IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2292 of 2000 1. Sri Lok Nath Singh, son of late Laxuman Singh, Artist cum Photographer, Dist. Family Welfare Bureau, Bhojpur at Ara. 2. Sri Daya Nand Gupta, son of late Jangi Saw, Artist cum Photographer, State Family Welfare Bureau (Off Set press) Old Secretariat, Patna, Barack No.9C, Patna-800015. 3. Sri Surendra Kumar Singh, son of Sri Shyam Sunder Singh, Artist cum Photographer, Dist. Family Welfare Bureau, Saran at Chapra. -------- Petitioners Versus 1. The State of Bihar. 2. The Health Commissioner, Government of Bihar, New Secretariat, Patna. 3. The Director-in-Chief, Health Services, Government of Bihar, New Secretariat, Patna. 4. The Director, Health and Family Welfare, Government of Bihar, New Secretariat, Patna. 5. The Secretary, Finance Department, Government of Bihar, Old Secretariat, Patna. 6. The Member Secretary, Fitment Committee, Bihar, Rest House Building of the Irrigation Department, Bailey Road, Patna. ---------- Respondents ----------- For the Petitioners :- Mr. Devendra Kumar Sinha, Sr. Adv. Mr. Shantanu Kumar, Adv. For the State :- Mr. Gautam Bose, AAG-8, Sr. Adv. Ms. Ratna Das, AC to AAG-8 ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (12.09.2011) Mihir Kumar Jha, J. Heard Mr. Devendra Kumar Sinha, learned senior counsel for the petitioner and Mr. Gautam Bose, learned Additional Advocate General No.8 for the State. In this writ application, the petitioners have made the following prayer:- “1(i) That the respondents may be directed to allow the petitioners’ scale of pay Rs. 2000 to 3800/ per month w.e.f. 1.1.1986 as has been done in the case of others. (ii) That the petitioners further pray that now Central pay scale for the Bihar State Government employees are being implemented in 2 which Respondents may be directed to allow scale of pay Rs. 6500 to 10,500/ per month as has been done in the case of other in place of 4500-7000/ per month.” Mr. Sinha, in support of the aforementioned relief, had initially drawn the attention of this Court towards the order dated 9.9.2005, which for the sake of clarity, needs to be extracted and is quoted hereinbelow:- “The contention on behalf of the petitioners is that the petitioners, who were artist cum photographers in the Health Department had been discriminated against similarly situated persons i.e. artist cum photographers in other departments of the Stat Government including Agriculture Department, though it is contended that minimum qualification for appointment and the work are one and the same. It is contended that the minimum qualification for the job and work discharged is one and the same and as persons in both the categories, i.e. Artist- cum-Photographers in the Health Department or in the other departments of the State are one and the same, they cannot be discriminated as far as pay scale is concerned. Rather it is contended that earlier also as the said discrimination was there. Petitioners challenged the same by moving Bihar Administrative Tribunal, which by its order dated 1st of March, 1988 as contained in Annexure-2, allowed the same pay-scale to the petitioners and to the similarly situated persons i.e. the photographer cum artist in the Health Department. Thus, it is contended that as the said anomaly was removed and photographers cum artist in all the departments including the Health Department were getting the same pay-scale, today again they cannot be 3 discriminated. Now, it is contended that while revising the said pay scale a yardstick again has been applied as the artist cum photographers in the Health Department have been given a revised pay-scale of Rs. 4500-7000 whereas in other department the same is Rs. 6500-10,500. Counsel for the State on the other hand by filing counter affidavit contented that salary of an employee is fixed taking the nature of work, their qualification and other aspect into consideration. As the nature of work is different and the Fitment Committee has also considered the same and accepting the recommendation of the Fitment Committee aforesaid pay-scale has been given to the petitioners and the same is not required to be looked into. This Court taking into consideration the earlier aspect that once the matter has been adjudicated and earlier to the revision of pay- scale if persons similarly situated were getting same pay-scale perhaps the replacement pay-scale should have been one and