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Yogesh Chandra Mishra & Others v/s State of Uttarakhand through Principal Secretary & Others

    Writ Petition (S/S) No. 3629 of 2017

    Decided On, 09 December 2021

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE SHARAD KUMAR SHARMA

    For the Petitioners: Ramji Shrivastava, Advocate. For the Respondents: P.C. Bisht, Addl. CSC.



Judgment Text

1. The petitioners, who are five in numbers, have primarily agitated their grievances as against the decision of the Pay Anomaly Committee dated 16th December 2016, whereby they have rejected the proposal of the Department with regard to the revision and up-gradation of the Grade Pay which was to be made payable towards the post of Jail Warden (Bandi Rakshak), as working in the Jails of the State.

2. The contention of the learned counsel for the petitioners is that the decision taken by the Pay Anomaly Committee dated 16th December 2016, is not based upon any sound and rational application of mind, because there was no representation of the State in the said Committee, which could have enabled the consideration of the recommendations made by the Department for the purpose of revision and up-gradation of the petitioners Grade Pay.

3. Consequent to the challenge given to the Pay Anomaly Committee’s decision dated 16th December 2016, the petitioners had also prayed for issuance of a writ of mandamus to the State Authorities, to upgrade the Grade Pay, which was otherwise payable to the Jail Wardens (Bandi Rakshak) from Grade Pay of Rs. 1900/- to Rs. 2000/- as against the Pay Scale of Rs. 5200-20200, to be made payable with effect from 1st January 2006.

4. Primarily, the contention of the learned counsel for the petitioners, in the writ petition had been, that the petitioners, after being respectively appointed with the jail department, on compassionate grounds as against their respective date of appointments, they have been working as Jail Wardens. The petitioners’ counsel contended, that the State, by virtue of issuance of Notification dated 17th October 2008, the Secretary (Finance), had taken a decision, which was based on the recommendations of the Pay Anomaly Committee, for revising the pay-scale to be made payable in the various Government Departments, with effect from 1st April 2006, consequently, upholding the up Grade Pay to be paid to the respective employees @ Rs. 2000/- in place of Rs. 1900/-, as against the pay scale of Rs 5200-20200.

5. The contention of the learned counsel for the petitioners is that the benefit of the said revision of the Grade Pay as enforced by the Secretary (Finance), Government of Uttarakhand, vide its Notification dated 17th October 2018, the revision of the pay-scale has been provided qua the statistics which were provided in the Appendix 1 (appended to the Government Order), fixing the Grade Pay which was made payable to the respective employees. Petitioners’ counsel contends, that they have been deprived of the identical upgradation, benefit of the revised Grade Pay though despite the fact that the same has been identically made payable to the Police Department, Transport and to the Forest.

6. The petitioners had submitted, that with the enforcement of this Notification revising the Grade Pay, in few specified State Governments Departments, excluding the Jail Department, is arbitrary and violative of Article 14 and 39(d) of the Constitution of India and particularly, the contention of the learned counsel for the petitioners, is that this discrimination meted out to them cannot be sustained for the reason being that unlike the nature of services, which has been rendered by other similarly placed employees in the Government Departments of Transport Department, Police Department, as well as in the Forest department. In fact, the basic essential qualifications which were required by the Jail Wardens, as compared with the identically placed employee with the Police Department, it happens to be the same with all the eligibility criterion and service conditions being similar, hence the action of State was arbitrary.

7. Not even that, if a comparative scrutiny of the services, which are rendered by the jail employees is made with the Police Department is concerned, it is the case of the petitioners and as would be apparent from the documents on record, that they were too required to work for 24 hours’ services and hence he has averred that there is similarity in the nature and quantum of services, which has been discharged by them hence they too would be simultaneously entitled to be granted with the benefit of Rs. 2000/- grade pay, as revised by the Notification dated 17th October 2008 and made payable to the other departments.

8. In support of his contention, the learned counsel for the petitioners had particularly embarked upon a decision which was rendered by the Hon’ble Apex Court, as reported in AIR 1982 Supreme Court 879, Randhir Singh Vs. Union of India and Others, whereby while considering the impact of Articles 14, 16 and 39(d) of the Constitution of India, the Hon’ble Apex Court has made the relevant observations in para 6, 7 and 8 of the judgement, which are extracted hereunder:-

“6. The counter-affidavit does not explain how the case of the drivers in the police force is different from that of the drivers in other departments and what special factors weighed in fixing a lower scale of pay for them. Apparently in the view of the respondents, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of their identity of their powers duties and responsibilities. We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their powers duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.

7. Our attention was drawn to Binoy Kumar Mukerjee v. Union of India, Makhan Singh v. Union of India & Ors. where reference was made to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India describing the principle of equal pay for equal work as an abstract doctrine which had nothing to do with Art. 14. We shall presently point out how the principle, "equal pay for equal work" is not an abstract doctrine but one of substance. Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them.

