IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10441 of 2010 ====================================================== 1. Smt. Mosarrat Arra Khanam, W/O Late Javed Ahmad Khan, Village Rajopatti Road, Mahsaul Chowk, District Sitamarhi. 2. Santosh Kumar Raman, S/O Late Triveni Mehtar, R/O Village Narayanpur, P.O. Sakri, District- Darbhanga. 3. Ajit Kumar, S/O Late Shiv Prasad Purvey, R/O Village Madhepur, Hanuman Chowk, District- Madhubani. 4. Santosh Kumar, S/O Late Arun Kumar Yadav, R/O Village Dome, P.O. Koyla Asthan, P.S. Kewati District- Darbhanga. 5. Pappu Kumar, S/O Late Saryug Prasad Mandal, R/O Village+P.O+P.S. Bariyarpur,District- Munger. 6. Neelmani Jha, S/O Late Shiv Shankar Jha, R/O Village Darhar, P.O. Laheriasarai, P.S. Bahadurpur, District- Darbhanga. 7. Chandan Kumar, S/O Late Ramdeo Sah, R/O Mohalla Rahamganj, P.S. Laheriasarai,District-Darbhanga. 8. Ramesh Kumar, S/O Late Ramashish Paswan, R/O Village + P.O+ P.S.- Bahadurpur, District- Darbhanga. 9. Dipak Kumar, S/O Late Ram Sudish Jha, R/O Village Bhojpatti, P.S. Sarai, District - Vaishali. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary,Govt. Of Bihar,Patna 2. The Principal Secretary, Department Of Finance,Govt. Of Bihar,Patna. 3. The Collector, Darbhanga, District- Darbhanga. 4. The Establishment Deputy Collector, Darbhanga Collectorate, Darbhanga. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.10449 of 2010 ====================================================== 1. Pankaj Kumar Rai S/O Late Shiv Shankar Rai R/O Vill Satpura, P.S.Sakra, Distt-Muzaffarpur 2. Satendra Kumar Singh S/O Late Anugrah Narayan Singh R/O Vill Mohammadpur Balmi, P.S.Motipur, Distt-Muzaffarpur 3. Pankaj Kumar S/O Late Vishwanath Prasad Yadav R/O Vill Rajwara Bhagwan, P.S.Mushahri, Distt-Muzaffarpur 4. Haresh Kumar S/O Late Kamehswar Prasad Srivastava R/O Moh Back Of Binda Kothi, Charch Road, P.S.Mithanpura, Distt-Muzaffarpur 5. Mrs.Vandana Srivastava W/O Late Anil Kumar Srivastava R/O Moh Purani Dharamshala Compound Motijheel, P.S.Town, Distt-Muzaffarpur 6. Shekhar Kumar S/O Late Shankar Prasad Rajak, C/O Shri Babulal Chaurasia (Chaurasia Niwas) Paraw Pokhar Lane, P.O.Ramna, Distt- Muzaffarpur 7. Lakshmi Kant Prasad Yadav S/O Late Kapildeo Rai R/O Vill Gijas, P.S.Saraiya, Distt-Muzaffarpur 8. Jitendra Kumar S/O Late Kameshwar Prasad Singh R/O Vill Giyan, P.S.Karja, Distt-Muzaffarpur 9. Rishiraj Kumar Chaudhary S/O Late Satya Narayan Prasad Choudhary R/O Vill Pipra Asli, P.S.Sahebganj, Distt-Muzaffarpur Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 2 10. Rajesh Kumar S/O Late Devnath Ram R/O Vill Parsouni Kiran, P.S.Pipra, Distt-East Champaran 11. Raghvendra Kumar S/O Late Jay Krishna Mahto R/O Moh Gobarsahi, P.S.Sadar, Distt-Muzaffarpur 12. Md.Saleem S/O Late Md. Ganni R/O Vill Baketpur, P.S.Kanti, Distt- Muzaffarpur 13. Babloo Kumar S/O Late Karna Kumar R/O Vill Partappur, P.S.Karja, Distt-Muzaffarpur 14. Raja Ram S/O Late Ram Lal Ram R/O Kalyani Bara, P.S.Town, Distt- Muzaffarpur 15. Audra Kant Sharma S/O Late Dineshwar Jha R/O Vill Dhamauli, Ramnath Tole Chandrabhan, P.O.Kaluari, Distt-Muzaffarpur 16. Akhilesh Kumar S/O Late Satya Narayan Thakur R/O Vill Dubaha, P.S.Sakra, Distt-Muzaffarpur 17. Abhijit Kumar Jha S/O Late Naval Kishore Jha R/O Vill Maksudpur, P.S.Minapur, Distt-Muzaffarpur 18. Lalit Kumar Thakur S/O Late Pradeep Narayan Thakur R/O Vill Jatadih, P.S.Gayghat, Distt-Muzaffarpur .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Principal Secretary, Revenue Department Bihar, Patna 3. The District Magistrate Muzaffarpur 4. The D.D.C. Muzaffarpur 5. The Treasury Officer Muzaffarpur .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.18070 of 2010 ====================================================== 1. Navin Kumar S/O Late Shesh Narayan Thakur R/O Vill.- Jarua Bazar, P.S.- Town Hajipur, Distt.- Vaishali 2. Saroj Kumar Jha S/O Late Devendra Jha Of Vill.- Ishhakpur, P.S.- Mahnar, Distt.- Vaishali 3. Prabhakar Kumar S/O Late Premsagar Prasad Of Vill.- Saraiya, P.S.- Sakra, Distt.- Muzaffarpur 4. Amit Kumar S/O Late Parmanand Prasad Of Vill.- Salempur, Salkhani, P.S.- Patepur, Distt.- Vaishali 5. Binod Kumar Sharma S/O Late Yogendra Sharma Of Vill.- Kangaul, P.S.- Town Hajipur, Distt.- Vaishali 6. Jitendra Kumar S/O Late Chandeshwar Ram R/O Vill.- Jarua, P.S.- Town Hajipur, Distt.- Vaishali 7. Arvind Kumar S/O Late Khublal Baitha Of Vill.- Rampur Shyamnand, P.S.- Raghopur, Distt.- Vaishali 8. Mukesh Chandra Thakur S/O Late Yugal Thakur R/O Vill.- Manpur, P.S.- Bangra, Distt.- Samastipur 9. Chinta Kumari D/O Late Baleshwar Singh Of Vill.- Sachipatti, P.S.- Town Hajipur, Distt.- Vaishali 10. Chandan Kumar S/O Late Kishun Singh Of Vill.- Hilalpur, P.S.- Industrial Area Hajipur, Distt.