the same. In the present case there is a recommendation of the Fitment Committee. But whereas all the aspects including the fact that in view of the order of Bihar Administrative Tribunal, as the pay-scale of the petitioners and other artist cum photographers in the Health Department had been made the same, whether these aspects were brought by the State Government to the notice of the Fitment Committee or not, is required to be verified as the same is not on record in the counter affidavit. Let the recommendation of the Sixth Pay Revision Committee as well as the Fitment Committee which has recommended to remove all anomalies with regard to the petitioners and similarly situated persons be brought on record on the next date by filing supplementary counter affidavit.” 4 As would appear from the thurst of the aforementioned order, the petitioners were quite sanguine that the Government and the Fitment Committee, while fixing the pay-scale of the petitioners holding the post of Artist cum Photographer, had ignored the decision of the Bihar Administrative Tribunal dated 1.3.1988 in Service Case No. 203 of 1986 and such fixation was made contrary to the inter-parte orders before a judicial forum, which had a binding effect in any future consideration of the case of the petitioners. This aspect of the matter, however, was subsequently clarified by the respondents by filing their supplementary counter affidavit, wherein, it was shown that the Fitment Committee had duly considered the importance of the said judgment of the Bihar Administrative Tribunal and only thereafter it had come to its logical conclusion with regard to the fixation of their pay in the central pay-scale. Such consideration of the case of the petitioners being relevant, by the Fitment Committee consisting of Hon’ble Justice S. Sarwar Ali as His Lordship then was in capacity of Chairman of the Fitment Committee along with Mr. Subhakirti Majumdar, I.A.S. the Member Secretary, is quoted here in below:- “ARTIST CUM PHOTOGRAPHER 38.23.1 Shri Dayanand Gupta and Shri Bhagwan Das Prasad, Artists cum Photographer in the State Family Welfare Bureau as well as in the Offset Press of the same Bureau, respectively, have represented to the 5 Fitment Committee that the revised pay scale should be recommended considering their existing pay scale to be Rs. 1500-2750. They have also submitted that after the 4th Pay Revision Committee, the Government notified on 30.12.81 in Finance Department Resolution No. 10770 the pay scale of Rs. 535-765 for the post but this was subsequently revised to Rs. 580-860 on the basis of the recommendations of the Pay Anomaly Removal Committee and thereafter on the basis of the ruling of the Bihar Administrative Tribunal, the Finance Department vide Letter No. 3/PRC-02-90/769 dated 22.2.1990 sanctioned from 1.4.1981 the pay scale of Rs. 850-1360 and again the Finance Department revised the scale to Rs. 1500- 2750 from 1.1.86. This order of 1990 also mentions that the Fitment cum Pay Revision Committee in their report of July 1989 at paragraphs 42 to 44 recommended for those Artists cum Photographer who have a five years diploma after matriculation, the scale of Rs. 850-1360. We perused the recommendations of the Fitment cum Pay Revision Committee and it has been stated therein that the Artist and Photographer in the Public Relations Department of the State Government are only required to be matriculates and no institute in Patna provides diploma course except possibly the diploma course in Photography in the Notre Dame Academy, a Public School in Patna. 38.23.2 The Bihar Administrative Tribunal in their judgment of 1.3.1988 recommended the replacement scale of Rs. 850-1360 for Photographers who are matriculates with a diploma in Commercial Art with experience of photography, silk screen painting and graphics and have at least two years of practical experience of art work and photography in a Government or some private firm of repute. In Chapter 16 while dealing with the pay scales of posts in the Human Resources Development Department the Fitment cum Pay Revision Committee had recommended at paragraph 23 that Drawing Teachers 6 who have undergone a five years diploma course will be entitled to the pay scale of Rs. 850-1360 and they should only be posted in High Schools. 