Himachal Pradesh High Court
Bhagat Ram And Others vs State Of Himachal Pradesh And ... on 28 September, 2023
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.:1007 of 2019 a/w
.
CWPOA Nos. 3163, 3627, 4374,
6355, 6368, 6392, 6400, 7039 of
2019 & CWP No. 1562 of 2020,
CWPOA Nos. 588, 3092, 4268,
4631,5321, 5481, 5604 and 6641
of 2020.
Reserved on : 13.09.2023
Decided on : 28.09.2023
1. CWPOA No. 1007 of 2019
Bhagat Ram and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
2. CWPOA No. 3163 of 2019
Santosh Raj Sharma and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
3. CWPOA No. 3627 of 2019
Kali Dass Sharma and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
4. CWPOA No. 4374 of 2019
Karma Nand and Others. ....Petitioners.
.
Versus
State of Himachal Pradesh and Others. ...Respondents.
5. CWPOA No. 6355 of 2019
Nikka Ram and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
6. CWPOA No. 6368 of 2019
Om Chand and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
7. CWPOA No. 6392 of 2019
Jeet Kumar. ....Petitioner.
Versus
State of Himachal Pradesh and Others. ...Respondents.
8. CWPOA No. 6400 of 2019
Satish Kumar. ....Petitioner.
Versus
State of Himachal Pradesh and Others. ...Respondents.
9. CWPOA No. 7039 of 2019
Mukesh Chand and Another ....Petitioners.
.
Versus
State of Himachal Pradesh and Others. ...Respondents.
10. CWP No. 1562 of 2020
Aan Dass. ....Petitioner.
Versus
State of Himachal Pradesh and Others.
r ...Respondents.
11. CWPOA No. 588 of 2020
Geeta Ram and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
12. CWPOA No. 3092 of 2020
Mukul Kumar and Others. ...Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
13. CWPOA No. 4268 of 2020
Pratap Chand and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
14. CWPOA No. 4631 of 2020
.
Mohinder Singh and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Another. ...Respondents.
15. CWPOA No. 5321 of 2020
Ram Sain and Others. ....Petitioners.
Versus
State of Himachal Pradesh and Others. ...Respondents.
16. CWPOA No. 5481 of 2020
Jafar Mohamed. ....Petitioner.
Versus
State of Himachal Pradesh and Another. ...Respondents.
17. CWPOA No. 5604 of 2020
Sher Singh and Others. ..... Petitioners
Versus
State of Himachal Pradesh and Others. ...Respondents.
18. CWPOA No. 6641 of 2020
Bhupinder Singh. ....Petitioner.
Versus
The State of Himachal Pradesh and Others. ...Respondents.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? 1 Yes
.
For the petitioner(s) : Mr. Bhuvnesh Sharma, Senior
Advocate, with Mr. Parv Sharma
& Mr.Shekhar Badola,Advocates,
Mr. Daleep Singh Kaith,
Advocate and Mr. Vikas
Rajput, Advocate, for the
respective petitioners in the
respective petitions.
For the respondents : Mr. Pushpender Jaswal,
Additional Advocate General
r with Mr. Gautam Sood, Mr.
Rahul Thakur and Ms.
Priyanka Chauhan, Deputy
Advocate Generals, for the
respective respondents-State, in
all the petitions.
Satyen Vaidya, Judge
All these petitions are being decided by a
common judgment as the identical question of facts and
law are involved.
2. Petitioners are Laboratory Attendants in the
Department of Higher Education, Government of
Himachal Pradesh. Some of them are directly recruited
and others have been promoted from Class-IV grade.
1 Whether reporters of the local papers may be allowed to see the judgment?
Petitioners are posted in various Government Senior
Secondary Schools and Government Degree Colleges
.
throughout the State.
3. The Recruitment and Promotion Rules for the
post of Laboratory Attendants, Class-III (Non-Gazetted)
have been notified by the State Government on
03.08.2000 (for short, "2000 Rules"). The pay scale
applicable to the post of Laboratory Attendant was Rs.
