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Judgment
HARSIMRAN SINGH SETHI, J. (ORAL)
CM-2444-LPA-2023 in LPA-958-2023
Present application has been filed seeking condonation of delay of 20 days in re-filing the appeal.
Keeping in view the averments made in the application, which are duly supported by an affidavit, the application is allowed. Delay of 20 days in re-filing the appeal is condoned.
CM-3111-LPA-2023 in LPA-1210-2023
CM-3074-LPA-2023 in LPA-1197-2023
CM-3079-LPA-2023 in LPA-1198-2023
Present applications have been filed seeking condonation of delay of 47 days in filing the appeals.
Keeping in view the averments made in the applications, which are duly supported by an affidavit, the applications are allowed. Delay of 47 days in filing the appeals is condoned.
CM-2994-LPA 2023 in LPA-1170-2023
Present application has been filed seeking condonation of delay of 41 days in filing the appeal.
Keeping in view the averments made in the application, which are duly supported by an affidavit, the application is allowed. Delay of 41 days in filing the appeal is condoned.
LPA-958-2023 (O&M) & connected cases
By this common order, seven appeals, the details of which have been mentioned in the heading of the order, are being disposed of as all these appeals involve the same question of law on similar facts.
In the present bunch of appeals, the challenge is to the order dated 08.05.2023 passed by the learned Single Judge in CWP No.1842 of 2005 titled as Ranjit Singh and others vs. State of Punjab and others wherein, the relief sought by the appellants that they should be equated with the post of Nursing Sister, Tutors and Clerks which posts carry the same pay scale prior to the revision of the pay scale as done on 01.01.1978, so that parity should be maintained even in the subsequent revision of the pay scale and disturbing of such parity qua pay scales is incorrect. The said plea taken by the appellants herein has not been accepted by the learned Single Judge leading to the filing of the present appeals.
It may be noticed that before appreciating the facts, there are certain developments which took place after the filing of the writ petitions which were filed in the year 2005 as subsequent revision which took place on 01.01.2006 and 01.12.2011, a plea has been raised on behalf of the appellants that the pay scale which has been granted to them w.e.f. 01.01.2006 of Rs.10,300-34,800 with the Grade Pay of Rs.4200/- and on the basis of the said pay scale, the corresponding pay scale should be given to them from 01.01.1996 onwards as well.
Certain facts needs to be mentioned for the correct appreciation of the issue in hand.
Prior to 01.01.1978, the post of Pharmacists was in the pay of Rs.160-400/- which was the pay scale of Nursing Sisters. In a pay revision, which came effective from 01.01.1978, the Pharmacists were granted the pay scale of Rs.510-940/- whereas the Nursing Sisters were granted the pay scale of Rs.680-1120/-. The said disparity continued when in the subsequent pay revision, which took place effect from 01.01.1986, the Pharmacists were granted the pay of Rs.1410-2460/- whereas, the Nursing Sisters were granted the pay of Rs.1640-2925/-. The said disparity continued even in the subsequent revision of pay scale which came into being w.e.f. 01.01.1996, the Pharmacists were granted the pay scale of Rs.4550-7220/- with the start of Rs.4700/- whereas the Nursing Sisters were granted the pay of Rs.5800-9200/-. As the Pharmacists were getting lower pay scale as compared to the Nursing Sisters, the writ petitions were filed in the year 2005 claiming parity with the Nursing Sister from the date the said parity was disturbed on the ground that the parity in pay scales once granted could not be disturbed.
The writ petitions remained pending and during the pendency of the writ petitions, further revision took place w.e.f. 01.01.2006. In the said revision of the pay scale, the Pharmacists (appellants herein) were granted the pay scale of Rs.5910-20200/- with the Grade Pay of Rs.3000/- whereas the Nursing Sisters were granted the pay scale of Rs.10,300-34,800/- with the Grade Pay of Rs.3800/-. This shows that disparity between two posts continued starting from 01.01.1978 onwards.
