IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 322 of 2011 Date of Decision: 6th September, 2011 State of H.P. and others Appellants Versus Sher Singh Respondent Coram The Hon’ble Mr. Justice Kurian Joseph,C.J. The Hon’ble Mr. Justice Sanjay Karol,J. For the Appellants: Mr. R.K.Bawa, Advocate General, with Mr. J.K.Verma, Dy. Advocate General. Sanjay Karol, J. (Oral) CMP(M) No. 923 of 2011 Heard. The delay in filing the appeal is condoned. The application stands disposed of. LPA No. 322 of 2011 2. The Respondents-State have come up in appeal, against the judgment dated 5.4.2010, rendered in CWP(T) No. 14062 of 2008, which was decided on the basis of common judgment dated 23.3.2010, rendered in CWP(T) No. 14054 of 2008, titled as Devi Ram vs. State of H.P. and others, and other connected matters, whereby the learned Single Judge has directed release of pay in the 2 scale of cooks to the writ petitioners therein w.e.f. 1980 with interest at the rate of 9% per annum. It is the case of the State that the petitioner is class-IV employee and he is only rendering assistance in the kitchen on his own and hence, he is not entitled to a protection on the principle of “equal pay for equal work”. The learned Single Judge has taken note of the factual position that there were 12 sanctioned posts of cooks in the IGMC and they were to prepare food for around 600 patients daily. Out of the 12 sanctioned posts of cooks, only one was filled up. 3. The posts are sanctioned based on the work load. Therefore, the people who are actually discharging the work in the kitchen against the sanctioned posts, so long as they work so, in principle, as rightly held by the learned Single Judge, are entitled to the protection of the principle of “equal pay for equal work”. However, we find that the learned Single Judge has erred in entering a finding that the principle is followed on the decision of the Administrative Tribunal in O.A. No. 1687 of 2000 as in the case of one Chet Ram. It was a case where the said Chet Ram was originally appointed as Cook and he made a claim for the scale attached to the post. That was, what was granted by the Tribunal. Therefore, as rightly 3 contended by the learned Deputy Advocate General, the writ petitioner cannot be equated with the case of said Chet Ram. However, the fact remains that the writ petitioner is working in the kitchen. 12 sanctioned posts of cooks are there. Only one is filled up. Necessarily, rest of the work of 11 cooks is carried out only by the writ petitioner and others, since nobody has a case that anybody else is engaged in the kitchen as a cook. The reply would also indicate that steps were being taken to depute regularly appointed cooks in IGMC. 4. The writ petitioner seems to have approached the Tribunal only in the year 2006. From their own record, Annexure A-3, it is seen that the writ petitioner is engaged in the kitchen only as follows: “Sr. No. Name of employees Date of working on the post of cook. 3. Sh. Sher Singh 1989 We find from the endorsement in Annexure A-3 by the dietician, that he has been working as cook in IGMC. 5. In the above circumstances, the appeal is partly allowed, holding that the writ petitioner (respondent herein) would be entitled to the scale attached to the post of cook, so long 4 as he is working in the kitchen of IGMC and is not replaced by regular cook w.e.f. 1.1.2003, three years prior to the filing of the OA, in the case of the writ petitioner. 6. In the facts and circumstances of the case, we do not find any justification for the grant of interest, since the very entitlement on the principle of “equal pay for equal work” is based on the declaration by the Court and not on any crystallized right, otherwise conferred on the writ petitioner or denied by the State. Interest is not to be invariably granted under all circumstances. In service matters, it would depend on whether an otherwise available right expressly under a Statute or guidelines has been unjustly denied despite being requested or not. Therefore, a direction for grant of interest is also vacated. The benefits, as above, shall be calculated and released to the writ petitioner within six months from today and if not, the writ petitioner shall be entitled to interest at the rate of 9% per annum from the date indicated above and the officers responsible for the delay shall be personally liable for the same. 7. With these observations, the appeal is disposed of, so also the pending applications, if any. 5 8. A copy of this judgment be sent to the Accountant General. (Justice Kurian Joseph) Chief Justice (Justice Sanjay Karol) 6th September, 2011 Judge. (C)