HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2) (b) Description of the case. W.P. No. 4181 of 2001 S/S Kumaun Mandal Vikas Nigam Paryatak Karmchary Sangh, VS State of Uttaranchal & others Approved for reporting Not approved for reporting Date of decision: 01.03.2006 Initial of Judge 2 HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 4181 of 2001 (SS) Kumaun Mandal Vikas Nigam Paryatan Karmchary Sangh, Paryatak Awas Grah, Sukhatal, Nainital ……….. Petitioner Versus 1. State of Uttaranchal 2. Managing Director, Kumaon Mandal Vikas Nigam Ltd; Nainital …………. Respondents Sri B.D. Upadhyay, Advocate for the petitioner Standing Counsel for the respondents. Dated: March 1, 2006 Hon’ble Rajesh Tandon J. Heard Sri B.D. Upadhyay, counsel for the petitioner and standing counsel for the respondents. By the present writ petition, the petitioner has prayed for a writ of mandamus directing the respondent no.1 to pass appropriate order on the resolution dated 29.11.1996 passed by the Board of Directors, submitted before him along with the letter dated 27.1.1997 in the same manner as it was done in the case of Garhwal Mandal Vikas Nigam Ltd. Briefly stated according to the petitioner, Kumaon Mandal Vikas Nigam Pryatan Karmchari Sangh is a registered union which comprises of group ‘C’ and ‘D’ employees of the Nigam. Kumaon Mandal Vikas Nigam Ltd. and Garhwal 3 Mandal Vikas Nigam Ltd. both are Government companies within the meaning of Section 617 of the Companies Act, 1956 and registered under the Companies Act. Both the companies are undertakings of the State Government and are functioning under the administrative control of the Government. Initially on 30.3.1970 U.P. Hill Development Corporation was established for the development of hill district in the State of U.P. In the year 1976 the State Government bifurcated the U.P. Hill Development Corporation into two separate corporation namely Garhwal Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam. The services of the petitioner are governed by the rules known as Kumaon Mandal Vikas Nigam Ltd; Nainital General Service Rules, which came into force w.e.f. 1.12.1983. The petitioner has submitted that prior to June 1996 pay scales of the employees of both the Corporations were identical. In the year 1996 the Board of directors of the Garhwal Mandal Vikas Nigam passed a resolution in respect of the sanction and upgradition of several posts and the same was approved by the Govt. vide its order dated 7.6.1998 and in pursuance of the said order the Managing Director passed the order of promotion on 20.8.1996. On 29.11.1996 the Board of Directors of Kumaon Mandal Vikas Nigam in its meeting passed a resolution for upgradition of the posts in the same manner as it has been done in Garhwal Mandal Vikas Nigam and it was decided to submit a resolution to this effect to the Government for approval. The resolution was sent by the Managing Director of the Nigam for approval along with a letter dated 27.1.1997. Thereafter the Managing Director sent letters on 21.5.1997, 23.5.1998 and 17.7.1998 but after more than five years has elapsed the 4 Government has not taken any action on the resolution. The petitioner on 30.9.2000 submitted a representation to the respondent no.2 to the same effect but no order has been passed on the resolution. The petitioner has further submitted that prior to June 1996 there were identical pay scales in Garhwal Manda Vikas Nigam and Kumaon Mandal Vikas Nigam. In the year 1996 the Board of Directors of the Garhwal Mandal Vikas Nigam passed a resolution in respect of the sanction and upgradition of several posts and the same was approved by the Government vide order dated 7.6.1996. Pursuant to the Government order, the Managing Director on 20.8.1996 passed the order of promotions of the employees of Garhwal Mandal Vikas Nigam. The petitioner has further submitted that on 29.11.1996 the Board of Directors of the Kumaun Mandal Vikas Nigam in its meeting passed a resolution for upgradition of the posts in the same manner as it has been upgraded in Garhwal Mandal Vikas Nigam and it was decided to submit a resolution to this effect to the Government for approval. The decision taken by the Board of Directors on 29.11.1996, was sent by the Managing Director of the Kumaon Mandal Vikas Nigam for approval to the Government vide letter dated 27.1.1997. Thereafter the Managing Director sent letters and reminders on 21.5.1997, 23.5.1997 and 17.7.1998 