Rajkiya Audhogik Prashikshan ... vs State Of U.P. Through Chief Secy. ...
2018 Latest Caselaw 1909 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 6589 of 2013
 

 
Petitioner :- Rajkiya Audhogik Prashikshan Sansthan Arajpatrit Karmchari A
 
Respondent :- State Of U.P. Through Chief Secy. Lko. & Ors.
 
Counsel for Petitioner :- Omkar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard Sri Omkar Singh, learned counsel for the petitioner and Sri Sabhajeet Singh, learned Standing Counsel appearing for all the respondents.

2. By means of the present petition, the petitioner, a registered Association of the employees of the Government Technical Training Centre run by the Department of Social Welfare, Government of U.P., has prayed for the following reliefs:-

(I) Issue a writ, direction or order in the nature of Mandamus commanding the opposite parties to pay salary of Rs.5000-8000 to the Junior Instructors/ Senior Instructors and Rs.6500-10500/- to the Foreman w.e.f. 01.01.1996 after declaring the post of Supervisor as dying cadre at par to the employees working on the same post in Industrial Training Institute run by labour department in terms of the Bajaj Committee of Vth Pay Commission.

(II) Issue a writ, direction or order in the nature of Mandamus commanding the Opposite Parties to pay difference of the salary to the members of the petitioner's association w.e.f. 01.01.1996 with all consequential benefits.

(III) Issue any writ direction or order as this Hon'ble Court deems fit and proper in the circumstances of the case in favour of the petitioner.

(IV) Award the cost of the petition.

3. The case set forth by the petitioner is that the Principal Secretary, Social Welfare Department, sent a proposal to the Member Secretary, Pay Committee, Uttar Pradesh on 02.04.1998 that as the technical and educational qualifications, mode of recruitment, duties and responsibilities of the employees in the department namely Senior Instructors, Junior Instructors and other technical employees working in the Government Technical Training Centres are one and the same as the employees working on the same post in Industrial Training Institute (for short, 'ITI') run by the Labour Department, as such, it was requested that the Pay Committee should take a decision to revise the pay scale of such employees with effect from 01.01.1996 at par with the employees working against the same post in the ITI run by the Labour Department. A copy of the letter dated 02.04.1998 is Annexure-2 to the writ petition. After receiving the said letter, the Bajaj Committee of the 5th Pay Commission considered the entire position of the employees of the Social Welfare Department with that of Labour Department and made a recommendation for such employees for being paid salary equivalent to the employees of the same post working in the ITI after the organizational structure of the posts of Foreman, Supervisor, Senior and Junior Instructors and the mode of recruitment and qualification was made the same as that of the same set of employees of the Labour Department. On the said recommendation of the Bajaj Committee, the Committee of the Chief Secretary was of the view that the qualification and selection process of the employees of the Government Technical Training Centres run by the Social Welfare Department are different from those of the Labour Department and consequently, the pay scale and organizational structure for said posts be maintained . The said recommendation finds place in the report, a copy of which has been filed as Annexure-3 to the writ petition. Being aggrieved against not being given the pay scale at par with the employees of ITI run by the Labour Department, the members of the petitioner Association submitted a representation on 19.07.2005 for being given the benefit of the Bajaj Committee but to no avail. It is also alleged that the Director of Social Welfare Department, U.P., sent a letter dated 27.09.2006, a copy of which is Annexure-6 to the writ petition, to the Deputy Secretary of the State Government dealing with the Social Welfare Department, recommending that the structure of the employees working in the Social Welfare Department should be modified so as to bring it at par with the Labour Department. However, no action was taken by the Government in this regard. Being aggrieved with the inaction on the part of the respondents, the petitioner Association preferred a Writ Petition No.5873 (MS) of 2008 praying for a mandamus to the respondents to pay equal salary to the employees of the petitioner Association as that of employees working on the same post in the ITI run by the Labour Department. This Court vide interim order dated 19.09.2009 directed the respondents to decide the representation of the petitioner Association. Subsequent thereto, an order dated 06.03.2009 was passed by the State Government, a copy of which is Annexure-8 to the writ petition placing reliance on which it is alleged that the Government had recognized the demand being raised by the petitioner Association of giving the same pay scale yet it was also contended that as the organizational structure of both the departments viz Social Welfare Department and Labour Department is different as such no decision at that stage was possible as a Pay Committee was working pertaining to re-examination and removal of anomalies of pay and reorganization of the cadre.

