Allahabad High Court
Mohammad Yunus & Another vs State Of U.P. Through Prin. Secy. ... on 14 August, 2018
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Judgment reserved on:- 06.07.2018
Judgment delivered on: 14.08.2018
Court No. - 17
Case :- SERVICE SINGLE No. - 2859 of 2013
Petitioner :- Mohammad Yunus & Another
Respondent :- State Of U.P. Through Principal Secretary Deppartment Of Finance Lucknow & Ors
Counsel for Petitioner :- Saurabh Lavania,Pradip Kumar Srivastava,Renu
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard Sri P.K. Srivastava, learned counsel for the petitioners and learned Standing counsel appearing for State-respondents.
2. By means of the present petition, the petitioners have prayed for the following reliefs:-
(i) To issue a writ, order or direction in the nature of certiorari quashing the orders dated 23.02.2011 and 14.03.2013 passed by the opposite party no. 2, as contained in Annexure No. 1 and 2 respectively to this writ petition, after summoning the original of the same from the opposite parties.
(ii) To issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to grant the Pay Scale in Grade Pay of Rs. 4600/- (Pre-revised Rs. 6500-10500/-) and Rs. 4800 in PB-2 from the date the Accountants (changed name of the post is Samiksha Adhikari (Lekha)) working in Accounts Cadre of Department of Secretariat Administration were given.
(iii) To pass any other suitable order or direction which is deemed just and proper in the circumstances of the case may also be passed.
(iv) To allow the writ petition with costs.
3. The case set forth by the petitioners is that the petitioners are working in the Department of Agriculture, having been appointed on the post of Accountant on 28.06.1999 after following the procedure prescribed under the Uttar Pradesh Agriculture Department Accounts (Non-Gazetted) Service Rules, 1982 (hereinafter referred to as "Rules, 1982") in the pay scale of Rs. 5000-8000/-. The petitioners profess themselves to be having a Masters Degree in Commerce (M.Com) with accountancy as one of the subjects in B.Com or have passed the Divisional Test which is the qualification prescribed for direct recruitment on the post of Accountant under the Rules, 1982. The recruitment for the post of Accountant is to be done by a Selection Committee to be constituted as in Rule 15 (1) of the Rules, 1982, which comprises of three members namely the Additional Director of Agriculture, Joint Director Agriculture and Chief Accounts Officer. Incidently, this Selection Committee is the same for direct recruitment of Assistant Accountant also. Copy of Rules, 1982. are annexure-3 to the writ petition.
4. The petitioners contend that in the Department of Secretariat Administration (hereinafter referred to as "SAD"), the accounts cadre was created vide order dated 28.10.1989 and the service rules were framed in the year 1993 called the U.P. Secretariat Accounts Staff Service Rules, 1993 (hereinafter referred to as " Rules. 1993").
5. As per the petitioners, para-397 to 400(d) of Chapter XVIII-A of Financial Handbook Volume V Part-I provides responsibilities and duties of employees of Accounts Cadre which is the same and applicable to all the Departments of State of U.P so far the Accounts Cadre is concerned. Copy of Chapter XVIII-A is annexure-5 to the writ petition. It is further contended by the petitioners that as per the Rules, 1982, the pay scale for the post of Assistant Accountant was Rs. 470-735 and for the post of Accountant, the pay scale was Rs. 570-1100. After 4th Pay Commission, the pay scale for the aforesaid two posts were modified/revised to Rs. 1200-2040 and 1400-2600 respectively. After 5th Pay Commission the pay scales were revised to Rs. 4000-6000 and thereafter 4500-7000 w.e.f 01.04.2001 so far it pertain to Assistant Accountant and Rs. 5000-8000 subsequently enhanced to Rs. 5500-9000 w.e.f 01.04.2001 so far as it pertain to the Accountants.
6. So far as the pay scales for the SAD is concerned, it is contended that as per the Rules 1993, the pay scale for the post of Assistant Accountant was 1400-2300 while pay scale for the post of Accountant was 1400-2600. The aforesaid pay scales were amended on 22.02.2000 with the result that the pay scales for Assistant Accountant was revised to Rs. 4000-6000 while that of Accountant was revised to Rs. 5000-8000/-. Thus, it is contended that the pay scale of the post of Accountant so far as the Agriculture Department and SAD is concerned was one and the same i.e pay scale of Rs. 5000-8000/-.
