IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 7171 of 2008 (OA No. 117 /2005) Judgment reserved on : 20.7.2010 Date of decision : 22.7.2010. Mohinder Kumar and Ors. …Petitioners. Versus State of H.P. & Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. Dilip Sharma, Advocate and Mr. Umesh Kanwar, Advocate. For the Respondents : Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. P.K. Sharma, Addl. A.G. Kuldip Singh, Judge The petitioners have prayed mainly the following reliefs:- “(i) That the act of the respondents in not providing the equal treatment to the applicants, Statistical Assistants of the Health and Family Welfare Department as has been provided to the Statistical Assistants of the Planning Department, Economics and Statistical Department and other departments, may kindly be declared illegal, arbitrary, contrary, unjust, invalid, void ab-initio, unconstitutional and unsustainable in the eyes of law. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 (ii) That the respondents may kindly be directed to grant/provide the pay scale of Rs.1800-3200 w.e.f. 1.1.1986 to the applicants at par with the pay scale of Rs. 1800 – 3200 already provided/granted to the Statistical Assistants or Planning Department and Economics and Statistical Department etc. and the respondents may further be directed to fix the pay of the applicants accordingly w.e.f. 1.1.1986 onwards along with all consequential benefits. (iii) That the respondents may further be directed to release the arrears of pay along with interest at the rate of 18% per annum.” 2. The facts, in brief, are that petitioners are serving in the Health and Family Welfare Department of Himachal Pradesh and all of them were appointed as Statistical Assistants. The petitioners No. 1, 2 and 7 joined as Statistical Assistants on 15.7.1987, 6.7.1988 and 28.12.1986 respectively and rest of the petitioners joined as Statistical Assistants prior to 1.1.1986. The Statistical Assistants were in the pay scale of Rs. 570 – 1080 prior to 1.1.1978 and all the petitioners were given the pay scale of Rs. 570 – 1080 at the time of their appointments as Statistical Assistants. The pay scale of Statistical Assistants was revised in the year 1989 w.e.f. 1.1.1986 from Rs. 570 – 1080 to Rs. 1500 – 2640. The petitioners were given the pay scale of Rs. 1500 – 2640 by notification dated 26.4.1989. In fact, the pay scale of Rs. 1500 – 2640 was given by respondent No.2 to the Statistical Assistants of all Departments in the State. The respondent No.1 in continuation of notification dated 26.4.1989 and in pursuance of explanation No. 3 (h) of Rule 3 of H.P.Civil Services (Revised Pay) Rules, 1988 vide notification dated 3 6.7.1992 substituted pay scale of Rs.570 – 1080 to Rs. 1640-2925 in Part-B of Second Schedule under Section XXV-Health & Family Welfare Department against serial No. 8. The respondent No.1 vide notification dated 8.7.1994 revised the pay scale of Rs. 1640 – 2925 to Rs. 1800 – 3200 in respect of Statistical Assistants working in Planning Department and Economics and Statistic Department w.e.f. 1.1.1994. 3. It is the case of the petitioners that Statistical Assistants working in the Planning Department and Economics and Statistic Department had been discharging the same nature of duties as was being discharged by the Statistical Assistants working in the Health and Family Welfare Department. The Statistical Assistants of all Departments were in the pay scale of Rs. 570 – 1080, Rs. 1500 – 2640 and Rs. 1640 – 2925 from time to time but respondent No.1 on 8.7.1994 revised the pay scale of Rs. 1640 – 2925 to Rs. 1800 – 3200 in respect of Statistical Assistants of the Planning Department and Economics and Statistic Department only w.e.f. 1.1.1994. The Statistical Assistants of Health and Family Welfare Department in which the petitioners are working were ignored and they were kept in the pay scale of Rs. 1640 – 2925. 4. On 17.5.2002 the respondent No.1 revised the pay scale of Statistical Assistants of all Departments including the Planning Department and Economics and Statistic Department and they were given revised pay scale of Rs. 1800 – 3200 w.e.f. 1.1.1986 but the Statistical Assistants working in the Health and Family Welfare Department including the petitioners were not given 4 the pay scale of Rs. 1800 – 3200 w.e.f. 1.1.1986 without any justifiable cause. 5. The respondent No.1 w.e.f. 1.1.1996 has given the pay scale of Rs. 5800 – 9200 to the Statistical Assistants of all Departments including Statistical Assistants of Health and Family Welfare Department, Planning Department and Economics and Statistic Department. In brief, now the grievance of the petitioners in the petition is for giving them the pay scale of Rs. 1800 – 3200 w.e.f. 1.1.1986 to 31.12.1995 inasmuch as after 1.1.1996 they have been given the new pay scale of Rs. 5800 – 9200 as has been given to Statistical Assistants of other Departments in the State. 6. The grievance of the petitioners is that the State is a model employer and is supposed to treat all the employees equally and any unreasonable classification cannot be made by the State for pay scales to the similarly situated employees. The action of the State not to give pay scale of Rs. 1800 – 3200 to Statistical Assistants including the petitioners working in the Health and Family Welfare Department in the State is violative of Articles 14 and 16 of the Constitution. The Statistical Assistants of Health and Family Welfare Department are equally qualified like the Statistical Assistants of other Departments and they are performing similar and identical duties in all respects as are performed by the Statistical Assistants of other Departments. 