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M.S. MAURYA & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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M.S. Maurya & Others v. State Of U.P. & Others - WRIT - A No. - 23394 of 1995 [2007] RD-AH 18507 (30 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 26

Civil Misc. Writ Petition No. 23394 of 1995

Sri M.S. Maurya and others

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Under the Directorate General of Medical Health and Family Welfare, the State Government has established and is running sub-department pertaining to control of leprosy. This leprosy control programme is being run under the National Leprosy Eradication Programme. Under the aforesaid programme, petitioners are working as Physiotherapy Technicians and are posted at Leprosy Control Units existing in different districts of the State of U.P. Petitioners claim that cadre of Physiotherapy Technicians in the entire State comprises of total number of 42 persons. In the year 1988, State Government took a decision for equating the post scale applicable to the State Government Employees with their counter parts existing under the Central Government. This decision was to be implemented with regard to such of the posts existed under the Central Government. State Government pursuant to this decision vide resolution dated 14.10.1988 constituted an Equivalence Committee. The State Government gave guidelines to the Equivalence Committee to submit its report on the basis of comparability of different categories of posts of the State Government and the Central Government. Vide paragraph 6 of the said resolution the Equivalence Committee was empowered to determine modalities and principles for the purposes of comparability to the post. The aforesaid Equivalence Committee submitted its report on 30.04.1989, which was accepted by the State Government on 19.05.1989 with certain conditions. Chapter V of the report of Equivalence Committee deals with comparability of various categories of posts available in the State Government with the corresponding/comparable posts available in the Central Government. The claim of petitioners was covered by the recommendations contained in paragraph 5.6 and Scheduled Talika No. 4. This scheduled covered such posts in respect of which equivalent posts were not found either in the Central Government or in Union Territory. For such posts Equivalence Committee had recommended that they may be given revised pay scale on the basis of Sambaddh Vetanman Samikaran. Accordingly revised pay scale to which petitioners were entitled was made applicable to them vide Government Order dated 06.11.1989. The petitioners were not at all satisfied with the said recommendations, as they had been claiming that details were available as per communication dated 19.07.1989 in respect of staff associated with National Leprosy Eradication Programme and the pay scale applicable to them. Vide Government Order dated 06.11.1989 revised pay scale which was effective from 01.01.1986 was provided for. As petitioners were not at all satisfied with the said recommendations and have been representing to the State Government, the State Government again proceeded to take exercise for revising the pay scale with effect from 01.01.1996 on the pattern of Central Government and again Committee was constituted, but with different name, known as "Pay Committee (1997-99)". The said Committee as well as the Committee constituted under the chairmanship of Chief Secretary considered the matter and vide recommendation No. 9 (12) conclusion was drawn that parity of petitioners with any post of the Central Government was not established. The Committee proposed for them the scale of Rs.4000-6000/- on the ground that the post of Technician is a post covered under item "common category post" and the decision regarding "common category post" had already been taken. Based on the aforesaid recommendations by means of Government Order dated 07.02.2007 pay scale of the post of P.T. Technician has been amended to Rs.4000-6000/- with the conditions stipulated in the Government Order. Petitioners claim that their claim has not been considered in correct perspective, mentioning therein that they may be accorded parity with the posts which are available in the Central Government.

After pleadings have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri D. B. Kauser, Advocate, assisted by Rolliei Kauser, Advocate, Learned Counsel appearing for the petitioners, contended with vehemence that in the present case, State Government has not at all acted fairly and no real exercise, whatsoever, has been undertaken while considering the question of parity and in this background decision making process is vitiated on the face of it and is not sustainable.

Sri P.P. Srivastava, Learned Standing Counsel, on the other hand, has contended that fixation of pay by the Equivalence Committee as well as Pay Committee is job of expert body and once these committees have taken conscious decision, then as far as this Court is concerned, this Court under its power of judicial review under Article 226 of the Constitution cannot act as Expert and dwell on the question of pay fixation and determine the questions of pay scale.