7. As for the qualifications required by the Accountants and Assistant Accountants working in the SAD, learned counsel for the petitioner while placing reliance on Part-IV Rule, 8 of the Rules, 1993 has indicated that for the direct recruitment for the post of Assistant Accountant, a candidate is only required to possess a Bachelor's degree in Commerce with Accountancy or Post Graduate diploma in Accountancy or any other qualification recognized equivalent thereto. So far as the post of Accountant cum Treasurer is concerned, the same is to be filled in by promotion through Departmental Selection Committee from amongst substantively appointed Assistant Accountants who in turn are directly recruited through the U.P. Public Service Commission in terms of Rule 5 read with appendix of Rules, 1993. Hence it is contended that even their qualification will be the same as that of Assistant Accountant. It is thus the contention that the Accountants in the other departments more particularly in the petitioner's department are required to possess a higher qualification vis-a-vis Accountants in the SAD.
8. Although, it is contended by the petitioners that certain wrong pay scale was given under the Rules ,1993 in the SAD department yet the same may not be relevant inasmuch as, as already indicated above, the pay scales of Accountants were Rs. 1400-2600/- during the period the 4th Pay Commission was applicable and also with the coming of the 5th Pay Commission in which both SAD Accountants and other set of Accountants were in the pay scale of Rs. 5000-8000/-. So far as the petitioners are concerned, the pay scale of the post of Accountants was enhanced w.e.f 01.04.2001 to Rs. 5500-9000/-.
9. Vide Office Memorandum dated 30.07.2008, the designation of the post of Assistant Accountant in SAD was changed to be known as Sahayak Samiksha Adhikari (Lekha), Accountant was changed as Samiksha Adhikari (Lekha) and Chief Treasurer Cum Chief Accountant was changed as Section Officer (Accounts). With the change in the name also came the change in the pay scale of Accountant, now known as Samiksha Adhikari (Lekha) whereby the pay scale was revised/modified from Rs. 5500-9000/- to Rs. 6500-10500/-. Copy of Office Memorandum dated 30.07.2008 is annexure-7 to the writ petition.
10. The petitioners thus contend that when all along the pay scales of the post of Accountants in the Agriculture Department was the same as that of Accountants in SAD then when the pay scales in SAD was modified/enhanced to Rs. 6500-10500 vide O.M dated 30.07.2008, then the petitioners pay scale should also have been modified/enhanced likewise more particularly taking into consideration the qualification, duties and responsibilities to be performed by the Accountants in the Agriculture Department, as per the petitioners, is the same as is being performed by the Accountants now Samiksha Adhikari (Lekha), in the SAD.
11. With the acceptance of recommendation of 6th Pay Commission by the State of U.P in December, 2008 and the recommendation being made applicable w.e.f 01.01.2006, the petitioners and other Accountants were placed in grade pay of Rs. 4200/- in Pay Band-2 (pre-revised pay scale Rs. 5500-9000). At the same time, the Accountants in the SAD were placed in the grade pay of Rs. 4600/- (pre-revised pay scale Rs. 6500-10500) in PB-2.
12. The petitioners contend that the aforesaid was an anomaly and consequently being aggrieved they preferred a representation dated 23.06.2010 for removal of the said anomaly but the same was rejected by the respondent no. 2 vide order dated 23.02.2011. Copy of order dated 23.02.2011 is annexure -1 to the writ petition. The petitioners contend that the impugned order dated 23.02.2011 rejecting the representation reflects patent non application of mind and is patently non speaking and hence merits to be quashed outrightly on this ground alone.
13. Being unsatisfied with the rejection of representation, the petitioners again preferred a representation dated 22.01.2013 taking into consideration the order dated 22.12.2011 whereby the Accountants now Samiksha Adhikari (Lekha) in the SAD, had been granted a further higher grade pay of Rs. 4800/- in PB-2 vide order dated 22.12.2011. The representation preferred by the petitioners dated 22.01.2013 is annexure-9 to the writ petition. Even the said representation came to be rejected by means of impugned order dated 14.03.2013, a copy of which is annexure-2 to the writ petition.
14. Being aggrieved with both the orders and praying for being granted the grade pay of Rs. 4600/- and Rs. 4800/- w.e.f the date the Accountants (Samiksha Adhikari (Lekha) in SAD were granted the same, the present petition has been preferred.