- Vaishali .... .... Petitioner/s Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 3 Versus 1. The State Of Bihar 2. The Principal Secretary Revenue Department, Bihar, Patna 3. The District Magistrate, Vaishali At Hajipur 4. The D.D.C., Vaishali At Hajipur 5. The Treasury Officer, Vaishali At Hajipur .... .... Respondent/s ====================================================== Appearance : (In CWJC No.10441 of 2010) For the Petitioner/s : Mr. Binodanand Mishra For the Respondent/s : Mr. (Gp22) (In CWJC No.10449 of 2010) For the Petitioner/s : Mr. Anish Kumar Mr. Surendra Kishore Thakur For the Respondent/s : Mr. (Sc9) (In CWJC No.18070 of 2010) For the Petitioner/s : Mr. Surendra Kishore Thakur For the Respondent/s : Mr. (Gp3) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 4 03-11-2011 Heard learned counsel for the petitioners and learned counsel for the State in the respective applications. The question of law and fact involved in these three writ applications with regard to grant of higher pay-scales is common. They have therefore been heard together and are being disposed by this common order. The lead arguments have been made in C.W.J.C. No.10441/10 and which shall therefore be considered more in detail for purposes of adjudication. The petitioners are stated to be Lower Division Clerks (hereinafter referred to as L.D.C.), a class III post, desirous for grant of the pay-scale of Rs.4000-100-6000/- in Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 4 lieu of the pay-scale granted to them of Rs.3050-4590/-. The petitioners were appointed on compassionate grounds in between the years 2001-2004. Prior to the same, an advertisement had been published in 1998 for recruitment through the Bihar Public Service Commission (hereinafter referred to as the Commission) on the post of L.D.C. The advertisement mentioned the pay-scale of Rs.4000-6000/-. Those who applied in response to the advertisement and so came to be appointed in between 2005-2008 were initially granted the pay-scale of Rs.3050- 4590/- (being the replacement scale of Rs.1200-1800). Aggrieved, they came to this Court in C.W.J.C. No.13577 of 2007 disposed on 17.12.2007 with directions to give them the pay-scale of Rs.4000-6000/- as per the advertisement. The order having been affirmed in Letters Patent Jurisdiction and by the Supreme Court the petitioners now desire the same pay-scale on the ground that they hold similar qualifications, discharge the same nature of duties and are also senior to such persons in that gradation list. Learned counsel for the petitioners submits that the minimum qualification prescribed in the advertisement for recruitment through the Commission was Matriculation. The petitioners are either matriculates or posses higher qualification of Graduation. They are therefore possessed of the requisite qualification as prescribed in the Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 5 advertisement also. The nature of duties discharged by them as L.D.C. is common with those who have been recruited through the Commission. There is thus no justification for grant of a lesser pay-scale to them. Invoking the principles of „equal pay for equal work‟ it is contended that they are also entitled to the enhanced pay scale. Reliance has been placed on AIR 2007 S.C. 2509 (Nehru Yuva Kendra Sangathan vs. Rajesh Mohan Shukla and others) to contend that mere difference in the source of recruitment cannot be sufficient justification for differentiation of pay-scale when the duties discharged otherwise are the same. Reliance has also been placed on AIR 2008 SCW 4279 (State of Kerala vs. B. Renjith Kumar and others) = (2008)12 SCC 219, for the same proposition that different sources of recruitment cannot be sufficient justification for a difference in pay-scale when the educational and professional qualifications as also the nature of duties were the same. Learned counsel for the State urged that the petitioners formed a class by themselves of persons who have been appointed on compassionate grounds as distinct from those who have been recruited under an advertisement by a process of qualifying in selection. Those recruited under the advertisement have primarily been granted relief by the Court on the ground that the advertisement under which they were recruited itself mentioned the pay-scale of Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 6 Rs.4000-6000/-. Insofar as the present petitioners are concerned, prior to their appointment, on 20.6.2001, the Department of Personnel and Administrative Reforms had clarified that appointment on compassionate grounds on Class III post were to be done in the pay-scale of Rs.1200- 1800/- which stood revised from 20.12.2000 as Rs.3050- 4590/- being the replacement scale. All subsequent regular appointments on the post of L.D.C. are being made in the scale of Rs.3050-4590/-. The petitioners are therefore not entitled to the pay-scale of Rs.4000-6000/-. Matters for grant of pay-scale are primarily for the Government to