3120-5160. 25% of the total cadre strength is to be filled
in by direct recruitment and remaining 75% by way of
promotion, failing which by direct recruitment. The feeder
category is amongst Class-IV Peons, Chowkidars,
Sweepers, Malis and other similar employees who have
passed matriculation or its equivalent examination with
science subjects from a recognized Board/University and
possess five years regular service or regular combined
with continuous ad hoc (rendered upto 31.03.1998)
service, if any, in the grade. The minimum educational
qualification for direct recruits is matriculation or its
equivalent examination with Science from a recognized
Board/University or matriculation with diploma of
Laboratory Attendant or its equivalent from a recognized
Board/Institute.
.
4. The case as set out by the petitioners is that
on 01.01.1986, they were made entitled to the pay scale
of Rs. 950-1800. It was revised to Rs. 3120-5160 w.e.f.
03.08.2000. On 01.01.2006, the pay scale applicable to
the petitioners was revised to Rs. 5910-20200 +1900 as
Grade Pay. Their grievance is that by virtue of H.P. Civil
Services (Category/Post-wise pay) Rules 2012, as notified
on 27.09.2012 (for short "2012 Rules"), the State
Government revised the pay scales of all other categories
of its employees except the category of Laboratory
Attendant in the Department of Higher Education.
5. Petitioners have submitted that till
01.01.2006, their pay scales were in parity with the
scales granted to the Clerks as also the Junior
Technicians. By virtue of 2012 Rules, the pay scale of
Clerk was revised to Rs. 10300-34800 + Rs. 3200 as
Grade Pay and the pay scale of Junior Technicians was
revised by allowing them grade pay of Rs. 2400.
According to the petitioners, they have been
discriminated. The classification drawn by the
respondents is not reasonable and has no intelligible
.
differentia.
6. Another claim that has been raised by the
petitioners is with respect to re-designation of the post of
Laboratory Attendant to that of Laboratory Assistant as
has allegedly been done in the Departments of Technical
Himachal Pradesh.
r to
Education, Horticulture and Health in the State of
7. Further grievance of the petitioners is that
they have no promotional avenues. Even the benefit of
Assured Career Progression Scheme, has not been made
available to them.
8. Petitioners have also pleaded that they have
regularly been performing the duties of Clerks in their
respective institutions at the asking of superior officer(s).
On such count also, petitioners have claimed parity with
the scale of the Clerks.
9. Respondents have contested the claim of the
petitioners, on the ground that the petitioners cannot
seek parity with other categories like Clerks as the cadre
of Clerks is entirely different. The matters regarding pay
scale are decided by the Government after taking into
.
consideration the category of the employees, nature of
duties, responsibilities and qualifications etc. According
to respondents, the nature of duties, R&P rules and
qualifications for the category of Clerks are entirely
different than the category of petitioners. It has further
been submitted that two posts carrying the same pay
scale at a particular time does not justify grant of same
pay scale after general revision of pay scales. The State
can deviate in financial matters concerning its employees
by taking a particular view in consideration of the
factors such as cadre, qualification, nature of duties and
responsibilities attached to a particular post etc. The fact
that the category of petitioners have been divested from
the benefit of Assured Career Progression Scheme has
been denied. It has also been denied that the Laboratory
Attendants have no avenues for promotion.
10. I have heard learned counsel for the parties
and have also gone through the record of the case
carefully.
11. The scope of judicial review in the matters
concerning grant of pay scales, its revision and related
.
issues is well defined. The Court should interfere only
when the administrative action is palpably unreasonable,
unjustified and prejudicial to a section of employees.
Reference in this regard can be made to the judgment
passed by Hon'ble Supreme Court in Haryana State
Minor Irrigation Tubewells Corporation and others
Vs. G.S. Uppal and Others, (2008) 7 SCC 375, it has
been held as under:-
"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."
12. Similarly, in Shiba Kumar Dutta and Others
Vs. Union of India and Others, (1997) 3 SCC 545,
Hon'ble Supreme Court has deprecated the practice
adopted for invidious discrimination and denial of equal
treatment by the employers to its employees.
.