15. While staking the claim for grant of the aforesaid relief, the petitioners contend that once all along both the Accountants working in the Agriculture Department and in the SAD were treated as same for the purpose of grant of the same pay scale then there being no change in the nature of duties and responsibilities for both the posts, there is no occasion for grant of higher grade pay to the Accountants (now Samiksha Adhikari (Lekha) in the SAD and the same would be patently violative of Articles 14, 16 and 21 of the Constitution of India. The petitioners also contend that the post of Accountant in the SAD is a promotional post which in the Agriculture Department also, vide order dated 22.05.2003, has been made into a promotional post. They also contend that the ground taken by the respondents while rejecting their claim for grant of the higher grade pay of Rs. 4600/- and Rs. 4800/- on the ground of change of name of the Accounts cadre in the SAD is no reason in the eyes of law as the change in the name or nomenclature of the post cannot be made a basis for grant of higher grade pay to one set of employees at the expense of the other more particularly when as per the Financial Handbook Volume V Part I, the qualification/eligibility of the Accountants of both the departments are similar apart from the fact that right up to the 5th Pay Commission both the set of Accountants were treated equally as regards the pay scales.
16. In order to challenge the aforesaid orders and for claiming the relief of the higher grade pay of Rs. 4600/- and Rs. 4800/-, learned counsel for the petitioner has placed reliance on the following judgments:-
(i) State of Punjab and Ors Vs. Sr. Vocational Staff Masters Association and Ors reported in 2017 2SCC (L& S) 852
(ii) Union of India Vs. Dineshan K.K. reported in 2008 1 SCC 586
(iii) Deb Narain Shyam Vs. State of West Bengal reported in 2005 SCC (L&S) 214.
(iv) Jaipal Vs. State of Haryana reported in 1988 SCC (L& S) 785.
17. On the other hand, the learned State counsel appearing on behalf of respondents no. 2 and 3 has argued placing reliance on the averments contained in the counter affidavit and supplementary counter affidavits. While admitting that Accountants now designated as Samiksha Adhikari (Lekha) in the SAD are getting the grade pay of Rs. 4800/- in PB-2 vis-a-vis the Accountants in the Agriculture Department who are getting a grade pay of Rs. 4200/-, it is argued that the grade pay is based on the recommendations of the 6th Pay Committee which has recommended the same taking into consideration the nature and responsibilities of the duties of the Accounts cadre in the SAD which is quite distinct and more arduous and cumbersome in comparison to the employees of the accounts cadre of other departments of the State Government. It is also argued that the decision being based on the recommendation of the expert body i.e the 6th Pay Commission, consequently, no interference may be done by the Courts of law, as per the settled proposition of law.
18. Elaborating this argument, learned State counsel has drawn attention of this Court towards a comparative chart in para-3D of the counter affidavit filed on behalf of respondent no. 1 which on reproduction reads as under:-
dz-l
jktdh; foHkkxksa ds v/khuLFk ys[kk laoxZ ds in
mRrj izns'k lfpoky; ds leh{kk vf/kdkjh ¼ys[kk½ @lgk;d leh{kk vf/kdkjh ¼ys[kk½
1-
jktdh; foHkkxksa ds v/khuLFk ys[kk laoxZ ds in lgk;d ys[kkdkj rFkk ys[kkdkj mRrj izns'k ljdkjh foHkkxksa v/khuLFk ys[kk laoxZ fu;ekoyh] 2014 ls vkPNkfnr gSA
mRrj izns'k lfpoky; ds lgk;d leh{kk vf/kdkjh ¼ys[kk½ rFkk leh{kk vf/kdkjh ¼ys[kk½ mRrj izns'k lfpoky; ys[kk laoXkZ lsok fu;ekoyh 1993 rFkk ;Fkk la'kksf/kr mRrj izns'k lfpoky; ys[kk deZpkjh oxZ lsok ¼r`rh; la'kks/ku fu;ekoyh] 2011 ls vkPNkfnr gSA
2.