but no decision has been taken on the resolution of the Board of Director of Kumaun Mandal Vikas Nigam. In the mean time the report of 5th Pay Commission has come into operation but the respondents have neither revised the pay scales and designation of the members of the petitioner’s Sangh nor implemented the report of the 5th Pay 5 Commission. The petitioner submitted a representation to the respondent no.2 for implementation of the resolution of Board of Director and report of 5th Pay Commission but no decision has been taken by the respondents as yet. Respondent no. 2 Kumaon Mandal Vikas Nigam filed counter affidavit and has admitted that Kumaon Mandal Vikas Nigam and Garhwal Mandal Vikas Nigam came into existence after bifurcation of U.P. Hill Development Corporation. It has been contended on behalf of the respondent no.2 that both the corporations are having their own posts and pay scales. It has also been stated that the service rules do not provide similarity in the staffing pattern. It has been submitted in the counter affidavit that vide Government Order No. 1184/44-2-14Ch. Sha/1987 dated 30.11.1987 a ban had been imposed on the creation/upgradation of the posts without prior approval of the Government and vide G.O. No. 504/P.R.C./44-1/1997 dated 4.12.1997 it was directed that in view of constitution of pay commission no change be made in the pay scales of the Corporations. Respondent no. 2 has not specifically denied that resolution has been passed by the Board of Directors for providing pay scales to the employees of Kumaon Mandal Vikas Nigam in conformity with the Garhwal Mandal Vikas Nigam. Counter affidavit has also been filed on behalf of respondent no. 1 State of Uttaranchal. Respondent no. 1 has admitted that Kumaon Mandal Vikas Nigam and Garhwal Mandal Vikas Nigam were created in the year 1976 after bifurcation of U.P. Hill Development Corporation. Both the corporation revised the pay scales in respective grades in the year 1976 and 1986 which shows that there was no similarities in the pay scales of both the corporations. Both the corporations 6 are instrumentalities of the State Government but as the work, post and pay scales of both the corporations are different from each other, therefore, it cannot be said that the directive contained the Constitution of India has been violated in any way. It has been submitted on behalf of the respondent no. 1 that Board of Directors of the Garhwal Mandal Vikas Nigam submitted a resolution to the erstwhile State of U.P. for upgradation of its employees, who approved the same vide order dated 7.6.1996. Thereafter various representations were made by the employees of Garhwal Mandal Vikas Nigam for implementation of Vth Pay Commission’s report. The Government vide G.O. dated 13.5.2003 clarified that the employees of the Garhwal Mandal Vikas Nigam whose posts and pay scales were upgraded irregularly by the erstwhile State of U.P. and who are drawing salary according to the upgraded pay scales vide G.O. dated 7.6.1996, no recovery shall be made from them but the pay scales granted to them shall be treated as personal pay scales and when the post would become vacant, the new appointment shall be made according to the prevailing pay scales. The Government of Uttaranchal has decided the recommendation of the Kumaon Mandal Vikas Nigam and by a speaking order, the said recommendation of the Kumaon Mandal Vikas Nigam have been rejected vide order dated 16.7.2003. The respondent no.1 has filed copy of the letter as annexure C.A.2. It has further been mentioned in the counter affidavit that financial status of the Kumaon Mandal Vikas Nigam and Garhwal Mandal Vikas Nigam is different, therefore, the parity claimed by the petitioner with respect of pay scales is misconceived. 7 The petitioner has given the following comparative chart showing the pay & designation prior to 1996 and thereafter in the Garhwal Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam: Post and pay scale in G.M.V.N. prior to 1996 Post & pay scales in K.M.V.N. Pay & designation given in G.M.V.N. after 1996 Senior Manager 1400-2600 Tourism Development Officer 1400-2600 Assistant General Manager 2200-4000 Assitt. Manager 1400-2300 Manager Grade-I 1400-2300 Senior Manager 1940-2900 Assitt. Manager 1640-2900 Swagati 1025-1720 Swagati 1025-1720 Astt. Manager Grade II 1400-2600 Swagati 950-1500 Guide 950-1500 Asstt. Manager Grade III 1400-2300 It is evident from the above chart that