13. Equally settled is the proposition that the
decision as to fixation of pay and its revision vis-a-vis
various categories of its employees is exclusive domain
of the government. These are the matters to be decided
by the experts and it is not for the Court to substitute its
own opinion. Similarly in the cases of parity in pay scales
on the basis of nature of duties and responsibilities, it
has been repeatedly held that the expert job cannot be
undertaken by the Court and in case of any challenge
being made on the ground of disparity the burden of
proof in establishing parity in pay scales and nature of
duties as also responsibilities is on the person claiming
such right.
14. In Punjab State Power Corporation Limited
Vs. Rajesh Kumar Jindal and Others, (2019) 3 SCC
547, it has been held as under:-
21. It is well settled that for considering the equation of posts
and the issue of equivalence of posts, the following factors
had been held to be determinative:-
(i) The nature and duties of a 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; and
(iv) The salary of the post (vide Union of India and Another v.
P.K. Roy and Others.
23. The burden of proof in establishing parity in pay scales
and the nature of duties and responsibilities is on the person
claiming such right. The person claiming parity must produce
material before the court to prove that the nature of duties
and functions are similar and that they are entitled to parity
of pay scales. After referring to number of judgments and
observing that it is the duty of an employee seeking parity of
pay to prove and establish that he had been discriminated
against, this Court, in SAIL, held as under:-
"22. It is the duty of an employee seeking parity of
pay under Article 39(d) of the Constitution of India to
prove and establish that he had been discriminated
against, as the question of parity has to be decided on
consideration of various facts and statutory rules, etc.
The doctrine of "equal pay for equal work" as
enshrined under Article 39(d) of the Constitution read
with Article 14 thereof, cannot be applied in a
vacuum. The constitutional scheme postulates equal
pay for equal work for those who are equally placed
in all respects. The court must consider the factors
like the source and mode of recruitment/appointment,
the qualifications, the nature of work, the value
thereof, responsibilities, reliability, experience,
confidentiality, functional need, etc. In other words,
the equality clause can be invoked in the matter of
pay scales only when there is wholesome/wholesale
identity between the holders of two posts. The burden
of establishing right and parity in employment is only
on the person claiming such right. (Vide U.P. State
.
Sugar Corpn. Ltd. and Another v. Sant Raj Singh and
Others (2006) 9 SCC 82, Union of India and Another
v. Mahajabeen Akhtar (2008) 1 SCC 368, Union of
India v. Dineshan K.K (2008) 1 SCC 586, Union of
India and Others v. Hiranmoy Sen and Others (2008) 1
SCC 630, Official Liquidator v. Dayanand and Others (2008) 10
SCC 1, U.P. SEB and Another v. Aziz Ahmad (2009) 2 SCC 606
and State of M.P. and Others v. Ramesh Chandra Bajpai (2009)
13 SCC 635)".
31. Though the above arguments of the respondents appear
to be attractive, when considered in the light of the well
settled principles, we find no merit in the contention.
Equation of posts and revision of pay scale is within the
domain of the Government. The matter should be left to the
discretion and expertise of the Pay Committee and the
Government to take the decision on the scale of pay/revision
of pay scale by considering the nature of duties and
responsibilities. As pointed out earlier, the Pay Anomaly
Committee has given elaborate reasons for revising the pay
scales of the Head Clerks at Rs.2000-3500 and Internal
Auditors at Rs.1800-3200. The conclusion arrived at by the
experts/Pay Anomaly Committee are not susceptible to
judicial review and the courts are not to interfere with the
decision of the Government which is based on the opinion of
the experts."
15. In Punjab State Electricity Board and
Another Vs. Thana Singh and Others, (2019) 4 SCC
113, Hon'ble Supreme Court has held that it is for the
employer to classify its employees/posts on the basis of
qualifications, duties and responsibilities of the posts
.
concerned and to prescribe different pay scales
accordingly. Article 14 of the Constitution of India, would
get attracted only if there is discrimination between same
set of employees not otherwise.