jktdh; foHkkxksa esa lgk;d ys[kkdkj dk in v/khuLFk p;u vk;ksx ls lh/kh HkrhZ }kjk Hkjk tkrk gS rFkk ys[kkdkj dk in 03 o"kZ dh lsok okys lgk;d ys[kkdkj ls 'kr&izfr'kr inksUufr }kjk Hkjk tkrk gSA
mRrj izns'k lfpoky; esa lgk;d leh{kk vf/kdkjh ¼ys[kk½ dk in 'kr&izfr'kr lh/kh HkrhZ }kjk yksd lsok vk;ksx ds ek/;e ls Hkjk tkrk gSA leh{kk vf/kdkjh ¼ys[kk½ dk 50 izfr'kr in 05 o"kZ dh lsok okys lgk;d leh{kk vf/kdkjh ls le;≤ ij ;Fkkla'kksf/kr mRrj izns'k yksd lsok vk;ksx ls lijke'kZ p;uksUufr izfdz;k fu;ekoyh] 1970 ds vuqlkj vuqi;qDr dk vLohdkj djrs gq, T;s"Brk ds vk/kkj ij dh tkrh gS rFkk 50 izfr'kr in yksd lsok vk;ksx ds ek/;e ls lh/kh HkrhZ }kjk Hkjs tkrs gSA
19. From the aforesaid chart, it comes out that so far as the Accountants in the other departments of the Government are concerned, they are now governed by the Rules, 2014 apart from the fact that the post of Assistant Accountant is filled in by recruitment through the Subordinate Service Commission. At the same time with the 2011 amendment in the 1993 Rules, 50 % of the posts of Samiksha Adhikari (Lekha), the erstwhile post of Assistant Accountant in SAD is filled in through direct recruitment through the Uttar Pradesh Public Service Commission while remaining 50 percent post are filled in from those Sahayak Samiksha Adhikari (Lekha) who have rendered five years of service, on the basis of recommendation of the Uttar Pradesh Promotion By Selection in Consultation With Public Service Commission (Procedure), Rules 1970 (hereinafter referred to as " Rules, 1970")
20. It is also argued that the service conditions of both the set of employees i.e Accountants in the Agricultural Department and the Accountants in the SAD have continued to be governed by different service rules and the source of recruitment is also different and both the cadres have always had their own separate hierarchy. In this regard, the respondents have brought to the attention of this Court the source of recruitment and pay scale of the accounts cadre in Secretariat vis-a-vis the account cadre in other departments by means of a chart vide para 3F of the counter affidavit dated 29.11.2017 which for the sake of convenience is reproduced below:-
S.no
Source of recruitment and pay scale of Account Cadre in Sachivalya
Source of recruitment and pay scale of Account Cadre in other department
Name of the post/source of recruitment
Pay scale
Name of the post/source of recruitment
Pay scale
Special Secretary (Accounts)
(By Promotion)
P.B-4 and G.P. 8900/-
Super time Scale (By promotion)
P.B-4 and G.P. 10,000/-
2.
Joint Secretary (Accounts)
(By Promotion)
P.B-4 and G.P. 8700/-
Higher Scale
(By promotion)
P.B-4 and G.P. 8900/-
3.
Deputy Secretary (Accounts)
(By Promotion)
P.B-3 and G.P. 7600/-
Special Scale
(By promotion)
P.B-4 and G.P. 8700/-
4.
Under Secretary (Accounts)
P.B-3 and G.P. 6600/-
Senior Scale Grade-I
(By promotion)
P.B-3 and G.P. 7600/-
5.
Section Officer (Accounts)
(By Promotion)
P.B-3 and G.P. 5400/-
Senior Scale Grade-II
(By promotion)
P.B-3 and G.P. 6600/-
6.
Review Officer (Accounts) (50% direct recruitment and 50 % Promotion)
P.B-2 and G.P. 4800/-
Ordinary Grade
(50% direct recruitment and 50 % Promotion)
P.B-3 and G.P. 5400/-
7.
Asst. Review Officer (Accounts) (By direct recruitment)
P.B-2 and G.P. 4600/-
Assistant Accounts Officer (by promotion)
P.B-2 and G.P. 4600/-
8.
-----
----
Accountant (by promotion)
P.B-2 and G.P. 4200/-
9.
----
----
Assistant Accountant (By direct recruitment)
P.B.-1 and G.P. 2800/-
21. It is further argued on behalf of the respondents that earlier in the Civil Secretariat, the post of of Assistant Accountant and Accountant were filled by the transfer from the Lower Division Assistant and Upper Division Assistant of the U.P. Civil Secretariat. Later on, a separate accounts cadre has been constituted and amongst the regular cadre of the secretariat itself, the post of Assistant Accountant and Accountant were filled in. Later on, it was noticed that the pay scale of Review Officer of Rs. 1400-2600/- has been upgraded to Rs. 1640-2900 and hence the employees who were discharging the duties of the Accountants were getting lesser pay than the review officer. Accordingly, in order to remove the said anomaly, the said Assistant Accountants were designated as Sahayak Samiksha Adhikari (Lekha) and Accountants were given the designation of Samiksha Adhikari (Lekha). It is also contended that the Secretariat cadre and the cadre of other State Government departments are entirely different and there was never any theory of equivalence of posts and pay scale amongst them and consequently, there arises no occasion for them to claim the parity of the pay scale of Sahayak Samiksha Adhikari (Lekha) and Samiksha Adhikari (Lekha) discharging duties in Civil Secretariat. Much emphasis has been placed by the learned Government counsel on the nature of duties of the Sahayak Samiksha Adhikari (Lekha) and Samiksha Adhikari (Lekha) in the secretariat by contending that apart from other responsibilities of accounts, they also discharge the duties of preparation of reply of questions relating to accounts work of the Vidhan Sabha and get approval from the competent authority as well as perform the accounts work of entire cadre of administrative officers i.e the Indian Administrative Service Officers and Provincial Civil Service Officers including retired officers. They also discharge the duties of accounts work of the entire cabinet, Members of the Services Tribunal, Information Commission, His Excellency the Governor, Pari- Sahayak of His Excellency the Governor, their pay, salary etc. which, as per the learned Government counsel are the duties not discharged by the accountants of the other wings of the Government including the accountants for the Agricultural Department to which the petitioners belong and consequently, it is contended, that the Accountants of the SAD have more onerous duty than the other Accountants of the other departments.