although prior to 1996 there was parity in the pay scales of the employees falling in the five categories referred to above who were employed with the Garhwal Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam. On behalf of the State of Uttaranchal it has been argued that the parity was disturbed as the Board of Director of Garhwal Mandal Vikas Nigam passed a resolution for upgradition of posts and pay scales in Garhwal Mandal Vikas Nigam in the year 1996, which was duly accepted by the Government of Uttar Pradesh on 7.6.1996. The Board of Directors of Kumaon Mandal Vikas Nigam, also passed resolution and recommended upgraded pay scales in Kumaon Mandal Vikas Nigam. 8 Letter of the Managing Director, dated 7.10.1998 shows that the Kumaon Mandal Vikas Nigam was also asked by the Government for upgradition of the pay scales of its employees in conformity with the pay scales given in the Garhwal Mandal Vikas Nigam. The said letter dated 7.10.98 is quoted below: lsokesa fo’ks"k lfpo mRrj izns’k 'kklu mRrjkWpy fodkl vuqHkkx ˆ y[kuÅ fo"k;% dqekm e.My fodkl fuxe fy0 ds vf/kdkfj;ksa deZpkfj;ksa dk osru iqujhf{kr fd;k tkukA egksn;] miZ;qDr fo"k;d Ñi;k 'kklu ds i=kad ƒŠŠŠ@„Š-ˆ-‹Š&ƒŠ‡ fnukad ƒ‰-‰-‹Š dk lanHkZ xzg.k djus dk d"V dksaA 'kklu ds funsZ”kkuqlkj x<+oky e.My fodkl fuxe ds leku osrueku iqujhf{kr fd;s tkus ds lEcU/k esa ckWfNr fooj.k layXu dj izsf"kr fd;k tk jgk gSA layXu%& mijksDrkuqlkjA Hkonh; ¼mes”k flUgk½ izcU/k funs’kd A perusal of the above letter shows that the Government itself asked the Kumaon Mandal Vikas Nigam to send proposal for upgradation of pay scales and posts of the officers and officials of Kumaon Mandal Vikas Nigam in conformity with the Garhwal Mandal Vikas Nigam. This letter shows that the Government was of the view that the pay scales and posts in both the Corporations should be similar to each other. Both Garhwal Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam were originated from U.P. Hill Development Corporation in the year 1976. The work and trading in both the 9 Corporations is almost similar. Till 7.6.1996 the pay scales and nomenclature of the posts in both the Corporations was similar but thereafter higher pay scales were sanctioned to the employees of Garhwal Mandal Vikas Nigam whereas such decision has not been taken in respect of the employees of Kumaon Mandal Vikas Nigam. It appears that the matter was not considered and left over from time to time on one pretext and the other. Whereas this matter was regularly pressed by the authorities of the Kumaon Mandal Vikas Nigam. In this context D.O. letter dated 23rd May 1998 written by Sri Umesh Sinha, Managing Director to Sri Sharda Prasad, Secretary, U.P. Government is on record as annexure-7 t o the writ petition. The extract of this letter is as under: x<oky e.My fodkl fuxe fy0 nsgjknwu dh HkkWfr bl fuxe ds i;ZVu d{k ds deZpkfj;ksa dks osrueku fn;s tkus ds lEcU/k esa vkils nwjHkk"k ij gqbZ okrkZ dk lUnHkZ ysus dk d"V djsaA fuxe ds i;ZVu vuqHkkx ds dk;Z lapkyu ,oa i;ZVu {ks= esa c<rs gq, dk;ksZ dks ns[krs gq, funs”kd e.My dks fnukad 29-11-96 dks lEeiUu gqbZ cSBd esa fy, x;s fu.kZ;kuqlkj izcU/kdh;@prqFkZ Js.kh ds inks ads mPphdkj.k l`tu dk izLrko 'kklu dks LohÑfr gsrq bl dk;kZy; ds i= la[;k 7298@2&40 fnukad 27-1-97 dks Hkstk x;k gS A rnqijkUr fuEu i= Hkh 'kklu dks izsf"kr fd;s x;s gSa ------------------------------- ----------------------------- nksuksa fuxeksa ds i;ZVu fdz;k dykiksa esa ,d#irk gksus ds dkj.k osruekuksa esa Hkh ,d#irk okWfNr gSA x<oky e.My fodkl fuxe }kjk Hkh mPphdj.k@l`tu ds izLrko dks funs”kd e.My dh cSBd esa ikfjr djokdj 'kklu dks izsf"kr fd;k x;k Fkk A 'kklu }kjk vius i= la0 322m-ns- 1996 fnukd 7 twu 1996 }kjk mPphdj.k@l`tu dh Lohd`fr layxukuqlkj iznku dh x;h gSA bl fuxe ds i;ZVu osruekuksa ds mPphdj.k ,oa l`tu ds lEcU/k esa Hkh Jh ekroj falg d.Mkjh jkT;ea=h] mRrjkWpy fodkl foHkkx }kjk Jh ukjk;.kjke nkl lnL; fo/kku lHkh ds i= fnukad 29-7-97 ij fy[ks x;s vkns”kksa dh izfr rFkk Jh oa’kh/kj Hkxr ek0 jkT; e=h [kk| foHkkx dk i= fnukad 28-7-98 dh izfr Hkh layXu dj izsf"kr gSA 10 vr,o vuqjks/k gS fd d`i;k dqekÅ e.My fodkl fuxe ds i;ZvuvuqHkkx ds inksa ds l`tu@mPphdj.k@osruekuksa dks la”kksf/kr fd;ks tkus dh LohÑfr vius Lrj ls 'kh?kz iznku djus dk d"V djsaA A perusal of the above letter shows that at that time the authorities of the respondents and also the Ministers of the Government were agreed that the officials of Tourist Section of Kumaon Mandal Vikas Nigam should be given parity in pay scales and