IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12190 of 2001 NAWAL KISHORE PRASAD, son of late Jitu Singh, Auxiliary Health Worker, C.D. Block Bihta, Patna and Secretary Bihar State Auxiliary Health Workers Employees Union ... Petitioner Versus 1. THE STATE OF BIHAR through Secretary cum Health Commissioner, Govt. of Bihar, Health Department, New Secretariat, Baily Road, Patna 2. Finance Commissioner, Finance Department, Govt. of Bihar, Old Secretariat, Patna 3. Director in Chief, Health Services, Govt. of Bihar, Patna ... Respondents ------ For the petitioner: Mr. Nawal Kishore Singh,Adv. For the State : Mr. S.K.Ghosh, A.A.G.II. ------ P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (5.10.2010) Mihir Kumar Jha,J., Heard counsel for the petitioner and the counsel for the State. Originally when this writ application was filed on 17.9.2001 the sole petitioner had sought the following relief: “(i) To grant the higher scale of pay of Rs. 5000-8000 as Block Extension Educators are getting the scale of pay of Rs. 5000-8000. (ii) To grant the salary and the other service benefits as available to the Block Extension Educators since 1.1.1996.” During the pendency of this writ application when the petitioner had retired 2 in the year 2004, amendment has been sought in I.A.No. 8111/2010 wherein the additional relief sought by the petitioner reads as follows: “(i) The pension of the A.H.Ws. may be fixed placing the A.H.Ws. in the pay scale of Rs. 5000-8000 which was granted to the Block Extension Educator through Gazette notification no. 600 dated 8.2.1999. (ii) The respondent be further directed to pay the balance amount of post retirement benefit such as difference of pension, earn leave and gratuity. (iii) The respondent be further directed to pay the difference of salary from 1.1.1996, the date from which A.H.Ws. were paid salary on lower pay scale of Rs. 4000-6000 in stead of Rs. 5000-8000.” Mr. Nawal Kishore Singh, learned counsel appearing on behalf of the petitioner, in support of the aforementioned relief would submit that when the Government had all along maintained parity in the pay scale of the post of Auxiliary Health Worker (A.H.W.) and the Block Extension Educator (B.E.E.) at least till 3rd Pay Revision 3 Committee, no plausible reason can be found for making such a departure for giving lower pay scale to A.H.W. as against the higher pay scale to B.E.E. In this regard he has placed reliance on the three orders of this Court which according to him completely cover the issue, namely, the order of this Court dated 2nd January, 1986 in C.W.J.C.No. 4781/1982 (Annexure 1), the order of the Division Bench dated 9th November, 1989 in C.W.J.C.No. 2458/1987 (Annexure 2) and the order of Jharkhand High Court dated 12.5.2004 in W.P.(S) No. 2300/2002. Let it be noted that when this case was earlier listed for final hearing Mr. Singh had also sought leave to file a supplementary affidavit for bringing certain more facts on record and though the petitioner has filed such a supplementary affidavit, the respondents have not come out with any rejoinder affidavit and therefore, this Court has to now proceed on the basis of the materials on record as brought by the parties. The long and short of this case if reduced in one sentence would be equal pay 4 for equal work of the post of A.H.W. and B.E.E. That is how the petitioner proceeds to cover up the issue by bringing the two judgments of this Court to show that the work of the two posts was inter-changeable and the Government used totransfer invariably B.E.E. to the post of A.H.W. and vice versa. It is basically on the findings recorded by this Court in the order of the learned Single Judge dated 2nd January, 1986 that the claim has been founded that A.H.W. should be given the same pay scale as was extended to B.E.E. The respondents have, however, filed their counter affidavit and have taken a strong plea in defence that neither on the basis of recruitment Rules nor the allocation of work and duty, the work of A.H.W. can be said to be similar as that of B.E.E. In this regard the categorical stand of the respondents in their counter affidavit is as follows: “4. That it is submitted that the post of Auxiliary Health Worker is sanctioned under the Department of Health, Govt. of Bihar. The recruitment qualification of this 5 post is matriculation with certificate in two years training. The parity of Auxiliary Health Workers are not established with Block Extension Educators because Block Extension Educator and Auxiliary Health Workers are two different cadre having different recruitment qualification, nature of job, duty and responsibilities. The recruitment qualification of Block Extension Educators are graduation. The Block Extension Educators are supervisory staff and are posted in Block Headquarters. They are incharge of the whole block, whereas Auxiliary Health Workers are posted in Health centres. 5. That the pay scale of Auxiliary Health Workers and Block Extension Educators have been different. A comparative chart indicating pay scales of both the posts w.e.f. 1.4.1981 is as follows”- A.H.W. B.E.E. 1.4.81 680-965 785-1210 1.1.86 1320-2040 1400-2600 1.1.96 4000-6000 5000-8000 6. That the expert body like the fitment Committee considered the claim of petitioner in detail and after careful consideration recommended the revised pay scale of Rs. 4000-6000 for the Auxiliary 6 Health Workers. The fitment Appellate Committee also considered the claim of the petitioner and did not find any merit in upgradation of the sanctioned pay scale. 