IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9501 of 1997 1. BIHAR RAJYA KUSTHA NIYANTRAN KARAMCHARI SANGH, through its General Secretary, Bachu Prasad Singh, son of late Prasadi, resident of Hilsa, District Nalanda, having its office at Swastha Bhawan, Mahendru, Patna and at present posted as Medical Social worker, Leprosy Control Unit, Sadar Hospital Campus, Jehanabad, District Jehanabad 2. Mansoor Alam Rashid, son of Abdul Rashid, resident of Mohalla Irki, P.s. and District Jehanabad, at present posted as Medical Social worker, Leprosy Control Unit, Jehanabad 3. Ram Swarath Prasad Yadav, son of Dineshwar Prasad Yadav, resident of village Ramganj, P.s. Ghosi, District Jehanabad, at present posted as Non-medical Attendant, Leprosy Control Unit, Jehanabad 4. Basudeo Pandey, son of late Ram Swaroop Pandey, resident of Mohalla Khara Kuan, Gulzarbagh, District Patna at present posted as Medical Social Worker, Leprosy Control unit, Jehanabad 5. Dhananjay Prasad Singh, son of late Satendra Pratap, resident of village Fetepur, P.S. Raghopur, District Vaishali, at present posted as Non-medical Assistant, Leprosy Control Unit, Jehanabad 6. Shyam Bihari Singh, son of Ram Kailash Singh, resident of village Bhabhana, P.s. and District Jehanabad, at present posted as Non- medical Assistant, Leprosy Control Unit, Jehanabad 7. Hari Ravi Das, son of Bhondu Ravidas, resident of village Sundarpur, P.S. Nadwan, District Patna at present posted as Medical Social Worker, Leprosy Control Unit, Jehanabad … Petitioners Versus 1. THE STATE OF BIHAR 2. The Secretary and Commissioner, Department of Finance, Govt. of Bihar 3. The Commissioner and Secretary, Department of Health, Medical Education & Social Welfare, Govt. of Bihar, Patna 4. The Deputy Secretary to Govt., Department of Finance, Govt. of Bihar, Patna 5. The Director-in-Chief, Health Services, Bihar, Patna 6. The State Leprosy Control Officer, Swastha Bhawan, Mahendru, Patna 2 7. The District Leprosy Officer, Jehanabad … Respondents ----------- 6. 29.7.2010 Heard Mr. Gyanand Roy, learned counsel for the petitioners and the counsel for the State. The prayer of the petitioners in this writ application reads as follows: “ This writ application has been filed for quashing of the letter no. 4285 dated 25.7.1996, issued under the signature of Deputy Secretary to Government, Department of Finance, Govt. of Bihar, by which request made by the Commissioner and Secretary, Department of Health, Bihar vide his letter no. 275 dated 18.10.1982 to the Pay Anomaly Removal Committee with regard to grant of pay scale of Rs. 785-1210 to Non- medical Assistant and Rs. 880-1510 to Medical Social Worker under Leprosy Control programme under Health Department has not been accepted as the Finance Department consider the pay scale of Rs. 730- 1080 and 785-1210 to Non-medical Assistant and Medical Social worker respectively, proper as has been accepted vide finance department resolution no. 224 dated 15.1.1987 and resolution no. 6021 dated 18.12.1989 in light of 3 recommendation of 4th Pay Revision Committee and 5th Pay Revision cum fitment committee. This application has also been filed for commanding the respondents to fix the scale of pay of the Non-medical Assistant in the pay scale of Rs. 785-1210 and Rs. 880-1510 for Medical Social Worker with effect from 1.4.1981 as has been recommended by the Commissioner and Secretary to Govt., Department of Health, Govt. of Bihar, Patna vide letter no. 275 dated 18.10.1982 as well as on the basis of equal pay for equal work principle.” With reference to the aforementioned prayer learned counsel for the petitioners would submit that the impugned order, as contained in Annexure 1 dated 25.7.1996 cannot be sustained in law, inasmuch as the observation and direction made by this Court in the order dated 4.9.1995 in C.W.J.C.No. 11623/1994 as with regard to considering the effect of the letter of the Health Commissioner dated 18.10.1982 was not at all considered in proper prospective. Mr. Roy while assailing the impugned order has also submitted that 4 if there were earlier pay parity of the post of Auxiliary Health Worker, Block Extension Educator and Non-Medical Assistant it was not open for the Government to allow higher scale of pay to Block Extension Educator and Auxiliary Health Worker leaving the Non- Medical Assistant, especially when in the letter of the Health Commissioner dated 18.10.1982 it has also come on record that the Block Extension Educators were earning promotion on the post of Non-Medical Assistant. He would, accordingly, submit that the order passed by the Finance Commissioner should be set aside and the petitioners should be allowed the pay scale granted to the Block Extension Educator and/or Auxiliary Health Worker. Counsel for the State, on the other hand, with the help of stand taken in the counter affidavit would submit that the order passed by the Finance Commissioner has not only considered the letter of the Health Commissioner dated 18.10.1982 but has also examined the grievance of the petitioner as with regard to parity of the post of Block Extension Educator vis-à-vis Non-Medical 5 Assistant. Counsel has also explained that till 3rd Pay Revision Committee the Non- Medical Assistant having requirement of qualification of Intermediate at the entry level being comparable to other Intermediate level post, such as Supply Inspector, Panchayat Supervisor, Circle Inspector were drawing the same pay scale but when the qualification for the post of Supply Inspector, Panchayat Supervisor and Circle Inspector was enhanced to graduation they were given the higher scale of pay. Counsel in this context has also explained that earlier there was a post of Extension Educator but subsequently in view of the programme of the Government of India a post of Block Extension Educator came into existence for which again the qualification was enhanced from Intermediate to graduation and that is how such Block Extension Educators were given the higher scale of pay in comparison to Non-Medical Assistant. He would accordingly submit that there is no flaw whatsoever in the impugned order of the Finance Commissioner so as to be interfered by this Court. 