Binay Kumar vs The State Of Jharkhand
2021 Latest Caselaw 380 Jhar

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                  IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 693 of 2016

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Binay Kumar, son of late Darwari Sahni, resident of Indraprastha Colony, near Indraprastha Public School, Jora Talab, Bariatu, PO & PS-Bariatu, District-Ranchi ..... Petitioner

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1.The State of Jharkhand, through the Principal Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Nepal House, Doranda, PO & PS-Doranda, District-Ranchi

2.The Director in Chief, Halth Services, Government of Jharkhand, Namkum, PO and PS Namkum, District Ranchi

3.The Director, Rajendra Istitute of Medical Sciences, Bariatu, PO and PS- Bariatu, District Ranchi

4.The Secretary, Finance Department, State of Jharkhand, having office at Project Building, Dhurwa, PO and PS Dhurwa, District Ranchi ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Kripa Shankar Nanda, Advocate For Resp.-State :- Ms. Amrita Baneerjee, Advocate For Resp.RIMS :- Dr. Ashok Kumar Singh, Advocate

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15/27.01.2021 Heard Mr. Kripa Shankar Nanda, the learned counsel for the

petitioner, Ms. Amrita Banerjee, the learned counsel for the respondent

State and Dr. Ashok Kumar Singh, the learned counsel for the respondent

RIMS.

2. The petitioner has filed this writ petition for quashing the

order dated 18.12.2015 whereby the claim of the pay scale of Laboratory

Technician instead of Mediaman has been rejected so far the petitioner is

concerned. The further prayer is made for direction to pay the pay scale

of Laboratory Technician in view of the fact that the work of Mediaman

and Laboratory Technician are of same and both the posts have been

amalgamated by the Government vide Resolution dated 30.11.1972.

3. The petitioner was appointed on the post of Mediaman on

24.01.2000 in the Department of Microbiology of RIMS, Ranchi on

compassionate ground as his father late Darwari Sahni died in harness.

4. The appointment of the petitioner was recommended by the

District Establishment Committee headed by the Deputy Commissioner,

Ranchi and the service of the petitioner has been confirmed by the order

dated 12.07.2010. The petitioner is working in the Department of

Microbiology at RIMS, Ranchi as Mediaman and receiving the salary of

Mediaman from the Department. In the year 1972 the State Government

had come up with a resolution vide Resolution dated 30.11.1972 and

revised the pay scale of government employees including the employees

of RIMS and in the said resolution, the pay scale of Mediaman and

Laboratory Technicians were made similar. The State of Bihar also came

with a resolution dated 30.01.1990 whereby the pay scale of Mediaman

and Laboratory Technician was amalgamated.

5. Mr. Nanda, the learned counsel for the petitioner submits

that the petitioner is also entitled for the pay scale of Laboratory

Technician/Lab. Assistant in view of the fact that the similar pay scale the

petitioner was getting. He refers to resolution dated 30.11.1972. He

submits that the Laboratory Technicians were appointed on the pay scale

of Rs.105-155/- which was enhanced to Rs.220-315/-. He submits that

Mediaman's pay scale was Rs.100-130/- which was enhanced to Rs.220-

315/- and by way of referring this, he submits that in view of the earlier

fixation of salary of Mediaman as Rs.220-315/-, it is clear that the

Laboratory Technician pay scale was provided to the Mediaman. He

submits that the petitioner is not claiming any promotion and only he is

claiming parity of scale. He further submits that the case of one Bharat

Singh who was also a Mediaman has approached Hon'ble Patna High

Court in CWJC No.7258/1997 which was allowed.

6. Per contra, Dr. Ashok Kumar Singh, the learned counsel for

the respondent RIMS by way of referring the same resolution submits

that Mediaman scale was Rs.100-130/- Laboratory Technicians were

appointed on the scale of Rs.120-225/-. He submits that initially scale

itself is lower of the Mediaman in comparison to the Laboratory

Technician. He submits that the petitioner has earlier moved before this

Court in W.P.(S) No.2490 of 2013 which was disposed of directing the

respondent no.2- Director in Chief, Health Services to consider the case

of the petitioner in accordance with law and now the Director in Chief,

Health Services pursuant to that has passed the reasoned order and

there is no illegality in the impugned order. He submits that the posts of

Mediaman, Laboratory Assistant and Laboratory Technician have always

been separate and that is why there is different pay scales, nature of

work and corresponding responsibilities. The two posts of Laboratory

Assistant and Laboratory Technician were merged and unified as a single

post of Laboratory Technician but the different post of Mediaman was not

merged with that of Laboratory Technician. He submits that the petitioner

is not entitled for the same pay scale as of Lab. Assistant and Lab.