8. That in reply to the statements made in paras 5 to 8, 12 to the writ petition, it is submitted that the Recruitment qualification of Block Extension Educator is graduation and only one post was sanctioned as supervisory level for each block, whereas the recuirtment qualification of Auxiliary Health worker is matriculation with two years training and more than three Auxiliary Health Workers are posted in each block. In the event of non- availability of the Block Extension Educator in any block, some Auxiliary Health Workers were posted to look after the post of Block Extension Educator under local arrangement. This arrangement can not be treated as Inter- changeable transfer because no Block Extension Educator can be posted or transferred as Auxiliary Health worker and Vice Versa. In compliance of the aforesaid decision of the Hon‟ble Court, the pay scale of Rs. 785-1210 was sanctioned to the Auxiliary Health workers. But subsequently Fitment cum pay Revision Committee 7 recommended revised pay scale of Rs. 1320-2040 which was accepted and sanctioned by the State Govt. Pay Anomaly Removal Committee also considered the grievance of the petitioners and considering all the facts and circumstances did not find any reason for upgrading the pay scale of Auxiliary Health Worker at par with Block Extension Educators.” The respondents in fact had also relied on the recommendation of Pay Anomaly Removal Committee (Annexure „A‟) to contend that what was said in the earlier judgment of this Court related to Auxiliary Health Workers who were matriculates and in this regard it would be useful to extract the following portion of the recommendation of Anomaly Removal Committee being part of Annexure „A‟ to the counter affidavit: “13.67.11 The Auxiliary Health Workers discussed in the report of the Second Pay Revision Committee are stated to be matriculates with two years training. Obviously for this reason he was rated as an Intermediate and successive Pay Revision Committees have given them the same status. The Fourth Pay Revision Committee placed them in 8 the scale of Rs. 680-965 commonly meant for Intermediates. As regards their claim for parity with the Extension Educator we fully endorse the view expressed by the previous Pay Anomaly Removal Committee in their interim report dated 30th November, 1984. 13.67.12 The residual problem of such A.H.Ws. whose juniors have been earlier appointed as Extension Educators has been discussed by the Fitment cum Pay Revision Committee in paragraph 24. Chapter 15 ending on the note that the Government will take necessary action in the light of the judgment of the Hon‟ble High Court in C.W.J.C.No. 4781 of 1982. It appears from the papers submitted by the representationsists that the Health Department issued order no. 259 (25) dated 16th May, 1987 upgrading the post held by 14 petitioner A.H.Ws. in C.W.J.C.No. 4781/82 to the pay scale of Rs. 785-1210. Subsequently others moved the Hon‟ble Court again in C.W.J.C.No. 2450 of 1987 for the same benefits to remaining A.H.Ws. also. This has been disposed of by an order dated 9th November, 1989 copy of which has been furnished along with the memorandum. According to this the remaining A.H.Ws. are also to be 9 given the benefit of the same pay scale of Rs. 785-1210 with effect from 1st April, 1981. 13.67.13 We presume the Government will take necessary action in the light of the recent judgment also. However, so far as the central issue of pay scale for the A.H.Ws. is concerned we do not see any validity in their claim for parity with Extension Educators. It should remain at what has been determined by successive Pay Revision Committee that is at Rs. 680-965 revised to Rs. 1320-2040. What has been the subject matter of the writ petitions in the Hon‟ble High Court pertains to such A.H.Ws. who were appointed earlier and were mutually inter-changeable with the Extension Educators though direct recruitment of graduates as Extension Educators also continued. Whatever be this final number of A.H.Ws. who would have obtained the benefits of higher pay scale in the light of the aforesaid judgments, the enhanced pay scales may be treated as personal to them. We would suggest the remaining A.H.Ws. and those to be appointed in future should be in the pay scales of Rs. 1320-2040. This should be clarified by clearly laying down the qualifications essential and mode 10 of recruitment for each of these posts from now onwards. If no A.H.Ws. remain and no more appointments are to be made to the post of A.H.W. in future then the designation itself may be abolished. But we are firmly of the opinion that the post of A.H.W. as such cannot be in a pay scale higher than prerevised Rs. 680-965 (revised Rs. 1320-2040).” In the light of the aforementioned materials on record the first issue would be as to whether the order of this Court dated 2nd January, 1986 would govern also the fate and result of this case as is clear from the perusal of the aforementioned order, Annexure 1, therein a direction was sought to give the A.H.W. pay scale of Rs. 785-1210 which was the pay scale for the post