6 In the opinion of this Court the scope of interference in the matter of fixation of pay as recommended by the Pay Revision Committee and/or Anomaly Removal Committee and accepted by the State Government is very very limited. The expert job of fixation of pay by taking into account various factors, such as qualification, job assignment and duties assigned to the post are some of the basic things which are normally looked into apart from other special features attached to such post. In that view of the matter, no plain comparison can be made with regard to post or its pay scale. In the present case also there is no difficulty in understanding the grievance of the petitioners that when till 3rd Pay Revision Committee there was a parity or in fact even ambit of superiority for the post Non-Medical Assistant vis-à-vis post of Extension Educator, the pay scales were accordingly given under the earlier recommendation of the P.R.C. but then if the Government on account of change of circumstances as also introduction of 7 Government of India Scheme in the Leprosy and Education Programme and other projects had ultimately decided to give higher status on the basis of qualification and work load to the existing post of Extension Educator by remaining at Block Extension Educator with higher qualification of graduation, the decision of the Government to also give them the pay scale of graduate level entry post, such as Supply Inspector, Panchayat Supervisor, Circle Inspector cannot be held to be bad. Once this aspect becomes clear as clearly mentioned in the impugned order that the basic reason for the Government to accept the recommendation of the Pay Revision Committee and give higher scale of pay to the Block Extension Educator was only on account of higher qualification at the time of their entry as also job assignment, there would be no difficulty in rejecting that part of the submission of the counsel for the petitioners where the parity was sought for the post of Non-Medical Assistant vis-à-vis Block Extension Educator. In fact this aspect of the matter has also been effectively summarized in 8 paragraphs 4 and 5 of the counter affidavit with precise details and therefore, the same by itself could be good enough to reject the case of the petitioners, inasmuch as in paragraph 5 the respondents have made it clear that: “ … … … It is stated that the Hon’ble High Court directed the State Govt. in C.W.J.c.No. 11623/1994 to consider the case of the petitioners for their revised pay scale in terms of the letter of the then Health Secretary dated 18.10.1982. The Department of Finance examined the case of the petitioners in the light of the recommendation made by the then Health Secretary and observations made by the Hon’ble High Court and order to this effect was issued vide F.D. letter no. 4285 dated 25.7.1996. Normally the Govt. revised the pay scale of the employees in the light of recommendations made by Pay Revision Committee or Anomaly Removal Committee. The said Committee is considered to be an impartial and independent body in respect of pay scale and no objection should be raised against the impartiality of the Committee. The Non-medical Assistant were in 9 the pre-revised scale of Rs. 296- 460 at par with other supervisory staff posted at Block level such as supply inspector, Panchayat Supervisor, Circle Inspector etc. The IVth P.R.C. recommended the pay scale of Rs. 850-1160 for supply inspector and other supervisory staff but the said Committee recommended the pay scale of Rs. 680-965 for non-medical Assistant. The Non-medical Assistants have requested the Court to grant the pay scale of Rs. 785-1210 for N.M.A. with effect from 1.4.1981 and Rs. 880-1510 for Medico Social worker. The P.R.C. is not constituted to recommend the corresponding replacement scale for the present scale but recommends suitable pay for different cadres having into consideration all relevant facts. In this course the person getting lower pay scale may be brought into higher one and this action of the Committee cannot be challenged in the Court. The letter bearing memo no, 4285 dated 15.7.1996 clearly speaks about the vies of the previous Committees and in the light of the recommendations made by previous committee the department of Finance dediced that the pay scale sanctioned to the petitioners is justified. The 10 recruitment qualification for the post of supply inspector, Panchayat Supervisor, Circle Inspector is graduation and that staff plays an important role in the implementation of Govt. policy. More over they discharge the law and order duty is abnormal situation also. As far as educational qualification is concerned, the N.M.As. are required to be intermediate only. Their work and sphere of work is very limited. They educate the people about leprosy and they are expected to do survey and extension work. Therefore, in terms of responsibilities assigned to these posts both the above maintained categories are not comparable.” In