38.23.3 In the Ministry of Information & Broadcasting of the Central Government, it has been recommended at paragraph 73.54 that Photographers will be in the pay scale of Rs. 4000-6000 and Assistant Cameraman will be in the pay scale of Rs. 5000-8000. 38.23.4 At Annexure 55.5 of the 5th Central Pay Commission Report the Artist cum Photographer who are direct recruits with degree in Fine Arts and two years experience are in the scale of Rs. 5000-8000 and those Photographers who are matriculates with diploma in Photography and two years experience are in the pay scale of Rs. 4000-6000. While discussing the pay scales under common categories regarding the Printing Staff at paragraph 55.205 the Cameraman has been recommended the pay scale of Rs. 1400-2300 with the Senior Cameraman being in the pay scale of Rs. 1640-2900. The Assistant Artist (Retouching) in the Budget Press of the Ministry of Finance is in the pay scale of Rs. 1400-2300 as has been mentioned at paragraph 55.221. Hence we do not consider it appropriate to grant to the Artist cum Photographer the pay scale of Rs. 5000-8000 because obviously he is not a graduate with a degree in Fine Arts and two years experience, the qualification required for a Photographer in that scale. Artists as well as Cameraman in the Press are in the pay scale of Rs. 1400-2300, which has been revised to Rs. 4500-7000. Therefore, the pay scale of Artist cum Photographer in the State Family Welfare Bureau will be Rs. 4500- 7000.” Based on the aforementioned consideration, the main plank of the petitioners that before the Fitment Committee the order of the Administrative Tribunal was not referred to and/or relied by the Government would 7 itself disappear, inasmuch as, the petitioner no.2 himself had, in his representation to the Fitment Committee had produced the order of the Tribunal. The Fitment Committee’s rationale while submitting its recommendation in the case of the petitioners also cannot be questioned on another ground, namely, the entry point qualification for post in question. It has to be, however, kept in mind that the job of Fitment Committee was very limited and, in fact, it had to place the pay-scale of the Government servant of Bihar in the corresponding pay-scale of the Central Government. At that point of time, the petitioners, before the Fitment Committee, had asked for the Government of India pay-scale of the Artist cum Photographer of Rs. 5,000-8,000 and that was rejected by the Fitment Committee by introducing the concept of qualification at the entry point. The Fitment Committee, in fact, had held, as quoted above, the petitioners entitled for pay-scale of Rs. 4500-7000. The reasoning of the Fitment Committee of not equating the petitioners with the Artist cum Photographer of the Central Government, however, was subsequently reconsidered by the State Government itself which by its resolution dated 12.1.2004 had allowed the claim of the petitioners of being placed in the pay-scale of Rs. 5000-8000 as is apparent from Annexure-B to the counter affidavit. Normally, after 8 the order of the Finance Department dated 12.1.2004, the petitioners should have become satisfied keeping in view their demand that they had made before the Fitment Committee in the year 1999-2000 was fulfilled. The petitioners, however, were/are more ambitious and in fact everyone should be. In fact, this writ application was also filed by them on 6.3.2000 claiming the revision of their pay from 1.1.1986 in the pay-scale of Rs.2000-3800 and its replacement in the pay-scale of Rs. 6500-10500. One has to however keep in mind that the pay-scale of Rs. 2000-3800 was notified by the State Government on 30.12.1989 with effect from 1.1.1986 and the petitioners had never questioned the same before any forum prior to filing of this writ application on 6.3.2000. It is of-course said by them that they had filed their representation against the said pay fixation but, then, if they had ultimately confined their demand before the Fitment Committee in the year 1999-2000 to the grant of corresponding pay- scale of Artist cum Photographer of the Government of India in the pay-scale of Rs. 5000-8000, they cannot ask for the revision of their pay-scale of 2000-3800 with effect from 1.1.1986 specially when they were already granted pay-scale of Rs. 1500-2750 with effect from 1.1.1986. Mr. Sinha learned Senior Counsel had then tried to make out a case on the line of the 9 discrimination of the same post in the Agriculture Department, Tourism Department and Labour Employment