IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.4908/2008 Reserved on: 6.7.2009 Decided on:4.8.2009 ________________________________________________ Durga Dass Thakur. …Petitioner. Versus State of Himachal Pradesh and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 yes For the petitioner : Mr. H.K. Paul, Advocate. For the Respondents: Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajindger Dogra, Addl. A.G. ________________________________________________________ Rajiv Sharma, Judge . The petitioner by medium of this petition is seeking directions to the respondents to grant him pay scale of Rs. 3000-4500 and 3700- 5300 after completion of 8 and 18 years of service from the due date. He has also sought a direction to maintain parity in the matter of pay scales amongst the categories of Medical Officers Grade-II, Senior Physiotherapist and District Family Planning Officer. 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 Mr. H.K. Paul, Advocate has strenuously argued that the respondents have arbitrarily rejected the case of the petitioner without taking into consideration the earlier parity maintained in the pay scales of Medical Officers Grade-II, Senior Physiotherapist and District Family Planning Officer. He then contended that his client is entitled to get pay scale of Rs. 3000-4500 and 3700-5300 after completion of 8 and 18 years of service. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the petitioner cannot claim parity with the Medical Officers Grade-II and Senior Physiotherapist and the representation made by him has been rejected in accordance with law on 1.9.1997. I have heard the learned counsel for the parties and have perused the pleadings carefully. The category of Medical Officers Grade-II was allowed in a pay scale of Rs. 400-1100. The District Family Planning Officers were fixed in the pay scale of Rs. 350-900 in the year 1972. The pay scale of the Medical Officers Grade-II was revised from Rs. 400-1100 to 940-1850 with effect from 1.1.1978. The District Family Planning Officers’ pay scale was revised from Rs. 350-900 to Rs. 825-1580. The petitioner and similarly situate persons made representation to the State Government for fixation of their pay scale on Punjab pattern from Rs. 825-1580 to Rs. 940-1850. Consequently, the matter was placed before the Cabinet on the basis of memorandum Annexure A- 4. It will be apt at this stage to reproduce the excerpt of memorandum of consideration of Cabinet under the subject “revision of pay scales of 3 District Family Planning Officers (Non-Medical) from Rs. 825-1580 to Rs. 940-1850”, which reads thus: “On Punjab Pattern, the category of Medical Officer was allowed pay scale of Rs. 400-1100 and the District Family Planning Officers were allowed pay scale of Rs. 350-900, during the year 1974. In the year 1978 when pay scales of a Medical Officers Gr-II was again revised from Rs. 400-1100 to Rs. 940- 1850, the pay scale of District Family Planning Officers was revised from Rs. 350-900 to Rs. 850- 1580. In Punjab, Medical officers are employed on the post of District Family and Planning Officers in the pay scale of Rs. 940-1850. But in this state, Non- Medical Officers are working in the pay scale of Rs. 825-1580. In both the States the duties and responsibilities of District Family Planning Officers is one and the same. The Non-Medical District Family Planning Officers have been putting forth demand for allowing them the pay scale of Rs. 940- 1850. For doing these jobs, in place of Medical Officers, the Non-Medical Officers are more useful because they maintain better coordination and contacts with the public and it helps in the promotion and implementation of Family Planning Programme. They have proved better agents in motivating the public for the implementation of Family Planning Programme in an effective manner. The Cabinet accorded the approval, which led to issuance of office order dated 11.5.1988. The pay scale of the District Family Planning Officer (Non-Medical) was also revised from Rs. 825-1580 to 940-1850 with effect from 1.1.1978. The State Government issued 4 notification on 4.7.1989 whereby the pay scales of the Himachal Pradesh Health Services Grade-II were revised. The three tiers system was introduced by the State Government by way of this notification. The category of Himachal Pradesh Health Services Grade-II was placed in the pay scale of Rs. 2200-4000 and this category was put in the higher pay scale of Rs. 3000-4500 and Rs. 3700-5300 after putting in 8 and 18 years of service. The petitioner’s pay scale was revised on 26.4.1989. He was placed in the pay scale of Rs. 2200-4000. It will also be pertinent to mention at this stage that the Senior Physiotherapists who were in the pay scale of Rs. 350-900 and consequently were put in the pay scale of Rs. 825-1580 were finally put in the pay scale of Rs. 940-1850. The petitioner made a representation for the removal of anomaly on 9.1.1990. His case was strongly recommended to the Deputy Secretary (Finance) by the Under Secretary (Health). However, the same stood rejected on 15.3.1991. Thereafter the case of the petitioner was taken up by the Joint Secretary (Health) for the removal of anomaly on 10.5.1991. The State Government vide notification dated 24.8.1993 was pleased to revise the pay scale of Senior Physiotherapist to Rs. 2200-4000 by changing its nomenclature that of Assistant Director (Physiotherapy) and by giving him senior scale of Rs. 3000-4500. The petitioner made a representation to the Hon’ble Chief Minister on 30.6.1997 and the same was rejected on 1.9.1997. Mr. H.K. Paul on the basis of the Annexures placed on record has argued that the parity maintained between Himachal Pradesh Health Services Grade-II and District Family Planning Officer could not be disturbed by the respondents. It is evident from the pleadings that 5 the petitioner and Himachal Pradesh Health Services Grade-II were granted pay scale of Rs. 940-1850 with effect from 1.1.1978. It has been specifically stated in the memorandum for consideration of Cabinet that though in Punjab, Medical officers were employed on the post of District Family and Planning Officers in the pay scale