IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.2031/2008 Reserved on:1.7.2009 Decided on: 6.7. 2009 Sukh Ram Chandel. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Virender Singh Rathore, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. for respondent No.1. Mr. K.S. Pathania, Advocate for respondent No.2. Rajiv Sharma, J. The petitioners are driving heavy commercial vehicles in the respondent-corporation since 1977. The Drivers of the Himachal Road Transport Corporation were granted pay scale of Rs. 450-700 after the revision of pay scale took place in the State of Himachal Pradesh. However, the petitioners were paid pay scale of Rs. 400-600 with effect from 1.1.1978. Thereafter again revision of pay scale took place on Punjab pattern. The Drivers working in the Himachal Road Transport Corporation were released pay scale of Rs. 1200-2100. The Drivers of the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 respondent-corporation were placed in the pay scale of Rs. 1025-2100. The petitioners also made representations to the Managing Director of the respondent-corporation i.e. HPTDC seeking parity with the Drivers of the Himachal Road Transport Corporation. Mr. Virender Singh Rathore has strenuously argued that his clients are discharging same duties which are being discharged by their counter- parts in the Himachal Road Transport Corporation. According to him, the petitioners are entitled to pay scale of Rs. 1200-2100 with effect from 1.1.1986 instead of 1.5.1997 granted by the corporation. Mr. R.K. Sharma, learned Senior Additional Advocate General and Mr. K.S. Pathania, Advocate have strenuously argued that it is for the employer to decide which pay scale is to be released to a particular category from which date. Mr. K.S. Pathania has argued that the case of the petitioners was taken up with the State of Himachal Pradesh but the same was turned down by the State on 12.9.1991. He further contended that the corporation had decided to grant the petitioners pay scale of Rs. 1200-2100 with effect from 1.5.1997. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioners, as noticed above, started discharging their duties as Drivers on commercial vehicles in the year 1977. The pay scale released to drivers of the Himachal Road Transport Corporation with effect 1.1.1978 was Rs. 450-700. The petitioners were granted the pay scale of Rs. 400-600. The pay scale was revised by the Himachal Road Transport Corporation for its Drivers from Rs. 450-700 to Rs. 1200-2100. The petitioners were, however, released the pay scale of Rs. 1025-2100. The respondent-corporation has pursued the case of the petitioners on the basis of communication dated 12.2.1991 with the State 3 Government. The State Government turned down the proposal on 12.9.1991. However, the Service Committee of the respondent- corporation in its meeting held on 5.4.1997 decided to grant the petitioners pay scale of Rs. 1200-2100 at par with the Himachal Road Transport Corporation. The pay scale was revised with effect from 1.5.1997. The petitioners are claiming this pay scale with effect from 1.1.1986 at par with the Drivers of the Himachal Road Transport Corporation. The petitioners were granted the pay scale with effect from 1.5.1997. The respondent- corporation and the Himachal Road Transport Corporation are two distinct legal entities. However, both these corporations are instrumentalities/agencies of the State Government. They are bound by the Directive Principles contained in part-IV of the Constitution of India. The petitioners are discharging same duties, which are being discharged by their counter parts in the Himachal Road Transport Corporation. The corporation has not placed any tangible evidence on record to prove that the duties discharged by the petitioners vis-à-vis their counter parts are different. In fact, the corporation was aware of this situation at the time when it recommended the case of the petitioners to the State on 12.2.1991. It can safely be presumed that the Service Committee has taken into consideration that the duties being discharged by the petitioners and their counter parts in the Himachal Road Transport Corporation when it met on 24.4.1997 and approved the case of the petitioners for the pay scale of Rs. 1200-2100, however, with effect from 1.5.1997. In other words, the corporation has accepted the demand of the petitioners on the anvil of “equal pay for equal work”. Therefore, the question which now requires consideration of the Court is whether the date fixed by the corporation for the release of pay scale of Rs. 1200-2100 with effect from 1.5.1997 is reasonable or not. 4 The petitioners have been vigoursly pursuing their case for treating them at par with the Drivers of the Himachal Road Transport Corporation on the principle of “equal pay for equal work”. Their demands have ultimately been met by the Service Committee on 24.4.1997 and they have been treated at par with the Drivers of the Himachal Road Transport Corporation. The revision of pay scale has taken place with effect from 1.1.1978, 1.1.1986 and 1.1.1996. It is the prerogative of the employer to fix a particular date for release of pay scale either on the basis of recommendations made by the Service Committee or Pay Commission. The scope of judicial review is very limited in these matters. However, when the fixing of date is ex-facie arbitrary or unreasonable, the Court can always intervene. There is no explanation why the corporation has picked up the cut off date i.e. 1.5.1997 for releasing the pay scale of Rs. 1200- 2100 to the petitioners. In the present case the choice of date i.e. 1.5.1997 is arbitrary and is wholly not related to the objects sought to be achieved. The object sought to be achieved was to grant the parity in the pay scale to the petitioners with their counter-parts working