Further, the State decided to further revise pay scales on 01.12.2011. In the said revision, the Pharmacists were granted the pay scale of Rs.10,300-34,800/- with the Grade Pay of Rs.4200/- and the Nursing Sisters though were granted the same pay scale but their grade pay was enhanced from Rs.3800/- to Rs.4800/- hence, even upto 2011, the disparity continued. The only thing was that in the year 2011 though, both the posts were granted the same pay scale but disparity continued qua the grade pay as Pharmacists were granted the pay scale of Rs.4200/- whereas, the Nursing Sisters were granted the pay scale of Rs.4800/-. After the said developments, writ petitions came up for consideration before the learned Single Judge so as to decide the issue with regard to the grant of the same pay scale as being granted to the Nursing Sisters keeping in view the parity which was broken w.e.f. 01.01.1978.
The learned Single Judge while placing reliance upon the judgment of the Hon’ble Supreme Court of India in State of Bihar vs. Bihar Secondary Teachers Struggle Committee, Munger and others (2019) 18 SCC 301 held that as the job description including the Rules governing the essential qualification are different between two posts i.e. Pharmacists and the Nursing Sisters. The parity being claimed is not maintainable and the writ petitions were dismissed.
While dismissing the writ petitions, the learned Single Judge further held that the order passed by this Court in CWP No.23138 of 2010, titled Dr. Naresh Kumar Kataria and others vs. State of Punjab and others, whereby the benefit of the revised pay scale granted with effect from 01.12.2011 had been directed to be extended with effect from 01.01.2006, was not applicable to the case of the appellants. Aggrieved by the aforesaid judgment and order passed by the learned Single Judge, the appellants have preferred the present bunch of appeals.
Learned Senior Counsel appearing on behalf of the appellants argues that though, initially the prayer of the appellants was that they should be granted parity with the post of Nursing Sisters starting from 01.01.1978 but keeping in view certain developments coupled with the fact that the pay scale of Pharmacists was equated to that of Nursing Sister w.e.f. 01.12.2011, the such parity given, should atleast relate back to 01.01.1996. Hence, the claim of the appellants is that they should be given the pay scale of Rs.5800-9200/- from 01.01.1996 and then the pay scale of Rs.10,300-34,800/- with the Grade Pay of Rs.3800/- from 01.01.2006 and thereafter, the pay which is being made admissible to them w.e.f. 01.12.2011 i.e. Rs.10,300-34,800/-with the Grade Pay of Rs.4200/-.
The said issue needs to be addressed keeping in view the sttled principle of law.
The law on the issue with regard to the revision of the pay scale clearly enumerates that the revision of the pay scale is the job of the experts and the Court’s interference in the same should be the least possible. In the present case, the facts which have been narrated hereinbefore clearly shows that for the last 48 years, there is a disparity between the pay scale of Pharmacists and the Nursing Sisters i.e. the post with whom the parity is being claimed by the appellants who are working as Pharmacists. Once a particular pay scale has been granted by the experts, the same need not be interfered by the Court unless and until the anomaly is such, which cannot be ignored.
In the present case, there is no anomaly. Rather, from 01.01.1978, the pay scale has been different between the post of Pharmacists and the post of Nursing Sisters. Even as of now, though the appellants are claiming that w.e.f. 01.12.2011, the pay scale has been granted to them equivalent to that of the Nursing Sisters but the same is incorrect. Although both categories were granted the same pay scale of Rs.10,300-34,800/-, the Grade Pay attached to the respective posts continued to remain different. While the Nursing Sisters were granted Grade Pay of Rs.4800/-, the Pharmacists were granted Grade Pay of Rs.4200/-. Thus, the disparity between the two categories continued even after the revision of pay scales with effect from 01.12.2011.
Hence, once the expert body has chosen not to equate the pay scales of the two posts, it would be beyond the jurisdiction of this Court to direct such equation or undertake the exercise of pay fixation itself.