4. It was thereafter that an order dated 11.02.2010 was issued by the Finance Department of the Government addressed to the Principal Secretary, Social Welfare Department, U.P., a copy of which is Annexure-9 to the writ petition, by which certain recommendations of the Pay Committee were accepted by the Government. Subsequent thereto, the Special Secretary, Government of U.P., issued an order dated 15.04.2010 addressed to the Director, Social Welfare Department, whereby it was provided that the pay scales of Rs.3200-4000 and Rs.4500-7000 for Junior Instructors and Senior Instructors respectively with effect from 01.01.1996 were being changed and in their place the pay scale of Rs.5000-8000 was to be implemented with effect from 01.01.2006. The revised pay scale of the aforesaid pay scales was fixed at Rs.9300-34800 with Grade Pay of Rs.4200. It was further provided that the posts of Junior Instructors and Senior Instructors be merged together and new nomenclature for both the posts be given as Vyavasaya Anudeshak. The post of Supervisor was declared as dying cadre. However the pay scale for the said post from 01.01.1996 which was Rs.4500-7000 was revised to Rs.5000-8000 with effect from 01.01.2006 and further revised to Rs.9300-34800 with Grade Pay of Rs.4200. The pay scale of Rs.5000-8000 was determined for Foreman with effect from 01.01.1996 which was subsequently revised to Rs.9300-34800 with Grade Pay of Rs.4800 with effect from 01.01.2006. The nomenclature of those Foreman, who were borne in the cadre on 01.01.1996 was to be changed to Foreman Anudeshak and they were to be given pay scale of Rs.6500-10500 with effect from 01.01.2006, revised pay of Rs.9300-34800 with Grade Pay of Rs.4800. The post of Foreman Anudeshak was now to be filled by Vyavasaya Anudeshak by promotion from amongst those who have completed 10 years of service. The aforesaid pay scales were to come into force with effect from 01.01.2006 and actual financial benefits were payable with effect from 01.12.2008. Copy of the order dated 15.04.2010 is Annexure-10 to the writ petition.

5. Learned counsel for the petitioner Association contends that keeping in view the aforesaid order, the benefit of the revised pay scale has been made available with effect from 01.01.2006 although the demand was for payment of the revised pay scale in terms of the Pay Committee (Bajaj Committee) with effect from January 1996 at par with the counterparts working in ITI in the Labour Department. Thus, it is contended that once the petitioner Association all along was representing to the respondents for being given the said pay scale with effect from 01.01.1996 and their demand was subsequently met by the Government, then giving them benefit of the pay scale with effect from 01.01.2006 instead of 01.01.1996 is patently wrong and arbitrary. In this regard, learned counsel for the petitioner Association has taken the Court through the recommendations of the Pay Committee more particularly recommendation no.7(7) as well as has argued that recognition of the right of the petitioner Association of its Members being entitled to a higher pay would relate back to 01.01.1996 from which their claim was initially made and thus grant of the said pay scale by the respondents with effect from 01.01.2006 vide order dated 15.04.2010 would be discriminatory more particularly when their counterparts working in ITI in Labour Department have been accorded the said pay scale with effect from 01.01.1996.

6. In this regard, learned counsel for the petitioner Association has placed reliance on a judgment of Uttarakhand High Court in Writ Petition No.1136 of 2006 in re: Prakash Chandra Arya and others vs. State of Uttaranchal and another to contend that in a similar matter the High Court at Uttarakhand has granted the benefit of higher pay to Instructors in Social Welfare Department since 1996 itself.