22. It is also the contention of the learned Government counsel that in the year 1988, the State Government has taken a policy decision to extend the same pay scale which is being given in the Central Government on equivalent post and consequently, the Assistant Accountant and Accountants are getting the same pay band and pay scale as is admissible in the Central Government.
23. In order to contend that this Court may not interfere in the matter of pay scales where the nature of duties and responsibilities as well as source of recruitment are different, the learned Government counsel has placed reliance on the following judgments of the Hon'ble Supreme Court:-
(I) Secretary, Finance Department v. West Bengal Registration Service Association and others reported in AIR 1992 SC 1203.
(ii) Umesh Chandra Gupta and Ors Vs. Oil and Natural Gas Corporation reported in AIR 1989 SC Pg 29.
(iii) State of U.P. Vs. J.P. Chaurasia reported in AIR 1989 SC pg. 19.
(iv) Kewal Ram Sharma Vs. State of Punjab reported in 1989 Vol-3 SLR; Pg 507.
(v) Shiba Kumar Dutta Vs. Union of India and Ors reported in 1997 Vol. 3 Judgment Today Pg 453.
(vi) Chandra and Ors Vs. State of Jharkhand and Ors reported in 2007 JT (10) Pg. 272.
(vii) Union of India Vs. Hiranmoy Sen and Ors reported in 2007 Vol- 12 Scale Pg 170
(viii) Union of India Vs. Hariharan reported in 1997 (3) JT Pg 569 (3).
(ix) Union of India Vs. Ministerial Karamchari Sangh reported in 1997 (8) JT Pg. 415 (16, 17)
24. While placing reliance on the aforesaid judgments, the learned State counsel contends that petitioners have miserably failed to make out any case for grant of the same grade pay as is being given to the Samiksha Adhikari (Lekha) working in the accounts cadre of the department of SAD and thus contend that the orders dated 23.02.2011 and 14.03.2013 rejecting the representation of the petitioners as contained in annexure-1 and 2 of the writ petition have been correctly passed and further pray that the writ petition may be dismissed.
25. Sri P.K.Srivastava, learned counsel for the petitioner while giving the rejoinder has pointed out that the Committee headed by the Chief Secretary considered the issue of grant of grade pay of Rs. 4800/-in PB-2 to the Accountants of SAD and thereafter the said grade pay was given and while drawing attention to the said proceedings of the committee, it was pointed out that the Finance Department of the State was of the view that similarly situated persons would also be demanding higher pay scale and it would be difficult for the department to deny the same. A copy of such recommendations are annexure-RA2 to the rejoinder affidavit. The attention of the Court has also been drawn to the recommendation of the 6th Pay Commission relating to Accounts cadre of the departments and SAD to show that there has been increase in the work in the accounts cadre in all the department of the State and that the petitioners are similarly circumstanced.
26. As the plea of the proceedings of the Committee headed by the Chief Secretary pertaining to the grant of grade pay of Rs. 4800/- in PB-2 to the Samiksha Adhikari (Lekha) in SAD was taken only in the rejoinder, consequently, the learned State counsel brought to the attention of this Court the reply to the same as has been given in the supplementary counter affidavit, from a perusal of which it transpires that it is the specific case of the respondents that as per the recommendation of the Chief Secretary Committee, Secretariat allowance of Rs. 200/- admissible to the Samiksha Adhikari (Lekha) and the Secretariat allowance of Rs. 600/-which is admissible to the Section Officer and Section Officer (Accounts) have been changed into grade pay and the PB-2 Rs.9300-34800 with grade pay of Rs. 4800/- and modified PB-3 Rs. 15600-39100 with grade pay of Rs. 5400/- has been sanctioned for the post of Section Officer and Section Officer (Accounts) and for the post of Uppar Niji Sachiv Rs. 200/- and Niji Sachiv Grade-I Rs. 600/- was changed into grade pay and PB 3 Rs. 9300-34800 grade pay of Rs. 4800/- to be modified in the PB 3 Rs. 15600-39100 grade pay Rs. 5400/- was sanctioned. It has also been contended that the recommendations of Chief Secretary Committee as regards the Secretariat allowances, are not admissible to any other department and consequently, it is argued that there is no justification of up gradation in the pay scales of the petitioners. It is also reiterated that the pay as admissible to the post of accounts cadre under the Government of India have been sanctioned to the employees of the accounts cadre by giving pay parity to them w.e.f 01.01.1986 so that there is no justification of claiming pay parity with the other department or cadre.
