IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4063/2008 Reserved on:19.6.2009 Decided on:8.9. 2009 ________________________________________________ Sanjeev Kumar Mahajan and others. …Petitioners. Versus State of Himachal Pradesh and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioners : Mr.Dilip Sharma, Advocate. For the Respondents: Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajindger Dogra, Addl. A.G. _______________________________________________________ Rajiv Sharma, Judge . The petitioners are working as Auditors in respondent No.2- Department. The petitioners have joined respondent No.2- Department after exercising their options on the basis of notification dated 30.5.1980. The pay scale of the petitioners was revised from Rs. 510-1080 to Rs. 1500-2640 vide notification dated 23.3.1989. Thereafter on the basis of notification dated 25.6.1992, the State Government has decided to revise the pay scale from Rs. 1500-2640 1 Whether reporters of the local papers may be allowed to see the judgment? 2 to Rs.1800-3200 for the incumbents, who were working as Auditors for five years. Thereafter the State Government vide notification dated 31.7.1995 decided to accord pay scale of Rs. 1800-3200 to the incumbents who were appointed on or before 23.7.1990. Mr. Dilip Sharma, Advocate has vehemently argued that though the petitioners are similarly situate and are discharging the same duties which are being discharged by the Auditors in the respondent No.2-Department, however, they have been discriminated against by the respondents by not granting them the pay scale of Rs. 1800-3200 with effect from 1.1.1986. He then argued that the respondent-State at its own level has decided to grant the pay scale of Rs. 1800-3200 to the Auditors in Local Audit Department as well as in the Department of Food and Supplies. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the pay scale is required to be released to the petitioners on the basis of Punjab pattern. He has justified the action of the State Government not to grant the pay scale of Rs. 1800- 3200 to the petitioners with effect from 1.1.1986. I have heard the leaned counsel for the parties and have perused the pleadings carefully. What emerges from the pleadings of the parties is that the petitioners were permitted to join their duties as Auditors in respondent No.2-Department. The State Government has taken a decision vide Annexure A-3 dated 25.6.1992 to grant pay scale of Rs. 1800-3200 to the incumbents who had completed five years service as Auditors. Thereafter the pay scale of Rs. 1800-3200 has been granted to those incumbents, who were appointed on or before 3 23.7.1990 as Auditors. The persons working as Auditors in the Local Audit Department have been granted the pay scale of Rs. 1800-3200 vide Annexure A-5. The same scale was granted to the Auditors working in the Food and Supply Department vide Annexure A-6. The petitioners made representation to respondent No.2. Respondent No.2 forwarded the same to respondent No.1 recommending the case of the petitioner for the release of pay scale of Rs. 1800-3200 to the petitioners. The grievance of the petitioners was not redressed. The petitioners filed OA No. 1041/96 before the erstwhile Himachal Pradesh Administrative Tribunal. The same was ordered to be treated as representation by the competent authority. It was rejected on 7.7.1997 vide Annexure A-9. The petitioners are working as Auditors. They are discharging the same duties, which are being discharged by the Auditors, who had put in five years of service and were appointed before 23.7.1990. Their mode of recruitment, qualification, functions and duties are same. There is no valid explanation why the petitioners have been discriminated against by not releasing the pay scale of Rs. 1800-3200 with effect from 1.1.1986. The respondents have created classification within classification which is not permissible under law. The respondents have treated similarly situate persons differently. The pay scale of Rs. 1800-3200 has been granted to the persons, who have served for five years vide decision dated 25.6.1992. The respondents have further created the classification by restricting the pay scale of Rs. 1800-3200 only to those incumbents who were appointed on or before 23.7.1990. The petitioners were required to be granted the same pay scale irrespective of their date of appointment 4 as Auditors and whether they had put in five years of service or not as Auditors. The respondent-State in its own wisdom has granted the pay scale of Rs. 1800-3200 to the incumbents working in the Local Audit Department and Department Food Supplies vide decision dated 8.9.1995 and 28.10.1995. The representation made by the petitioners was favourably recommended by respondent No.2, as noticed above. The only reason assigned by respondent-State not to grant the pay scale of Rs. 1800-3200 to the petitioners with effect from 1.1.1986 is on the basis of Punjab pattern. It is evident from the pleadings that in the State of Himachal Pradesh, there is no post of Junior Auditor and the nomenclature of the Auditors is the same. However, in the State of Punjab, there is a post of Senior Auditor but in the pay scale of Rs. 1800-3200. The fact of the matter is that the plea of Mr. R.K. Sharma that the pay scale is to be granted on the basis of Punjab pattern cannot be accepted for the simple reason that the respondents have already granted the pay scale of Rs. 1800-3200 to the Auditors working in the respondent No.2-Department. However, it has been restricted to the incumbents who have already put in five years of service and those who were appointed on or before 23.7.1990. The respondent-State has also granted the pay scale of Rs. 1800-3200 to the Auditors working in the Local Audit Department and Department of Food Supply. The petitioners have thus been discriminated against by the respondents by disallowing them the pay scale of Rs. 1800-3200 with effect from 1.1.1986. It is true that it is for the employer to prescribe the pay scales and to maintain the parity. In the present case, however, the petitioners are similarly situate and working as Auditor in the same 5 Department on the basis of same qualification and source of recruitment. The pay scale paid to the employees should be based on rationale principle and the sole basis cannot be that the similar scale is not available in the State of Punjab. In the present case, similarly situate Auditors were working in the Local Audit Department and Department of Food and Supplies have been paid the pay scale of Rs. 1800-3200. No distinction has been shown in the duties being discharged by the Auditors working in the Local Audit Department vis- à-vis the Department where the petitioners are working as Auditor. The respondents have divided the homogenous class of Auditors without there being any rationale. There is no intelligible differentia so as to distinguish the Auditors, who had put in five years service or were appointed on or before 23.7.1990 and appointed after 23.7.1990. There is also no nexus sought to be achieved by depriving the petitioners of their legitimate right to get the pay scale of Rs. 1800- 3200 at par with the colleagues, who are working in the same Department and also in the Local Audit Department and Department of Food and Civil Supplies. In case they had been working with the Local Audit Department, they would have got the pay scale of Rs. 1800-3200 irrespective of their date of appointment. The respondents cannot treat equals as unequals. Their Lordships of the Hon’ble Supreme Court in Union of India versus Dinesh K.K., (2008) 1 SCC 586 have held that though the scope of judicial review is very limited, however, if the decision taken by the employer is unreasonable and arbitrary, the Court can intervene. Their Lordships have held as under: 6 “12. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors. , a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India . Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right. 13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & 7 Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association. Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.” Similarly, their Lordships of the Hon’ble Supreme Court in Haryana State Minor Irrigation Tube-wells Corporation and others versus G.S. Uppal and others, (2008) 7 SCC 375 have 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 8 material and relevant factors. [see K.T. Veerappa & Ors. v. State of Karnataka & Ors. (2006) 9 SCC 406].” Consequently, after taking into consideration the educational qualifications, nature of duties, functions and source of recruitment of the petitioners as Auditors, they are held entitled to be treated at par with the Auditors working in the same Department as also in the Local Audit Department and Department of Civil Supplies. Accordingly, the petition is allowed. The respondents are directed to grant the petitioners’ pay scale of Rs. 1800-3200 with effect from the date their colleagues have been granted the same vide Annexure A-4 dated 31.7.1995 on the principle of “equal pay for equal work”. The monetary benefits shall be released to the petitioners along with interest @ 9% per annum within a period of eight weeks from today. No costs. (Rajiv Sharma), J. 8.9. 2009. *awasthi*