in the Himachal Road Transport Corporation from the due date after taking into consideration the duties discharged by them. The employer himself had been pursuing their case before the State Government. The fixation of date must be based on relevant considerations. The date cannot be picked up from a hat. Whether a particular date prescribed by the authorities is valid or reasonable had fallen for consideration in a landmark judgment of the Hon’ble Supreme Court in D.S. Nakara and others versus Union of India, AIR 1983 SC 130. Their Lordships have held as under: “51. We repeatedly posed a question: what are those relevant and valid considerations and waited for the 5 answer in vain. We say so because in the written submissions filed on behalf of the Union of India, we find not a single valid or relevant consideration much less any consideration relevant to selection of eligibility criteria. The tenor is "we select the date and it is unquestionable; either take it or leave it as a whole". The only submission was that the date is not severable and some submissions in support of it. 52. Having examined the matter on principle, let us turn to some precedents. In D. R. Nim v. Union of India, (1967) 2 SCR 325 : (AIR 1967 SC 1301) the appellant questioned his seniority which was to be determined in accordance with the provisions contained in Indian Police Service (Regulation of Seniority) Rules, 1954. These rules required first to ascertain the year of allotment of the person concerned for the determination of his seniority. In doing so the Government of India directed that. officers promoted to the Indian Police Service should be allowed the benefit of their continuous officiation with effect only from 19th May, 1951. The appellant challenged the order because the period of officiation from June, 1947 to May, 1951 was excluded for the purpose of fixation of his seniority. His grievance was that there was no rationale behind selecting this date. After taking into consideration affidavit in opposition, this Court held as under : "It would be noticed that the date, May 19, 1951, to begin with had nothing to do with the finalisation of the Gradation List of the Indian Police Service because it was a date which had reference to the finalisation of the gradation list for the IAS Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit, reproduced above. This date was apparently chosen for the IAS because on this date the Gradation List for all the earlier persons required to the service had been finalised and issued in a somewhat 6 stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr, B. R. L. Iyengar. the learned counsel for the appellant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the affidavit of Mr. D. K. Guha, Deputy Secretary to the Government of India, Ministry of Home Affairs, dated Dec. 9, 1966, that "the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Affairs Letter No. 2/32/51-AIS, dated the 25th Aug., 1955, will not be applicable to those SCS/SPS Officers, who were appointed to IAS/IPS prior to the promulgation of IAS/JPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous officiation was approved by the Ministry of Home Affairs and Union Public Service Commission". It further appears that 'in the case of Shri C. S. Prasad also, an IPS Officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly'. But, it is stated that "as Shri Nim was appointed to IPS on the 22nd Oct., 1955, i.e. after the promulgation of IPS (Regulation of Seniority) Rules, 1954 and after the issue of letter dated 25-8-1955, his case does not fall even under this category". The above statement of the case of the Government further shows that the date, May 19, 1951 was an artificial and arbitrary date having nothing to do with the application of the first and the second provisos to Rule 3 (3). It appears to us that under the second proviso to Rule 3 (3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government in consulation with the Commission considering all the relevant facts. The Central Government pick out a date from a hat --- and that is what it seems to have done in this case -- 7 and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso." 53. The Court held that the Central Government cannot pick out a date from a hat and that is what it seems to have done in saying that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. In case before us, the eligibility criteria for being eligible for liberalised pension scheme has been picked out from where it is difficult to gather and no rationale is discernible nor one was attempted at the hearing. The ratio of the decision would squarely apply to the facts of this case. 54. Similarly in Jaila Singh v. State of Rajasthan, 1975 (Supp) SCR 428: (AIR 1975 SC 1436), this Court struck down as discriminatory the division of pre-1955 and post-1955 tenants for the purpose of allotment of land made by the Rules under the Rajasthan Colonisation Act, 1954 observing that the various provisions indicate that the pre-1955 and post-1955 tenants stand on the same footing and therefore do not form different classes and hence the division was held to be based on wholly irrelevant consideration. The Court further observed that it is difficult to appreciate how it would make any difference from the point of view of allotment of land, whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when Rajasthan Tenancy Act come into force. This division for the purpose of allotment of land with reference to certain date was considered both arbitrary and discriminatory on the ground that it was wholly unrelated to the objects sought to be achieved. 