After respective arguments have been advanced, factual position which emerges is to the effect that the State Government in principle had accepted to accord the pay scale as was applicable to the employees under the Central Government holding corresponding and comparable posts. Accordingly, through the Resolution dated 14.10.1988, Equivalence Committee was constituted to consider the claim in regard to those posts, whose corresponding posts were not available under the Central Government. The Equivalence Committee submitted its report on 30.04.1989, which was accepted by the State Government on 19.05.1989 with certain conditions. Chapter V of the report of Equivalence Committee deals with comparability of various categories of posts available in the State Government with the corresponding/comparable posts available in the Central Government. The claim of petitioners was covered by the recommendations contained in paragraph 5.6 and Schedule Talika No. 4. This schedule covered such posts in respect of which equivalent posts were not found either in the Central Government or in Union Territory. For such posts Equivalence Committee had recommended that they may be given revised pay scale on the basis of Sambaddh Vetanman Samikaran, and as per the same revised pay scale was given to the said categories of employees vide Government Order dated 06.11.1989. The petitioners were not at all satisfied with the said recommendations; their matter was again directed to be reconsidered by a Committee headed by Chief Secretary. The said Committee reconsidered the matter after obtaining opinion from Central Government in regard to pay scales, eligibility conditions, qualifications and source of recruitment of the concerned posts and on that basis, proposal was submitted before Finance Department of the State Government and the Finance Department after due consideration has accepted the same, but qua the petitioners noi change was found. The pay scale was again to be revised with effect from 01.01.1996 and similar exercise was to be undertaken and in this direction the "Pay Committee (1997-99)" as well as the Committee constituted under the chairmanship of Chief Secretary considered the matter and vide recommendation No. 9 (12) conclusion was drawn that parity of petitioners with any post of the Central Government was not established. The Committee proposed for them the scale of Rs.4000-6000/- on the ground that the post of Technician is a post covered under item "common category post" and the decision regarding "common category post" had already been taken. On the aforesaid recommendation, the pay scale of the post of Physiotherapy Technician, instead of Rs.3050-4590/- with effect from 07.02.2007 was amended to Rs.4000-6000/-. In the supplementary rejoinder affidavit filed on behalf of petitioners, various details have been set out to show and substantiate their entitlement, and ultimately in paragraphs 24 and 25, it has been mentioned that the revised grade of Rs.4000-6000/- granted vide G.O. Dated 07.02.2007 is relatable to corresponding revised pay scale of Rs.1200-2040/-, and as such same is admissible w.e.f. 01.01.1986 and 01.01.1997 respectively, and as State Government in principle has acceded to the the claim of petitioners,the said benefit in all eventuality is liable to be extended.

At this juncture the view point of Hon'ble Apex Court is being looked into, qua fixation of Pay scale, role of expert bodies, scope of judicial review in such matters. Hon'ble Apex Court in the case of Deputy Director General of Geological Survey of India and others v. R. Yadaiah 2001 (1) SCC 563, has taken the view t that ordinarily courts or tribunals should not go into the question of fitment of officers in particular group of pay scale attached thereto, and the matter should be left to discretion and expertise of Special Commission like Pay Commission, unless the court finds that there is some apparent error.

Hon'ble Apex Court in the case of Union of India v. Tarit Rajan Das, 2003 (11) SCC 658, has taken the view that it is trite law that it is not open to any court to sit in judgment as an appeal over the conclusion of Commission. Relevant paragraphs 9, 10, 11 are extracted below:

"9. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any data. It is trite law that it is not open for any Court to sit in judgment as on appeal over the conclusion of the Commission. Further the Tribunal and the High Court proceeded as if it was the employer who was to show that there was no equality in the work. On the contrary the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like, responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy, the qualifications required which are equally relevant.

10. In State of W.B. and others v. Hari Narayan Bhowal and others (1994 (4) SCC 78) it was observed :

"This Court in the case of Delhi Veterinary Assocn. v. Union of India (1984 (3) SCC 1) said that in addition to the principle of 'equal pay for equal work,' the pay structure of the employees of the Government should reflect many other social values. It was said :

"The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level of which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors."

11. In the case of State of U.P. v. J. P. Chaurasia (1989 (1) SCC 121) it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It was not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts by the Competent Authorities constituted for the purpose and Courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best Judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. v. Pramod Bhartiya (1993 (1) SCC 539) by a three-Judge Bench of this Court. In the case of Shyam Babu Verma v. Union of India (1994 (2) SCC 521) a claim for equal pay by a group of Pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable."