8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'To each according to his need', it must atleast mean 'equal pay for equal work'. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle 'Equal pay for Equal work' is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.

9. Particularly, the learned counsel for the petitioners had further relied upon the observations which were made in para 6 (already referred above) of the judgement and particularly, the rational which has been applied by the Hon’ble Apex Court therein, is that merely because of the fact, that an identically qualified employees are discharging the similar nature of duties and have been deployed in different other Government Departments, there cannot be any hostile deprivation, in the grant of the grade of parity of scale and service benefits merely because of the fact, that they are working in different departments.

10. On the other hand, the other limb of arguments, as extended by the learned counsel for the petitioners by the interpretation given to para 9 of the said judgment, (which is extracted hereunder), where the learned counsel for the petitioners intended to impress upon the Court, that in fact, the writ Courts itself could issue a positive mandamus, determining the payability and aspect of entitlement of the Grade Pay of Rs. 2000/- and no direction as such is required to be issued and given to the respondents to reconstitute the Committee, and undertake the entire exercise for re fixation of the Grade Pay de novo to be made payable to the employees of Jail Department and he has particularly referred to para 9 of the Randhir Singh’s case (Supra) but, in fact, if para 9 of the said judgment itself is taken into consideration, though widely the Hon’ble Supreme Court has laid down the parameters as to how the implications of Articles 14 and 39(d) of the Constitution of India would be made applicable in a given case based on the similar case and similarly situated employees working in the different departments, but, still the decision making process since it entails an executive decision, which requires a consideration of different factual aspects, the ultimate decision making authority has been vested with the respondents authorities.

“9. There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the 'powers, functions and privileges of a police officer', their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the drivers-constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect.

11. In order to answer the arguments extended by the learned counsel for the petitioners, that this Court can issue a positive mandamus once it is convinced, that the petitioners are identically placed as that the similar employees of the Police Department, Transport Department and Forest and the Court could issue a positive mandamus, this Court feels it to deal with yet another principles, laid down by the Division Bench of Karnataka High Court in the matters of Ramesh Rangashamaiah Vs. The State of Karnataka and others, (Writ Petition No. 3269/2012), particularly, the principal point of consideration before the Division Bench was enumerated in para 18 of the said judgment, which is extracted hereunder:-

POINTS FOR CONSIDERATION

18. In the light of the aforesaid facts and rival contentions, the points that arise for consideration are as under:

(1) Whether the Government order dated 01.10.2010 is valid?

(2) Whether the Government order dated 21.07.2011 rescinding the earlier order is valid?

(3) Whether by operation of Section 3 of the Karnataka Police Act, 1963, equivalence required under the Regulations is satisfied. In other words, whether the Deputy Superintendent of Police (Wireless), Assistant Commandant (Karnataka State Reserve Police) and Deputy Superintendent of Police (Armed) are equivalent to that of Deputy Superintendent of Police (Civil) i.e., Principal Police Service, for the purpose of promotion to IPS to the vacancy available from the State Police Service?.

(4) Who is competent to decide the equivalence?, whether the Court can embark upon that exercise?

12. For the instant case, we would be more concerned with the decision making process, which has to be embarked upon for the purposes of deciding the aspect of equivalence of service conditions. In fact, the Division Bench, while answering the said question, as formulated in its para 18 of the judgement, and has recorded its finding in para 67 and 69, wherein while dealing with the aspect of equivalence, where it is disputed and not resolved by the competent bodies constituted by the State, the Court directed the authorities either to constitute an expert Body and give an opportunity of the claimants or affected persons in order to place forward their point of determination to substantiate their claims and then take a decision on the same and ultimate conclusion has been laid down in para 71 of the said judgment. Para 67, 69 and 71 are extracted hereunder:-

“67. It was contended that as the parties have placed all the material before the Court, this Court could decide the equivalence, in the light of the principles enunciated by the Apex Court in the decisions referred to supra.

69. However, we make it clear, twice equivalence is granted, twice it is withdrawn. Already they have the report of two expert bodies. Still the dispute is not resolved even after more than two decades. Under these circumstances it would be appropriate for this Court to direct the authorities either to constitute a expert body and give an opportunity to the varying fractions to put forth their point of view and then look into the material which is collected over a period of two decades and decide it one way or the other. On such report being submitted, the Government after independently applying its mind should decide whether an equivalence is to be granted or not. In either event they should assign reasons in their order for granting equivalence or not granting equivalence so that the aggrieved person can approach this Court and then the Court would be in a better position to go into the disputed issues. It is made clear an equivalence cannot be given for a particular year. Equivalence is between two posts and not the persons who are in the post. Therefore, keeping in mind all these aspects, in order to set at rest the dispute which is unresolved for more than two decades, we are sure that the Government would take immediate steps to resolve the dispute as suggested above.

