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Judgment
P.K. Misra, J
The facts in brief are as follows:
The petitioner was appointed as Laboratory Assistant in the scale of pay of Rs. 1200-30-1500-EB-40-2040 in Cordite Factory Higher
Secondary School. Previously the post of Lab Assistant in such organization was treated at par with the teachers of primary school and the pay
scale was also same under the 3rd and 4th Central Pay Commission. 5th Central Pay Commission fixed the salary of the primary school teachers
in the scale of Rs.4500-125-7000, which was accepted by the Central Government. On the basis of the above, the scale of pay of Lab Assistant
in the Office of the third respondent was revised with effect from 1.1.1996 in the scale of Rs.4500-125-7000. Subsequently, however, a
communication was received that Lab Assistant in Ordnance Factory Schools were eligible only for the replacement pay scale of Rs.4000-100-
6000. Consequently, there has been downward revision of pay as well as recovery of excess amount paid. The petitioner filed O.A. No. 516 of
2005. In such O.A., the Department took the stand that in 5th Central Pay Commission there was no recommendation for fixing the salary of Lab
Assistant in the scale of pay of Rs.4500-125-7000 and as a matter of fact the scale of pay of Lab Assistant in Kendra Vidayalaya Schools has
been fixed at Rs.4000-100-6000 and, therefore, the salary of such Lab Assistant in the primary schools of Ordnance Factories has to be fixed in
the scale of pay of Rs.4000-100-6000 and since there was excess payment, there was a direction for recovery.
The Tribunal has concurred with the contention of the Department that Lab Assistants were not entitled to get the same scale of pay as primary
school teachers and fixation of their scale of pay at Rs.4500-125-7000 cannot be justified. The Tribunal further held that excess payment was
required to be recovered. Such decision of the Tribunal dismissing the O.A. is in question, in the present writ petition.
Learned Counsel for the petitioner has first contended that since Lab Assistants in Ordnance Factories were all along treated at par with primary
school teachers, their scale should be fixed at par after 5th Central Pay Commission. This aspect has been analysed and rejected by the Tribunal.
The Supreme Court in a recent decision reported in S.C. Chandra and Others Vs. State of Jharkhand and Others, has dealt with the question
relating to scope of judicial review in the matters relating to fixation of scale of pay. In the said decision it was observed as follows:
In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of
separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal
pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for
examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).
Having regard to the limited scope of interference in such matters and having considered the reasonings given by the Tribunal, we do not find
any scope to interfere with such aspect. The main contention of the petitioner is therefore liable to be rejected.
The other contention is relating to recovery of the amount already paid stands on a better footing. It is not the case of the Department that the
petitioner himself has managed to obtain higher salary by making any false representation. The salary in the scale of pay applicable to primary
teachers was paid by the authorities concerned not on the basis of any representation, far less any misrepresentation, made by the petitioner. In
such a scenario, the ratio of several decisions of the Supreme Court such as Shyam Babu Verma and Others Vs. Union of India (UOI) and
Others, , 1995 Supp (1) SCC 18 (Sahib Ram v. State of Haryana and Ors.) and Purshottam Lal Das and Others Vs. The State of Bihar and
Others, , which have been followed in several decisions of the Madras High Court, would be applicable. Since such amount had been paid not on
the basis of any representation, far less misrepresentation made by the petitioner, it would be unjust to direct recovery of such amount.
Therefore, while upholding the conclusion of the Tribunal regarding inapplicability of the pay scale of primary school teachers to the Lab
Assistants in the Ordnance Factories, we modify the order of the Tribunal to the extent that there shall not be any further recovery of any amount
already paid to the petitioner.
The writ petition is accordingly allowed in part to the extent indicated. Consequently, the connected miscellaneous petition is closed. No costs.