Court No. 23
Reserved on 17.12.2009
Delivered on 22.01.2010
Civil Misc. Writ Petition No. 55464 of 2002
Ram Lakhan and others
Versus
State of U.P. and others
Hon'ble V.K.Shukla,J
Present writ petition has been filed by petitioners for quashing
of the order dated 26.10.2002 passed by Chief Secretary Government
of U.P. at Lucknow rejecting the demand of petitioners for according
them salary as is admissible to Surveyor/ Assistant Surveyor of other
department and further prayer has been made that a writ in the
nature of mandamus be issued directing respondent no. 1 to publish
Surveyor Service Rules of Irrigation Department ignoring the order
dated 13.02.1998 wherein post of Surveyor/Assistant Surveyor has
been declared to be dead cadre.
Brief background of the case is that petitioners were appointed
somewhere in the year 1983 to 1985 on the post of Surveyor/
Assistant Surveyor in Tubewell Division of Irrigation Department.
Petitioners have come out with the case that qualification, source of
selection, nature of work/duty obligation are similar to the work and
conduct of Surveyor/ Assistant Surveyor of other department of the
Central and State Government. In this background on the basis of
equal pay for equal work, similar salary should be made admissible to
petitioners also. Petitioners have contended that Surveyor Association
espoused the said case before Samta Samiti in the year 1989 and
Samta Samiti submitted its report to the Chief Secretary in the year
1989 recommending therein to remove the anomalies in pay of
Surveyor/ Assistant Surveyor of the Irrigation Department for paying
similar pay of the other department of Central Government and State
Government. It has been stated that thereafter on the said
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recommendation of the Samta Samiti and on the basis of direction of
Chief Secretary of Samiti, Pay Scale Committee was constituted on
19.08.1990 comprising of Chairman-Chief Engineer (Nalkoop-World
Bank); Sanyojak Sadasya, Staff Adhikari (Nalkoop- World Bank) and
Member- Staff Adhikari. Said Committee asked Pramukh Abhiyanta
(Engineer in-Chief) Irrigation Department to submit its report and on
05.04.1991, State Government asked the Pramukh Abhiyanta
(Engineer in-Chief) Irrigation Department for removing anomalies in
pay scale of Surveyor/ Assistant Surveyor of Irrigation Department.
Pay Scale Committee submitted its report wherein it has been stated
that qualification, work and duties of the Surveyor/ Assistant
Surveyor of Irrigation Department are similar to other department of
the Central Government and Forest Department of State of U.P. and
said report was sent to State Government on 12.04.1991 for
providing Government acceptance. On 10.03.1995 Joint Secretary,
Irrigation Department also called the proposal of pay scale for
Surveyor/ Assistant Surveyor. It has been stated that thereafter it
was resolved for publication of Surveyor/Assistant Surveyor Service
Rules of the Irrigation Department. Petitioners have further
contended that pursuant to same recommendation dated 10.05.1995
was sent. Petitioners have further contended that in spite of said
recommendation being made nothing was done and in between
decision was taken to declare the post of Surveyor/Assistant Surveyor
as dead cadre on 13.02.1998. Petitioners have further stated that as
nothing was being done, Civil Misc. Writ Petition No. 10687 of 2002
(Ram Lakhan and others Vs. State of U.P. and others) had been filed
and said writ petition has been disposed of vide judgment and order
dated 19.03.2002 with a direction that Chief Secretary to decide the
matter. Petitioners have further contended that thereafter detailed
representation was moved and order dated 26.10.2002 has been
passed rejecting the claim of the petitioners.