8 55. As against this the learned Attorney General invited our attention to Union of India v. Parameswaran Match Works, (1975) 2 SCR 573: (AIR 1974 SC 2349). By a notification dated July 21, 1967, benefit of a concessional rate of duty was made available if a manufacturer of matches made a declaration that the total clearance of matches from a factory would not exceed 75 million during a financial year. As framed the notification extended the benefit of manufacturers with higher capacity to avail of the concessional rate of duty by filing a declaration as visualised in the proviso to the notification by restricting their clearance to 75 million matches. This notification was amended on Sept. 4, 1967 with a view to giving bona fide small manufacturers, whose total clearance was not estimated to be in excess of 75 million matches, the benefit of concessional rate of duty prescribed under notification dated July 21, 1967. The respondent in the case applied for a licence for manufacturing matches on Sept. 5, 1967, that is, a day after the date on which amended notification was issued and filed a declaration that the estimated manufacture for the financial year would not exceed 75 million matches, but this was rejected. In a writ petition filed by the respondent, the High Court held that the classification was unreasonable inasmuch as the fixation of the date for making a declaration had no nexus with the object of the Act. In the appeal by the Union of India, this Court held that the concessional rate of duty was intended for small bona fide units who were in the field when the notification dated Sept. 4, 1967 was issued. The concessional rate of duty was not intended to benefit the large units which had split up into smaller units to earn the concession. With reference to selection of the date this Court observed as under : "The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice 9 unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark." 56. In reaching this conclusion the Court relied on Louisville Gas Co. v. Alabama Power Co., (1927) 240 US 30 at 32 : ( (1927) 277 US 32 ?). This decision is not an authority for the proposition that whenever a date is chosen, or an eligibility criteria which divides a class, the purpose of choice un-related to the objects sought to be achieved must be accepted as valid. In fact it is made clear in the decision itself that even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical, the choice of the legislature may be accepted. Therefore, the choice of the date cannot be wholly divorced from the objects sought to be achieved by the impugned action. In other words, if the choice is shown to be thoroughly arbitrary and introduces discrimination violative of Art. 14, the date can be struck down. What facts influenced the Court's decision in that cast for upholding the choice of the date are worth recalling. The Court held that the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. This was the weighty consideration which promoted the Court to uphold the date.” Consequently, the date fixed by the respondent-corporation i.e. 1.5.1997 is declared arbitrary. 10 Their Lordships of the Hon’ble Supreme Court in K.T. Veerappa and others versus State of Karnataka and others, (2006) 9 SCC 406 have held that the Courts should interfere with 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 material and relevant factors. Their Lordships have held as under: “13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 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 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 material and relevant factors.” The respondent-corporation and Himachal Road Transport Corporation, as noticed above, are two distinct legal entities, but they are instrumentalities/agencies of the State Government. The employees 11 working in these organizations discharging same and similar duties must be placed in the same pay scale. In other words there should be uniformity in the pay scales of the employees discharging same and similar duties in all the instrumentalities/agencies of the State Government. Their Lordships of the Hon’ble Supreme Court in The Employees of Tannery and Footwear Corporation of India Limited and another versus Union of India and others, 1991 Supp. (2) SCC 565 have held that though the Tannery and Footwear Corporation of India were two distinct legal entities, however, they were instrumentalities of the Central Government. Thus, the employees working in Tannery and Footwear Corporation of India were granted pay scale at par with the employees of Cotton Corporation on the principle of “equal pay for equal work”. Their Lordships have held as under: “14. It has been urged on behalf of the respondents that respondent-corporation and the Cotton Corporation of India are distinct legal entities carrying on different trading activities and the petitioners cannot claim parity in pay-scales with the employees in the Cotton Corporation of India and that the principle of equal pay for equal work cannot be invoked. It is no doubt true that the respondent-corporation and the Cotton Corporation of India, are distinct legal entities. But at the same time it cannot be ignored that both are instrumentalities of the Government of India who is bound by the directives contained in Part IV of the Constitution. 16. State of U.P. v. J. P. Chaurasia (AIR 1989 SC 19) (supra) 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 12 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 nothing 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 April 25, 1986, cannot, therefore, be upheld. The respondents Nos. 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 date April 25, 1986.” In view of the discussion made hereinabove, the petition is allowed. The respondents are directed to grant the pay scale of Rs. 1200-2100 to 13 the petitioners with effect from 1.1.1986 instead of 1.5.1997 within a period of eight weeks from today. There shall, however, be no order as to costs. 6.7.2009 (Rajiv Sharma ), J. *awasthi*