of B.E.E. with effect from 1.4.1981. The finding, therefore, which was arrived by this Court in absence of a counter affidavit in the first case was basically arrived on the submission of A.H.Ws. only based on some transfer order from one post to another and thereby holding the two posts to be equivalent. It has to be noted that in absence of counter affidavit this Court was 11 never apprised that not only the job allocation of the two post are different but even the entry level allocation are also not the same. Apparently what was held by this Court in the order of the learned Single Judge dated 2nd January, 1986 as with regard to fixation of pay scale of Rs. 785-1210 cannot be made applicable in the year 1996 onwards when there has been a conscious decision of the Government to hold the post entirely different on the basis of different parameters as has been explained in the counter affidavit. Annexure 1, therefore, can be of little help to decide the issue in hand. The order of the Division Bench of this Court dated 9th November, 1989 in the second case is also largely based on the order of the learned Single Judge though in the second case a counter affidavit was filed. But then as paragraph 12 of the judgment of the Division Bench would go to show that the facts pleaded therein were not controverted, unlike in the present counter affidavit, inasmuch as it has been held therein as follows: 12 “The facts are so clearly stated by the petitioner that the respondents have not even made an attempt to controvert them. In the year, 1947 and thereafter candidates were selected for two years training for appointment as Auxiliary Health Workers on stipend. After successful completion of training of two years, they alongwith others were appointed as Auxiliary Health Workers. This continued until 1965, when the respondent- State decided to have a scheme for carrying out Family Planning Programme and created posts of Extension Educators (Family Planning) in each block. Many of the Auxiliary Health Workers were accordingly drafted to the posts of Extension Educators and they functioned. This shows that requisite qualification for appointing of the Auxiliary Health Workers and the Extension Educators was the same. Initially they were kept in the same scale of pay. It was only after the 3rd pay revision in the year 1972 that disparity was created. This pay revision suddenly recognized Auxiliary Health Workers as a separate class and placed them in a lower pay scale than that of the 13 Extension Educators. As a result of this, those of the Auxiliary Health Workers, who were junior to may of the petitioners in the service but holding posts of Extension Educators were put in a higher scale of pay than the petitioner continued in the posts of Auxiliary Health Workers. the petitioner has given a list of many such persons disclosing that they were appointed as Auxiliary Health Workers and posted as Extension Educators. They have also stated that some of these were holding posts of Extension Educators until 1971-72, but had been transferred to the posts of Auxiliary Health Workers, almost at the eve of the 3rd pay revision. These facts have not been controverted by the respondents.” From the reading of the aforementioned analysis made by the Division Bench of this Court, it would be clear that whatever situation was taken to be prevailing prior to 3rd Pay Revision Committee also became the basis for deciding the issue of parity of pay scale but then neither the learned Single Judge nor the Division Bench had the occasion to deal with 14 the issue of there being a separate qualification of graduation prescribed for the post of Block Extension Educator, the fact which has been now brought specifically in the counter affidavit as quoted above. Such stand of the respondents have also not been controverted by the petitioner. Let it be noted that this Court had also given opportunity to the counsel for the petitioner to bring on record any document to show that the education qualification of Auxiliary Health Worker which was matriculation was subsequently enhanced to graduation or entry level qualification of both the posts even after 3rd Pay Revision Committee had remained the same. However, no such document has been brought in record by the petitoiner to show that the qualification of the two posts had remained the same. Therefore, if the Government based on the recommendation of the Pay Revision Committee had taken a conscious decision evolved on the principle of entry level qualification as also nature of duty assigned to the post and/or after such enhancement of qualification it would be 15 difficult for this Court to hold that the post of Block Extension Educator for all the time to come will have to be treated equal in rank to the post of Auxiliary Health Worker. The concept of equal pay for equal work and parity of pay scale has its own limitations and it cannot be made applicable only because at one point of time in the year 1986 or earlier the two posts were transferable or inter-changeable. The Apex Court in the case of Nalin Sugn Bhakuni vs. Union of India, reported in (1998) 3 SCC 348, has held that difference in educational qualification can be a good ground for not allowing parity of treatment by way of retrospective revision of pay scale. Yet again the Apex Court