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Counter affidavit has been filed and therein stand has been
taken that pursuant to order dated 19.03.2002 passed by this Court
matter was taken up by Chief Secretary of Government of U.P. and
decision was taken on 26.10.2002. Details have also been given that
for carrying survey work, Surveyor/Assistant Surveyor have been
inducted and accepting the eligibility criteria, subsequent to the same
decision has been taken on 13.02.1998 for declaring the said cadre
as dead cadre. Details have also been furnished that functioning of
Surveyor of the Irrigation Department is altogether different to the
functioning of Surveyor of other department and as far as posts
which are available in the Irrigation Department of Surveyor/
Assistant Surveyor in the State of U.P. there is no corresponding post
available in the Central Government and in this background on the
basis of recommendation made by Samta Samiti w.e.f. 01.01.1986 as
per Sambadh pay scale (attached pay scale), has been accorded and
same has been revised. Details have also been given as to under
what circumstance decision was taken to declare the cadre in
question as dead cadre.
Rejoinder affidavit has been filed and therein it has been stated
that qualification for appointment on the post of Surveyor/Assistant
Surveyor are identical, and same are provided by Government Order
dated 21/24.09.1983 and 15.12.1983. In respect of cadre being
declared as dead cadre, averments have been mentioned that it is
malafide move. It has also been stated that post of Surveyor/Senior
Surveyor/Superintendent Surveyor are continuing in the Irrigation
Department since 1960. Post of Assistant Surveyor has been created
in the year 1963 whereas World Bank Pariyojana started in the year
1980, in this background it has been sought to be suggested that
petitioners have got no concerned about same motives has been
sought to be imputed in respect of non-implementation of the Rules.
Supplementary counter affidavit has also been filed and therein
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copy of the Government Order dated 08.01.2007 and 04.07.2002 and
copy of the recommendation and copy of charts have been
appended.
Supplementary rejoinder affidavit has also been filed and
therein copy of the judgment passed by this Court and copy of the
Government Orders have been appended.
After pleadings mentioned above have been exchanged,
present writ petition has been taken up for final hearing and disposal
with the consent of the parties.
Sri P.C. Singh, learned counsel for the petitioners contended
with vehemence that in the present case order dated 26.10.2002
passed by Chief Secretary, Government of U.P. proceeding to reject
the claim of the petitioners for grant of similar pay scale as
admissible to Surveyor/Assistant Surveyor of Forest Department is
based on mere surmises and conjecture and no real exercise
whatsoever has been undertaken as is formulated under the policy
holding the field to see and ensure that on the basis of principle of
equal pay for equal work petitioners and other similarly situated
incumbents are entitled for similar salary and similar pay scale, as is
admissible to incumbents of other State Department in this
background order which has been passed is unsustainable and is
liable to be quashed.
Countering said submission learned Standing Counsel Sri A.K.
Upadhyay, on the other hand contented that fixation of pay scale etc.
is the job of expert and in said process nature of work and duties as
well as various other factors including mode of selection, eligibility
criteria are to be looked into by the experts and here requisite
exercise has been undertaken and thereafter claim of the petitioners
has been rejected, as such writ petition as it has been framed and
drawn is liable to be dismissed as expert body has already taken
decision and whatever pay scale was admissible same has been
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made admissible to the petitioners and same has been
correspondingly revised also.
After respective arguments have been advanced factual
position which is emerging in the present case is that petitioners
have been performing and discharging their duties as
Surveyor/Assistant Surveyor. Petitioners have set up their claim for
ensuring them similar pay scale as was admissible to
Surveyor/Assistant Surveyor of the Forest Department. On
10.05.1995 Pramukh Abhiyanta (Engineer in-Chief) Irrigation
Department had made recommendation for ensuring said pay scale
to Surveyor/Assistant Surveyor of the Irrigation Department as was
admissible to Surveyor/Assistant Surveyor of the Forest Department.
