C.W.P.No.5214 of 1992 alongwith 2 connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Writ Petition No.5214 of 1992 Yash Pal Mehra. Lecturer and others ....Petitioners Versus State of Punjab and another ...Respondents 2. Civil Writ Petition No.13429 of 1992 Dharam Pal, Lecturer and others ....Petitioners Versus State of Punjab & others ...Respondents 3. Civil Writ Petition No.3913 of 1994 Haryana School Lecturer Association and others ....Petitioners Versus Commissioner & Secretary to Government, Haryana and another ....Respondents Date of Decision:-13.5.2011 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Vipin Mahajan, Advocate for the petitioners. Mr.Palwinder Singh, Senior Deputy Advocate General, Punjab & Ms.Kirti Singh, Deputy Advocate General, Haryana for the respondents. M ehinder S ingh S ullar , J. As identical questions of law and facts are involved, therefore, I propose to decide the indicated writ petitions, by virtue of this common judgment, in order to avoid the repetition. However, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petitions, have been extracted from (1) CWP No.5214 of 1992 titled as “Yash Pal Mehra and others Vs. State of Punjab and another” in this respect. C.W.P.No.5214 of 1992 alongwith 2 connected cases 2 2. The contour of the facts, culminating in the commencement, relevant for disposal of the present writ petitions and emanating from the record, is that the State of Punjab adopted the new system of 10+2 Higher Secondary education in the year 1963-64 and the posts of School Lecturers were stated to have been created at par and in the same pay scales as that of Junior College Lecturers. The petitioners were working as School Lecturers at the relevant time. In the wake of recommendations of the Kothari Commission, the Government revised the pay scale of teaching personnel in the Government schools, by virtue of letter dated 29.7.1967 (Annexure P1). The College Lecturers were placed in the pay scales of ` 700-1600, while the School Lecturers were granted the pay scales of ` 700-1200 in view of the recommendations of 2nd Pay Commission w.e.f. 1.1.1978. 3. The petitioners claimed that in spite of recommendations of Education Commissions (Annexures P2 and P3), the parity was not maintained by the respondents. In pursuance of representation, the petitioners were informed by the Director of Public Instructions (Schools), Punjab-respondent No.2 (for brevity “DPI”) that their representation for allowing the grade of ` 700-1600 to the School Lecturers has already been sent to the Government with the recommendations and regular reminders were also issued, by means of memo/letter No.9/15-82-ES(S) dated 21.12.1982 (Annexure P4/T). The position remained the same. Thereafter, they issued legal notice dated 24.1.1992 (Annexure P5), but in vain and the anomaly was not removed by the respondents. 4. The petitioners (School Lecturers) did not feel satisfied with the action of the respondents and preferred the instant writ petitions, claiming the same pay scales of College Lecturers, invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioners that as they were working at the relevant time as School Lecturers in the pay scale of ` 700-1200, performing the same C.W.P.No.5214 of 1992 alongwith 2 connected cases 3 duties and were eligible to be appointed as College Lecturers, possessing the same basic qualification, therefore, they are also entitled to the same pay scale of ` 700- 1600 granted to the College Lecturers, in view of various recommendations of Education Commissions and DPI (Schools). On the basis of aforesaid allegations, the petitioners claimed the same pay scale, which was granted to the College Lecturers at the relevant time in the manner depicted hereinabove. 6. The respondents contested the claim of the petitioners and filed their joint written statement, inter-alia pleading certain preliminary objections of, maintainability of the writ petitions, cause of action and locus standi of the petitioners. The case set up by the respondents, in brief in so far as relevant, was that the petitioners (School Lecturers) teach the classes of 10+2 level, while the College Lecturers teach the classes upto the post graduate level. It was explained that the School Lecturers were awarded the grade of ` 700-1300 w.e.f. 1.11.1978 on the recommendations of Pay Commissions, while the College Lecturers were awarded the grade of ` 700-1600 on the basis of recommendations of UGC. It was denied that the same scale of ` 700-1600 of College Lecturers was ever awarded to the School Lecturers. In all, the respondents claimed that since the sphere of working of School Lecturers, who only teach the students upto 10+2 class, is entirely different than that of the duties of College Lecturers, who teach the classes upto Postgraduate level, so, the petitioners are not entitled to the same pay scale of College Lecturers. It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the writ petitions and prayed for their dismissal. 7. After hearing the learned counsel for the parties, going through the record and legal position with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant writ petitions in this context. 