOTU, TEHSIL & DISTRICT SHIMLA-171011, H.P.
4. JITENDER KUMAR S/O SH. TULA RAM, R/O VILLAGE BAAG P.O. DEOLA, TEHSIL SUNNI, DISTRICT SHIMLA-171007, H.P.
5. ANIL ZINTA S/O SH. HARDEV SINGH ZINTA R/O V.P.O. JHIKNIPOOL, TEHSIL NERWA, DISTRICT SHIMLA, H.P.
6. PRADEEP SINGH S/O SH. RAM BHAJ, R/O VILLAGE BINDLA, P.O. MILLAH, TEHSIL SHILLAI, DISTRICT SIRMOUR-173029, H.P.
7. RAJENDER S/O SH. BHAGAT RAM, R/O VILLAGE BADHAL, P.O. JEORI, ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 2 TEHSIL RAMPUR BUSHEHR, .
DISTRICT SHIMLA-172101, H.P.
8. SAHI RAM S/O LATE SH. RATTI RAM, R/O VILLAGE CHANDNI, P.O. DEHA (BALSON), TEHSIL THEOG, DISTRICT SHIMLA-171220, H. P.
9. AMAN S/O SH. TRILOK CHAND, R/O VILLAGE BARI, P.O. BAUNGTA, TEHSIL DEHRA, DISTRICT KANGRA, H.P.
10. SANJAY KUMAR S/O SH. SHAM LAL, R/O V.P.O. DARUG, TEHSIL BAIJNATH, DISTRICT KANGRA-176071, H.P. ....PETITIONERS (BY MR. SANJEEV BHUSHAN, SENIOR ADVOCATE WITH MR.
RAKESH CHAUHAN, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH, THROUGH SECRETARY (HOME), TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. STATE OF HIMACHAL PRADESH, THROUGH SECRETARY (FINANCE), TO THE GOVERNMENT OF HIMACHAL PRADESH
3. THE DEPARTMENT OF ADVOCATE GENERAL, STATE OF HIMACHAL PRADESH, SHIMLA-01 ....RESPONDENTS ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 3 (MR. NARENDER GULERIA, .
ADDITIONAL ADVOCATE GENERAL, WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL) Whether approved for reporting?.
This petition coming on for hearing this day, the Court passed the following:
ORDER [ Petitioners herein, who are working as Restorers in the Office of Advocate General/respondent No.3, have approached this Court by way of instant petition filed under Article 226 of the Constitution of India, praying therein for following substantive reliefs:
"(i) That appropriate writ order or direction may very kindly be issued directing the respondents to grant pay band of Rs. 10,300-34,800 +3200 Grade Pay after two years of regular service of the petitioners alongwith arrears and interest @9% per annum from the respective dates it became due to the petitioners, in the interest of law and justice.
(ii) That appropriate writ order or direction may very kindly be issued directing the respondents to protect the basic pay drawn during the contractual period on regularization in order to save the petitioners from financial loss, as the petitioners had already reached at a basic pay of around Rs.9,000/-, but on regularization were again given a restart from Rs.5910/- by paying the arrears after granting the protection by calculating the difference, in the interest of law and justice.
(iii) That appropriate writ order or direction may very kindly be issued to the respondents to grant Grade Pay of Rs. 2400/- instead of Rs.1900/- for the period the petitioners were working on contractual basis by ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 4 calculating the difference of salary and paying the arrears .
to the petitioners, in the interest of law and justice."
2. Briefly stated facts, which may be relevant for adjudication of the case at hand are that petitioners No.1 to 9 are working as Restorers in the Office of Advocate General i.e. respondent No.3, on regular basis, whereas, petitioner No.10, is still continuing on contract basis. Issue raised in the instant petition is with regard to anomaly in the pay scales of Restorers and Clerks working in the office of Advocate General/respondent No.3. Since 1996, Restorers in respondent-3/Department are being equated to that of Clerks in respect of pay scales as well as for the purpose of promotion avenues. Clerks and Restorers in the respondent-
3/Department had been drawing the same pay scales and both the categories after their having 10 years (now 7 years) of regular service are eligible and entitled to be promoted to the post of Senior Assistant. Prior to framing of common Recruitment & Promotion Rules in the State of Himachal Pradesh for the post of Clerk as well as Senior Assistant, respondent-3/Department had its own Recruitment & Promotion Rules and as per these Rues, post of Restorer was in the pay scale of Rs. 950- 1800 and the minimum educational qualification and other qualification prescribed for the direct recruitment to the post of Restorer was as under:-
::: Downloaded on - 24/12/2022 09:52:27 :::CIS 5"Essential Qualification:-
.