Technician. He further submits that the High Court in such disputed

question of fact with regard to fixation of pay scale may not interfere as

it is settled law in view of plethora of judgments of the Hon'ble Supreme

Court. He refers to the case of "Punjab SEB v. Thana Singh, (2019) 4 SCC

113", paragraph nos.10 and 11, which are quoted hereinbelow:

"10. It is fairly well settled that equation of pay scales must be left to the Government and on the decision of the experts and the Court should not interfere with it. Observing that equation of pay scales of posts must be left

to the Government and the experts, in SAIL v. Dibyendu Bhattacharya, this Court held as under: (SCC p. 133, para

26) "26. In Union of India v. S.L. Dutta, Union of India v. N.Y. Apte, State of U.P. v. J.P. Chaurasia and Kshetriya Kisan Gramin Bank v. D.B. Sharma, this Court held that the determination that two posts are equal or not, is a job of the Expert Committee and the court should not interfere with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous considerations. More so, it is an executive function to fix the service conditions, etc. and lies within the exclusive domain of the rule-making authority. (See also T. Venkateswarulu v. Tirumala Tirupathi Devasthanams.)"

11. In S.C. Chandra v. State of Jharkhand, observing that the grant of pay scales is a purely executive function and the court should not interfere with the same, this Court held as under: (SCC pp. 292-94, paras 33 & 35) "33. It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen.

35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay)."

7. By way of referring this judgment, Dr. Singh, the learned

counsel submits that in such disputed question of fact and selection

process are in the parameter of the expert committee to fix the scale. He

submits that the case of the petitioner is fit to be rejected. He further

relied in the case of "Punjab State Power Corpn. Ltd. v. Rajesh Kumar

Jindal"(2019) 3 SCC 547, paragraph no.14, which is quoted hereinbelow:

"14. Ordinarily, the courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission, etc. The aggrieved employees claiming parity must establish that they are unjustly treated by arbitrary action or discriminated. In Kshetriya Kisan Gramin Bank v. D.B. Sharma, this Court held as under: (SCC p. 363, para 7) "7. The next question that arises for consideration is, as to what extent the High Court would be justified in exercise of its extraordinary jurisdiction under Article 226 to interfere with the findings of an expert body like the Equation Committee. In State of U.P. v. J.P. Chaurasia, this Court unequivocally held that in the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like the Pay Commission, and such expert body would be the best judge to evaluate the nature of duties and responsibilities of the posts and when such determination by a commission or committee is made, the court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration."

8. By way of relying on this judgment, Dr. Singh, the learned

counsel submits that the task or the job of evaluation is required to be

left upon the expert bodies for such fixation. He further refers to the case

of Dr. Anil Kumar Kamal and Another v. State of Jharkhand and Others,

2019 (4) JBCJ 553(HC). By way of relying on this judgment, he submits

that in view of this judgment, this Court may not interfere under Article

226 of the Constitution of India, it is within the domain of the high power

committee and the learned Single Judge has also held to that effect in

the case of Dr. Anil Kumar Kamal" case (supra). He further submits that

vide notification dated 05.10.1991, the Government has come out with

the regulation that the person appointed on the post on the

compassionate basis will not be entitled for a change of cadre or post.

9. Ms. Amrita Banerjee, the learned counsel appearing for the

respondent State accepts the argument of Dr. Singh, the learned counsel

appearing on behalf of the respondent RIMS mutatis mutandis. She

submits that in the earlier round of litigation also this Court has only

directed to consider the case of the petitioner and which has been

considered and the impugned order has been passed. She submits that

so far as CWJC No.7258 of 1997 is concerned in the case of "Bharat

Singh" case that was with regard to one person and this aspect of the

matter has been considered by the competent authority while passing the

reasoned order.

10. Having heard the learned counsels appearing on behalf of

the parties the Court has gone through the materials available on record.

On perusal of the documents on which the learned counsel for the

petitioner as well as the respondent RIMS have relied, it transpires that

initial pay scale of Mediaman was fixed at Rs.100-130/- and of Assistant

Laboratory Technician was fixed at Rs.120-225/- which was revised at

Rs.220-350/- . There is no doubt that the Mediaman was initially provided

the pay scale of Rs.100-130/- but such document speaks that the pay

scale of Rs.220-315/- was provided to the Mediaman, but this fact is

being disputed on the ground that the posts were only merged and

Mediaman post was not merged and that is why the petitioner is not

entitled for the pay scale. The judgment relied by Dr. Singh, the learned

counsel in the cases of "Punjab SEB v. Thana Singh" and "Punjab State

Power Corpn. Ltd. v. Rajesh Kumar Jindal" (supra) are restraining this

Court to pass any positive order under Article 226 of the Constitution of

India. There is no doubt that the matter of pay fixation is required to be

fixed by the expert body and in view of well settled proposition of law,

without interfering with the impugned order, the petitioner is set at liberty

to approach the respondents with representation annexing all the

relevant documents and the respondents are directed to consider this

aspect of the matter that the Mediaman was also provided the pay scale

of Rs.220-315/- in view of the resolution dated 30.11.1972 and

accordingly this requires to be re-examined by the committee for

rectifying the pay anomaly. On receipt of such representation, the

concerned Department shall examine this matter in the light the

discussions made hereinabove and will place it before the committee. The

respondent State may constitute a committee to examine this aspect of

the matter and will pass the order subsequently after receiving the report

from such committee within a period of 12 weeks.

11. The writ petition [W.P.(S) No.693 of 2016] stands

disposed of.

( Sanjay Kumar Dwivedi, J) SI/,