7. The respondents No.1 to 3 have contested the petition by filing reply in which several preliminary objections have been raised. It has been stated that in the matter of grant of particular pay scale at the relevant point of time, Finance Department is the only 5 competent authority. The State is following the structure of pay scales of the Government of Punjab since 1.2.1968 and the pay scale of Statistical Assistants in the Department of Health and Family Welfare in the State of Himachal Pradesh was also revised from time to time strictly on Punjab pattern. The claim of the petitioners of pay scale of Rs. 1800 – 3200 from retrospective date and period from 1.1.1986 over and above the Punjab pattern is not at all admissible under the law and facts on record. The determination of pay scales is the primary function of the executive. The pay parity cannot be claimed merely on the basis of identity of designation. The petition is barred by limitation. The nature of duties of petitioners is not comparable with the duties of the Statistical Assistants of Planning, Economics and Statistic Departments. On merits, the respondents have taken same stand and opposed the petition. It has been stated that no act of the respondents can be said to be discriminatory, unconstitutional and violative of Articles 14 and 16 of the Constitution. The respondents have prayed for dismissal of the petition. The petitioners have filed rejoinder and reiterated their stand. 8. I have heard the learned counsel for the parties. The petitioners are claiming pay scale of Rs. 1800 – 3200 w.e.f. 1.1.1986 to 31.12.1995. There is no dispute that before 1.1.1986 and on and after 1.1.1996 the pay scale of the petitioners was same as was given to other Statistical Assistants in the State. The respondents have not refuted the stand of the petitioners that petitioners are having the same qualifications as Statistical Assistants are having in other Departments more particularly the Planning Department, 6 Economics and Statistic Department. It is the case of the petitioners that they are performing same nature of duties as are being performed by the Statistical Assistants of other Departments more particularly Statistical Assistants of Planning Department and Economics and Statistic Department. The State has vaguely refuted the stand of the petitioners that the nature of duties of Statistical Assistants of Health and Family Welfare Department are not similar to Statistical Assistants of Planning Department and Economics and Statistic Department, but it has not been explained by the State in what manner the nature of duties of Statistical Assistants of Planning and Economics and Statistic Department differ from the nature of duties of Statistical Assistants of Health and Family Welfare Department. There is nothing on record to take a view that the nature of duties of Statistical Assistants of Planning Department, Economics and Statistic Department differ from the nature of duties of Statistical Assistants working in Health and Family Welfare Department. 9. There is no denial of the legal position that employer is to prescribe the pay scales which depends upon several factors including qualification, source of recruitment, nature of duties, level at which recruitment is made, chances of promotion and the capacity of the employer to pay etc. But simultaneously, it cannot be ignored that the pay scale to be paid by the State to its employees should be based on some rationale principle. The State has taken the stand that it followed the Punjab pattern for pay scale of Statistical Assistants of Health and Family Welfare Department in the State. The State while following the Punjab pattern cannot 7 discriminate with one set of Statistical Assistants with other set of Statistical Assistants. It has been established on record that prior to 1.1.1986 and after 1.1.1996 the Statistical Assistants of Health and Family Welfare Department were/are given the pay scale equal to the pay scale of their counter-parts working in other Departments in the State. Therefore, the State simply on the plea of giving pay scale to Statistical Assistants of Health and Family Welfare Department on Punjab pattern cannot discriminate with them when their counter-parts in other Departments are given higher pay scale. There is no intelligible differentia so as to distinguish the Statistical Assistants of Health and Family Welfare Department with the Statistical Assistants of other Department in the State for purposes of pay scale. The State has failed to establish nexus to be achieved by depriving the Statistical Assistants of Health and Family Welfare Department pay scale different from the pay scale of other Departments in the State. 10. In Union of India vs. Dineshan K.K. (2008) 1 SCC 586, the Supreme Court has held : “Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the executive, the court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the executive or the legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to 8 different departments or the basis for classification of posts is ex facie irrational, arbitrary or unjust, it is open to the court to intervene.” In Haryana State Minor Irrigation Tubewells Corporation and others vs. G.S.Uppal and others (2008) 7 SCC 375, it has been held that courts should interfere with the 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. 11. Thus, seen from any angle, the petitioners have made out a case for grant of pay scale of Rs. 1800 – 3200 w.e.f. 1.1.1986 to 31.12.1995 at par with Statistical Assistants of Planning Department and Economics and Statistic Department. Accordingly, the petition is liable to be allowed. 12. The result of the above discussion, the petition is allowed. It is held that the Statistical Assistants of Health and Family Welfare Department of respondent No.1 are entitled to pay scale of Rs. 1800 – 3200 w.e.f. 1.1.1986 to 31.12.1995 at par with Statistical Assistants of Planning Department and Economics and Statistic Department of respondent No.1. The respondents are directed to release the pay scale of Rs. 1800 – 3200 to the petitioners with consequential benefits within a period of three months from the date of receipt of copy of this judgment which shall be furnished by petitioners to respondent No.1. No costs. (Kuldip Singh) July 22, 2010. Judge. (GR)