(i) Should have passed Matriculation with 2nd Division or 10+2 Examination or equivalent from a recognized Board/University."
3. On the other hand, State Government had notified the Recruitment & Promotion Rules for the post of Clerk, Class-III (Non-
Gazetted) in the pay scale of Rs.950-1800 and the minimum educational and other qualification prescribed for direct recruitment to the post of Clerk, is/was same for the post of Restorer, as has been taken note hereinabove. It is not in dispute that both the posts of Restorers and Clerks were having same pay scales of Rs.950-1800, however vide notification dated 27.9.2012, clerks were made entitled to the higher pay scale of Rs. 10300-34800/- after completion of 2 years of regular service. It is not in dispute that prior to framing of common Recruitment & Promotion, Rules in the State of Himachal Pradesh for the post of Clerk as well as Senior Assistant, Restorers and Clerks were eligible to be promoted to the post of Senior Assistant after completion of 10 years of service, which has been reduced to 7 years. State Government notified the Himachal Pradesh Civil Services (Revised Pay) rules on 20.01.1998, which was further amended on 01.09.1998, whereby pay scale of Restorers and Clerks was revised from Rs.950-1800 to Rs.3120-5160 w.e.f. 01.01.1996. However, pay scale further came to be revised w.e.f. 01.01.2006, whereby pay scale of ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 6 both the the post of Restorers and Clerks was revised from Rs.3120-5160 to .
Rs. 5910-20,200+1900 Grade Pay w.e.f. 01.01.2006.
4. On 24.09.2012, State Government notified Himachal Pradesh Civil Services (Category/Post-wise Revised Pay) Rules and thereafter, issued schedule to these Rules as per Notification dated 27.09.2012, whereby pay scale of Restorer was revised from Rs. 5910-20,200+ 1900 Grade Pay to Rs. 5910-20,200+ 2400 Grade Pay w.e.f. 01.10.2012, whereas, the category of Clerks, who were drawing the same pay scale of Rs. 5910-20,200+ 1900 Grade Pay, were given higher pay-band and higher Grade pay of Rs.10,300-34,800+3200 Grade Pay w.e.f. 01.10.2012 with the condition attached to it that this higher pay band and higher Grade Pay would be given after 2 years of regular service. On account of the aforesaid decision taken by the Government, two categories in respondent No.-
3/Department, i.e. Restorer and Clerk, who were performing similar duties and were at par with respect to promotional avenues, started getting different pay scales.
5. Subsequent to issuance of Notification dated 27.09.2012, respondent-State promulgated common draft Recruitment & Promotion Rules for the post of Senior Assistant, whereby class of Restorers was removed from the feeder category to the post of Senior Assistant and only ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 7 Clerks were kept in the feeder category to the post of Senior Assistant.
.
Though, Draft Rules, 2012, to the post of Senior Assistant were never finalized, but, State Government notified Himachal Pradesh, Department of Personnel, Senior Assistant, Class-III (Non-Gazetted), Ministerial Services) common Recruitment and Promotion Rules, vide Notification dated 8th June 2016 by amending 2011 Rules, (Annexure P-2). Bare perusal of aforesaid Rules clearly reveals that posts of Senior Assistant were to be filed up by promotion from amongst the incumbents of the common Clerical cadre of Clerks/Junior Assistant of the concerned Department or Restorers (only incumbents of such establishments where the category of Restorer was a feeder category for promotion to the post of Senior Assistant in the prevailing Recruitment and Promotion Rules prior to the Notification of common Recruitment & Promotion Rules for the post of Senior Assistant). With the issuance of aforesaid Notification dated 08.06.2016, category of Restorer in respondent No.3/Department continued to be a feeder category to the post of Senior Assistant with similar qualification and similar length of service with only one proviso that they are required to qualify typing test as prescribed for Clerks. However, 2016 Rules were again amended vide a Notification dated 28.05.2020, wherein category of Restorer in the ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 8 Department of Advocate General continued to be in the feeder category to .
the post of Senior Assistant, (Annexure P-3).
