Umesh Chandra Misra & Anr. vs State of U.P. & Ors.

Heard learned counsel for the petitioners and Mr. Sanjay Sarin, Standing Counsel.

2.The grievance of the petitioners, who are the Photo Artists in the Irrigation Department, is that they have been placed in the lower pay scale of Rs.400615, whereas the Photo Artist working in other departments of the State Government, i.e. Information Department, Agriculture Department and Public Works Department have been granted higher pay scale of Rs.5701100, therefore, they have prayed that they shall be provided the pay scale of Rs.5701100 with effect from 1st July, 1979 and Rs. 14002600 with effect from 1st January, 1986.

Counsel for the petitioners has submitted that before the first pay commission, the pay scale for Photo Artists was Rs.230385 which was also available to the Photo Artists working in the other departments of the State Government. The First Pay Commission recommended the pay scale of Rs.5701100 to the Photo Artists, but the petitioners who are working in the Irrigation Department were given the lower pay scale of Rs.400615. After the Second Pay Commission in the year 1986, it recommended the pay scale of Rs. 14002600, but the petitioners were again discriminated and were placed in the revised pay scale of Rs.9751660 with effect from 1st January, 1986.

4.It has been vehemently argued by the petitioners'' counsel that when the State Government admitted in principle that the same pay scale of the employees of the State Government will be provided with their counterparts of the Central Government and in fact has provided the same pay scale to the Photo Artist of other departments, i.e., Rs.14002600 and as such, there is no justification for not providing the same pay scale to the Photo Artist of the Irrigation Department, to whom the pay scale of Rs.9751660 is being provided. Therefore, the action of the respondents is violative of Articles 14 and 16, apart from Article 39D of the Constitution of India.

Learned counsel for the petitioners has also submitted that the petitioners are Diploma holders and possessed the same qualification and discharge the identical nature of duties as are being discharged by the Photo Artists of the other departments. Further, the mode of recruitment is also similar. Therefore, they cannot be discriminated and given a lower pay scale.

It has also been argued that the State Government has not considered the recommendations made by the EngineerinChief dated 2211990 and by an unreasoned order, the State Government has denied that there is no anomaly in the pay scale of Photo Artists/Photographers of Irrigation Department.

Mr. Sanjay Sarin, Standing Counsel has submitted that the posts of Photo Artist/Artist are of the general category and the Second U.P. Pay Commission (197980) had submitted its recommendations vide Volume I Chapter VII in respect to the post of Photo Artist, Vide para 7.75, the Pay Commission has recommended that those qualified artists, who, at the time of induction, were having the qualification of High School, 3 years Diploma and High School/Intermediate with five years degree/diploma may be given the pay scale of Rs.515840 and Rs.5701070 respectively. In para 7.76, it was provided that all unqualified Artists who were working may be allowed to work and continue to work, but for the future, only qualified Artists be given appointment on the post of Photo Artist and the qualification may be amended from time to time as per the need and requirement of various departments where the posts of Artists exist. As per recommendations of Second U. P. Pay Commission 197980, vide Volume II Part II, the pay scales were provided in comparison with the old pay scales in Column IV. The petitioners, who were not qualified as per recommendations of the Pay Commission, were given the revised pay scale from Rs.230385 to Rs.400615.

Clarifying the position, it was submitted that the report of the Second Pay Commission was considered by the Reconsideration Committee and a Cabinet SubCommittee on whose recommendations, the Government Resolution dated 29.9.1981 was issued. As per the Government Resolution, the Department of Irrigation considered the same and found that the Photo Artists working in the Department including the petitioners were not having the qualifications as were recommended by the Uttar Pradesh Second Pay Commission vide Volume I Para 7.76, hence, the petitioners who were working in the pay scale of Rs.230385 were given the pay scale of Rs.400615 as per the Government Order dated 1441982 which was based on the cabinet decision dated 2991981.

Elaborating his arguments, Sri Sarin submitted that the petitioners were not qualified for the post of Photo Artist as per the advertisement dated 21122008 which required (a) High School, (b) Diploma in Commercial or Graphic Art from any Government recognized institution and (c) one year''s working experience in any reputed firm or Govt. Institute. The petitioner No.1 was the Diploma Holder in Photography from the unrecognized institute of Lucknow, whereas the petitioner No.2 was having the Diploma of Theory and Practical Training from Goel Studio, which is a private firm. This fact was also mentioned by the Director in his letter dated 1871980 addressed to the Assistant Employment Officer. However, due to exigency of work and emergent need, the petitioner No.1 was issued appointment letter on 1821981 by the Director, Central Design Directorate, Department of Irrigation appointing him on temporary post in the pay scale of Rs.230385, whereas the petitioner No.2 was appointed in the year 1964 in the pay scale of Rs.230385 on temporary basis. The petitioners accepted the letter of appointment and the pay scale. Thus, even in accordance with Rule 19 of the U. P. Fundamental Rules (Chapter IV) the pay of a Government Servant shall not exceed the pay sanctioned by the competent authority for the post held by him and no special or personal pay shall be granted to him without the sanction of the Government.

