IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4929 of 1995 ASSISTANT'S JOINT CADRE ASSOCIATION, BIHAR STATE SECRETARIAT PATNA THROUGH ITS GENERAL SECRETARY, SHAILENDRA KUMAR OJHA, SON OF SRI KEDAR NATH OJHA, VILLAGE PAHARPUR, P.O. UMALAOGANJ, P.S. BIHIA, DISTRICT BHOJPUR ASSISTANT IN WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR. 2. UMESH KUMAR SINGH SON OF SRI INDRADEO SINGH VILLAGE & P.O. KATHAR, P.S. SIMRI, DISTRICT BUXAR, ASSISTANT IN TRANSPORT DEPARTMENT. 3. AMARENDRA NATH SINGH SON OF SRI JAGANNATH SINGH VILLAGE & P.O. BALRA ISMAIL P.S. MANIYARE, DISTRICT MUZAFFARPUR, ASSISTANT IN HEALTH MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT. 4. SATISH KUMAR SINGH SON OF SRI TAPESHWAR NARAYAN SINGH, VILLAGE & P.O. BARA VIA NABI NAGAR, DISTRICT AURANGABAD, ASSISTANT IN WATER RESOURCES (MINOR IRRIGATION DEPARTMENT); 5. KUMAR RABINDRA PRASAD SON OF SRI AYODHYA MAHTO AT BISHWA SADAN, INDIRA NAGAR, R. NO. 1, PATNA, ASSISTANT IN CO-OPERATIVE DEPARTMENT. Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, STATE OF BIHAR. 3. FINANCE COMISSIONER, STATE OF BIHAR. 4. THE COMMISSIONER AND SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, BIHAR, PATNA. 5. THE MEMBER BOARD OF REVENUE CUM CHAIRMAN, HIGH LEVEL COMMITTEE, OLD SECRETARIAT, PATNA. ----------- For the Petitioners :- Mr. Bindhyachal Singh For the State :- Mr. Lalit Kishore, AAG III & Mr. Girijesh Kumar, A.C. to AAG III ------ - 2 - 10 08/07/2010 Present writ application has not only been filed in a representative capacity but also by some individuals, covering broad spectrum of various departments. Writ application came to be filed by them in the year 1995. Primary pleading for relief is discrimination by the State Government in matter of grant of replacement scale or pay parity as per recommendation of the 5th pay revision committee. Writ was admitted for final hearing and is being finally disposed of only now in the year 2010. Since the time does not stop still, it must be recorded that the employees of the State of Bihar thereafter have been granted pay revision twice over. Since the present dispute on the point of discrimination is still being pressed on behalf of these petitioners an adjudication has to be made. Some of the submissions made at the Bar in support of the writ application on behalf of the petitioners is that the State is bound by its policy decision and, therefore, the principle of estoppel will come into play. Since the terms of reference made by the State talked of pay parity of the State employees vis-à-vis Central Government employees, they have a legitimate expectation and that some employees had - 3 - been given the benefit of central pay scale but it is the Assistants who have got a bad deal. The primary thread across the submission, however, is discrimination in matters of implementation of the recommendation. Petitioner has brought on record two notifications contained in annexures- 2 and 3 which came to be issued sometime in the year 1989, to be précise 13.02.1989 and 28.03.1989 respectively. The two notifications relate to constitution of what is known as „Fitment Committee” which was headed by a retired Judge of the High Court. From the two notifications there is indication that the Government of Bihar was seriously of the opinion that pay parity of the State employees with Central Government employees ought to be conferred, if not extended. Petitioners have also put in some extract of the so called report of the Committee which is annexure-4 where recommendation for extending central pay scale to the Secretariat Assistant has been talked about but when it came down to the final notification, according to the petitioners, they did not get what was assured or promised. Learned counsel for the State represented by the learned Additional Advocate General III submits that - 4 - Annexures 2, 3 and 4 were mere terms of reference and recommendations and there is no requirement in law for the State to accept all and every part of recommendation. State is run by the availability of resources and mere desire to extend certain privilege and benefit to the employees of the State will have to be decided on the touch stone of the size of pocket of the government. Though a lot of expectation was generated by terms of reference and some of the recommendations but looking at the financial position of the State Government, they developed cold feet and the pay parity with the Central Government employees could not be extended atleast in that pay revision. It is another issue that the benefit has accrued to the government employees in the next two pay revisions. The reason, according to the Additional Advocate General, for pleading