Gopal Singh vs State of U.P.& Ors.

V M. Sahai, J.—The petitioner was initially appointed as Plant Helper in Public Works Department (in brief PWD) in pay scale of Rs. 750940 on 111988. After two years of service he was promoted on 211990 as Generator Operator as he held diploma in electronics. But he was plant the same pay scale which he was getting as Plant Helper. He made representation that since Generator Operator in irrigation and health department were being paid pay scale Rs. 9501500 therefore, the petitioner too was entitled for same pay scale. On 1641994 the Executive Engineer sent a letter to the Superintending Engineer for grant of higher scale. The Superintending Engineer in his turn on 1751994 recommended to the Chief Engineer PWD for grant of the pay scale, as was claimed by petitioner. But when nothing was done the petitioner approached this Court by way of Writ Petition No. 32438 of 1997 which was disposed of on 2431998 directing the concerned Executive Engineer to decide the representation. In pursuance of this order the Executive Engineer passed the impugned order dated 1121998. He held that the pay scale of Generator Operator in PWD department being Rs. 750940 only, the representation was liable to be rejected.

I have heard the learned Counsel for the petitioner and learned standing Counsel for the respondents.

The allegations in paragraphs 22 to 24 of the writ petition read as under:

"22. That the petitioner was initially appointed on the post of plant helper in the Basic pay scale of Rs. 750 to 940 after a completion of 2 years services and after considering the good work and record of the petitioner the respondents promoted the services of the petitioner on the post of Generator operator. It is further submitted that the basic pay scale of plant helper is 750 to 940 in the above circumstances. If the pay scale of Generator operator is shown by the respondent in basic pay scale of 750 to 940 is also arbitrary and illegal manner because after promotion the pay scale is also become higher in the matter of petitioner the respondents are illegally showing the basic pay scale of Rs. 750 to 940 in "place of 950 to 1500 because the promotion post always carried the higher pay scale thus the version of the respondents are totally malafidy and illegal.

That the Government order No. 4706/E.G/23/PWD 5100 (18) Eng./89 8121989 is also illegal in the manner because the initial post bear the minimum pay scale of Rs. 750 to 940 but after being promoted petitioner is not being paid by the department in the pay scale of Rs. 950 to 1500 and he is being deprived by the same.

That in the same department the salary of the Generator Operator is 950 to 1500 and this facts can also be verified through the appointment letter issued by the Executive Engineer E/M. Division PWD Haldwani (Nainital) but the petitioner is being discriminated by the department. A true copy of the appointment letter is being filed herewith and is marked as Annexure 8 to this writ petition."

In paragraph 13 of the counteraffidavit the allegations in paragraphs 22 and 23 of the writ petition are replied as under:

"13. That the contents of paras 22 and 23 of the writ petition as stated are not admitted. It is stated that the petitioner is being paid the pay scale in accordance: with the provision of the Government order dated 81298 which is applicable through out the State in PWD department, hence there is no violation of any Article of the Constitution of India amongst the similarly situated persons in the department."

The allegation in paragraph 24 of the writ petition is not replied at all. The petitioner has filed Annexure 8 which shows that Generator Operator in PWD at Haldwani is getting pay scale of Rs. 9501500. But the order is defended as vide Government Order No. 4706 E.G./23 PWD 5C100 (!8EG)/89 TC dated 8121989 the pay scale of Generator Operator is Rs. 750940.

What is undisputed is that the petitioner was initially appointed as Plant Helper but he was promoted as General Operator. Yet he was being paid the salary of Plant Helper. It is also not denied that the pay scale of Generator Operator in other departments of State Government is Rs. 9501500. The submission of the learned Counsel tor the petitioner is that the petitioner was entitled to higher scale on either ground because he cannot be paid same pay scale on promotion as was paid to him as Plant Helper and in any scale on the principles of equal pay for equal work the respondent cannot discriminate between employees performing same duty under the same employer.

Annexure 8 to the writ petition is not disputed. The department admittedly wrote to the Chief Engineer to consider the case of the petitioner and grant him same pay as was being paid in other departments. In absence of any other scale of pay for a Plant Helper promoted as Generator Operator it would be unreasonable and unfair to deny higher scale of pay to the petitioner. Promotion implies better scale. Once it is admitted that the petitioner was promoted it was obligatory on respondents to pay him higher scale. Since the only higher scale is Rs. 9501500 and it is being paid to Generator Operators of other departments it is just and fair that Generator Operators in PWD department should be paid same scale. Further the allegations that Generator Operator of PWD in Haldwani was getting scale of Rs. 9501500 having not been denied, it is arbitrary to deny same scale to petitioner, as respondents have failed to bring on record any justification for this discrimination.

As regards the GO dated 8121989, it operates unequally between employees of same department working at different places and also between employees working in different departments of same employer. It is therefore, in absence of any valid justification rendered discriminatory and is contrary to well settled principle of equal pay for equal work.

7.1 am conscious of the fact that pay fixation is the Government''s responsibility. But the facts being glaring and the principles of equality having been extended by the Courts to remedy injustice when the Government omits to perform its duty, I am left with no option except to accept the claim of the petitioner and issue direction to the respondents to pay Rs. 950 1500 to petitioner from the date he was promoted as Generator Operator.

In the result writ petition succeeds and is allowed. The order dated 11298 passed by Respondent No. 2 Annexure 7 to the writ petition is quashed. The respondents are directed to pay the petitioner (Generator Operator) pay scale Rs. 9501500 w.e.f. 1190 and the revised pay scale w.e.f. 1196. This order shall be complied by the respondents within a period of three months from the date a certified copy of this order is produced before respondent 2.

Parties shall bear their own costs.