Refuting the allegations of the Standing Counsel, learned counsel for the petitioners has submitted that the petitioners are discharging similar duties as are being discharged by the Photo Artists of other departments, therefore, they cannot be denied the equal pay scale. It has been argued that the petitioners'' case is squarely covered with the decision of the Hon''ble Apex Court in the case of State of Mysore v. B. Basavalingappa [1986 (Supp) SCC 661]: (AIR 1987 SC 411) as the petitioners were appointed in the same cadre with the same pay scale which was sanctioned for the post of Photo Artist at the relevant time. He has also placed reliance upon the judgment rendered by this Court in the case of Basant lal v. State Public Services Tribunal and others, Writ Petition No. 140 (SB) of 1999, decided on 672006. (Reported in 2007 (1) ALJ 725). Further, at the time of appointment of the petitioners, no qualificationwise distinction was made. Furthermore, in order to form uniformity and remove the discrepancies in the qualification and pay scale, the Pay Commission has fixed two qualifications and two pay scales were also fixed. An incumbent working on the post of Photo Artist and was High School with Diploma with 3 years'' Certificate Course was given the pay scale of Rs.515840 and the incumbent who was High School/Intermediate and was having 5 years'' Degree/Diploma was given the pay scale of Rs.5701070.

Before dealing with the merits of the case, it would be relevant to mention here that requirement for appointment on the post of Photo Artist in Irrigation Department, at the relevant time, was (a) High School (b) Diploma in Commercial Art and Graphic Art from a recognized institution (c) one year''s working experience in any established firm or Government Institution (d) ability of negative finishing, enlargement and translight colouring. The source of recruitment is direct recruitment made by the Department itself and not through Public Service Commission as in the case of Information Department.

In the department of Information and Public Relation, the qualification required for the post of Photo Artist is (a) Intermediate or its equivalent examination (b) Diploma or Degree in Commercial or Graphic Art from an institution recognized by the State Government (c) At least one year''s experience as an Artist in Government, SemiGovernment institution or in an established Firm and (d) the knowledge of finishing and addition of negative and translight colouring. The source of recruitment is direct recruitment through Public Service Commission.

Thus, from the aforesaid facts, it is clear that the academic qualification and the mode of recruitment for the post of Photo Artist in the Irrigation Department qua the Information Department are different and not the same.

In the case of State of U.P. and others v. Ministerial Karmachari Sangh [1998 (1) SCC 422]: (1998 All LJ 94) the Hon''ble Apex Court in paragraph 14 of the judgment held as under:

"Having regard to the above position brought out clearly in the impugned Office Memorandum and in the light of the long line of decisions of this Court to the effect that the principle of ''equal pay for equal work'' is not always easy to apply; that there may be educational or technical qualification which may have a bearing on the scale which the holders bring to their job although the designation of the job may be same. We do not think that the High Court was justified in issuing the mandamus."

In view of the aforesaid legal proposition and facts disclosed above, it is evident that the mode of recruitment and qualification for appointment on the post of Photo Artist in the Irrigation Department is different than the qualification and mode of recruitment in the other departments of the State Government, i.e. the Information Department. Therefore, this ground is sufficient for fixing different pay scales. It is also an admitted fact that the petitioners were not having the requisite qualification as was mentioned in the advertisement. They were given appointment on temporary basis on account of emergent need of services and the petitioners accepted the appointment without any demur.

In the case of Nain Singh Bhakuni and others v. Union of India and another [(1998) 3 SCC 348] : (AIR 1998 SC 622) it has been held that difference in educational qualification and promotion criteria is a valid ground for difference in pay scale and mere similarity in work is not sufficient for grant of equal pay for equal work.

It may be added that the State is fully competent to amend the conditions of service of its employees and Article 14 does permit reasonable classification on intelligible differentia. In this regard, I may refer the case reported in (2004) 4 SCC 646 : (AIR 2004 SC 2020) M. P. Pural Agriculture Extension Officers Association v. State of M.P. and another (2004) 4 SCC 646: (AIR 2004 SC 2020) wherein the Hon''ble Apex Court propounded as under:

"13. Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof visavis the educational qualifications required there for. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules."

Therefore, it clearly emerges out that fixation of pay and V & determination of parity in duties is the function of the executive and scope of judicial review of administrative decision in this regard is very limited. For the reasons aforesaid, I find force in the submission of the State Counsel that laying down or providing different payscales by taking into consideration the different qualifications cannot be said to be discriminatory and would constitute a valid criteria and legal classification for the purpose of determination of the pay scale. Therefore, if the Government has prescribed higher payscale to the holder of the higher qualification, it cannot be termed as arbitrary or illegal.

In view of the above, no good ground is made out for interference under Article 226 of the Constitution of India and the writ petition fails which is hereby dismissed.