6. Precise grouse of the petitioners as has been highlighted in the petition and has been further canvassed by Mr. Sanjeev Bhushan, learned Senior Advocate, representing the petitioners is that once for all intent and purposes, category of petitioners i.e. restorer are at par with Clerks, working in the office of respondent No.3/Department, action of the respondent in denying higher pay band and higher pay-scale of Rs. 10,300- 34,800+3200 Grade Pay vide Notification dated 19.09.2012 w.e.f.
01.10.2012, is not sustainable in the eye of law and as such, such action needs to be corrected in accordance with law. As per petitioners, they are also entitled to aforesaid higher pay band and higher Grade Pay of Rs.
10300-34800 + 3200 Grade Pay w.e.f. 01.10.2012 after completion of two years regular service. Record reveals that though petitioners repeatedly, represented to the respondent for rectification of aforesaid anomaly, but in vain. Representation dated 26.11.2019, submitted through proper channel (Annexure P-4) was favourably recommended by respondent No.3 with a request to respondent No.1, to take up the matter with respondent No.2 vide communication dated 30.12.2019, Annexure P-5. Pursuant to aforesaid recommendation made by office of respondent No.3, certain ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 9 queries came to be raised by the office of respondent No.1, which were duly .
answered. First query was that how many posts of Restorers are there in the Department of respondent No.3 and further what is the job profile of Restorer. Office of respondent No.3, gave detailed answer to aforesaid queries vide communication dated 27.05.2020, which is reproduced herein below:-
"No.1-55/2018-Loose- 86 34
Department of the Advocate General State of Himachal Pradesh, Shimla-1.
To The Additional Chief Secretary (Home) to the, Government of Himachal Pradesh, Shimla-1.
Dated: 27-5-2020 Subject: Regarding of Pay anomaly and request for granting the higher pay band and Higher Grade Pay of Rs.10300- 34800+3200GP after two years regular service to Restorers as given to Clerks in the office of Advocate General, Himachal Pradesh.
Sir, I am to refer to your office letter No. Home-B(B)7-3/2019 dated 14th May, 2020 on the subject cited above and to submit the point wise information as under:-
Pt. No.1. How Many posts of Restorer are there?
It is submitted that total sanctioned posts of Restorer are=12 Pt.2 What is the job profile of Restorer?::: Downloaded on - 24/12/2022 09:52:27 :::CIS 10
It is informed that the detail information qua this point .
has already been provided to Government vide letter No.1-13/2012-26902 dated 31st July, 2013 and letter No.1- 13/94-42002 dated 15th November, 2013, on subject matter of Recruitment and Promotion Rules for the post of Senior Assistant, Class-III, (Non-Gazetted), ministerial Services.). Now the Government has finalized the common recruitment and promotion rules for the post of Senior Assistant vide letter No. Per(AP)-
C-A(3)-7/2010-1 dated 8th June, 2016 and the category of Restorer is feeder category for promotion to the post of Senior Assistant in this office. (Photocopies of common R&P rules for the post of Senior Assistant and letters dated 31st July, 2013 and dated 15th November, 2013 are enclosed herewith for ready reference please.) However, it is submitted that the Restorers are performing multifarious jobs in this Department. At times, they are attached with Law Officer of this Department for assisting the concerned Law Officer and as well for court duty purpose. It is the responsibility of the attached Restorer that the files of all cases mentioned in the daily, weekly and monthly cause lists are made available to the Law Officer well in advance. While in Court, their duty is to provide requisite Law Books from office Library and apply for the copies of orders/judgments pronounced by the Hon'ble Court. Besides Court work the Restorers are deputed in different Sections of the office for dealing work branches/section. Restorers are performing the ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 11 same duties as is being performed by a Clerk in this .
Department.
In view of the above mentioned facts and circumstances, it is once again requested that the matter may kindly be considered at Government level at the earliest possible please."