decide. Generally speaking, it is not the jurisdiction of the Court to prescribe the pay-scale for a post. The grant of pay-scale can vary on several grounds such as educational qualifications, the method of recruitment, experience, the nature of duties performed along with several other factors which may surface in a particular case. Unless and until the Court finds that there is absolutely no justification sustainable in law or facts for grant of different pay-scales, it shall not be the jurisdiction of the Court to decide the pay-scales. But, if the differentiation sought to be made is fanciful, not cogent and there be no classification sustainable in law the grant of different pay-scales may not be sustainable. A bald claim on parity of qualifications merely Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 7 asserting similarity of same duties may not be sufficient to lay out a claim for equivalence of pay-scales. There are no details in the pleadings how the nature of duties are in parity based on educational qualifications. The onerous ness of respective responsibility, the other service considerations to demonstrate that viewed from any aspect both stand at par. In (1996) 11 SCC 77 ( State of Haryana Vs Jasmer Singh) a three Judge Bench decision, in a claim for equal pay based on equal work, held at paragraph 10 as follows :- “10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily- rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed.” (emphasis added).” Those who participate in response to an advertisement and undergo a process of selection undoubtedly face a more rigorous method of recruitment Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 8 based on competition which may or may not fructify in an appointment. A candidate who may have been academically better may also lose out in selection to one whose academic career may not have been so good. There remains an element of uncertainty till the end. Conversely, those recruited on compassionate grounds do not have to undergo any process of selection based on comparative analysis of respective merit. The conditions of eligibility for compassionate appointment are far less rigorous than those seeking appointment through a competitive merit selection. Subject only to availability of vacancy and fulfillment of the minimum educational qualifications prescribed for compassionate appointment which is far less than that for regular appointment, an appointment on compassionate grounds is more or less a certainty. Every appointment made on compassionate grounds shuts the door on another candidate equally qualified but who did not have the benefit of being the descendent of a deceased when Article-16 prohibits discrimination in employment on grounds of descent. But the Courts have countenanced appointment on compassionate grounds notwithstanding Articles-14 and 16 of the Constitution on humanitarian grounds because of the penury faced by the descendants of a deceased due to the sudden death. In conclusion, undoubtedly, the petitioners form an entirely different class than those recruited through Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 9 the Commission after competitive merit selection. The petitioners were not recruited under any advertisement which mentioned any particular pay-scale. Had the petitioners been offered compassionate appointment in the pay-scale of Rs.4000-6000/-, but granted the scale of Rs.3050-4590/-, the matter may have been entirely different. On the contrary, the date on which they came to be appointed, a clear government instruction held the ground on 20.6.2001 that under the Finance Department Letter No.8925 dated 20.12.2000 compassionate appointments on Grade III was to be granted in the scale of Rs.3050-4590/- only. There is no challenge by the petitioners to this decision. In (2006) 9 SCC 321 ( State of Haryana Vs Charanjit Singh) a three Bench decision, after consideration of the entire conspectus of law with regard to equal pay for equal work has held at 19 as follows:- “19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of “equal pay for equal work” is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of “equal pay for equal work” has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 10 were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of “equal pay for equal work” requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 11 raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors. (emphasis added).” The aforesaid principals have been reiterated in (2011) 2 SCC 452 (Union Territory Administration, Chandigarh v. Manju Mathur) holding :- “13. This Court has also held in State of Haryana v. Charanjit Singh that normally the applicability of principle of equal pay for equal work must be left to be evaluated and determined by an expert body and these are not matters where a writ court can