7. On the other hand, learned Standing Counsel while placing reliance on the averments made in the counter affidavit has argued that the recommendation of the Pay Committee 2008 in respect of the alleged anomalies in the pay scales of the cadre of Instructors (Junior Instructors/Varistha Prashikshak, Supervisor and Foreman) posted in Government ITI run by the Social Welfare Department were considered and a decision was taken vide Government Order dated 15.04.2010 to make amendments in the pay scales by providing the benefit of revised pay structure and fixing the modified/higher pay scale according to the Government Order dated 08.12.2008 giving actual benefits with effect from 01.12.2008. It is further argued that in the meeting of the Finance Department and Labour Department held on 03.03.2009 the matter was discussed keeping in view the recommendation of the Chief Secretary's Committee on the basis of recommendation of the Pay Committee 1997-1999 wherein it was found that the organisational structure and posts in the Government ITI run by the Social Welfare Department are not having the minimum qualification and mode of recruitment like ITIs run by the Labour Department and consequently it was decided to retain the same pay scales for the posts in the Social Welfare Department. Thus, even if the Pay Committee found the education and technical qualification, experience and nature of work and duties as almost the same as their counterparts working in ITI of Labour Department but as the organisational structure of both the departments were different consequently no decision was taken for enhancement of their pay scales. In this regard, a comparative chart indicating the organisational structure in the Social Welfare Department vis-a-vis Labour Department has been filed a Annexure CA-2 to the counter affidavit. It is also argued that the recommendations of the Pay Committee 2008 with respect to anomalies in the pay scale of the cadre of Instructors in the Social Welfare Department was considered by the Government and a decision was taken vide Government Order dated 15.04.2010 to make necessary amendments in the pay scales and for providing the benefits of revised pay structure and higher pay which has been given with effect from 01.01.2006 and the actual benefits have been given with effect from 01.12.2008. Thus, it is contended that the Pay Committee (Bajaj Committee) clearly brought out that the Foreman, Senior Instructors and Junior Instructors of the Social Welfare Department could be given the same pay scale as their counterparts in the Labour Department provided the organisational structure, qualification and mode of recruitment for the said posts were brought at par with the Labour Department. However, the said recommendation having not been accepted by the Committee comprising of the Chief Secretary as would be apparent from perusal of Annexure-3 to the writ petition and the recommendations of the subsequent Pay Committee having only been accepted by the Government on 15.04.2010 and the reorganization having taken place subsequent thereto therefore the petitioner Association would not be entitled for revised pay scale with effect from 01.01.1996 rather would only be entitled with effect from the date from which revised pay scales have been brought into effect after making the organisational changes.

8. Heard learned counsel for the contesting parties and perused the material available on record.

9. The petitioner is a registered Association of the employees of the Government Technical Training Centres run by the Department of Social Welfare. Amongst the employees are the Foreman, Senior Instructors and Junior Instructors working in the Government Technical Training Centres claiming parity with their counterparts working on the same post in the ITI run by the Labour Department. Upon their grievance for being given the same pay scale as their counterparts in the Labour Department, the Pay Committee 1997-1999 after considering the entire facts gave a recommendation that the Foreman, Senior Instructors, Junior Instructors and Supervisors can be given the same pay scale as their counterparts in the Labour Department provided the organisational structure was changed so as to bring the aforesaid posts in the Social Welfare Department to have the same qualification and mode of recruitment as that of the Labour Department. The said recommendation of the Pay Committee did not find favour with the Committee of the Chief Secretary as would be apparent from perusal of Annexure-3 to the writ petition. The petitioner Association continued to represent when its representation came to be rejected vide order dated 06.03.2009 by the Social Welfare Department, a copy of which is Annexure-8 to the writ petition, wherein it was categorically provided that there is clear difference in the organisational structure of the Social Welfare Department vis-a-vis Labour Department and although the petitioner Association had a prima facie case for the same pay as their counterparts in the Labour department yet at that time as the matter was before the Pay Commission pertaining to revision of pay scales and anomalies thus the representation was rejected. Thereafter, vide order dated 15.04.2010, the Government took a decision to change the mode of recruitment and qualification of various posts including those of the Members of the petitioner Association i.e. Foreman, Senior Instructors, Junior Instructors and Supervisors. On account of aforesaid change, the revised pay was directed to be given with effect from 01.01.2006 and actual benefit with effect from 01.12.2008. Thus, it clearly comes out that it was only after the organisational structure and method of recruitment of the posts held by the Members of the petitioner Association were changed that they were given the same pay scales as that of their counterparts working in the Labour Department. Accordingly, the mere fact that the recommendation of the Pay Committee found favour with the Government only in the year 2010 and not earlier would not give a right to the petitioner Association to claim the benefit of a higher pay with effect from 01.01.1996 merely because grievance raised by the petitioner Association found favour in the year 2010. The fact of the matter remains that the higher pay scale has only been made admissible to the members of the petitioner Association only when the qualification and mode of recruitment were changed meaning thereby that prior to any such change in the organisational structure including change in the essential qualification and method of recruitment no benefit of equal pay or pay at par with the counterparts was admissible.