discrimination by a set of present petitioners is based on certain developments which had taken place in the Central government. His categorical submission based on the pleadings in the counter affidavit is that the recommendation for the pay scale of the petitioners was Rs.1400-2600 but the State Government decided to grant - 5 - them a higher pay scale which was Rs.1500-2750. At that relevant time when Rs.1500-2750 pay scale was granted to the Assistants, the Central Government Assistant‟s pay scale was only Rs.1400-2600. They raised no objection when they ended up with higher pay scale vis-à-vis their central counter part but only when a higher pay scale came to be given to the Assistants of Central government in the year 1990, that of the terms of reference and the recommendations of the anomaly committee etc. have been pulled out to rake up an old issue of pay parity with the Central government employees. It is his categorical submission that the employees of the State of Bihar were not extended the benefit of central pay scale in relation to pay revision which is the subject matter of dispute in the present case and the plea of discrimination is a smoke screen to obtain yet another pay revision which was never accepted or notified by the State Government. Learned counsel representing the petitioners relies on two decisions of the Hon‟ble Supreme Court in the cases of Purshottam Lal and others Vs. Union of India and - 6 - another reported in AIR 1973, S.C. 1088 and Laljee Dubey and others Vs. Union of India and others reported in AIR 1974 SC 252. Pay parity and discrimination therein were the issues which were taken note of by the Hon‟ble Supreme Court and certain benefit thereafter accrued to those petitioners on the principle laid down therein. How much of that ratio is applicable to the present petitioners in the given bundle of facts is yet another issue since the proposition laid down by the Supreme Court is not the issue or dispute. The dispute is applicability of such principles in the given background of facts which the Court has recorded in the earlier part of its order. The discrimination which the petitioners have pleaded does not emerge from the records. Mere statement of discrimination is not good enough when the pleadings do not substantiate the same because pay parity with the Central Government employees vis-à-vis State Government was never an issue prior to the 5th Pay Revision Committee. In fact, effort to get pay parity vis-à-vis Central government was made for the first time in the 5th pay revision committee but the benefit or parity have only accrued to the employees much later in the - 7 - next two pay revisions and not in the said recommendation. Learned counsel representing the State thereafter relies on two decisions of the Supreme Court in the case of Federation of all India Customs and Central Excise Stenographers (recognized) and others Vs. Union of India and others reported in AIR 1988 SC 1291. Reliance is placed on paragraph 11 which is reproduced below : “In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less – it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact. In the light of the averments made in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs.” Other decision which has been pressed into service is the case of Union of India and others Vs. Makhan Chandra - 8 - Roy reported in (1997) 11 SCC, 182. The Court on due deliberations comes to a considered opinion that the case of the petitioners of discrimination vis-à- vis other government employees is figment of their imagination arising out of subsequent development because of pay revision by the Central government effected in the year 1990 when the government had already notified higher pay scale for the members of the Association. When they were drawing higher pay scale vis-à-vis their central counter parts, there was no murmuring on that issue but only when a couple months later Central government ended up giving a higher pay scale to their employees, parity was demanded. On refusal it is now sought to be obtained through intervention of the Court. The Court is not convinced with the argument that it is a case of hostile discrimination only to deny the benefit to the members of the present Association. Even otherwise the pay scales and the replacement scales for the employees are decided after much deliberations and debates and the Courts have no obligation to get into such matters as to what pay scale an employee should be entitled to in absence of a clear proof of discrimination, breach of law or the Constitution of India. - 9 - This writ application has no merit. It is dismissed accordingly. AMIN (Ajay Kumar Tripathi, J.)