7. Bare perusal of aforesaid communication clearly reveals that Restorers working in the establishment of respondent No.3 are performing the same duties as are being performed by the Clerks in the same Department, but respondents despite having received the aforesaid clarification from respondent No.3, kept mum and after filing of the petition at hand, issued letter dated 10.02.2021 to the office of Advocate General Annexure R-1, which reads as under:
" Home-B(B)7-3/2019
Department of Home
Government of Himachal Pradesh
From
The Additional Chief Secretary (Home) to the
Government of Himachal Pradesh
To
The Advocate General,
Himachal Pradesh,
Shimla-1
Dated: Shimla-2, the 10th February, 2021
Subject: Regarding of pay anomaly and request for granting the
higher pay band and Higher Grade Pay of 10300-
34800+3200 GP after two years of regular service to Restores as given to Clerks in the office of Advocate General, Himachal Pradesh, Shimla.
Sir, ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 12 I am directed to refer your letter No.1-55/2018-Loose-
.
20329 dated 29.8.2020 on the subject cited above and to say that the matter was taken up with the Finance Department who has observed that the pay scale in the Pay Band of 10300-34800+3200 GP has been granted to the Clerk on the basis of the Pay scales prevalent in Punjab Government and no such pay scale has been revised in respect of Restorer. Therefore, Finance Department has conveyed its inability to agree to the proposal.
Yours faithfully,
r (Rakesh Sharma)
Special Secretary (Home) to the
Government of Himachal
Pradesh.
Phone 0177-2626212"
8. Vide aforesaid communication, Special Secretary Govt. to the Himachal Pradesh, apprised respondent No.3 that matter was taken with the finance department, which has observed that pay-scale in the Pay Band of Rs. 10,300-34,800 +3200 Grade Pay has been granted to the Clerk on the basis of pay scales prevalent in the Punjab Government and no such pay scale has been revised in the respect of Restorer.
9. Mr. Sanjeev Bhushan, learned Senior counsel appearing for the petitioners while referring to the aforesaid communication Annexure R-1 vehemently argued that since it is not in dispute that all the petitioners were working as restorer in the office of Advocate General and they were ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 13 discharging similar duties as were being discharged by the Clerks in the .
office of respondent No.3 coupled with the fact that both the categories were kept in the pay scale of Rs. 950-1800 as per Recruitment & Promotion Rules for the post of Restorer class-III, action of the respondents in denying the similar revised pay scale as is being given to the category of clerk working in the office of respondent No.3 is fully unjust and unreasonable. He further submitted that if Recruitment & Promotion Rules for both the posts of Clerk and Restorer in the respondent No.3 department are read juxtaposing each other, it clearly reveals that qualification for being appointed against both the categories is same and their pay-scales were also same. He further submitted that pay scale of both the categories remained the same with the revision of pay scale w.e.f. 1.1.1996 and 1.1.2006 and it is only after issuance of the notification dated 27.9.2012, by the state of Himachal Pradesh, discrimination was made as far as the category of the petitioners is concerned, whereby after two years, clerks were given pay-scale of Rs. 10,300-34,800 +3200 Grade Pay, but such benefit was denied to the Restorers.
10. Having heard learned counsel for the parties and perused material available on record this Court finds merit in the petition of the petitioners that they are entitled to similar pay scale as is being given to the ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 14 category of clerks in the respondent No.3-department. As has been taken .
note herein above, though categories of clerk and restorer working in the office of respondent No.3 are/were being governed by separate Recruitment & Promotion Rules, but minimum qualification for appointment against such posts is same and till the issuance of notification dated 27.9.2012 issued by the Government of Himachal Pradesh in exercise of power conferred in Rule 9 of HP Civil Services Rules, both the aforesaid categories were drawing similar pay scale.
11. Leaving everything aside, both the categories were in the feeder category to the post of Senior Assistant in the office of respondent No.3 i.e. Advocate General. Even today, both the categories working in the office of respondent No.3 continue to be feeder category for the post of Senior Assistant but with the issuance of notification dated 27.9.2012, pay scale of both the categories have been changed. One category of clerk has been given pay-scale of Rs. 10,300-34,800 +3200 Grade Pay, but for no plausible reason, same benefit has been denied to the category of the restorers, which otherwise is performing similar duties as are being performed by the category of clerk in the office of respondent No.3.
12. Careful perusal of communication dated 27.5.2020 (reproduced supra), clearly reveals that office of Advocate General-respondent No.3 ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 15 while answering the query raised by the department of Home Govt. of .