Demand was being raised by State Government employees that
State Government employees should also be accorded similar pay
scale as corresponding staff of Central Government establishments
were being paid. State Government in its wisdom in the year 1988
constituted Samta Samiti for said purpose. Said Samta Samiti in its
wisdom on the basis of material produced before it qua the posts qua
which corresponding posts were available in the Central Government,
same pay scale was made admissible and wherever Samta Samiti
found that in the Central Government establishments Corresponding
posts are not available then recommendations were made to ensure
pay scale as per Sambadh pay scale (attached pay scale). Pursuant
to the said recommendation, attached formula pay scales were made
admissible. Prior to 01.01.1986 pay scale which was admissible to
Surveyor was of Rs. 354-550 and Assistant Surveyor of Rs. 330-495
and w.e.f. 01.01.1986 it was revised to Rs. 950-1500/- and Rs. 825-
1200/- and subsequently revised pay scale of the said cadre has been
Rs. 3050-4590 and Rs. 2750-4400/- as per recommendation of Pay
Commission (1997-1999). The Chief Secretary has proceeded to
mention based on the principle that as equalisation was to be seen
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vis-a-vis corresponding posts available in the Central Government, as
such whatever fixation has been made, same has been made
accordingly and attached pay scale has been accorded after
01.01.1986, there is no provision of inter se comparison of posts
within the State qua different departments.
Hon’ble Apex Court in the case of State of Haryana and
others Vs. Charanjit Singh and others reported in AIR 2006
SC 161 has clarified legal position vis-a-viz equal pay for equal work
by mentioning same has no mechanical application in every case.
Relevant extract of aforesaid judgement paragraphs 17 and 18 are
being extracted below:
“17. Having considered the authorities and the submissions we
are of the view that the authorities in the cases of Jasmer Singh, Tilak
Raj, Orissa University of Agriculture and Technology and Tarun K. Roy,
lay down the correct law. Undoubtedly, the doctrine of “equal pay for
equal work” is not an abstract doctrine and is capable of being enforced
in a Court of law. But equal pay must be for equal work of equal value.
The principle of “equal pay for equal work” has no mechanical
application in every case. Article 14 permits reasonable classification
based on qualities or characteristics of persons recruited and grouped
together, as against those who were left out. Of course, the qualities or
characteristics must have a reasonable relation to the object sought to
be achieved. In service matters, merit or experience can be a proper
basis for classification for the purposes of pay in order to promote
efficiency in administration. A higher pay scale to avoid stagnation or
resultant frustration for lack of promotional avenues is also an
acceptable reason for pay differentiation. The very fact that the person
has not gone through the process of recruitment may itself, in certain
cases, make a difference. If the educational qualifications are different,
then also the doctrine may have no application. Even though persons
may do the same work, their quality of work may differ. Where persons
are selected by a Selection Committee on the basis of merit with due
regard to seniority a higher pay scale granted to such persons who are
evaluated by competent authority cannot be challenged. A classification
based on difference [1997 AIR SCW 1057 2003 AIR SCW 3382 2003
AIR SCW 2513] in educational qualifications justifies a difference in pay
scales. A mere nomenclature designating a person as say a carpenter or
7a craftsman is not enough to come to the conclusion that he is doing
the same work as another carpenter or craftsman in regular service.
The quality of work which is produced may be different and even the
nature of work assigned may be different. It is not just a comparison of
physical activity. The application of the principle of “equal pay for equal
work” requires consideration of various dimensions of a given job. The
accuracy required and the dexterity that the job may entail may differ
from job to job. It cannot be judged by the mere volume of work. There
may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities made a difference.
Thus normally the applicability of this principle must be left to be
evaluated and determined by an expert body. These are not matters
where a writ court can lightly interfere. Normally, a party claiming equal
pay for equal work should be required to raise a dispute in this regard.
In any event the party who claims equal pay for equal work has to
make necessary averments and prove that all things are equal. Thus,
before any direction can be issued by a Court, the Court must first see
that there are necessary averments and there is a proof. If the High
Court, is on basis of material placed before it, convinced that there was
equal work of equal quality and all other relevant factors are fulfilled it
may direct payment of equal pay from the date of the filing of the
respective Writ Petition. In all these cases, we find that the High Court
has blindly proceeded on the basis that the doctrine of equal pay for
equal work applies without examining any relevant factors.