27. This Court has heard the arguments advanced on behalf of respective counsels appearing for the parties and perused the record.
28. The facts that can be culled out from the aforesaid arguments are that the pay scales of both petitioners i.e Accountants working in the Department of Agricultural and the Accountants working in the SAD [re-designated as Samiksha Adhikari (Lekha)] were revised to Rs. 5500-9000/- w.e.f 01.04.2001. It is only subsequent thereto that vide Government order dated 30.07.2008 the Accountants working in the SAD were given a pay scale of Rs. 6500-10500/-. No challenge has been raised by the petitioners to the said Government order. Thereafter, with the coming of the 6th Pay Commission, the petitioners were given the PB-2 of Rs. 9300-34800 with grade pay of Rs. 4200/-. Likewise in the SAD also, the Accountants were given the PB - 2 of Rs. 9300-34800 with grade pay of Rs. 4200/-. It is only subsequent thereto, vide Government order dated 08.04.2011, the grade pay of the Samiksha Adhikari (Lekha) was made Rs. 4600/- and later vide Government letter dated 22.12.2011, the grade pay was revised to Rs. 4800/-. These Government orders have been admitted to have been issued for the Accountants in the SAD by the petitioners themselves as per the chart filed by them in para 29 of the rejoinder affidavit dated 23/25.04.2018. However, no attempt was made to challenge the said Government orders. Be that as it may, the reason for enhancement of the said grade pay has also been given in detail in the counter affidavit filed on behalf of the respondents which has already been extracted above. The duties and responsibilities of the Accountants in the State of U.P are set out as per para-397 to 400(d) of Chapter XVIII-A of Financial Handbook Volume V while the duties of the Samiksha Adhikari (Lekha) have been indicated in paragraph 21 above of this judgment, as per the averments made by the respondents in their counter affidavit which is also a justification given by the respondents for giving of a higher grade pay to the Samiksha Adhikari (Lekha) in the SAD which goes to show that the duties and responsibilities of the Samiksha Adhikari (Lekha) in the SAD are more onerous and the said duties are not discharged by the Accountants of the other wings of the department. The difference in duties thus entails grant of higher grade pay to the Accountants in the SAD.
29. Even otherwise, the Committee headed by the Chief Secretary while granting the grade pay of Rs. 4800/- to the Accountants in the SAD had given the reasons for assignment of the said grade pay taking into consideration the special nature of work which is done by the Accountants in the SAD. This would be apparent from a perusal of the report of the Committee whereby it has specially been recorded that the U.P. Secretariat is special and supreme and the procedure of work, nature of work etc. is completely different from the other departments is of a special category. The reason why it has been held to be so has also been detailed in the report of the said Committee, a copy of which is annexure-RA2 to the rejoinder affidavit dated 10.02.2014 filed by the petitioners themselves. It has also been specifically recorded that the Accountants in the SAD are carrying out important work and the nature of work being done by them is also very important and how their work is different has clearly been spelt out in para-3 of the said report which is not being reproduced for the sake of brevity as the same is already on record rather the same having been filed by the petitioners themselves are well in their knowledge. However, it would be relevant to mention that the said report clearly indicates the nature of work, duties and responsibilities of the Accountants of SAD as clearly different from the nature of duties, work and responsibilities being carried out by general Accountants of the other departments of the Government.
30. So far as the recruitment is concerned as per unamended Rules, 50% post of Accountants as per the Rules, 1982 in the other departments are filled in by direct recruitment while the other 50% are filled in from amongst permanent Assistant Accountants. So far as the direct recruitment for Accountants is concerned, the same is done in terms of Rule 16 (1) of the Rules, 1982 by constituting a selection committee as in Rule 15 (1). The selection committee as per Rule 15 (1) is to comprise of the Additional Director of Agricultural (General) as Chairman, Joint Director (Agriculture) and Chief Accounts Officer as members. In turn the Assistant Accountants are also to be direct recruits and the selection committee to make the direct recruitment for Assistant Accountants is the same as provided in Rule 15 (1) of the Rules 1982. Here it is pertinent to mention that vacancies for the post of Accountants and Assistant Accountants are to be notified to the employment exchange and to be published in leading newspapers.