Himachal Pradesh with regard to job profile of the restorer categorically observed in the aforesaid communication that restorers are performing the multifarious jobs in the department. At times, they are attached with Law Officers and for the court duty purpose. Respondent No.3 has categorically mentioned in the aforesaid communication that Restorers are performing the same duties as are being performed by the clerks in the department.
Most importantly, in the aforesaid communication, it has been stated that category of the Restorer continues to be the feeder category for the post of Senior Assistant in the office alongwith category of clerks in terms of common Recruitment & Promotion Rules for the post of Senior Assistant notified vide communication dated 8.6.2016. Interestingly, respondent-
State vide communication dated 10.2.2021, refused to accede to the prayer made by the petitioners, who are restorers in the office of respondent No.3 on very flimsy grounds that the pay scale in the pay band of Rs. 10,300- 34,800 +3200 Grade Pay has been granted to the clerk on the basis of the Pay scales prevalent in Punjab Government and no such pay scale has been revised in respect of Restorer. Aforesaid stand taken by the respondent to reject the claim of the petitioners' category is not sustainable in the eye of law because this Court can take judicial note of the fact that ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 16 repeatedly, respondent-State keeps on changing its stand with regard to .
application of pay-scale prevalent in the Punjab Government. In some cases, respondent-state takes the stand that they are not bound to give pay-scale as per Punjab Government pattern, but in some other cases, they take stand that pay-scales as prevalent in the state of Punjab are payable to the Himachal Pradesh because Punjab Pay pattern is generally followed by the State of Himachal Pradesh. True, it is that repeatedly, it has been held by the Hon'ble Apex Court as well as this court that State is not bound to follow each and every revision, if any, made by the Punjab Government but in the instant case, where the category of restorer is at par with the category of clerk, especially in the office of respondent No.3 for all intents and purposes as has been discussed herein above in detail, ground raised in communication dated 10.2.2021 Annexure R-1 for rejecting the claim of the petitioners is not tenable in the eye of law. Though the categories of clerk and restorers working in the office of respondent No.3 are being governed by the different set of Recruitment & Promotion Rules, but if Recruitment & Promotion Rules governing the service conditions of Punjab Government are perused juxtaposing each other, they are para-materia same with regard to qualification and pay scales. Probably, having regard to the aforesaid similarity in the Recruitment & Promotion Rules, ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 17 Government had been granting the pay-scales of both the categories on the .
same and similar footing till 2006. Abruptly, on 27.9.2012 State Government notified the Himachal Pradesh Civil Service Rules, whereby the pay scale of Restorer came to be revised from 5910-to 20200+1900 Grade Pay w.e.f. 1.10.2012, whereas category of clerk working in the office of respondent No.3, which were initially drawing the same pay-scale of R4.
510-20200 +1900 grade pay were given higher pay band and higher Grade pay of Rs. 10,300-34,800 +3200 Grade Pay grade pay w.e.f. 1.10.2012, which action on the part of the respondent is not only discriminatory vis-à-
vis the category of restorers/ petitioners but also unsustainable in the eye of law being totally discriminatory and arbitrary in nature, especially in view of the fact that as of today, both the categories of clerk and restorer continue to be feeder category for the next promotional post i.e. Senior Assistant.
13. Leaving everything aside, at this stage, it is pertinent to take note of the fact that Restorer working in the office of respondent No.3 cannot be equated with the Restorers working in the other departments of the State on account of their duties and responsibilities. As has been clarified by respondent No.3 vide communication dated 27.5.2020 Restorers working in the office of respondent No.3 are performing ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 18 multifarious duties in the department. At times they are attached with law .
officer of this department for assisting the concerned Law Officer and as well for the court duty purposes. It is responsibility of the attached restorer that the files of all cases mentioned in the daily, weekly and monthly cause lists are made available to the law officer well in advance. While in court, their duty is to provide requisite law books from the office library and apply for the copies of orders/ judgments pronounced by the court. Besides above, restorers are deputed in the different sections of the office for dealing work in branches/section and as such, they are performing the same duties as are being performed by the clerk in the department. Since Restorers working in the office of respondent No.3 are performing similar duties as are being performed by the clerks in the office of respondent No.3, benefit of pay revision as is being sought by the category of the petitioners cannot be denied on the ground that pay of the category of clerks has been revised on the basis of pay revision made by the Punjab government.