8. Ex facie, the argument of learned counsel that as the petitioners C.W.P.No.5214 of 1992 alongwith 2 connected cases 4 (School Lecturers) possess the same qualifications, were eligible to be appointed as College Lecturers and their nature of duties is the same, therefore, they are entitled to the same pay scale of College Lecturers, is neither tenable nor the observations of Hon'ble Apex Court in cases Randhir Singh v. Union of India and others AIR 1982 Supreme Court 879 and Inder Singh and others v. Vyas Muni Mishra and others 1987(4) S.l.R.550 are at all applicable to the facts of the present case, whereas in Randhir Singh's case (supra), it was observed that equation of posts and equation of pay are matters primarily for the executive Government and expert bodies like the Pay Commission and not for Courts but where things are clear that is, where all relevant considerations are the same, persons holding identical posts are entitled to the same pay on the principle of 'equal pay for equal work'. 9. Sequally, in Inder Singh's case (supra), it was held that the two posts, one being the promotional post and the other being the feeder post, will be beyond the jurisdiction of the Court to implement the principle of equal pay for equal work inasmuch as such implementation will practically result in the amalgamation of the two posts leading to great administrative difficulties. But, when two groups of persons are in the same, or similar posts performing same kind of work, either in the same or in the different Government departments, the Court may in suitable cases direct equal pay by way of removing unreasonable discrimination and treating the two groups, similarly situated, equally. 10. Hardly, there is any quarrel with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the petitioners in the instant controversy in this behalf. 11. As is evident from the record, that petitioners claimed that since they were working at the relevant time as School Lecturers in the pay scale of ` 700- 1200, were performing the same duties and eligible to be appointed as College Lecturers, possessing the same basic qualification, so, they are also entitled to the C.W.P.No.5214 of 1992 alongwith 2 connected cases 5 same pay scale of ` 700-1600 granted to the College Lecturers. The anomaly in their pay scale was not removed despite the recommendations (Annexures P2 & P3) of Education Commissions, DPI (Schools) (Annexure P4)) and legal notice (Annexure P5) in this regard. 12. On the contrary, the respondents have stoutly denied their entitlement to claim the indicated pay scale on the ground of different spheres of nature of duties and responsibilities of both the categories as mentioned hereinabove. 13. Above being the position on record, now the sole question, that arises for determination in these cases, is as to whether the petitioners (School Lecturers) were entitled to claim the same revised pay scale attached to the post of College Lecturer or not? 14. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the negative and petitioners (School Lecturers) are not entitled to the same pay scale of College Lecturers in this context. 15. What is not disputed here is that petitioners were working on their posts of School Lecturers at the relevant time. They were granted the pay scales on the basis of the recommendations of Pay Commissions, whereas the pay scale of College Lecturers was fixed as per the recommendations of UGC. They teach the students only upto 10+2 class, whereas the College Lecturers perform the higher responsibility of teaching upto Postgraduate level. Although the petitioners may possess the same qualification or were eligible for the posts of College Lecturers, but that ipso facto, is not a ground in this direction. As indicated earlier, the pay scale of petitioners (School Lecturers) were fixed on the recommendations of Pay Commissions, whereas the College Lecturers were placed in their pay scale on the recommendations of UGC by the State Government. The State Government fixed the pay scale of the respective categories on the basis of nature of duties, liabilities and other variety of considerations. Hence, the Courts cannot interfere in their C.W.P.No.5214 of 1992 alongwith 2 connected cases 6 administrative field in this connection. Since the nature of duties, scope and sphere of the responsibilities of the petitioners are entirely different than that of regime of College Lecturer, so, they are not entitled to the same pay scale in this respect. 16. A similar matter came to be decided by the Hon'ble Supreme Court in case State of Haryana and another Versus Civil Secretariat Personal Staff Association, 2002(6) SCC 72 and it was ruled as under:- “The High Court has ignored certain settled principles of law for determination of the claim to parity of pay scale by a section of government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same designation under the Central Government. Such comparison based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was un-rebutted. Even assuming that there was no specific rebuttal of the averment in the writ petition, that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities and the qualifications for recruitment to the posts of PAs in the State Civil Secretariat with those of PAs of the Central Secretariat. The claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted in Secy. Finance Deptt. case, 1993 Supp (1) SCC 153, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. The priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable, ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. In the present case, the High Court has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre.” 17. Not only that, again the Hon'ble Apex Court considered the identical matter in case Union of India Versus Arun Jyoti Kundu and others, (2007) 7 C.W.P.No.5214 of 1992 alongwith 2 connected cases 7 Supreme Court Cases 472 and observed as under:- “It was open to the Government to extend a benefit to a set of its employees with effect from a particular day on the basis of some anomaly found in the report of the Fifth Pay Commission. In such a case there would arise no discrimination because the very implementation of the Fifth Pay Commission. Report would not entitle the respondents to any benefit. The fact that notwithstanding the Fifth Pay Commission not recommending, particularly, the payment of higher scale to two sets of typists, typists in English language and typists in Hindi language, the Government chose to give them relief with effect from 31-1-2000 would not justify an inference of discrimination or a finding that the authority has acted arbitrarily or unreasonably. Once the recommendations of the Pay Commission are accepted, in full, it could also give effect to it from the date recommended in that behalf. But when admittedly no provision was made in respect of the English and Hindi typists and they pointed to the anomalies and the Government on the basis of the recommendation of the Anomalies Committees decided to give them the scale with effect from 31-1-2000, it could not be held to be discriminatory or to be beyond the power of the Government. When a concession was being extended as distinct from implementing a specific recommendation of the Pay Commission with reference to a particular point of time, it is open to the Government to provide that the benefit it proposes to give, would be available only from a notified date. The very right to their benefit arose because of the decision of the Government to extend to them a particular benefit not specified in the Fifth Pay Commission Report. It is, therefore, not possible to postulate that the decision of the Government must be given retrospective effect. The recommendations of Pay Commissions are subject to acceptance or rejection. Unless the Government has accepted the recommendation to merge the cadres, the court cannot proceed on the basis of the recommendation alone or to direct the Government to accept the recommendation. Pay Commissions are constituted for evaluating duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications therefor. Although the Pay Commission is an expert body, the State in its wisdom and in furtherance of its valid policy may or may not accept its recommendations.” 18. The same view was again reiterated by the Hon'ble Supreme Court in cases State of West Bengal Versus Subhas Kumar Chatterjee (2010) 11 SCC 694 and Rameshwar Dayal Versus Indian Railway Construction Co.Ltd. and others, (2010) 11 SCC 733, wherein it was held that the Court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter, which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter, which is for the executive to discharge. Even the recommendations of the Pay Commissions, are subject to acceptance or rejection by the appropriate Government. The Courts cannot compel the State to accept the recommendations of the Pay Commission. It was also ruled that the C.W.P.No.5214 of 1992 alongwith 2 connected cases 8 State Government is under obligation to follow the statutory rules and give only such pay scales as are applicable under the statutory provisions. Neither the Government can act contrary to the rules nor the Court can direct the Government to act contrary to the rules. No mandamus lies for issuing direction to the Government to refrain from enforcing the law. No Court can issue direction to act in contravention of the rules as it would amount to compel the authorities to violate the law. Such direction may result in destruction of rule of law. 19. It is not a matter of disputed that the State Governments granted the different pay scales to the different indicated posts, after considering the recommendations of Pay Commissions and UGC as well as the variety of other factors like educational qualifications, nature of work and duties. In this manner, the petitioners (School Lecturers) cannot claim the parity in the pay scales assigned to the posts of College Lecturer, as claimed by them. Therefore, the contrary arguments of the learned counsel for the petitioners deserve to be and are hereby repelled under the present set of circumstances. The ratio of the law laid down by the Hon'ble Apex Court in the aforementioned judgments “mutatis-mutandis” is fully attracted in the present case and is the complete answer to the problem in hand. In this manner, it is held that the petitioners (School Lecturers) are not entitled to claim the same pay scale assigned to the posts of College Lecturers, in the obtaining circumstances of the case. 20. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petitions are hereby dismissed as such. May 13, 2011 (MEHINDER SINGH SULLAR) AS JUDGE Whether to be referred to reporter?Yes/No