18. As stated above in all these cases the High Court has
followed a Full Bench decision of that Court. The Full Bench has also
observed that the essential ingredient is similarity. This would be
correct. However, at one stage the Full Bench observes that even if
some dispute is raised. That would be wrong law. In each case the
Court must satisfy itself that the burden of proving that the work and
conditions are equal is discharged by the aggrieved employee.
Hon’ble Apex Court in the case of Union of India and
another Vs. S.B. Vohra and others reported in 2004 SCC
(L&S) 363 has taken the view that High Court on the judicial side
should not ordinarily issue writ of or in the nature of mandamus to
Central/State Govt. to comply with the decision of the Chief Justice
but should instead refer the matter back to Central/State Govt. with
suitable directions and only exceptional cases High Court on the
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judicial side should interfere and that too with care and
circumspection.
“52. The High Court, however, should not ordinarily issue a
writ of or in the nature of mandamus and ought to refer the matter
back to the Central/State Government with suitable directions
pointing out the irrelevant factors which are required to be excluded
in taking the decision and the relevant factors which are required to
be considered therefore. The statutory duties should be allowed to
be performed by the statutory authorities at the first instance. In the
event, however, the Chief Justice of the High Court and the State are
not ad idem, the matter should be discussed and an effort should be
made to arrive at a consensus.
53. We are further of the opinion that only in exceptional
cases the High Court may interfere on the judicial side, but ordinarily
it would not do so. Even if an occasion arises for the High Court to
interfere on its judicial side, the jurisdiction of the High Court should
be exercised with care and circumspection.
54. As the matter has been pending for a long time and
keeping in view the fact and the situation obtaining herein, namely,
the officers holding the post of Private Secretaries to the Judges
have been given a particular scale of pay, we are of the opinion that
it is not a fit case wherein this Court should exercise its discretionary
jurisdiction.”
On the parameter as given, in the present case this much has
not been disputed that on 10.05.1995 recommendations were made
by Pramukh Abhiyanta (Engineer in-Chief) Irrigation Department in
favour of the petitioners. This much has also not been disputed that
in Central Government there are no corresponding posts available
and as such said benefits has not at all been given to the petitioner
and other similarly situated incumbents. Petitioners have been
claiming parity with Surveyor/Assistant Surveyor of the Forest
Department. In the order dated 26.10.2002 which has been passed
by Chief Secretary therein it has been mentioned that after
01.01.1986 there is no provision for inter se comparison of post with
other State department employees and comparing post of one
department to post of another department is prohibited.
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Chapter V of the recommendation of the Samta Samiti, 1989
clearly proceeds to mention at pages 22 to 23 of the supplementary
Counter Affidavit that where corresponding posts are not available in
the Central Government then attached pay scale should be accorded.
It has also been provided that at the point of time when the provision
is being made for according attached pay scale then apart from other
relevant considerations three relevant circumstances shall also be
kept in mind. Clause 5.5 (C) clearly proceeds to mention that there
should not be enough difference in reference of posts departmental
inter se department of the State. Thus, Clause 5.5 clearly reflects
that even at the point of time when attached pay scale is to be
accorded some exercise is to be undertaken and therein complete
prohibition is not at all there rather consideration is envisaged qua
inter se comparison of the pay scale of the other departments also,
so that it is ensured and there is no much disparity in grant and
fixation of pay scale. Consequently, in the facts of the case decision
which has been taken by Chief Secretary, Government of U.P. suffers
from manifest error on the face of it.
Consequently, order dated 26.10.2002 passed by Chief
Secretary, Government of U.P. is hereby quashed and set aside.
Matter is remitted back to be decided afresh in accordance with law
preferably within four months from the date of delivery of judgment.
With the above observations and directions present writ petition
is allowed.
No orders as to cost.
Dated : 22nd January, 2010
Dhruv