Department by contending that the Artist in the Agriculture Department in the pay-scale sanctioned with effect from 1.1.1986 were granted the pay-scale of Rs. 2000-3800 but, the same benefit was not given to the petitioners, who were Artist cum Photographer in the Family Welfare Wing of the Health Department. The submission was based on an analogy that the same qualification was required for the post of Artist in Agriculture Department, Tourism Department and Labour Employment Department and Health Department and, therefore, there could not have been varying pay-scales for the same post. Attractive though the aforementioned submissions may be, but, then, the same is also factually incorrect, inasmuch as, the respondents in their first counter affidavit have explained the whole aspect as with regard to marked difference in the pay- scale of the post of Artist in different departments and to that extent, the chart given by the respondents in their first counter affidavit also stand admitted by the petitioners themselves, inasmuch as, they also have annexed the same chart as a part of Annexure-12 which reads as follows:- Depart- ment Desig- nation Scale sanctioned vide 10770 dt. 30.12.81 Scale sanctioned vide 6021 dt. 18.12.89 Existing Revised Existing Revised Agricult- ure Artist Rs.510- 1155 At page Rs. 1000- 1820 Sl. No. 1000- 1820 At page 2000-3800 Sl. No.39 10 95 38 92 Artist 296-460 At page93 850-1360 Sl. No.105 850-1360 At page 91 1500-2750 Sl.No.106 Sr. Artist 400-660 At page95 850-1360 Sl.No.32 850-1360 At page 92 1500-2750 Sl.No.32 Sr. Artist/ Photogra- her 400-660 At page 93 850-1360 Sl.No.110 850-1360 At page91 1500-2750 Sl.No.111 Tourism Artist 400-660 At page130 850-1360 Sl.No.26 850-1360 At page126 1500-2750 Sl.No.27 Labour & Employment Artist 400-660 At page 136 Sl.No.13 850-1360 Page 140 Sl.No.5 850-1360 Page 136 Sl.No.16 Page 141 1500-2750 Page-139 Sl.No.28 Sl.No.6 Artist 240-396 Page 138 850-1360 Sl.No.29 Health Deptt. Artist- Cum- Photo- grapher in Family Welfare 240-396 850-1360 850-1360 1500-2750 Vide F.D. letter No.769 dated 22.2.90 (Anne 3/1 of the present writ petition. Vide F.D. letter No.3408 dated 28.6.91 (Incorporated in 781 dt. 8.2.96). Thus the aforesaid chart by itself would be sufficient to prove that there was no justification in the claim of the petitioner for the pay-scale of Rs. 2000-3800, inasmuch as, when an Artist cum Photographer in the Health Department was initially drawing salary of Rs. 240-396 as is also clear from the advertisement of the petitioners, the Artist in the Agriculture Department was drawing the pay-scale of Rs. 296-460 and the Artist in the Tourism Department and Labour Employment Department was drawing his pay in the pay- scale of Rs. 400-660. It is, therefore, clear that the disparity or the differentiation in the pay-scale of the post of Artist cum Photographer of the Health Department with the Artist of the Agriculture Department, Tourism Department and Labour Employment Department was maintained right from the inception. 11 The turning point, according to the learned Senior counsel for the petitioners, would be the grant of pay-scale to the petitioners of Rs. 850-1360 in view of the order of the Tribunal. The order of the Tribunal, in fact, was acted upon even though not sustainable in law, inasmuch as, the order of the Tribunal was passed by the administrative members, whereas, unlike the provision of the Central Administrative Tribunal Act, the Administrative Members had no separate power to dispose of any matter. This Court, however, will not go into the correctness or otherwise of the order of the Tribunal because that has already been acted upon by the State Government by notifying the petitioners’ pay-scale of Rs. 850-1360 but, it must make it clear that its analogy of parity of pay-scale prior to 1.4.1981 was definitely factually incorrect. The Government, therefore, was not required to repeat the same mistake and in fact it did not do so while notifying the pay-scale of the petitioners on 18.12.1989 when it had granted the petitioners the pay- scale of Rs. 1500-2750, whereas, the counterpart Artist of the Agriculture, tourism and Labour Employment Department were placed in the pay-scale of Rs. 2000- 3800 on account of their higher pay-scale of Rs. 400- 660 and its replacement pay-scale of Rs. 850-1360. Such order passed by the Tribunal which had given the petitioners the benefit of pay-scale