71. In that view of the matter, we pass the following order:-

(i) Writ Petitions are allowed.

(ii) The impugned order passed by the Government dated 1.10.2010 is hereby set aside.

(iii) Consequently, the Government Order dated 21.7.2011 becomes infructuous.

(iv) We hereby direct the authorities to constitute a broad based expert committee to resolve these disputes at the earliest.

(v) After constitution of such committee, the committee shall give sufficient opportunity to the varying fractions and resolve the dispute and submit their report to the Government within a period of 6 months from the date of receipt of a copy of this order.

(vi) On submission of the said report, the Government shall take decision regarding equivalence within 2 months there from.

(vii) It is made clear the Government decision should contain the reasons either for granting equivalence or refusing to grant equivalence so that the aggrieved person could agitate his rights before this Court. (viii) It is made clear the authorities shall proceed to consider the case of police officers of the Principal State Police Force whose name already finds a place in the list of persons to be considered for promotion and it shall not be postponed on the pretext of the constitution of the committee or submission of the report or the decision of the equivalence to be taken by the Government.

13. If the two judgements, already referred above, are harmoniously read together with, I am also of a considered view that the writ Courts under Article 226 of the Constitution of India, while they were exercising their inherent extraordinary jurisdiction, do not have, that technical expertise to go into the vitalities of the factual aspects and the parameters which are and were required to be determined to grant the claimed Grade Pay, which has to be made payable to an employee, because the criterion of assessment of the State’s coffer and the State’s financial liability, do not fall for consideration within the ambit and domain under Article 226 of the Constitution of India and that is why the Karnataka High Court, as well as the Hon’ble Apex Court, in the judgement of Randhir Singh (Supra), in fact, while holding the decision of the Committee to be bad; so far as the grant of parity of scale is concerned, had relegated the matter to be considered by the State Government, by constituting a Board and then to take a decision with regard to grant of Grade Pay, but in that too in the decision making process, the petitioners had been directed to be heard and sufficient opportunity of hearing was required to be given to them. I am in agreement with the ratios laid down by the Karnataka High Court in its para 71 of the judgement, which is already referred above.

14. On the other hand, what has been argued by the learned Chief Standing Counsel, is that the grant of the Grade Pay to the petitioners as it has claimed equivalence to the State’s other departments, where the other identically placed employees have already been given the benefit of revised higher Grade Pay, no parity could be claimed by the petitioners because the set of circumstances under which the employees of a similar cadre are working in the other departments, have been recruited through a different process of recruitment. But the fact that their qualifications remains the same, the conditions of service remains the same, they put in same period of service, is not a fact disputed and particularly, when the petitioners had specifically come up with their case, that the quantum of

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duties which has been discharged by the petitioners if compared with the police department it happens to be of 24 hours’ duty, in that eventuality, I am of the opinion that the action of the respondents of depriving the petitioners of a Grade Pay he contends would be in violation of Article 14 and 39 (d) of the Constitution of India. 15. Hence, at this stage, while referring to the implications of para 9 of the judgement of Randhir Singh’s case (Supra), particularly, while referring to para 9, to be read with para 71 of the Karnataka High Court, as referred above, this writ petition is allowed. The impugned decision of the Pay Anomaly Committee since suffers from an apparent an undisputed defect; because in the decision-making process, by the Pay Anomaly Committee, the State representatives had not participated and they were not heard nor their contentions were taken into consideration in fact rather no effective decisions could be said to have been taken by the Pay Anomaly Committee and that too in the light of the case of the petitioners, who were raising their rival claims were not heard. Thus the decision of the Pay Anomaly Committee is hereby quashed; the writ petition is allowed; the matter is relegated back to respondent No. 2, with the following directions:- (i) Respondent No. 2, would constitute the Board in the light of the ratios laid down by the Division Bench of the Karnataka High Court, as referred in para 71, and the Board thus constituted, would consider the aspect for the grant of parity of scale to the petitioners as compared to other Government Departments to whom the benefit of Government Order dated 17th October 2008 has already been extended. (ii) The Board thus constituted, will hear the petitioners and then take a decision with regard to the petitioners’ claim for the grant of enhancement in the Grade Pay, which is being presently paid to the petitioners @ Rs. 1900/- to be enhanced to Rs. 2000/-. (iii) The Board is thus directed to be constituted within a period of three weeks from the date of service of the certified copy of this judgement. (iv) The Board thus constituted, would take a decision for the grant of parity of scale of the Grade Pay to the petitioners within a period of six weeks thereafter as per the status of their prevailing service conditions and criterions on the date of filing of the writ petition. 16. Subject to the above observations, the writ petition stands allowed.
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