Hon'ble Apex Court in the case of Union of India v. Arun Jyoti Kundu, 2007 (7) SCC 472, has taken the view that recommendation of Pay Commission, can be either accepted or rejected by Government, and Court has no authority to direct to accept the recommendation of Pay Commission, and to implement the same from particular date. Paragraphs 9, 15, 16, 17, 18, 19, 20, 21 and 22 are being extracted below:

"9. According to the appellant all the relevant aspects were taken note of by the expert body, the Fifth Pay Commission and it had dealt separately with the Ministry of railways. But it has deliberately chosen not to comment on the pay structure of the different hierarchies of typists and had left their scales to be determined in terms of the standard scales of pay as provided in Para 83.296. It is, therefore, the submission on behalf of the appellant that the Commission had taken a conscious decision to deal differently with the cadre of typists and the cadre of clerks and hence the typists cannot claim the benefits which were not given to them by the Fifth Pay Commission. The fact that they were enjoying the same pay scales before the Fifth Pay Commission's recommendations would not make any difference in the light of the recommendations of the Fifth Pay Commission. If parity, as claimed is to be given, it would amount to reviewing the report of the Pay Commission. The Central Administrative Tribunal and the High Court had done this by granting the reliefs claimed and consequently they have acted outside their jurisdiction while exercising the power of judicial review. A mandamus has been issued to merge the cadre so to say; that is not permissible.

15. According to the appellant, from the above, it is apparent that the specific recommendation was with regard to language typists in the pay scale of Rs.950-1500, there was a specific recommendation to merge them with the clerical staff of respective organisations, there was no recommendation vis-a-vis typists in other pay scales in para 55.154 which dealt with the higher qualification and, therefore, it is a case where para 83.296 squirely applies and all the typists are entitled to corresponding replacement pay scales recommended by the Fifth Pay Commission. We find considerable force in the contention of learned counsel for the appellant that the plea that categories other than categories of Rs.950-1500 are also required to be merged or are required to be give the same treatment is not borne out and that the recommendation is limited to the language typists in the scale of Rs.950-1500. When there is specific chapter dealing with the Ministry of Railways, the general recommendation regarding typists in the limited pay scale of Rs.950-1500 could not straightaway be made applicable to other pay scales and even if there was any recommendation for merger, so long as the same has not been accepted it may not be appropriate for the Tribunal or the Court to issue a direction in that regard.

16. We had recently held in K.S. Krishnaswamy v. Union of India (2006) 13 SCC 215, that the recommendations of Pay Commission are subject to acceptance or rejection. Speaking for the Bench, one of us (H.K. Sema), J.) stated:

"It is well settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government."

So unless the Government has accepted the recommendation to merge the cadres, the court cannot proceed on the basis of the recommendation alone or to direct the Government to accept the recommendation. In this context we have also to take note of the decisions of this Court in State of W.B. v. Deb Kumar Mukherjee, 1999 Supp (2) SCC 640 that the recommendations of pay scales are not open to judicial review and the one in State of U.P. v. Ministerial Karmchari Sangh (1998) 1 SCC 422 tot he effect that the evaluation of typists for the purposes of pay scales must be left to the expert body. The Role of the Pay Commission and that of the court has also been dealt with by the decision of this Court in Saurabh Chaurdri v. Union of India, (2003) 11 SCC 146 and M.P. Rural Agriculture Extension officers' Assn. v. State of M.P., (2004) 4 SCC (L&S) 667. In the later decision it was held by this Court that Pay Commissions are constituted for evaluating duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications thereof. Although the Pay Commission is an expert body, the State in its wisdom and in furtherance of its valid policy may or may not accept its recommendations.

17. On going through the relevant paragraphs of the report of the Fifth Pay Commissi9oni in the light of the arguments raised before us, we are of the view that as far as the staff in the Railways is concerned, for whom no specific provisions have been made, it would be para 83.296 that would apply and if it is so, the pay scales of the typists not specifically dealt with would be corresponding replacement scale of pay. The specific direction in Para 55.152 relied on by the respondents applies only to typists in the scale of pay in Rs.950-1500 or it is confined to that category only and the same cannot be extended and Para 83.295 invoked to rope in others not fitting in with that category.

18. Though the Tribunal noticed the decision in State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121, it has proceeded on the footing that since the Commission had recommended that the posts of language typists be merged with the clerical cadre even though that has not been done,a direction still could be issued for grant of benefits of the same pay scales as are applicable to the Senior Clerks, Head Clerks and Office Superintendents Grade II, to the respondents with effect from 1-1-1996. In this context, the Tribunal has also relied on the fact that on the recommendation of the Anomalies Committee the appellants have accepted the demand of two sets of typists for grant of higher set of pay scale equivalent to their counterparts in the clerical cadre. It has held that on the same analogy there cannot be any justification to deny benefits to typists as a whole.