The law that the prescription of the pay scale is to be done by the Expert Committee or is an executive function and the Court should not interfere in it, is settled by the Hon’ble Supreme Court of India in R.K. Yadav and another vs. Union of India and others, 2026 INSC 848. This Court will not likely to interfere with regard to the prescription of the pay scale as being granted to two posts. The relevant paragraph of the said judgment is as under:-
“6.It is well-settled that Article 14 prohibits class legislation, but does not prohibit reasonable classification for the purposes of legislation. The classification brought out in the instant case for the purpose of applying the pay scales is based on rational and intelligible differentia which distinguishes persons grouped together from those left out of the group. Classifying the re-employed persons separately for the purpose of applying pay structure and pay fixation clearly satisfies the principles and tests laid down for applying the Equality Clause read with principles underlying Article 16 of the Constitution. 6
(2015) 3 SCC 653
6.1In Charanjit Lal Chowdhury vs. Union of India7, it was observed that Article 14 does not take away from the State the power of classifying persons for legitimate purposes. If the purpose is rational and legitimate, even if such classification produces inequality in some form, it would not offend Article
14.The principle of equality does not mean that every law must have universal application for all persons who are not, by nature, attainment or circumstances, stand in the same position. When the classes are different and validly made, varying factors would apply requiring separate treatment.”
Further, though the parity is being claimed but whether such parity can be claimed or not, needs to be adjudicated. In the present case, the parity is being claimed only on the ground that prior to 01.01.1978, the post of Nursing Sisters as well as Pharmacists were carrying the same pay scale. Merely that at one given point of time, the pay scale of two posts was same does not mean that the same has to be kept at the same level even in the subsequent revision of the pay scale. The law on the said issue is also settled by the Hon’ble Supreme Court of India in G.P. Sangeetha and others vs. State of Kerala and others, 2026 INSC 1004. The relevant paragraph of the said judgment is as under:-
“11.This decision was followed by another 3-Judge Bench decision in State of Haryana v. Charanjit Singh17. There, this Court inter alia had the occasion to note the decisions in Tarun Kumar Roy (supra) and State of Haryana vs. Tilak Raj18 and endorsed the same by opining as follows:
9.In State of Haryana vs. Tilak Raj, it has been held that the principle of equal pay for equal work is not always easy to apply. It has been held that there are inherent difficulties in comparing and evaluating the work of different persons in different organisations or even in the same organisation. It has been held that this is a concept which requires, for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. (2004) 1 SCC 347 (2006) 9 SCC 321 (2003) 6 SCC 123 It has been held that the problem about equal pay cannot be translated into a mathematical formula.
19.Having considered the authorities and the submissions we are of the view that the authorities in State of Haryana vs. Jasmer Singh19, Tilak Raj, Orissa University of Agriculture and Technology vs. Manoj K. Mohanty20 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 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 or 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.” (emphasis ours).
12.After referring to a host of precedents in the field, paragraph 96 of the decision in Bihar Secondary Teachers Struggle Committee (supra) captured the limitations and/or qualifications for application of the doctrine of equal pay for equal work.
13.It is, therefore, clear on reading the relevant precedents that a mechanical application of the doctrine of equal pay for equal work has to be eschewed. It is not the law that the doctrine can never be (1996) 11 SCC 77 (2003) 5 SCC 188 enforced; but, for such enforcement, a host of factors need consideration. If there is complete parity qua all such factors and should equal pay be claimed for equal work of equal value, the writ court can intervene and grant appropriate relief; otherwise not.”
A bare perusal of the above would show that as per the judgment of the Hon’ble Supreme Court of India, unless and until two posts are equated for the purpose of pay scale parity even if exists, any existing parity between them cannot be claimed as a matter of right, particularly when such parity has been disturbed in a subsequent pay revision.
In the present case, not even a single argument has been raised by the learned counsel for the appellants to contend that the posts of Pharmacists and Nursing Sisters were ever treated as equivalent for the purpose of grant of pay-scale parity. Hence, the different pay scales granting to two different posts starting from 01.01.1978 which difference is continued even as of today, the parity so claimed by the appellants is inadmissible.
