Mukesh Kumar Pandey And 3 Others vs State Of U.P. And 2 Others
2023 Latest Caselaw 19557 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:151831
 
Court No. - 34
 

 
Case :- WRIT - A No. - 11780 of 2023
 

 
Petitioner :- Mukesh Kumar Pandey And 3 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- B.S. Pandey,Kartikey Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.

1. Heard learned counsel for the parties.

2. Supplementary affidavit filed today is taken on record.

3. Petitioners, who are working as Mate in Irrigation Department are claiming upgradation of grade pay from Rs. 1800/- to Rs. 1900/- w.e.f. 16.11.2011 when it had been made applicable and admissible to the Mate working in Public Works Department.

4. It is also submitted that even in the Irrigation Department as far as Meerut, Lucknow and Ghazipur Divisions are concerned, respondents have already enhanced the grade pay from Rs. 1800/- to Rs. 1900/- for the Mates working in the Irrigation Department and this benefit has also been offered w.e.f. 16.11.2011, however, for no justifiable reason petitioners who belong to Prayagraj Division has not been offered with the said benefit. It is argued by learned counsel for the petitioners that this controversy of admissibility of higher grade pay of Rs. 1900/- w.e.f. 16.11.2011 is no more res integra in view of the judgment of this Court dated 02.08.2021 passed in Writ - A No. 20277 of 2019, Sushil Kumar Gautam & 16 Ors v. State of U.P. & 2 Ors considering the claim of identically placed petitioners. Irrigation Department in the said case the Court held that where the State is employer, its employees cannot be discriminated against in the matter of fixation of pay grade. Vide paragraph nos. 23, 24, 25 & 26 the Court discussed the issue and laid ratio in its order while allowing the writ petition vide para 27. The relevant paragraphs are reproduced hereunder:

"23. So far as the argument of learned Standing Counsel that fixation of pay is purely the domain of the executive, as various considerations are involved in the fixation of pay, therefore, the Court should refrain from issuing any direction to the State and leave it open to the State to take the appropriate decision. It is settled in law that pay fixation is purely executive function and should be left to the expert to decide on it, but in a case where it emanates from the record that the action of the State is arbitrary and discriminatory to its employees in denying their rightful claim, this Court is not denuded of the power to issue a command to the State under Article 226 of the Constitution of India to treat all similarly situated employees equally. It would be apt to refer to the judgement of the Apex Court in the case of K.T. Veerappa and Others Versus State of Karnataka and Others (2006) 9 SCC 406. Paragraph 13 the said judgment is reproduced herein-below:-

"13. He next contended that fixation of pay and parity in duties is the function of the Executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance in the case of State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 and Union of India v. S.B. Vohra (2004) 2 SCC 150. There is no dispute nor can there be any to the principles as settled in the case of State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors."

24. Similarly, in the case of Haryana State Minor Irrigation Tubewells Corporation and Others Versus G.S. Uppal and Others 2008 (7) SCC 375, the Apex Court has held that when the decision of the administrative authority of pay fixation and pay parity is unreasonable, unjust and prejudicial to a section of employees, the Court can interfere with the said decision. Paragraph 21 of the said judgment is reproduced herein-below:-

"21. There is no dispute nor can there be any to the principle as settled in the above-cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. [see K.T. Veerappa v. State of Karnataka (2006) 9 SCC 406]"

25. In the case in hand, the benefit of grade pay of Rs.1900/- has been extended to Mate of PWD w.e.f. 16.11.2011. The petitioners are also employees of State. Though the departments are different, but the nature of the job performed by them is similar to the nature of the job performed by Mate working in PWD. This fact is discernible from the record as the benefit of grade pay has been extended by the State of U.P. to Mate working in Irrigation Department in Meerut, Ghazipur and Lucknow Divisions, and also from several recommendations which have been made by Engineer-in-Chief to Deputy Secretary, Irrigation Department by placing reliance upon Government Order dated 16.11.2011 extending the benefit of grade pay of Rs.1900/- to Mate of PWD. Thus, from the facts detailed above, the only conclusion which can be drawn is that the nature and duty performed by Mate of Irrigation Department are similar to Mate of PWD and, therefore, they are also entitled to benefit of grade pay of Rs.1900/- to the petitioners.