16. A Division Bench of this Court while deciding
LPA No. 445 of
2012,
21.11.2016 after placing reliance
r vide its judgment
on State of Punjab
dated
and Others Vs. Jagjit Singh and Others, Civil Appeal
No. 213 of 2013, decided on 26.10.2016, have observed
as under:-
"27. However, the aforesaid submissions of the petitioners
cannot be accepted in teeth of the ratio laid down by Hon'ble
Supreme Court in Jagjit Singh's case supra, wherein the
Hon'ble Supreme Court has categorically held that 'onus of
proof' of parity in the duties and responsibilities of the
subject post with the reference post, under the principle of
'equal pay & equal work', lies on the person who claims it
and it is for him to establish that the subject post occupied by
him, requires him to discharge equal work of equal value, as
the reference post. For this purpose the employees concerned
with whom equation as is sought should be performing work,
which besides being functionally equal should be of same
quality and sensitivity.
28. Further, in determining equality of functions and
responsibilities, it would be necessary to keep in mind that
the duties of the two posts should be of equal sensitivity and
.
qualitatively similar. Differentiation of pay-scales for posts
with difference in degree of responsibility, reliability and
confidentiality, would fall within the realm of valid
classification and therefore, pay differentiation would be
legitimate and permissible. Therefore, the person holding the
same rank/designation but having dissimilar powers, duties
and responsibilities can be placed in different scales of pay,
and cannot claim the benefit of the principle of 'equal pay for
equal work'.
29. It has been reiterated in Jagjit Singh case (supra)
rthat parity in pay, under the aforesaid principal of 'equal pay
for equal work' cannot be claimed merely on the ground, that
an earlier point of time, the subject post and the reference
post were placed in the same pay scale. The principle 'equal
pay for equal work' is applicable only when it is shown, that
the incumbent of the subject post and the reference post
discharge similar duties and responsibilities while claiming
parity in pay scales under principle of 'equal pay for equal
work' equation in the nature of duties is of paramount
importance and there is no comparison between one set of
employees in one organization and another set of employees
in different organisations, there can be no question of
equation of pay scale under this principle."
17. In view of above exposition of law, the defence
raised on behalf of the respondents that they have the
prerogative and right to classify various categories of its
employees for the purposes of grant of pay scales
requires to be upheld. Noticeably, in the fact of the
instant petitions, petitioners have not placed on record
.
any quantifiable data to suggest that by application of
requisite parameters, the post of Laboratory Attendant
was equivalent to the post of Clerk or Junior Technician
or any other category of employees for that matter.
18. Having observed as above, in my considered
view, the facts in the instant petitions are required to be
looked at from another perspective also.
19. Till the general revision of pay scales on
01.01.2006, the pay scale allowed to the category of
petitioners was the same as granted to the Clerks and
Junior Technicians. The disparity arose when 2012 Rules
were enforced. Evidently, these rules have been framed in
exercise of powers vested in the State by virtue of proviso
to Article 309 of the Constitution of India.
20. The 2012 Rules by themselves do not suggest,
as to what, was the purpose of such revision.
Respondents in their reply have submitted in general
terms that it is their prerogative to grant a particular pay
scale to a particular category of employees. The
parameters on which the exercise was undertaken to
revise the pay scale vide 2012 Rules, have not been spelt
.
out. There is no explanation much less any plausible
reason which had weighed with respondents to deny
revision of pay scale to the category of petitioners on
enforcement of 2012 Rules.
21. Notwithstanding all other aspect, it cannot
remain unnoticed that one of the important factors for
revising pay scale is the rise in price index. The
assumption to that effect will not be unfounded and
unreasonable. That being so, it is not understandable, as
to how, an exception has been carved in the case of
Laboratory Attendants.
22. This Court is not at all suggesting the revision
of pay scale in the case of petitioners at a particular rate,
however, the observations are being made on the
premise that in case the necessary exercise had not
been undertaken, the vulnerability of administrative
action to judicial review cannot be avoided.
23. In my considered view, interference is required
by this court to the limited extent by issuing suitable
direction to the respondents as under. These petitions are
accordingly disposed of with directions to the
.
respondents to reconsider the case of the petitioners for
suitable revision in their pay scale, keeping in view the
rise in price index, if such factor was applied as one of
the parameters while granting revision of pay scales to
other categories under 2012 Rules. The entire exercise
24.
r to
will be completed within eight weeks.
List for compliance on 06.12.2023.
25. Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Satyen Vaidya)
28th September, 2023 Judge
(sushma)