lightly interfere. This Court has further held in this decision that it is only when the High Court is convinced on the basis of material placed before it that there was equal work and of equal quality and that all other relevant factors were fulfilled, it may direct payment of equal pay from the date of filing of the respective writ petition.” The petitioners were appointed in the years 2001- 2004 in the scale of Rs.3050-4590/-. Quite obviously, they were sanguine of their entitlement to the scale of Rs.3050- 4590/- only under the Finance Department Letter dated Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 12 20.12.2000. They did not raise any grievance that any advertisement had been published in 1998 providing a pay- scale of Rs.4000-6000/- for the same post. The institution of C.W.J.C. No.13577/06 by those recruited under the advertisement of 1998 cannot bring any succor to the petitioners who accepted their appointment on a specified pay-scale and continued on the same without demur for long years. Merely because certain orders may have been passed by the Court with regard to another category of persons who are clearly distinguishable from the petitioners, superficial similarity cannot be sufficient to hold that they are entitled to parity in pay-scale. It has rightly been urged on behalf of the respondents that the pay-scale of Rs.4000- 6000/- was mentioned in the advertisement of 1998 and was thus the ground for relief to those recruited under the advertisement. The petitioners cannot be permitted to indulge in fence sitting to seek parity in relief with those from whom they are distinguishable. The petitioners are appointees on compassionate grounds. Compassion is a one time exercise. They cannot seek compassion upon compassion claiming a higher pay scale on a misconceived sense of parity. Each case has to be decided on its own facts. The ratio laid down in a judgment cannot be applied devoid of the factual background in which the ratio came to be laid Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 13 down. In Nehru Yuva Sangathan‟s case (supra), a two Bench decision, the facts were entirely different. The decisions in Jasmer Singh (supra) and Charanjit Singh (supra) were not placed. The observation that the source of recruitment cannot be sufficient justification for a difference of pay-scale came to be made in the background of recruitment in different capacity under the Nehru Yuva Youth Coordinators Recruitment Rules,1980, either on deputation and then absorbed and those who were directly recruited for a fixed term but discharged similar duties. Both of them essentially formed one class of persons who entered service by a process of selection which did not deviate from either Articles-14 or 16 of the Constitution. In Renjith Kumar‟s case (supra), a two Bench decision, was rendered on its own facts. The controversy related to parity in pay scale between Presiding officers of Industrial Tribunal and District Judges. The expression “ the only difference is their source of recruitment” was made in context of the fact that the former did not require approval of the High Court while the latter did so with the State contending that the difference lay in the appointments made under Articles-233 and 234 of the Constitution. It was held at paragraph 18 :- “18. In the present case, the respondents' claim before the High Court was confined to equal scale of pay to that of the District Judges. This was based on the fact that the respondents are discharging similar Patna High Court CWJC No.10441 of 2010 (4) dt.03-11-2011 14 duties and functions in the administration of justice and their scale of pay was equal to that of District Judges till revision of pay scales of the judicial officers in the year 1998. The Industrial Tribunals are indisputably judicial tribunals manned by legal professionals who are eligible to be appointed as District Judges or Judges of the High Courts. The Presiding Officers are exercising judicial powers and duties under the ID Act, 1947 and their decisions are subject-matter of challenge before the High Court by way of writ petition. The only difference is their source of recruitment.” Both appointments were based on a competitive selection process and related to discharge of judicial duties amenable to challenge in similar manner under the law. The petitioners are clearly distinguishable as falling in a category by themselves to which both the judgments sought to be relied upon have no applicability. It cannot be lost sight of that it is the contention of the respondents that except for those recruited under the advertisement of 1998 mentioning the pay-scale of Rs.4000- 6000/- even subsequent appointees through competitive merit selection have been granted the pay-scale of Rs.3050- 4590/- only. The writ applications are dismissed. Krishna Chandra Jha/- (Navin Sinha, J)