posts with the Garhwal Mandal Vikas Nigam. Form the aforesaid it is evident that the respondents themselves have admitted that the work and duties of Tourist Sections in both Garhwal Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam are similar. The trading and customs in both the Corporations regarding Tourist Sections are similar, therefore, the principal of equal pay for equal work can very well be invoked. It is no doubt true that Garhwal Mandal Vikas Nigam and Kumaon Mandal Vikas Nigam are distinct legal entities but at the same time it cannot be ignored that both are instrumentalities of the Government of Uttaranchal who is bound by the directives contained in Part IV of the Constitution. At the time of admission of the writ petition, this Court has passed the following order: “In the meantime, the State Government is directed to take a decision on the recommendation made by the Kumaon Mandal Vikas Nigam regarding the grant of parity in the pay scales to the petitioner”. However, this order has not been complied with by the respondent No. 1 for a long time and on 16.7.2003. In the letter No. 270 dated 26.7.2003 which is addressed to the Managing Director, Kumaon Mandal Vikas Nigam and issued by Sri A.N. Prasad, Secretary, Uttaranchal Government, it has been 11 mentioned that the upgradation of pay scales and posts in Garhwal Mandal Vikas Nigam was done illegally and against the rules at the time of erstwhile Uttar Pradesh Government. The officials of Garhwal Mandal Vikas Nigam are having such pay scales for the last seven years and such mistake cannot be done in Kumaon Mandal Vikas Nigam. The reasons shown in that letter for denying upgradation of the pay scales and posts are against the concept of progress and development of tourism in the Kumaon Mandal for which the Board of Directors of the Kumaon Mandal Vikas Nigam has recommended the same and send its proposal much earlier in the year 1998 to the erstwhile State of U.P. but the recommendation was not accepted by the authorities of the Government on one pretext or the other. The erstwhile State on one Pradesh itself asked the Kumaon Mandal Vikas Nigam to send proposal of granting pay scales in parity of Garhwal Mandal Vikas Nigam and its successor Government of Uttaranchal cannot set aside the decision taken by its predecessor Government on this question. The learned counsel for the petitioner placed reliance in the case Employees of Tannery & Footwear Corporation of India Ltd. and another vs. Union of India and others, AIR 1991 SC 1367, in which the Apex Court has held that if employees in unionized cadre in one Corporation of the Government having the same pay scale in 1970 as that of employees working in same posts in another Corporation. The level of posts in question in both the corporations also the same. There was no subsequent change in duties and function of employees of both corporations. The employees of both the corporations be given equal pay scales. The extract of the findings of Apex Court is as under: 12 “In this context it may be pointed out that in pursuance of the directions given by this Court in its order dated March 14, 1986 in Writ Petition No. 12655 of 1986 and connected matters, the Government of India had appointed a High Power Committee under the Chairmanship of Shri Justice R.B. Misra, to go into the various aspects relating to pay scales and other incidental matters such as additional DA, interim relief and other allowances to the employees working in the public sector governed by the Central Government pay scales and DA. The said committee after considering the pay scales in the various public enterprises having Central Government pattern of DA, has recommended uniform pay scales for the employees including subordinate staff falling in the categories of (i) Attendant, Messenger, Peon, Watchman, Safaiwala, Mali etc.; (ii) Daftry, Jamadar, Head Watchman etc.; (iii) Record Keeper, Record Sorter, Junior Clerks etc. ; and (iv) UDC, Assistant, etc. The Committee was of the view that rationalisation of the present heterogenous structure of pay scales was required in the interests of uniform remuneration for similar work in the different enterprises.” (p. 65, para 8.16). In Jute Corporation of India Officers’ Association v. Jute Corporation of India Ltd.5 this Court has given directions for applying the revised pay scales recommended by the said Committee to the various public sector undertakings of the Government