in the case of M.P.Rural Agriculture Extension Officers‟ Association vs. State of M.P., reported in (2004)4 SCC had rejected the claim for parity even in respect of the employees in the same cadre on the basis of educational qualification, having same nature of work and interchangeable posts. That being so, the two earlier 16 judgments of this Court or the submissions based on the earlier findings will have little relevance for the issue in hand which has been decided by the respondents in the light of the report of the Expert Committee as discussed also in the report of the Anomaly Removal Committee specifically considering this very aspect. This Court in exercise of its power of judicial review under Article 226 of the Constitution of India cannot sit in appeal over such intricate and delicate policy matter of the Government involving equation of two posts. In this context one may usefully refer to the following passage of the judgment of Apex Court in the case of Kshetriya Kisan Gramin Bank vs. D.B.Sharma, reported in A.I.R. 2001 S.C. 168: “The next question that arises for consideration is as to what extent the High Court would be justified in exercise of the extraordinary jurisdiction under Article 226 to interfere with the findings of an Expert Body like the Equation Committee. In State of U.P. v. J.P.Chaurasia, (1989) 1 SCC 121: [AIR 1999 SC 19: 1989 Lab 1C 1146], this Court unequivocally 17 held that in the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like Pay Commission and such Expert Body would be the best Judge to evaluate the nature of duties and responsibilities of posts and when such determination by a Commission or Committee is made, the Court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. Bearing in mind the aforesaid parameters and on examining the impugned judgment of the Allahabad High Court, we have no hesitation to come to the conclusion that the High Court has tried to tinker with the conclusions and decisions of the Equation Committee, even in the absence of any allegations or materials that such decision of the Equation Committee was on extraneous considerations.” Once this aspect becomes clear, that Annexures 1 and 2 will not govern the field at least with regard to the relief prayed herein there would be no difficulty 18 in distinguishing the case decided by the Jharkhand High Court in the order dated 12.5.2004 in W.P.(S) No. 2300 of 2002 on which the reliance has been placed by the counsel for the petitioner, inasmuch as in that judgment Jharkhand High Court had noted only the payment of pension or retirement benefit to such A.H.W. whose pay scale was already fixed as in the scale of Rs. 5000- 8000 as would be apparent from the following passage of the judgment: “It is further stated that the pay scale was further revised w.e.f. 1.4.1997 in which the pay scale of Rs. 1400-2600 was replaced by pay scale of Rs. 5000-8000 and accordingly the petitioner‟s pay scale was also revised and fixed at the scale of Rs. 5000-8000 which was also entered in his service book. It is stated that till the date of retirement of the petitioner i.e. 31.7.1997 he was getting the salary in the pay scale of Rs. 5000-8000.” It was thus these admitted facts that the petitioner before Jharkhand High Court though holding the post of A.H.W. had drawn his salary in the pay scale of Rs. 19 5000-8000 by way of revision of pay scale and therefore, he was held to be entitled for payment of his retirement benefit in the last pay drawn. That, however, cannot be as a matter of fact taken to be the authority as with regard to Jharkhand High Court laying down a law that A.H.Ws. as a matter of fact were entitled for grant of revised pay scale of Rs. 5000-8000. In fact for such a relief the present writ application was filed by the petitioner in representative capacity claiming that he was espousing cause of all the members of Association of A.H.W. In any event Article 14 of the Constitution of India being a positive concept cannot be enforced in a negative manner and thus if there has been one A.H.W. in the State of Jharkhand granted the pay scale of Rs. 5000-8000 that cannot be the ground for allowing all the holders of post of A.H.W. in the State of Bihar to be paid salary of Rs. 5000-8000 or its consequential benefit for retirement, inasmuch as on or after 15.11.2000, the two truncated States of Bihar and Jharkhand have to be governed by their own decisions with regard to pay 20 scales of its employees. Mr. Singh had also submitted that now the post of A.H.W. is no longer in existence and therefore, this problem of parity of A.H.W. with that of B.E.E. is no longer going to continue and the Government can take this aspect for deciding the benefits of erst-while employees who have already retired on or before 2004 while holding the post of A.H.W. The sympathy or equity can be claimed only before the employer but when the courts are asked to decide an issue and that too with regard to parity of pay scale or other financial benefit it has always be guided by the law as it exists. That being so, this Court would not find any merit in this application seeking parity of pay scale for A.H.W. with that of B.E.E. and accordingly, this writ application must be and is, accordingly, dismissed. (Mihir Kumar Jha,J.) PATNA HIGH COURT The 5th Oct.,2010 Surendra/A.F.R.