Balwant Singh and Others vs The State of Himachal Pradesh

Justice Rajiv Sharma, Judge

Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, for clarity sake, facts of CWP No. 2318/2011 have been taken into consideration. Material facts necessary for the adjudication of these petitions are that the petitioners are working in the respondent-Department as Computers/Junior Statistical Assistants. According to the Recruitment and Promotion Rules notified on 7.12.1973 for Health and Family Welfare Department Subordinate Class-III Services, Computers/ Computers- cum-Clerks were placed in the pay scale of Rs. 110-250. These posts were to be filed up 100% by way of direct recruitment. Essential qualification was Matric/Higher Secondary Part-I. The post of Statistical Assistant appearing against Sr. No. 9 was in the pay scale of Rs. 200-500. The post of Statistical Assistant at Sr. No. 10 was in the pay scale Rs. 140-300. The Computers in Economics and Statistics Department (hereinafter referred to as the ''E&S Department'' for brevity sake) were re-designated on 50:50 basis as Field Investigators Grade-I and Field Investigators Grade-II in the pay scale of Rs. 140-399 and Rs. 120-250, respectively w.e.f. 10.12.1974 vide memorandum dated 19.7.1978. In the respondent-Department, the Computers were in the pay scale of Rs. 110-250 comparable to Field Investigators Grade-II in E&S Department and Junior Statistical Assistants were in the pay scale of Rs. 140-300 comparable to Field Investigators Grade-I in E&S Department. The parity in the pay scales of post of Computers of respondent- Department was maintained with Field Investigators Grade-II and that of Junior Statistical Assistants was maintained with that of Field Investigators Grade-I. The Computers were placed in the pay scale of Rs. 400- 660 and Junior Statistical Assistants were placed in the pay scale of Rs. 450-800. Revision of pay scale took place with effect from 1.1.1986 and the parity in the pay scales of Computers of the respondent-Department was maintained with Field Investigators Grade-II (950- 1800) of E&S Department and that of Junior Statistical Assistants (1200-2100) was maintained with that of Field Investigators Grade-I. However, vide notification dated 8.7.1994, the pay scale of Computers and Junior Statistical Assistants of respondent-Department vis-�vis Field Investigator Grade-II and Field Investigators Grade-I was disturbed revising the pay scale of Field Investigators Grade-II with effect from 1.1.1994 by allowing them three tier pay scales (950-1800 with initial start of Rs. 1000/-, Rs. 1200-2130 and Rs. 1500-2700 on 20:40:40 basis). However, the corresponding revision was not given to the Computers/Junior Statistical Assistants of respondent-Department. The Computers in respondent-Department were allowed to continue in the pay scale of Rs. 950-1800. Respondent- State vide notification dated 17.10.1995 clubbed and re-designated the post of Field Investigators Grade-II and Field Investigator Grade-I in E&S Department as Investigators with effect from 1.1.1994 by allowing them three tier pay scale in the ratio of 20:40:40 as already granted vide notification dated 8.7.1994 (Annexure P-9). The pay scales of Investigators in E&S Department were revised with effect from 1.1.1996 by allowing them revised pay scale of Rs. 3120-5160, with initial start of Rs. 3220/- and Rs. 4400-7000, with five years experience on 50:50) basis in place of 20:40:40 admissible before 1.1.1996. The Computers in the respondent-Department were allowed revised pay scale of Rs. 3120-5160 in place of Rs. 950-1800 with effect from 1.1.1996. The three tier pay scale allowed to Field Investigators Grade-I and Field Investigators Grade-II was further revised and extended to them with effect from 1.1.1986 instead of 1.1.1994. In sequel to the representation made by the petitioner, respondent No. 3 vide Annexure P-18 dated 31.5.2008 brought to the notice of respondent No. 2 that the pay scales of Statistical Personnel of E&S/Planning Department alongwith eight other Departments were revised with effect from 1.1.1986 whereas Statistical Personnel of respondent-Department were left out in that revision even though the pay scales and Recruitment and Promotion Rules of the posts were same in all the Departments of the State. It was also pointed out that the appointments were made in various Departments, including respondent-Department through H.P.P.S.C. on the basis of combined test/examinations as well as through Departmental Promotion Committee. It was also pointed out that the anomaly has arisen and the same be removed. However, the fact of the matter is that the claim of the petitioner was rejected by respondent No. 2 on 30.12.2009.