Further, it may be noticed that two posts are different not only for recruitment but are different in terms of the prescribed qualification for recruitment and the nature of duties prescribed for the posts. It is a conceded fact that the nature of job of the Nursing Sisters is different than the one performed by the Pharmacists. It is also a conceded fact before this Court that the qualification required for two posts are different and are governed by different Rules. Hence, it is a settled principle of law that two posts are not similar on any ground, the parity cannot be claimed merely on the ground that at one given point of time, particular posts were in the same pay scale.
The law on this issue is clear even in the judgment in Bihar Secondary Teachers Struggle Committee’s case (supra) which has been relied upon by the learned Single Judge to decline the relief.
Further, the last argument which has been raised by the learned Senior Counsel for the appellants is that the parity has been granted to them in the year 2011 with the post of Nursing Sisters hence, it is a conceded fact by the State that two posts are equivalent and therefore, the said pay scale granted to the Pharmacists from 01.12.2011 should relate back to 01.01.1996 with all consequential benefits.
Learned Senior Counsel appearing on behalf of the appellants further submits that, although the appellants have no objection to the grant of Grade Pay of Rs.4,200/-, since the same pay scale has been extended to the Nursing Sisters, the appellants are also entitled to the corresponding pay scale with effect from 01.01.1996.
Learned Senior Counsel for the appellants submits that keeping in view the pay scales which have been granted to the appellants w.e.f. 01.12.2011, the said pay scale should also correspondently relate back to 01.01.2006 as well as from 01.01.1996.
Further, though it is being mentioned that the benefit has been granted to the appellants qua the claim of the parity of the pay scale with Nursing Sisters but it is a matter of fact that even as of now, the pay scale of Pharmacists and Nursing Sisters are different. Though the running pay scale is the same but the grade pay of the Nursing Sisters is relatively more, which is a conceded fact. Hence, the question arises whether, the judgment of this Court in Dr. Naresh Kataria's case (supra) will be applicable for the grant of the benefit as being claimed with retrospective effect or not. The relevant paragraph 4 of the said judgment is as under:-
“4.On a reconsideration of the matter, the respondents have now passed the order dated 21.12.2011 ( annexure P/20) whereby the claim of pay parity raised by the petitioners has been accepted, however, with a rider that they shall not be entitled to any arrears or of fixation of pay on notional basis from the due date(s).”
A bare perusal of the above would show that in the said case, the parity had been granted in the year 2011 vide Notification dated 21.12.2011 and under that circumstances, the Hon'ble Court deemed it fit that once the parity has been granted in the year 2011, the same will relate back to the year 2006 by granting them the notional benefit of the same upto December 2011.
The facts in the present case are different as, even in December, 2011, no pay parity has been granted to the Pharmacists qua the post of Nursing Sister and their pay remains different hence, the claim that whether such benefits can be granted to appellants from retrospective effect or not is to be decided.
Further, the Notification dated 21.12.2011 clearly states that the pay scale granted to the Pharmacists as on 01.01.2006 is further revised. It is not a case of removal of an anamoly. The removal of an anamoly means that grant of the same pay scale as qua the post of Nurising Sister so as to remove the anamoly whereas, the anamoly still exists even after the further revision of the pay scale as done in the year 2011 which is a conceded fact. Hence, contending the Notification dated 21.12.2011, made applicable from 01.12.2011 as to grant of pay scale by removal of anamoly so as to claim it with retrospective effect from 01.01.2006 is not permissible.
Learned Senior Counsel for the appellants has not been able to dispute that the wording used in the Notification dated 21.12.2011 granting the further pay scale of Rs.10,300-34,800/- with the Grade Pay of Rs.4200/-clearly depicts that the same is further revision and not the removal of an anamoly. Hence, the further revision cannot relate back to 01.01.2006 much less from 01.01.1996 as being claimed by the learned Senior Counsel for the appellants.