fact the aforementioned stand of the respondents not only answers each and every possible facet of the attack by the petitioners to the impugned order, but would also go to show that the Government was quite conscious in taking its decision for giving a different pay scale to N.M.A. vis- à-vis other post. Such conscious decision cannot be interfered in a routine manner by this Court because this Court is not sitting as an appellate authority to the 11 recommendation made by the P.R.C. and/or the decision taken thereon by the State Government. In fact when the said recommendation of the P.R.C. also stood the test of scrutiny by the Anomaly Removal Committee there would be even lesser scope for any challenge to it. Mr. Roy thereafter had tried to compare the post of Auxiliary Health Worker with the post of Non-Medical Assistant but then that does not appear to be the case of the petitioners either before this Court in the earlier round of litigation or in the order of remand or in the letter of the Health Commissioner dated 18.10.1982 which was made sheet-anchor for recommendation of the case of the petitioners in terms of the order of this Court in C.W.J.C.No. 11623/1994. Moreover, there is no pleading on record for the comparison to be made by the Basic Health Worker and therefore, this Court would not allow the petitioners to make out a new case which was never raised before the authority. That being so, this Court would not find any merit in this challenge of the 12 petitioners to the impugned order. At this stage Mr. Roy would submit that even if Non-Medical Assistant in Leprosy eradication programme were earlier equated by the Pay Revision Committee for pay scale meant for the post requiring intermediate qualification at the entry level, the decision taken by the 5th Pay Revision Committee has reduced the Non- Medical Assistant virtually to now matriculate level post. In this regard the grievance of the petitioners for the subsequent cause of action against 5th Pay Revision Committee report and its Fitment Committee Report has been highlighted in the following words: “9. That the State Government had recently constituted fitment committee to recommend suitable Central scale of pay for its employees. Fitment Committee in para 38.33.2 of the report although had recommended scale of Rs. 4500- 7000 for Non-Medical Assistant and Rs.5000-8000 for Medical social worker, the State Govt. vide memo No. 660(F-2) dated 8.2.1999 has granted revised scale of pay of Rs.4000-6000 for Non-Medical 13 Assistant and Rs. 5000-8000 for Medical social worker. 10. That it is pertinent to mention in this connection that the State Govt. has grant scale of Rs.4000- 6000 to the Non-Medical Assistants which has normally been granted to the incumbents of the post who were drawing scale of pay of Rs.1200- 1800 (unrevised) and the incumbents who were drawing their salary in the scale of Rs.1400-2300 (Unrevised) have normally been granted scale of Rs.4500-7000. the aforesaid contention of the petitioner is substantiated from the fact that Ladies Health Visitor, Physiotherapist (without diploma) which are also technical post and were drawing their salary in the pre-revised scale of Rs.1400-2300 have been granted scale of Rs.4500-7000. Even Lab. Technician who were drawing their salary in the pre-revised scale of Rs. 1320-2040 have also been granted revised scale of Rs.4500- 7000 whereas Non-Medical Assistants and Medical Social workers who were drawing their salary revised scale of Rs.1400-2800 and 1400-2600 have wrongly been granted scale of Rs.4000-6000 and Rs.5000-8000 respectively. 11. That it is also important to 14 mention here that social worker, driver cum Projectionist, computer, Physical Instructor, Para-Medical Assistant (small pox) who were drawing salary in the pre-revised scale of Rs.1200-1800 have also been granted revised scale of Rs.4000-6000 vide resolution dated 8.2.1999 and Non-Medical Assistant and Medical Social worker who were drawing salary in the pre-revised scale of Rs.1400-2300 and Rs.1400- 2600 have been granted revised scale of Rs.4000-6000 and Rs.5000- 8000.” Counsel for the State, however, would submit that this aspect of the matter was not the subject matter of this writ application. He is not in a position to give any answer to the subsequent cause of action arising out of the alleged anomaly in the Fitment Committee report. In the opinion of this Court this part of the grievance may be considered by the State Government and for this purpose the petitioners through their Association may file a compact representation highlighting the fact that when in a court of law also and even otherwise Non-Medical Assistant have been treated to be holders of 15 a post requiring intermediate qualification at the time of entry level, they cannot be equated with such post and consequently given such pay scale which have been given to the holders of the post having matriculation qualification at the entry level. This Court believes that once such a representation is filed by the petitioners enclosing the relevant documents as also a copy of this order, the same would receive the attention of both the Health Secretary and the Finance Secretary and since any decision involving financial implication can be taken only by the State Government, an order to this effect will be passed by the State Government within a period of six months from the date of receipt/production of a copy of this order. Subject to the aforementioned limited observation and direction this application is dismissed. (Mihir Kumar Jha,J.) Surendra/ 16