Though there is no material with regard to decision, if any, taken by the Punjab government with regard to revision of pay of category of restorers working in the office of Advocate General, but since it has been repeatedly claimed by respondent-State that they are not bound to follow each and every revision of the pay-scale ordered by the State of Punjab, respondents ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 19 having taken note of the fact that category of restorer and clerk working in .
the respondent No.3 are performing similar duties, ought to have granted the similar benefit of pay revision to the petitioners/restorers, who being working/performing the similar duties in the same department are otherwise entitled to the similar pay scale on the principle of "equal pay for equal work".
14. In this regard reliance is placed upon the judgment rendered by the Hon'ble Apex Court in K.T. Veerappa and Ors v. State of Karnataka and Ors, (2006) 9 SCC 406, which reads as under:
"He next contended that fixation of pay and parity in duties is the function of the Executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance in the case of State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72 and Union of India and Anr. v. S.B. Vohra and Ors. (2004) 2 SCC 150. There is no dispute nor can there be any to the principle as settled in the case of State of Haryana & Anr. v. Haryana Civil Secretariat Personal Staff Association (supra) 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 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."::: Downloaded on - 24/12/2022 09:52:27 :::CIS 20
15. In the aforesaid judgment, though Hon'ble Apex Court has held .
that 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 the employees and taken in ignorance of material and relevant factors.
16. Reliance is placed upon Haryana State Minor Irrigation Tubewells Corporation and Ors v. G.S. Uppal and Ors (along with connected matters), (2008) 7 SCC 375, wherein Hon'ble Apex Court has held that in matters of fixation of pay and determination of parity though scope of judicial review is very limited, but court would be justified in interfering with the pay fixation if it finds such decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. Apart from above, in the aforesaid judgment, Hon'ble Apex Court has held that financial difficulties/constraints cannot be a ground to deny the higher pay-scale. Paras 21 to 33 of the aforesaid judgment read 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 ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 21 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. [see K.T. Veerappa & Ors. v. State of Karnataka & Ors. (2006) 9 SCC 406].
22. Mr. M.N. Krishnamani, learned senior counsel assisted by Shri Raj Kumar Gupta and Shri A.N.Bardiyar appearing for respondents in C.A. Nos. 9244/03 and 9248/03; Mr. Rishi Malhotra, Advocate appearing for respondents in C.A. 9239/2003, in support of the judgment of the Division Bench, contended that no exceptions can be taken to the well- reasoned judgment recorded by the Division Bench of the High Court. They submitted that the Division Bench has analysed in great detail the factual situation and legal proposition covering the field of controversy, therefore, there is apparently no infirmity or perversity in the judgment impugned in these appeals inviting interference by this Court.
23. In order to appreciate the rival contentions of the learned counsel for the parties, we have scrutinized the judgment of the Division Bench of the High Court in the backdrop of the factual situation of the case as well as in the light of the principle enunciated in the above-cited decisions.
24. It is well-settled that the State can make reasonable classification if it has a nexus with the object sought to be achieved. It is admitted position in the present case that posts of SDOs/SDEs/AEs can be filled up by the Corporation by any one of the three known methods, namely, direct recruitment, on promotion or by transfer/deputation. Once a person is appointed to a post in a particular cadre, the source ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 22 of his recruitment or the method of his appointment becomes .
irrelevant. The Corporation has framed its Service Bye-Laws and by virtue of Rule 5.1 of Part-V of the Service Bye-Laws, each post in the Corporation will carry a time scale of pay; the present pay scale being indicated in Appendix-II and further that the pay scale is subject to revision by the Board, which will, however, generally follow the pattern adopted by the Government of Haryana from time to time.
25. The employees of the Corporation, since its inception in 1970, had been getting the same pay scales as that of the employees of the Haryana Government and the Board of Directors having already equated the pay scales of the Engineers of the Corporation commensurate to the pay scales of the Government employees, but the State Government has not concurred with the decision of the Board of Directors.