31. At the same time, as per the unamended Rules 1993 applicable to SAD Accountants, as per the appendix, the post of Accountants is to be filled in by promotion through Departmental Selection Committee from amongst substantively appointed Assistant Accountants who have completed five years of service. The post of Assistant Accountant, in turn is to be filled in by direct recruitment through the Commission which as per the definition clause given in Rule 3 (c) means the U.P. Public Service Commission. Thus, it is apparent that as per the old rules, the recrutiment of the Accountants and Assistant Accountants of SAD and other Government departments, as per rules applicable upon them were different rather more arduous so far as the Assistant Accountants in the SAD were concerned, to be directly appointed through the U.P. Public Service Commission.
32. After the amendment in the Rules of SAD with the coming of the 2011 amendment, 50 % of the posts of Accountants now Samiksha Adhikari (Lekha) in the SAD are now to be filled in by direct recruitment through the U.P. Public Service Commission while the remaining 50 % of the vacancies are filled in by promotion from Assistant Accountants now Sahayak Samiksha Adhikari (Lekha) who have rendered five years of service on the basis of recommendation of the Rules, 1970. In turn, the Sahayak Samiksha Adhikari (Lekha) are directly recruited through the U.P. Public Service Commission. At the same time, the posts of Accountants working in the other wings of the Government, in terms of the 2014 amendment in the Rules are filled in by 100 % promotion from Assistant Accountants which post in turn is filled in by direct recruitment from the Subordinate Service Commission. Though the said rules for recruitment in the other departments have been introduced in the year 2014 vis-a-vis the amendment made in the Rules 1993 in the year 2011 so far as it pertains to the SAD yet the fact remains that different norms of recruitment are prescribed for the Assistants working in the other wings of the Government vis-a-vis the Accountants working in the SAD.
33. Keeping in the aforesaid facts, it is thus apparent that there is no similarity either in the duties or in the mode of the recruitment of the Accountants working in the other wings of the Government vis-a-vis the Accountants in the SAD.
34. Having thus discussed the difference in the duties, responsibilities and mode of recruitment of the set of Accountants, this Court now proceeds to discuss the case laws cited by the learned counsel for the petitioners.
35. So far as the judgment in the case of Sr. Vocational Staff Masters Association (supra) is concerned, the Hon'ble Supreme Court has categorically held in paragraph 27 of the said judgment that :-
"We are conscious of the fact that a differential scale on the basis of educational qualifications and the nature of duties is permissible. However, it is equally clear to us that if two categories of employees are treated as equal initially, they should continue to be so treated unless a different treatment is justified by some cogent reasons. In a case where the nature of duties is drastically altered, a differential scale of pay may be justified. Similarly, if a higher qualification is prescribed for a particular post, a higher scale of pay may be granted. However, if the basic qualifications and the job requirements continued to be identical as they were initially laid down, then the Court shall be reluctant to accept the action of the authority in according a differential treatment unless some good reasons are disclosed".
Clearly thus, the said judgment itself provides that differential scale of pay on basis of educational qualification and nature of duties is permissible.
36. Likewise, the judgment in the case of Dineshan K.K (supra) was a case in which the Hon'ble Supreme Court has held that it is when there is no dispute with regard to qualifications, duties and responsibilities of the persons holding identical post or ranks yet they are treated differently only because they belong to different department or the basis for classification of post is irrational, arbitrary or unjust then it is open to the Court to intervene.
37. This Court has already painstakingly thrashed out the duties and responsibilities of the post of Accountants in the SAD which are more onerous and arduous vis-a-vis the duties and responsibilities of the post of Accountants in other departments. Hence, even this judgment is distinguishable.
38. In the case of Deb Narain Shyam (supra) again the Hon'ble Supreme Court has held that the principle of equal pay for equal work shall only be applicable depending upon the nature of duties and qualifications for recruitment. In the said case, the Hon'ble Supreme Court after considering the duties, function and qualification for recruitment of Ameen in West Bengal clearly held the same to be different from those of surveyors and hence held that the Ameens were not entitled to invoke the said principle to claim parity in pay with surveyors. Hence,even this judgment is distinguishable.