10. As regards the reliance placed by learned counsel for the petitioner Association on the case of Prakash Chandra Arya (supra) is concerned, perusal of the said judgment would indicate that no counter affidavit was filed by the Government and therefore the High Court took a view that the fundamental rights of the petitioners had been violated and consequently issued the said direction. This is not the case in the present petition in which a detailed counter affidavit has been filed indicating the reasons as to why earlier the members of the petitioner Association were not given the higher pay scale. Thus, the judgment in the case of Prakash Chandra Arya (supra) would not be applicable in the present case.

11. Further the Court may refer to the law laid down by Hon'ble the Apex Court with regard to the claims made by the employees relating to equal pay for equal work wherein Hon'ble the Apex Court has categorically held that there can be difference in the pay scales on an intelligible criteria which is also the case in the instant petition.

12. The Hon'ble Supreme Court in the case of State of Harayana Vs. Tilak Raj reported in (2003) 6 SCC 123 has held as under:-

"11.......To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination......

12. "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."

13. The Hon'ble Supreme Court in the case of Harbans Lal Vs. State of Himachal Pradesh reported in (1989) 4 SCC 459 has held as under:-

"11..... The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of '' equal pay for equal work' cannot be enforced"

14. Similarly, the Hon'ble Supreme Court in the case of Mewa Ram Kanojia Vs. AIIMS reported in (1989) 2 SCC 235 while dealing With an issue of pay parity between Speech Therapists and Audiologists held that merely because Speech Therapists perform similar duties and functions in other institutions and are paid higher pay-scales, the same is no good ground to accept the Petitioner's claim for equal pay inasmuch as there may be difference in educational qualifications, quality and volume of work required to be performed by the hearing therapists in other institutions. The Hon'ble Supreme Court also held that the person claiming parity must sufficiently produce material before the Court to adjudicate upon such a complicated issue of factual determination. More so, if the employer is not the same, the principle of equal pay for equal work would not be applicable.

15. Likewise, in the case of Umesh Chandra Gupta and Ors Vs. Oil and Natural Gas Corporation reported in AIR 1989 SC 29, the Hon'ble Supreme Court has held as under:-

"2. The nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by relying upon the averments in the affidavits of interested parties. We have stressed this point in a recent judgment (in Civil Appeal No. 56 of 1987, State of U.P. and Ors. v. J.P. Chaurasia and Ors. disposed of on 27 September, 1988), there we said-:

the question depends upon several factors it does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others evaluation of (sic) and responsibilities of the respective posts. More often functions of two posts may appear to be the same of similar but there may be difference in degrees in the performance. The quantity of work may be the same but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties the equation of posts or equation of pay must belief to the Executive Government I must be determined by expert bodies like pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts if there is any such determination by a commission or Committee the Court should namely accept it. The Court should not by to tinker with such equivalence unless it is shown that it was made with extraneous consideration.

3. What applies to the Government and Government servants must equally apply to any management and its employees. If the management for good (sic) classified the posts into two recognises with different pay scales the Courts generally must accept unless it is (sic) then it is patently erroneous either in law our on(sic)

4. The High Court however in the instant case has examined the qualifications and respective terms of appointment of technicians Grade II and Grade III. The High Court has summarised thus:

It is therefore quite clear that in the advertisement of 1968, the qualifications required were higher than those required prior to that. Again it is pertinent to note that from 1962 the training was to be taken for a period of two years. In 1966, the period of training was raised to three years. In 1967, the period was again brought down to two years, but the required qualifications were higher than what were required previously. In 1968, the period of training was two years. There also, the qualifications required were higher than those required in 1966 and prior to that. It is quite clear from all these advertisements that the attempt of the Commission was to attract better qualified persons for the posts of technicians grade II."

