1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.327 of 2004 Date of decision: 22.4.2009 Union of India & ors ….Petitioners Vs. Kesar Singh & ors …. Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 yes For the Petitioners: Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondents Mr. B.C. Negi, Advocate Per Surjit Singh, J (Oral) Present writ petition under Articles 226 and 277 of the Constitution of India has been filed by the Government of India and others, seeking judicial review of order dated 19th September, 2003, whereby allowing the original application of respondents (numbering 37), a direction has been given to the writ petitioners to reconsider the claim of the respondents for grant of higher pay scale of Rs.4000- 6000, on the basis of recommendation of 5th Central Pay Commission particularly in the light of observation made in para 69.31 of the Commission report. 2. Facts relevant for the disposal of the petition may be noticed. Prior to the implementation of the 5th Central Pay 1 Whether reporter of local papers is allowed to see the judgment? 2 Commission report w.e.f. 1.1.1996, respondents, who are employed as Laboratory Assistants in Central Research Institute, Kasauli, were getting pay scale of 975-1540. Their counterparts in National Malaria Eradication Programme Institute, National Institute of Communicable Diseases, All India Institute of Hygiene and Public Health were also in the same pay scale. 5th Central Pay Commission made a recommendation for re-designating the posts of Laboratory Supervisors, Laboratory Technicians and Laboratory Assistants. It appears that the recommendation was that Laboratory Supervisors be re-designated as Lab Assistants Grade-1 and Laboratory Technicians be re-designated as Lab Assistants Grade-II and Laboratory Assistants be re-designated as Laboratory Assistant Grade-III. The Commission, it appears, recommended pay scale of 4000-6000 in respect of Lab Assistants Grade-III. This revised scale was granted by the Government of India to the Laboratory Assistants working in all the departments and organizations, except the Lab Assistants of National Institute of Communicable Diseases (NICD) and Central Research Institute, Kasauli. Representations were made by the Laboratory Assistants of these two organizations. In the case of Laboratory Assistants of National Institute of Communicable Diseases (NICD), representations were accepted and they were granted the recommended scale of 4000- 6000 vide notification dated 8.2.2000 w.e.f. 1.1.1996. However, representations of the respondents, who are the Laboratory Assistants of Central Research Institute, were rejected, on the ground that the Laboratory Assistants of this Institute were appointed by 100% promotion from amongst Laboratory Attendants, with three years service and most of such persons were 3 not possessing the qualification of B.Sc as possessed by some percentage of the Laboratory Assistants in other organizations and the departments of the government who were appointed by direct recruitment. 3. Aggrieved by the order of rejection of their representation, respondents filed Original Application before Central Administrative Tribunal, seeking a direction to the writ petitioners for granting them the same pay scale as had been granted to their counterparts in other organizations and departments of the government. They alleged that non grant of the scale of 4000-6000 to them amounted to discrimination and as such infringement of their fundamental right under article 14 of the Constitution of India. 4. Original application was opposed by the writ petitioner, mainly on the ground that in other departments and organizations, a fixed percentage(s) of the posts of laboratory Assistants was filled by direct recruitment for which minimum educational qualification was B.Sc, whereas in the case of Central Research Institute, recruitment was by 100% promotion from amongst laboratory Attendants and majority of the laboratory Attendants, so promoted, did not possess the qualification of B.Sc. 5. Learned Tribunal rejected the aforesaid plea raised by the writ petitioners. Reason given by the Tribunal is that though some of the Laboratory Assistants in other organizations and departments of the government are appointed by way of direct recruitment and the minimum qualification is B.Sc for direct recruitment, but some of the Laboratory Assistants in all the departments and organizations are appointed by promotion from amongst Lab Attendants who do not 4 possess the qualification of degree in Science and even those promotee Lab Assistants are given the pay scale of 4000-6000. It was held that denying this scale to the respondents was discriminatory and violative of Article 14 of the Constitution of India. Consequently, Original application was allowed and a direction was given to the petitioners to reconsider the matter of grant of higher pay scale to the respondents in the light of the observations of 5th Central Pay Commission, contained in para 69.31. The order was passed by the Tribunal on 19th September, 2003. 6. Petitioners reconsidered the matter and decided not to grant any higher scale of pay to the respondents. This decision was taken, vide order dated 25th August, 2004 (Annexure A-6 ). Reasons given for this order were that in the Central Institute of Research, appointments to the posts of Laboratory Assistants were made by 100% promotion from amongst Laboratory Attendants and that in case the Laboratory Assistants working in the said institute were re-designated as Lab Assistants Grade-III and given pay scale of 4000-6000, their scale would be equivalent to the scale of next higher post of Lab Technician. 7. It appears that respondents filed a contempt petition against the writ petitioners after passing of the order Annexure A-6 because the reasoning given in the order already stood rejected by the Tribunal, vide its judgment dated 19th September, 2003. To escape action in that petition for contempt, writ petitioners, as disclosed by learned Assistant Solicitor General during the course of hearing, issued another order granting pay scale of 4000-6000 to the 5 respondents, but that order is provisional, subject to the final result of this writ petition. 8. We have heard the learned Assistant Solicitor General as also the counsel representing the respondents and have gone through the record. It is not in dispute that recommendation of the 5th Central Pay Commission for re-designating the hierarchy of supporting staff of laboratories has been accepted by the Central government in respect of all its departments and other organizations. This recommendation was not accepted initially in the case of two organizations i.e. National Institute of Communicable Diseases (NICD) and Central Research Institute, Kasauli. When the Laboratory Assistants of NICD represented for acceptance of the recommendation, in their case also, the Central Government re- designated the laboratory Assistants of that organization in accordance with the recommendation of 5th Central Pay Commission. However, representation of the respondents, who are the employees of CRI was rejected. Now, when the recommendation of the 5th Central Pay Commission to the aforesaid effect had been accepted in respect of all the organizations and departments of the Central Government, non acceptance of the said recommendation in the case of respondents, in our considered view, amounts to discrimination, particularly when it is not in dispute that CRI is a premier institute and its Lab Assistants perform the same duties and discharge the same functions as their counterparts in other organizations & government departments. 9. ` Plea taken by the writ petitioners that appointments of Laboratory Assistants in CRI are made by promotion from amongst 6 Laboratory Attendants in full or say to the extent of 100 % and so they are not entitled to be re-designated as Laboratory Assistants Grade-III and the grant of scale of Rs. 4000-6000 recommended for Laboratory Assistants Grade-III by the 5th Central Pay Commission cannot be accepted for the reason that recruitment to the post of Laboratory Assistants in other departments and organizations to the extent of some percentage, is also made by promotion from amongst laboratory Attendants and even those Laboratory Assistants who are appointed by promotion from amongst Laboratory Attendants are given pay scale of 4000-6000. 10. In view of the above stated position, we do not think the Tribunal has committed any illegality in ordering the writ petitioners to reconsider the claim of respondents for grant of higher scale and their re-designation as Laboratory Assistants Grade-III in the light of the recommendation of 5th Central Pay Commission, particularly the recommendations appearing in para 69.31. Consequently, the writ petition is dismissed. R.B. Misra ),J. ( Surjit Singh ), J. 22nd April, 2009(sl)