39. So far as the case of Jaipal (supra) is concerned, the Hon'ble Supreme Court only after considering the similar nature of work, similar qualification under the same State Government and where two categories of employees were performing similar nature of work held the other set of employees to be entitled for equal pay for equal work.
40. Again the said judgment is distinguishable taking into consideration that in the instant case the nature of work and responsibilities of Accountants in the SAD are different vis-a-vis the Accountants working in the other wings of the Government.
41. Now the Court proceeds to discuss the law as laid down by the Hon'ble Supreme Court pertaining to interference by Courts law for the purpose of fixation of pay. In this regard, the Court may refer to the judgment of the Hon'ble Supreme Court in the case of State of Harayana Vs. Jasmer Singh reported in (1996) 11 SCC 77 wherein it has been held that principle of equal pay for equal work is not always easy to apply and there are inherent difficulties in comparing and evaluating the work done by different persons in different organisation or even in the same organisation.
42. 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."
43. The Hon'ble Supreme Court in the case of Harbans Lal Vs. State of Himachal Pradesh reported in (1989) 4SCC 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"
44. 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.
45. Likewise, in the case of Umesh Chandra Gupta (supra), 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."
46. In the case of Secretary, Finance Department (supra), the Hon'ble Supreme Court has held as under:-
"12.We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well-settled that equation of posts and determination of pay-scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay-scales to a reasonable number. Such reduction in the number of pay-scales has to be achieved by resorting to broad banding of posts by placing different posts having comparable job-charts in a common scale. Substantial reduction in the number of pay-scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the registration service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice."
47. To the same effect are the judgments of the Hon'ble Supreme Court in the case of J.P. Chaurasia (supra), Kewal Ram Sharma (supra), Shiba Kumar Dutta (supra), Hiranmoy Sen (supra), Hariharan (supra) and Ministerial Karamchari Sangh (supra).
48. In the Constitution Bench judgment reported in AIR 1968 SC 850 in Union of India Vs. P.K.Roy, the Hon'ble Supreme Court accepted the factors laid down by the Committee of Chief Secretary which was constituted for settling the disputes regarding equal pay for equal post arising out of States Re-organisation Act, 1956 to be the determining factor on the issue of equivalence of posts namely (i) nature and duties of post (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged (iii) the minimum qualifications, if any, prescribed for recruitment to the post (iv) salary of the post .
49. 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."
50. Accordingly, when the issue involved in the present petition is tested on the touch stone of the aforesaid principles of law as laid down by the Hon'ble Supreme Court more particularly the recent judgment of the Hon'ble Supreme Court in the case of Steel Authority of India Limited (supra) what this Court finds that there is a clear distinction in the nature of duties, responsibilities, mode and source of recruitment and method of recruitment for the post of Accountants in other departments and the SAD and consequently it cannot be said that the petitioners are entitled for parity in the pay scale with the Accountants (Samiksha Adhikari (Lekha)) working in the Accounts cadre of the department of Secretariat administration. The petitioners have miserably failed to prove or make out any case in their favour by establishing that the mode of selection/ recruitment nature and quality of work and duties and effort, confidentiality, functional need and responsibilities and status of their post is equivalent or identical with that of the Accountants working in the Secretariat Administrative Department. Further so long as those who are responsible for administration and laying down the service conditions etc. have exercised the power bonafidely, reasonably and on an intelligible criteria of granting higher grade pay to the Accountants working in the Secretariat Administrative Department which has a rational and reasonable nexus of objective of differentiation then such differentiation will not amount to discrimination. Merely because the Accountants in the other departments of the Government are described in the same manner and have the same nomenclature as the Accountants (Samiksha Adhikari (Lekha)) in the Secretariat Administrative Department the same would not mean that both set of employees are entitled to the same pay/grade pay. This Court in exercise of its power of judicial review can only examine whether the decision of the State authorities is rationale and just which, having exhaustively examined the nature of duties, responsibilities, method and mode of recruitment and the justification given while fixing a higher grade pay, this Court is of the opinion that there is clear difference between the Accountants of the other departments of the Government, in this case the Accountants of the Agriculture Department vis-a-vis the Accountants (now Samiksha Adhikari (Lekha)) of the Secretariat Administrative Department and hence the petitioners are not entitled for grant of the pay scale in the grade pay of Rs. 4600/- and Rs. 4800/- at par with the Samiksha Adhikari (Lekha) working in the Accounts cadre of the Secretariat Administrative Department.
51. Consequently, the writ petition lacks merit and is accordingly dismissed.
Order Date :- 14.8.2018
Pachhere/-