of India having the Central Government pattern of DA. This shows that there would be parity in pay scales of the employees falling in the four categories, with which we are concerned, in the various enterprises of the Government of India which are following the Central Government DA Pattern. There appears to be no reason why the petitioners should be 13 denied similar parity in the matter of pay scales with the staff falling in the aforesaid four categories employed with the Cotton Corporation of India especially when such employees were having the same pay scales in 1970. We are, therefore, of the view that the pay scales of the employees in the unionised cadre falling in the four categories referred to above in the respondent corporation should be revised in a way that the same are at par with the pay scales of such employees employed with the Cotton Corporation of India. 16. The Case State of U.P. v. J.P. Chaurasia1 on which reliance has been placed by Shri Mahajan, deals with the question as to equation of duties and responsibilities for applying the principle of ‘equal pay for equal work’. Therein this Court has held that the matter of equation of posts for the purpose of equation of pay must be left to the executive and must be determined by expert bodies like Pay Commission and that if there is such a determination by a commission or committee the court should normally accept it. The principle laid down in the said decision was reiterated in the other decisions relied upon by Shri Mahajan. Here we are not concerned with equation of posts because the posts falling in the abovementioned four categories of employees in the respondent corporation as well as the Cotton Corporation of India are of the same level and employees working on these posts were having the same pay scales in 1970. There is noting on the record to show that after 1970 there has been any change in the duties and functions of the persons holding these posts in the two corporations which may justify fixation of different pay scales for these posts in the two corporations. The pay scales of the petitioners as revised by order dated 14 April 25, 1986, cannot, therefore, be upheld. Respondents 1 and 3 should so revise the pay scales of the petitioners as to be at par with pay scales enjoyed by the employees falling in the same category in the Cotton Corporation of India on the date from which the said revised pay scales are to be applied. Under order dated April 25, 1986, the revision of the pay scales of the petitioners has been made with effect from August 1, 1983 and is valid up to July 31, 1987. The revision in the pay scales of the petitioners should be made keeping in view the pay scales and allowances enjoyed by the employees falling in the same category in the Cotton Corporation of India on August 1, 1983 and such revision may be made operative up to July 31, 1987, as provided in the order dated April 25, 1986.” The respondents have not pleaded that there has been any change in the duties of the employees of both the Corporations in the year 1996, particularly in reference with the members of petitioner Union, which belongs to Tourism Section of the Kumaon Mandal Vikas Nigam, which may justify fixation of different pay scales for these posts in the two corporations. The Apex Court in the case D.S. Nakara vs. Union of India, (1983) 1 SCC 305 has laid down the directions in which the State action should move. The observations of the Apex Court are as under: “The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism leaning 15 heavily towords Gandhian socialism. During the formative years, socialism aims of providing all opportunities for pursuing the educational activity. For want of wherewithal or financial equipment the opportunity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free education form primary to PhD but the pursuit must be by those who have the necessary intelligence quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage. After the education is completed, socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste, colour, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be he a monarch or a mahatma, a worker or a pariah. The old age overtakes each one, death being the fulfillment of life providing freedom from bondage. But here socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and 16 the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Article 41 aims when it enjoins the State to