26. By virtue of Clause 81(v) of the Memorandum of Association of the Corporation, the Directors of the Corporation in their discretion have powers to appoint, remove or suspend such Managers, Secretaries, Officers, Clerks, Agents and Servants of permanent, temporary or special services, as they may from time to time think fit, and to determine their powers and duties and fix their salaries or emoluments and to require security of such amount as they think fit in such instances. The power to fix the salaries or emoluments of the employees of the Corporation, thus, specifically rests with the Directors of the Corporation and by virtue of Rule 5.1 of Part-V of the Service Bye-Laws, as mentioned in the earlier part of the judgment, the Corporation had favourably considered the claim of the respondents by recommending the same scales for them, as were ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 23 being given to their counterparts in the service of the Government .
Departments.
27. The proposal of the Board of Directors of the Corporation for revision of pay scales to its employees came up before the Standing Committee in its meeting held on 28.05.1992 and the Standing Committee approved the pay scales in a selective manner. The revision in pay scales of the Superintending Engineers, Accounts Officers, Circle Head Draftsmen, Divisional Head Draftsmen, etc. were approved, whereas the revision of pay scales of the respondents, who are AEs/SDOs/SDEs, was postponed and it was decided that the matter would be examined separately by the Finance Department.
28. The State of Haryana in its written statement filed before the High Court admitted that although the technical qualifications of incumbents on the posts of AEs/SDOs/SDEs in various Government Departments, Boards and Corporations are identical, yet the nature of duties and responsibilities, quantum of workload and level of technical expertise involved do vary from organization to organization depending upon the nature of activities undertaken by the respective organizations. It is further contended that the salary and allowances of the deputationists of the Corporation are governed by the terms and conditions of their deputation as decided by the Government from time to time. Therefore, the respondents cannot be treated and equated at par with the similar categories of employees of the State Government.
29. The learned Single Judge of the High Court as also the learned Judges of the Division Bench have considered the controversy in ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 24 detail in their judgments holding the respondents entitled for the .
revision of pay scales at par with their counter-parts working in the State of Haryana.
30. It is not in dispute that a deputationist holds the post in a particular cadre office for the duration he remains on deputation and is a part of that cadre. No material has been placed on record by the appellants to show that the deputationists are appointed against only certain particular posts or that they cannot be posted or transferred to the posts held by the respondents. In fact, it is an admitted position that the posts are mutually inter-changeable. In this situation, it is reasonable to infer that a deputationist performs the same duties as those performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000- 3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 25 conditions, responsibilities and nature of duties, etc. of the .
respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation.
31. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of 'removal of anomaly in pay scales' given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner.
The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation.
32. When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 26 the pay scale which is the subject matter of the correction. It should .
be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity.
33. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 27 treated at par with those in Government at the time of revision of .
scales of pay on every occasion."
17. In Union of India v. Dineshan K.K. (2008) 1 SCC 586, Hon'ble Apex Court has held that principle of "equal work pay for equal work" has been assumed to be the status of a fundamental right. Though it is the task of expert body like pay commission to determine pay structures, yet judicial review is not altogether excluded. Hon'ble Apex Court has further held that when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene and order parity.
Aforesaid judgment reads as under:
" 12. The principle of "equal pay for equal work" has been considered, explained and applied in a catena of decisions of this Court. The doctrine of "equal pay for equal work" was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors. , a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 28 affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors.
.
Vs. Union of India . Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of "equal pay for equal work" has assumed status of a fundamental right.
13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association. Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 29 classification of posts is ex-facie irrational, arbitrary or unjust, it is .
open to the Court to intervene."
18. It is not in dispute that for considering the equation of posts and the issue of equivalence of posts, some factors had been held to be determinative i.e. (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. The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. In case, the person claiming parity succeeds in establishing the he is similarly situate to the person, who has been granted higher pay scale, by placing on record material before the court to prove the nature of duties and functions are similar and that they are entitled to parity of pay scales, court would be justified in considering the claim of an employee on the basis of principle of "equal pay for equal work". Reliance in this regard is placed upon judgment passed by the Hon'ble Apex Court in Punjab State Power Corporation Ltd v. Rajesh Kumar Jindal, (2019) 3 SCC 547, wherein it has been held that 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 as the question of parity has to be decided ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 30 on consideration of various factors as well as statutory rules etc. i.e. (i) .
method of recruitment; (ii) level at which recruitment is made; (iii) the hierarchy of service in a given cadre; (iv) minimum educational/technical qualifications required; (v) avenues of promotion; (vi) the nature of duties and responsibilities; and (vii) employer's capacity to pay, etc. Relevant paras of the aforesaid judgment reads as under:
"14. Ordinarily, the courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission etc. The aggrieved employees claiming parity must establish that they are unjustly treated by arbitrary action or discriminated. In Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353, this Court held as under:-
"7. The next question that arises for consideration is, as to what extent the High Court would be justified in exercise of its extraordinary jurisdiction under Article 226 to interfere with the findings of an expert body like the Equation Committee. In State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121, this Court unequivocally held that in the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like the Pay Commission, and such expert body would be the best judge to evaluate the nature of duties and responsibilities of the posts and when such determination by a commission or committee is made, the court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration...."