Mr. Dilip Sharma, learned Senior Advocate, Mr. Arush Matlotia and Mr. P.D. Nanda have strenuously argued that the respondent-State has maintained the parity of the pay scales of the Computers with Investigators Grade-II and Junior Statistical Assistants with Investigators Grade-I even after the revision of pay scale with effect from 1.1.1978. He then contended that even after the revision of pay scale with effect from 1.1.1986, the parity in the pay scales of Computers of the respondent-Department was maintained vis-�-vis E&S Department. He then contended that the parity was disturbed with effect from 8.7.1994 when the Field Investigators Grade-II of E&S Department were granted pay scale with effect from 1.1.1994 on 20:40:40 basis. He further contended that the duties, responsibilities, essential qualifications and method of recruitment of the post of Computers in the respondent-Department and E&S Department are the same. He also contended that the anomaly, which has arisen, was pointed out by respondent No. 3 to respondent No. 2 and despite that claim of the petitioner has been rejected arbitrarily on 31.12.2009. He also relied upon the judgment rendered by this Court in CWP No. 975/2011 filed by one Sh. Jagdish Kumar, Statistician of respondent- Department seeking parity in the pay scale with Statisticians of Planning Department. This Writ Petition was allowed by the Coordinate Bench on 5.3.2011. He has also relied upon judgment rendered in CWP (T) No. 7171 of 2008 (OA No. 117/2005). According to Mr. Dilip Sharma, the judgment rendered in CWP (T) No. 7171 of 2008 has been implemented by the State on 8.11.2010, vide Annexure P-23. He lastly contended that the petitioners are also entitled to pay scale at par with their counterparts working in E&S Department on the principles of "equal pay for equal work.

Mr. Rajinder Dogra, learned Additional Advocate General has argued that the petitioners cannot be paid pay scale at par with their counterparts in E&S Department. He further contended that the petitioners have been granted pay scales on Punjab Pattern and there cannot be any deviation from the same. He also contended that the petitioners have been granted pay scales by applying conversion table. He further contended that the Computers are not discharging same duties and responsibilities vis-�-vis their counterparts in E&S Department. He also contended that the up-gradation of post of Computers/Junior Statistical Assistant to the post of Field Investigators Grade-II and Field Investigators Grade-I was not carried out by the Government in all the Departments, but it was only done in the E&S Department keeping in view the nature of duties in the Department.

I have heard the learned counsel for the parties and have perused the pleadings carefully.

What emerges from the facts enumerated hereinabove is that respondent-State has maintained the parity of petitioners'' vis-�-vis their counterparts working in E&S Department at the time of revision of pay scales with effect from 1.1.1978 and 1.1.1986. Petitioners were placed in the pay scale of Rs. 950-1800 and the Field Investigators Grade-II were also placed in the pay scale of Rs. 950-1800. The pay scale of Junior Statistical Assistant in the respondent-Department was Rs. 1200-2100 and the pay scale of Field Investigator Grade-I was also Rs. 1200-2100 in the E&S Department. The parity was disturbed on the basis of notification dated 8.7.1994 whereby the Field Investigators Grade-II and Field Investigators Grade-I were granted three tier pay scale with effect from 1.1.1994 in the ratio of 20:40:40. The posts of Field Investigators Grade-II and Field Investigators Grade-I as on 1.1.1994 in E&S Department were clubbed and re-designated as Investigators with effect from 1.1.1994 by allowing them three tier pay scale in the ratio of 20:40:40. The pay scales of Investigators in E&S Department were revised with effect from 1.1.1996 by allowing them revised pay scale of Rs. 3120- 5160 with initial start of Rs. 3220 and Rs. 4400-7000 with five years experience on 50:50 basis in place of 20:40:40. The pay scale allowed to Field Investigators Grade-I and Field Investigators Grade-II was further revised and extended to them with effect from 1.1.1986 instead of 1.1.1994. This anomaly has been brought to the notice of respondent No. 2 by respondent No. 3. Petitioners were legitimately expecting that on the recommendations made by respondent No. 3 to respondent No. 2, they will be granted the pay scales at par with their counterparts in E&S Department. However, their representation was rejected on 30.12.2009. Case of the petitioners seeking higher pay scale has not been rejected on merits but on the ground that opening of such cases at this stage with effect from 1.1.1986 may disturb the existing position of pay scales in the department and affect other cadres and similar pay matters of other Statistical personnel such as Computers/Investigators too also may need to be reopened. Case of anomaly as pointed by respondent No. 3 has not been taken into consideration by the Finance Department while rejecting the case of the petitioners. This is non-application of mind on the part of the Finance Department.

Mr. Dilip Sharma has strenuously argued that the duties, responsibilities, essential qualifications and method of recruitment of Computers/Field Investigators Grade-II in both the Departments, i.e. Health and Family Welfare and Economics and Statistics are the same, but despite that the petitioners have not been paid the same pay scales. The respondents though have stated in the reply that the petitioners are not discharging the same duties, but what is the nature of duties and responsibilities being discharged by the petitioners vis-�-vis their counterparts in other Departments has not been spelt out. The averments that the essential qualifications and method of recruitment are the same have not been denied by the respondents in the reply. It has also not been denied by the respondents that the parity was maintained when the revision of pay scales took place with effect from 1.1.1978 and 1.1.1986. The reason assigned that the deviation has taken place due to Punjab Pattern cannot the accepted. This point was also raised by the respondent-State in CWP (T) No. 7171 of 2008, titled Mohinder Kumar and others versus State of H.P. and others, decided on 22.7.2010 whereby the Statistical Assistants working in the Health and Family Welfare Department were seeking parity with their counterparts in the Economics and Statistical Department. The Coordinate Bench has held as under:

I have heard the learned counsel for the parties. The petitioners are claiming pay scale of Rs. 1800 - 3200 w.e.f. 1.1.1986 to 31.12.1995. There is no dispute that before 1.1.1986 and on and after 1.1.1996 the pay scale of the petitioners was same as was given to other Statistical Assistants in the State. The respondents have not refuted the stand of the petitioners that petitioners are having the same qualifications as Statistical Assistants are having in other Departments more particularly the Planning Department, Economics and Statistic Department. It is the case of the petitioners that they are performing same nature of duties as are being performed by the Statistical Assistants of other Departments more particularly Statistical Assistants of Planning Department and Economics and Statistic Department. The State has vaguely refuted the stand of the petitioners that the nature of duties of Statistical Assistants of Health and Family Welfare Department are not similar to Statistical Assistants of Planning Department and Economics and Statistic Department, but it has not been explained by the State in what manner the nature of duties of Statistical Assistants of Planning and Economics and Statistic Department differ from the nature of duties of Statistical Assistants of Health and Family Welfare Department. There is nothing on record to take a view that the nature of duties of Statistical Assistants of Planning Department, Economics and Statistic Department differ from the nature of duties of Statistical Assistants working in Health and Family Welfare Department.

There is no denial of the legal position that employer is to prescribe the pay scales which depends upon several factors including qualification, source of recruitment, nature of duties, level at which recruitment is made, chances of promotion and the capacity of the employer to pay etc. But simultaneously, it cannot be ignored that the pay scale to be paid by the State to its employees should be based on some rationale principle. The State has taken the stand that it followed the Punjab pattern for pay scale of Statistical Assistants of Health and Family Welfare Department in the State. The State while following the Punjab pattern cannot discriminate with one set of Statistical Assistants with other set of Statistical Assistants. It has been established on record that prior to 1.1.1986 and after 1.1.1996 the Statistical Assistants of Health and Family Welfare Department were/are given the pay scale equal to the pay scale of their counter-parts working in other Departments in the State. Therefore, the State simply on the plea of giving pay scale to Statistical Assistants of Health and Family Welfare Department on Punjab pattern cannot discriminate with them when their counter-parts in other Departments are given higher pay scale. There is no intelligible differentia so as to distinguish the Statistical Assistants of Health and Family Welfare Department with the Statistical Assistants of other Department in the State for purposes of pay scale. The State has failed to establish nexus to be achieved by depriving the Statistical Assistants of Health and Family Welfare Department pay scale different from the pay scale of other Departments in the State.

In Union of India (UOI) and Others Vs. Dineshan K.K., the Supreme Court has held :

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 classification of posts is ex facie irrational, arbitrary or unjust, it is open to the court to intervene.

In Haryana State Minor Irrigation Tubewells Corporation and Others Vs. G.S. Uppal and Others, it has been 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 employees and taken in ignorance of material and relevant factors.

Respondent-State has implemented the judgment rendered by this Court in CWP (T) No. 7171/2008 on 8.11.2010. One Sh. Jagdish Kumar on the same and similar facts had filed CWP No. 975/2011. It was decided on 5.3.2011. The Division Bench has disposed of the petition by directing respondents to consider the case of the petitioner, i.e. Sh. Jagdish Kumar, if he was similarly situated by giving him the similar treatment on the basis of judgment rendered in Mohinder Kumar''s case.

It is settled law that it is for the employer to grant the pay scales, however, it is equally true that while undertaking this exercise there should not be any arbitrariness or unreasonableness. In the instant case, as noticed above, petitioners are discharging the same and similar duties, responsibilities and the essential qualifications and method of recruitment is the same, but despite that they been denied the higher pay scale granted to their counterparts working in other departments. The employer in both the cases is the State and thus the petitioners cannot be discriminated against. The persons working as Computers comparable to Field Investigators Grade-II form homogenous class and they cannot be discriminated merely on the basis that they happen to work in different department. Respondents have not pointed out why the petitioners have been granted different pay scale vis-�-vis their counterparts in E&S Department in the State. There is no intelligible differentia so as to distinguish the Computers working in the respondent-Department vis-�-vis Field Investigators Grade-II and Grade-I working in other departments of the State for the purpose of pay scales.

Consequently, after taking into consideration the Recruitment and Promotion Rules, Educational Qualifications, nature of duties and responsibilities, petitioners are entitled to be treated at par with Field Investigators Grade-II and Investigators Grade-I (now re-designated as Investigators) working in the Economics and Statistics Department. Accordingly, in view of the observations and analysis made hereinabove, all the petitions are allowed. Annexure P-19 dated 30.12.2009 is quashed and set aside. Respondents are directed to restore the parity in the pay scales of the Computers/Junior Statistical Assistants at par with their counterparts, i.e. Field Investigators Grade-II and Field Investigator Grade-I (now re-designated as Investigators) in E&S Department with effect from 1.1.1986 with all the consequential benefits, within a period of three months from the date of production of certified copy of this judgment by the petitioner(s), failing which the petitioners will be entitled to interest @ 9% per annum till the implementation of this judgment. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.