of Rs. 850-1360 being itself based on a factually incorrect premises, 12 which could not also be satisfactorily explained by the learned senior counsel for the petitioners. Will leave nothing move for this Court but to hold that the petitioners’ demand for revision of their salary in the pay-scale of Rs. 2000-3800 based solely on the revision of the pay-scale of Rs. 850-1360 in the case of the other Artist is absolutely unsustainable, specially when this Court has found that the Artist of the Department of Agriculture, Tourism and Labour and Employment even prior to 1.1.1981 were placed in the higher pay-scale of Rs. 296-460 or Rs. 400-660 as has been noted and explained in the Chart extracted above. It has to be also kept in mind that the petitioners have done no service to themselves by not producing the advertisement of the Department of Agriculture, Tourism and Labour Employment under which the Artist were appointed prior to 1.1.1981 in the pay- scale of Rs. 296-460 and Rs. 400-660. This Court, therefore, in absence of any cogent material, would not be in a position to uphold the claim of the petitioners of their being granted pay-scale of Rs. 2000-3800 with effect from 1.1.1986 and Rs. 6500-10500 with effect from 1.1.1996. At this stage, it has to be also kept in mind that the pay-scale of Rs. 6500-10500 is the pay- scale of a gazetted officer whereas the petitioners are definitely non-gazetted officer and their entry point qualification was only Matriculation with diploma in commercial art and knowledge of photography. The 13 advertisement which was published in the year 1970 had given the petitioners the pay-scale of Rs. 115-225, which was revised to Rs. 240-396 with effect from 1.1.1971 and again replaced by the pay-scale of Rs. 535-765 with effect from 1.4.1981. Therefore, if the petitioners could not get the benefit of the order of the Tribunal revising their pay-scale in 850-1360, it was always open for the Government to scale down as per the original entitlement of the job and qualification laid down and by making its comparison with the other post of Artist in the Department of Agriculture, Tourism and Labour Employment. In any event, the claim of the petitioners of getting their pay fixed with effect from 1.1.1986 is belated by eleven to fourteen years and, therefore, this Court will have no hesitation in rejecting the part of the prayer of the petitioners, wherein, they for the first time, have approached this Court claiming their pay revision from Rs. 850-1360 in the pay scale of Rs. 2000-3800 instead of Rs. 1500-2750. Such a decision, having been notified and acted upon on 18.12.1989, if the petitioners could happily accept such amount for next eleven years and in fact became conscious only at the stage of pay-fixation in the year 1999, when the Central pay-scale was sought to be implemented by way of the report of the Fitment Committee and its acceptance by the State Government, the chapter of the year 1986 cannot be allowed to be 14 reopened only because the petitioners’ claim had already attained finality for grant of the same pay- scale as being given to the Artist cum Photographer of the Government of India i.e. Rs. 5000-8000, as has been ultimately notified by the State Government for the petitioners. The job of pay-fixation is one of the expert, the writ court cannot interfere on the matter on a very limited parameter. Reference in this connection may be made to the judgment in the case of State of U.P. & Ors. Vs. J.P. Chaurasia & Ors. reported in AIR 1989 SC 19, wherein, the Apex Court had also clarified that same nomenclature of the post would not make the pay-scale also comparable and the fixation of pay would depend on a number of circumstances. This Court is therefore satisfied that when the petitioners, after filing of the writ application, have already received the enhanced pay-scale of Rs. 5000-8000 in place of Rs. 4500-7000, they should now remain satisfied with it, inasmuch as, right from the beginning, there was a clear difference in their pay- scale and the pay-scale of other Artist (not Photographer) in the Department of Agriculture, Tourism and Labour Employment. Thus having given anxious consideration to all the aspects as discussed above, this Court does not find any merit in this application and the same is, accordingly, dismissed. 15 (Mihir Kumar Jha, J.) Patna High Court Dated the 12th September 2011 N.A.F.R./Rsh