19. We are afraid that the Tribunal has exceeded its jurisdiction in issuing the direction, it has issued. The fact that notwithstanding the Fifth Pay Commission nor recommending, particularly,the payment of higher scale to two sets of typists, typists in English Language and typists in Hindi language, the Government chose to give them relief with effect from 31-1-2000 would not justify an inference of discrimination or a finding that the authority has acted arbitrarily or unreasonably. As this Court has clarified in the decisions adverted to,it is for the Government to act on the report of the Pay Commission or either to accept or not to accept its recommendation. Once the recommendations of the Pay Commission are accepted, in full, it could also give effect to it from the date recommended in that behalf. But when admittedly no provision was made in respect of the English and Hindi typists and they pointed to the anomalies Committees decided to give them the scale with effect from 31.-1-2000, it could not be held to be discriminatory or to be beyond the power of the Government.

20. When a concession was being extended as distinct from implementing a specific recommendation of the Pay Commission with reference to a particular point of time, it is open to the Government to provide that the benefit if proposes to give, would be available only from a notified date. As this Court has observed, neither the Central Administrative Tribunal nor the High Court, can direct the merger of any cadre. That is a policy decision for the Government to take. So long as it is not done, it is not open to the Tribunal or the Court to issued directions in that regard and to follow it up with what are thought to be consequential directions.

21. We may in this context notice that the Central Administrative Tribunal, Principal Bench, Delhi dealing with a similar claim took up the proposition the basis of decisioning of this Court, that the Tribunal would have no jurisdiction to issue the directions sought for by the employees. It is submitted that the correctness of the said decisioning has been questioned in the High Court at Delhi. Therefore, it is not necessary for us to make any observation regarding that decision. But we note that, that Tribunal declined jurisdiction in similar circumstances.

22. Once we find that it was open to the Government to extend a benefit to a set of its employees with effect from a particular day on the basis of some anomaly found in the report of the Fifth Pay Commission, there would arise no discrimination because the very implementation of the Fifth Pay Commission Report would not entitle the respondents to any benefit. The very right to the benefit arose because of the decision of the Government to extend to them a particular benefit not specified in the Fifth Pay Commission Report. It is, therefore, not possible to postulate that the decision of the Government must be given retrospective effect and if no such effect is given, the Tribunal or Court can interfere and direct the giving of such retrospective effect. Once it is found that Para 83.296 is attracted to the case, it has to be found that the applicants before the Tribunal were not entitled to any relief."

On the touchstone of principle settled in the decision noted above, and the facts noted above, principle which emerges is that recommendations of Pay commission for grant of pay scales are not to judicial review, unless there is some patent error, Pay Commissions are expert bodies, and once decision has been taken by the said expert body, the said opinion cannot be countered and negated by Courts, relying on averments mentioned in the affidavit, and State Government is free to determine the date of extension of benefit. Here, State Government in order to extend benefit to its employees, the same pay scale admissible to Central Government employees constituted Equivalence Committee, which submitted its report on 30.04.1989, which was accepted by the State Government on 19.05.1989. The claim of petitioners was covered by the recommendations contained in paragraph 5.6 and Schedule Talika No. 4. This schedule covered such posts in respect of which equivalent posts were not found either in the Central Government or in Union Territory. For such posts Equivalence Committee had recommended that they may be given revised pay scale on the basis of Sambaddh Vetanman Samikaran, and as per the same revised pay scale was given to the said categories of employees vide Government Order dated 06.11.1989. The petitioners were not at all satisfied with the said recommendations; their matter was again directed to be reconsidered by a Committee headed by Chief Secretary. The said Committee reconsidered the matter after obtaining opinion from Central Government in regard to pay scales, eligibility conditions, qualifications and source of recruitment of the concerned posts and on that basis, proposal was submitted before Finance Department of the State Government and the Finance Department after due consideration has accepted the same, but qua the petitioners no change was found. The pay scale was again to be revised with effect from 01.01.1996 and similar exercise was to be undertaken and in this direction the "Pay Committee (1997-99)" as well as the Committee constituted under the chairmanship of Chief Secretary considered the matter and vide recommendation No. 9 (12) conclusion was drawn that parity of petitioners with any post of the Central Government was not established. The Committee proposed for them the scale of Rs.4000-6000/- on the ground that the post of Technician is a post covered under item "common category post" and the decision regarding "common category post" had already been taken. On the aforesaid recommendation, the pay scale of the post of Physiotherapy Technician, instead of Rs.3050-4590/- with effect from 07.02.2007 was amended to Rs.4000-6000/-.

Once Expert Body has taken decision, and from a particular date, benefit claimed has been extended, this Court, in exercise of its authority of judicial review, cannot come to the rescue of petitioners.

Consequently, writ petition fails and as it has been framed and drawn is dismissed.

30.11.2007

SRY.


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