26. Since the State Government is sleeping over the matter since 20 July 2016 when the recommendation was made by Engineer-in-Chief to Deputy Secretary, Irrigation Department, and petitioners are facing financial loss on account of the inaction of the State Government, therefore, applying the principles laid down by the Apex Court in the cases of G.S. Uppal (supra) and K.T. Veerappa (supra), this Court is of the opinion that it is a fit case where the Court should intervene and exercise its power under Article 226 of the Constitution of India commanding the respondents to extend the benefit of grade pay of Rs.1900/- to the petitioners.

27. For the reasons given above, the writ petition is allowed and a writ of mandamus is issued commanding respondents no.1 & 2 to extend the benefit of grade pay of Rs.1900/- to the petitioners w.e.f. 16.11.2011 when such benefit has been extended to Mate of PWD. It is further directed to the respondents to fix the pay of petitioners on the basis of grade pay of Rs.1900/- and also calculate arrears of salary w.e.f. 16.11.2011 and pay the same to the petitioners within three months from the date of production of the copy of this order before them."

(Emphasis added)

5. This above judgment of a concurrent bench of this Court came to be affirmed in the Special Appeal No. 288 of 2022 filed by the State of Uttar Pradesh dismissed on 31.03.2023. The stand of the State that the upgradation would be applicable only to those who are working on technical posts in Public Works Department came to be rejected vide reasoning part as well as operative part of the order of Special Appeal by the bench in its order dated 31.03.2023 and the same is reproduced hereunder:

"It was further noted that there was no justification not to extend the benefit of Grade-pay of Rs.1900/- to the writ petitioners, who worked as 'Mate' in the Irrigation Department, when the said benefit had been extended to 'Mate' of the Public Works Department. The nature of the duties performed by both the sets of employees of two departments of the State, though it appears to be different, but are one and the same.

No submission could be made by the learned Standing Counsel to assail the said finding of similarity in the nature of job and duties performed by the 'Mate' of Irrigation Department with that of 'Mate' of the Public Works Department.

Only submission of the learned Standing Counsel is that the benefit of the Government Order dated 16.11.2011 was extendable to the employees working only on technical posts in the Public Works Department. To examine the said submission, we have gone through the Government Order dated 16.11.2011, which was issued for determination of the Grade-pay of the employees of junior class posts of 23 categories of the Public Works Department. It is evident that the Grade-pay for the post 'Mate' had been revised therein from Rs.1800/- to Rs.1900/-.

The contention that the enhancement of Grade-pay was only confined for the technical post, therefore, cannot be sustained.

No other argument could be pressed, apart from the further contention that the claim of similarly situated employees had been turned down by the State Government, earlier.

Be that as it may, having gone through the order impugned in view of the stand of the petitioners in the writ petition and the material on record, we are of the considered opinion that the decision of the learned Single Judge does not warrant any interference.

The appeal is, accordingly, dismissed. "

(Emphasis added)

6. Upon a pointed query being made, learned Standing Counsel could not dispute the aforesaid judgments, however, submitted that the matter can be directed to be examined as far as claim of the petitioners is concerned by the competent authority in the matter in accordance with law.

7. At this stage learned counsel for the petitioners submits that primary duty to sanction the pay grade is of respondent no. 1, whereas, financial approval is to be granted by respondent no. 2. He further submits that in the above regard petitioners have already approached the respondent nos. 1 & 2 vide registered letter dated 26.05.2023.

8. In view of the above, this petition stands disposed of with direction to the respondent no. 1 in the first instance to complete the process of grant of pay grade of Rs. 1900/- to the petitioners, if otherwise there is no technical difficulty in the matter in the light of judgments quoted herein above and then forward the same for financial approval to respondent no. 2 within 30 days from the date of production of certified copy of this order. As soon as the proposal is received by respondent no. 2, he shall accord financial approval within next 30 days time.

Order Date :- 28.7.2023

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