Further, once the pay scale is revised, applying of the same retrospectively in all the finances is not made out. It is a settled principle of law that where a revision of the pay scale or a direction given by the Court to apply such pay scale retrospectively involves financial liability Court must consider whether, the State will be able to bear such burden. The judgment of the Hon'ble Supreme Court of India in Civil Appeal No.129 of 2003 titled as State of Punjab and others vs. Amar Nath Goyal and others, decided on 11.08.2005, clearly holds that where, the benefit which has been granted prospectively and is based upon the financial consideration, the same cannot be made applicable retrospectively so as to put further financial burden on the State.
In the present case, without assessing the liability of the State to even implement the pay scale granted w.e.f. 01.12.2011, so as to be implemented from 01.01.2006 involves a financial liability and therefore, such liability cannot be fastened upon the State and the said decision has to rest with the State and not with the Court. Therefore, the claim of retrospective revision of the pay scale as granted w.e.f. 01.12.2011, w.e.f 01.01.2006 and further revision of such corresponding pay scale from 01.01.1996, cannot be accepted being contrary to the settled principle of law.
Learned Senior Counsel for the appellants has placed reliance upon the judgment of the Full Bench of this Court in CWP No.12029 of 1998 titled Rajbir Singh and others vs. Haryana State Electricity Board and others, decided on 31.01.2009 to butress the claim of the pay scale as granted w.e.f. 01.12.2011, firstly w.e.f. 01.01.2006 and the grant of the corresponding pay scale w.e.f. 01.01.1996 needs to be looked into whether, such grant was removal of an anamoly or the further revision of the pay scale.
The judgment in Rajbir Singh's case (supra) is only applicable in the case where anamoly is removed from the date it occurred and is not a case of further revision of the pay scale. The said judgment will not be applicable in the present case as, even as of now, the anamoly between the two pay scales i.e. one granted to the appellants who are working as Pharmacists and the other one granted to the Nursing Sisters still exists and therefore, it is not a case of removal of an anamoly.
Further, the anamoly in the present case is between the pay scale of Pharmacists and the Nursing Sister starting from 01.01.1978. The said anamoly continues even as of now and therefore, terming the grant of further pay scale w.e.f. 01.12.2011 as removal of anamoly rather than further revision, is incorrect. Hence, the judgment being relied upon which deals with removal of an anamoly, which is to be made applicable with retrospective effect from the date the anamoly occurred, cannot be made applicable in the peculiar facts and circumstances of the present case.
The observation of Court has to be seen in view of the facts of the case and in isolation so as to detatch the facts from the observations so as to be made applicable.
Further, it has been mentioned that the claim raised by the appellants was recommended by the Director of the Department concerned which has been ignored by the learned Single Judge while declining the relief of the grant of the same pay scale as admissible to the Nursing Sister.
It may be noticed that Director is not the authority to decide the grant of the pay scale. Government is the relevant authority who has to decide the same.
Further, the pay scales admissible to particular post are to be recommended by the experts and such is within their domain. Mere a recommendation by the Head of the Office in favour of the appellants will not mean that such recommendation has to be accepted by the Government as well rather, a recommendation of a particular functionary of the Government never came to be approved by the competent authority, keeping in view the recommendation of the expert body, which is clear from the facts that from 01.01.1978 till today, the pay scales of the post of Nursing Sister and the Pharmacists has never remained same. Hence, mere recommendation by the Director, which has been mentioned by the respondents in their reply will not give a right to the appellants to claim the parity merely based upon the recommendation.
No other argument has been raised.
The order is dictated in the open Court in the presence of the learned counsel for the parties.
Keeping in view the totality of the circumstances, the order dated 08.05.2023 passed by the learned Single Judge cannot be treated as perverse either on facts or on law. Hence, no ground is made out for any interference by this Court in the present case.
Accordingly, the appeals are dismissed.
Civil miscellaneous application pending if any, also stands disposed of.
A photocopy of this order be placed on the files of other connected cases.