15. In S.C. Chandra and Others v. State of Jharkhand and Others (2007) 8 SCC 279, this Court held as under:-
"33. It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 31 should exercise judicial restraint and not interfere in such .
executive function vide Indian Drugs & Pharmaceuticals Ltd. v.
Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC
408. ..........
35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).
36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. of W.B. v. Tarun K. Roy and Others (2004) 1 SCC 347."
The same view was reiterated in Union Territory Administration, Chandigarh and Others v. Manju Mathur and Another (2011) 2 SCC 452; State of Haryana and Others v. Charanjit Singh and Others (2006) 9 SCC 321 and in Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research and Others (2012) 12 SCC 666.
16. Observing that granting parity in pay scales depends upon the comparative evaluation of job and equation of posts, in Steel Authority of India Limited and Others v. Dibyendu Bhattacharya (2011) 11 SCC 122, this Court held as under:-
"30. ........... the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 32 prove that all things are equal between the posts concerned.
.
Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties."
........
.......
......
20. Burden of proof on the person claiming parity of pay scale:-
Ordinarily, the scale of pay is fixed keeping in view the several factors i.e.
(i) method of recruitment;
(ii) level at which recruitment is made;
(iii) the hierarchy of service in a given cadre;
(iv) minimum educational/technical qualifications required;
(v) avenues of promotion;
(vi) the nature of duties and responsibilities; and
(vii) employer's capacity to pay, etc.
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;
(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 AIR 1968 SC 850).
22. After referring to P.K. Roy's case, this Court, in SAIL, held as under:-
"25. In State of Maharashtra and Another v. Chandrakant Anant Kulkarni and Others (1981) 4 SCC 130 and Vice- Chancellor, L.N.Mithila University v. Dayanand Jha (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in E.P. Royappa v. State of T.N. and Another (1974) 4 SCC 3 and Sub-::: Downloaded on - 24/12/2022 09:52:27 :::CIS 33
Inspector Rooplal and Another v. Lt. Governor Through Chief .
Secretary, Delhi and Others (2000) 1 SCC 644, wherein this Court following the earlier judgment in P.K. Roy AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled."
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)".::: Downloaded on - 24/12/2022 09:52:27 :::CIS 34
19. In the case at hand, as has been taken note herein above, .
though service conditions of both the categories i.e. restorer and clerk working in the respondent No.3 are being regulated by different set of Recruitment & Promotion Rules, but their qualification, duties and responsibilities are same and till one point of time, both the categories were drawing similar pay-scales and even as of today, both the aforesaid categories continue to be feeder category for the next post of promotion i.e. Senior Assistant. Since it is not in dispute rather stands clarified by respondent No.3 that category of restorer working in the office of respondent No.3 are performing the duties of clerk, there is no justification to deny the benefit of revised pay scales i.e. Rs. 10,300-34,800 +3200 Grade Pay to the category of restorers working in the respondent No.3 after completion of two years regular service as has been given in the category of clerks working in the respondent-department.
20. Consequently, in view of the detailed discussion made herein above as well as law relied upon, this court finds merit in the present petition and accordingly same is allowed and communication dated 10.2.2021, whereby claim of the petitioners came to be rejected, is quashed and set-aside. Respondents are directed to grant the similar pay-scale to the category of the Restorers as has been granted to the Clerks working in ::: Downloaded on - 24/12/2022 09:52:27 :::CIS 35 the respondent No.3-department vide notification dated 27.9.2012 from the .
date same has been granted to the category of clerks alongwith consequential benefits, within a period of two months from today. In the aforesaid terms, present petition is disposed of alongwith Pending application(s), if any.
18th October, 2022 (Sandeep Sharma),
(manjit) Judge
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