of Rs. 940-1850, but in the State of Himachal Pradesh, Non-Medical officers were working in the pay scale of Rs. 825-1580. The duties and responsibilities of District Family Planning Officer were the same as per the memorandum for consideration of Cabinet. The role played by the District Family Planning Officer has been highlighted in the memorandum for consideration and it is stated that they maintain better coordination and contacts with the public and it helps in the promotion and implementation of family planning programme. These factors mentioned in the memorandum for consideration of the Cabinet have been taken into consideration while revising the pay scale from Rs. 825-1580 to 940-1850. The State has revised the pay scale of the Medical Officers on the basis of notification dated 4.7.1989 to Rs. 2200-4000 and thereafter they have been granted the pay scale of Rs. 3000-4500 and Rs. 3700-5300 after putting in 8 and 18 years of service. The petitioner though has been granted the pay scale of Rs. 2200-4000, however, he has been deprived of the benefit of higher pay scale of Rs. 3000-4500 and Rs. 3700-5300 after putting in 8 and 18 years of service. The Senior Physiotherapist, who was also placed in the pay scale of Rs. 940-1850 has been granted the pay scale of Rs. 3000-4500 as per Annexure A-15 dated 24.8.1993. He is also a Non-Medical Officer. The State had maintained the parity in the pay scales of Himachal Pradesh Health Services Grade-II, 6 Senior Physiotherapist and District Family Planning Officer with effect from 1.1.1978 and 1.1.1986. This fact has been admitted by the State in its reply. There is no plausible explanation forthcoming why the petitioner has been discriminated against and the parity has been disturbed by the respondents by denying the higher pay scale of Rs. 3000-4500 and Rs. 3700-5300 to the petitioner after putting in 8 and 18 years of service. The minimum qualification for filling up the post of District Family Planning Officer is degree in Social Science or Education of a recognized University as per Annexure A-1. In the State of Punjab, the District Planning Officers have been equated with the Medical Officers and have been granted the same pay scale. The only explanation given in the reply for denying the petitioner parity with the Himachal Pradesh Health Services Grade-II is that the petitioner is Non-Medical. This explanation cannot be accepted for the simple reason that on the same qualification the petitioner had been earlier equated with the Himachal Pradesh Health Services Grade-II and Senior Physiotherapist between 1.1.1978 to 1.1.1986. In fact, as noticed above, in the memorandum of consideration of Cabinet, the petitioner and similarly situate persons have been held to be more useful because they maintain better coordination and contacts with the public. The case of the petitioner stood already recommended by the Department as is clear from Annexures A-9 and A-11 for granting the time pay scale at par with the GDO Grade-II. The recommendations have been made after taking note of the parity which was maintained by the State Government itself earlier. The recommendations made by the Head of Department based on facts should be given due 7 weightage by the authority responsible for taking final decision. The respondents could not over look that the petitioner had no avenues of promotion and could not be permitted to stagnate on the same post for decades together. It is only to remove the stagnation and to improve the public services, the concept of three tiers scales has been introduced. In case the same has been allowed to the GDO Grade-II, there is no reason why on the same analogy it should not be granted to the petitioner. The cadre to which the petitioner belongs i.e. District Family Planning Officer is a dying cadre. The responsibility and duties discharged by the petitioner remained the same before and after 1.1.1986. There was parity maintained before 1.1.1986 and the same should have been maintained thereafter too. Consequently, it is held that the State Government has disturbed the parity in a most arbitrary manner. The District Family Planning Officer, Medical Officer and Senior Physiotherapist, who were similarly situate, have been treated as such for considerable period. The petitioner though has already been placed in the pay scale of Rs. 2200-4000, but has been denied the benefit of pay scale of Rs. 3000-4500 and Rs. 3700-5300. In the memorandum for consideration of the Cabinet, it has also been mentioned that there are no promotional avenue to the category of petitioner. The State Government in its own wisdom has changed the nomenclature of Senior Physiotherapist as Assistant Director (Physiotherapy) and pay scale was revised from Rs. 2200-4000 to Rs. 3000-4500. It is for the State Government or the employer to maintain parity on the basis of norms. The scope of judicial review is very limited in 8 determining the pay scales. However, it is equally true that where there is arbitrary decision of the State, the Courts have to intervene. Their Lordships of the Hon’ble Supreme Court in K.T. Veerappa and others versus State of Karnataka and others, (2006) 9 SCC 406 have held that the Courts should interfere with 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. Their Lordships have held as under: “13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with 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.” 9 In view of the observations made hereinabove and the law laid down by their Lordships of the Hon’ble Supreme Court, the decision of the respondents whereby the representation of the petitioner has been rejected is declared unjust, unreasonable and arbitrary. Accordingly, the petition is allowed. Annexure A-16 dated 1.9.1997 is quashed and set aside. The respondents are directed to consider the case of the petitioner for the grant of higher pay scale of Rs. 3000-4500 and Rs. 3700-5300 at par with the Medical Officers Grade-II from the due date within a period of six weeks from today. It is made clear that the petitioner shall be entitled to arrears of salary along with interest @ 9% per annum. No costs. (Rajiv Sharma), J. August 4, 2009. *awasthi*