5. There is thus a distinction between technicians grade II and grade III. The technicians grade II appear to be better qualified than technicians grade III. The nature of work of technicians grade II and grade III may be the same but there may be qualitative difference in the performance. It is for the management to evaluate and not for the Court to determine.

6.In view of the aforesaid conclusion of the High Court we do not think that the claim of the Appellants that they should be treated as technicians grade II along with Respondents 3 to 9 is tenable. There is, therefore, no merit in this appeal and it is accordingly dismissed. In the circumstances, however, we make no order as to costs."

16. Considering the aforesaid principle of law, the Hon'ble Supreme Court in the case reported in 2011 11 SCC 122 Inre; Steel Authority of India Limited and Ors Vs. Dibyendu Bhattacharya held as under:-

"30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.

31.The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work.

32. The present case requires to be examined in view of the aforesaid settled legal propositions. Undoubtedly, the Respondent had applied in response to an advertisement for the post of Grade S-6 and not for Grade E-1 as he did not possess the requisite qualifications for the post in the said Grade. The name of the Respondent had appeared at serial No. 4 in the merit list and he was offered appointment only for the reason that the candidates whose names appeared at serial Nos. 1 and 3 asked for pay protection/up-gradation of the post, and it was not acceptable to the employer. The candidate whose name appeared at serial No. 2 in the merit list, did not join though was offered the appointment. The Respondent accepted the appointment in Grade S-6 on the terms and conditions incorporated in his appointment letter without any protest. The relief sought by the Respondent is the same, which had, in fact been asked by two candidates in the merit list, above the Respondent. If such a demand was acceptable to the appellants they could have gotten a more meritorious candidate than respondent. Grant of the relief sought by the Respondent is violative of equality clause contained in Article 14 of the Constitution of India qua other candidates in the panel above the Respondent who did not join for not granting the same relief though it had been sought at least by two of them at the initial state of recruitment.

33. By the impugned order, the Respondent has not been granted the post in Grade E-1 but salary equivalent to that of Shri B.V. Prabhakar has been granted to the Respondent. The order itself is mutually inconsistent and contradictory. The representation of the Respondent had been for waiving the criteria meaning thereby that the Respondent sought a relaxation in the eligibility criteria for the post in Grade E-1. It is evident from the representation itself that the Respondent never possessed the eligibility for the post of Grade E-1. The Law does not prohibit an employer to have different grade of posts in two different units owned by him. Every unit is an independent entity for the purpose of making recruitment of most of its employees. The Respondent had not been appointed in centralised services of the company.

34. Shri B.V. Prabhakar, had been appointed in E-1 Grade, in the Rourkela unit, considering his past services in the Bokaro Steel Plant, another unit of the company, for about two decades prior to the recruitment of the Respondent. As every unit may make appointments taking into consideration the local needs and requirement, such parity claimed by the Respondent cannot be held to be tenable. The reliefs sought by the Respondent for upgradation of the post and waiving the eligibility criteria had rightly been refused by the Appellants and by the learned Single Judge. In such a fact situation, there was no justification for the Division Bench to allow the writ petition, granting the benefit from the date of initial appointment of the Respondent. The Respondent has not produced any tangible material to substantiate his claim, thus, he could not discharge the onus of proof to establish that he had made some justifiable claim. The Respondent miserably failed to make out a case for pay parity to the post of E-1 Grade in executive cadre. The appeal, thus, deserves to be allowed."

17. Having thus considered the facts and circumstances of the case and the discussions made above as well as the law laid down in this regard by Hon'ble the Apex Court in the aforesaid judgments, this Court does not find any reason to grant the reliefs prayed for by the petitioner. The writ petition lacks merit and is accordingly dismissed.

Order Date :- 9.8.2018

A. Katiyar