State Of Jharkhand vs Jharkhand Medical And Public Health Employees Association And Ors

Heard learned A.A.G. for the appellant State and the learned counsel for the respondent writ petitioner, the Association of the Jharkhand Medical

and Public Health Employees.

The appellant State is aggrieved by the impugned order dated 27.07.2017, passed by the Hon’ble Single Judge, in W.P.(S) No. 3606 of 2015,

whereby the writ application filed by the petitioner respondent, claiming parity in the pay-scales of Health Visitor (Tuberculosis) with Lab Technicians

and X-Ray Technicians, pursuant to 6th Pay Revision, was allowed by the Hon’ble Single Judge.

The facts of the case taken note in the impugned order, shows that the basic qualification for appointment to the posts of Health Visitor

(Tuberculosis), the Lab Technicians and X-Ray Technicians were the same, being, I.Sc. pass. In the 3rd Pay Revision, Heath Visitor (Tuberculosis)

were given the pay scale of Rs.296-460/-, whereas the Lab Technicians and X-Ray Technicians were placed in the lower pay scale of Rs.240-396/-.

This difference in the pay-scales was also maintained in the 4th Pay Revision, and Health Visitors (Tuberculosis) were given the higher pay-scale than

the rest of the two posts as stated above. The anomaly was firstly created upon the implementation of the 5th Pay Revision Committee Report, in

which the pay scale for the post of Health Visitor (Tuberculosis) was fixed at Rs.1320-2040/-, and for the post of X-Ray Technician, which until then

was in the lower pay scale, was given the higher pay scale of Rs.1400-2300/-. However, on the representation of the Health Visitors (Tuberculosis),

the anomaly was resolved by the State Government and the pay-scales of both the posts were fixed at Rs.1400-2300/-. The main controversy arose

upon the implementation of the recommendation of the 6th Pay Revision Committee Report, in which the Health Visitors (Tuberculosis) were given

the pay-scale of Rs.4000-6000/-, whereas the Lab Technicians and X-Ray Technicians were given the higher pay-scale of Rs.4500-7000/. Thus,

claiming parity in the pay-scales of these three posts, the writ application was filed by the association writ petitioner, claiming that the fixation of

Health Visitors (Tuberculosis) in lower pay scale, was arbitrary, discriminatory and irrational.

The Hon’ble Single Judge, taking into consideration the earlier pay-scales of the aforesaid three posts and also finding that the basic

qualification for entry to all these three posts, was only I.Sc. pass, though has noted the settled law that the fixation of pay-scale was within the

domain of the employer and that being the policy matter which should not be interfered with, under Article 226 of the Constitution of India, but has

held that when the petitioners were able to make out the case of discrimination on the ground that the post to which lower pay scale was attached

earlier, was being given higher pay-scale without any basis, than the post for which the higher pay-scale was earlier fixed, the qualification for the post

remaining the same, the case of interference was warranted by this Court and accordingly, the writ application was allowed, directing the respondents

to fix the pay-scale for the post of Health Visitor (Tuberculosis) at par with the pay-scales for the posts of Lab Technician and X-Ray Technician.

While giving such direction, the Hon’ble Single Judge has also stated that though the counter-affidavit had been filed on behalf of the State, but

only stand was taken therein that the grievance of the petitioners Association is a financial matter and it comes within the purview of the Department

of Finance, Government of Jharkhand, and not within the jurisdiction of the Health Department, Government of Jharkhand. It is stated by the Hon'ble

Single Judge in the impugned order that this was the only counter-affidavit which was filed by the State Government, and the State respondents have

not stated anything about the rationale behind the fixation of lower pay-scale of the Health Visitors (Tuberculosis), than those of Lab Technicians and

X-Ray Technicians.

Learned A.A.G. for the appellant State submitted that the impugned order passed by the Hon’ble Single Judge cannot be sustained in the eyes

of law, as it suffers from the factual mistakes, apart from inherent illegalities. It is submitted by learned A.A.G., that the counter-affidavit had been

filed by the State Government before the Writ Court, pointing out the rationale behind fixing the pay-scale for the post of Health Visitor

(Tuberculosis). In paragraph-5 of the counter affidavit, following statement was made on behalf of the State Government:-

“That at very outset it is submitted that the issue of demand of the scale of Rs.4500-7000/- to Health Visitors was considered by the Fitment

Appellate Committee, constituted by the State Government in order to resolve such issues of anomaly in pay scale and after due consideration, the

committee has held that the post of Health Visitors was comparable to the Health Visitors in the National Tuberculosis Institute and has refused to

recommend any change in the scale of the members of the petitioner association.â€​

It is submitted that this counter-affidavit, though filed on behalf of the State Government before the writ Court, has not been taken into account by

the Hon’ble Single Judge, stating that the respondents have not stated anything about the rationale behind fixation of pay-scale, though it was

specifically stated in paragraph-5 of the counter-affidavit, and the rationale was that the post of Health Visitors was comparable to the Health Visitors

in the National Tuberculosis Institute (Bangalore). It is further pointed out by the learned A.A.G., that this anomaly in the pay-scale was considered by

the Fitment Committee, and also by the Fitment Appellate Committee, and in the report of the Fitment Appellate Committee in para-30.31 it is clearly

stated as follows:-

30.31 ----------. As regards Health Visitors, the Committee compared posts available in the National Tuberculosis Institute, Bangalore and

recommended the same scale for the Health Visitor as in the National Tuberculosis Institute. -----------.

Learned A.A.G. accordingly, submitted that though the rationale behind fixation of different pay-scales was clearly stated in the counter-affidavit,

the same was not taken into account by the Hon’ble Single Judge. It is further submitted that the petitioners have not challenged the reports of the

Fitment Committee or the Fitment Appellate Committee, and without challenging both these reports, the writ application was filed by the petitioner,

which was not maintainable.

Learned A.A.G., has further submitted that the law is now well settled by the Hon’ble Supreme Court of India, as regards the grounds on

which the parity in the pay-scales can be demanded. In State of West Bengal and Anr. Vs. West Bengal Minimum Wages Inspectors Association and

Ors., reported in (2010) 5 SCC 225, the law has been laid down as follows :-

The claim in the writ petition was not based on the ground that subject post and reference category posts carried similar or identical duties and

responsibilities but on the contention that as the subject post holders and the holders of reference category posts who were enjoying equal pay at an

earlier point of time, should be continued to be given equal pay even after pay revision. In other words, the parity claimed was not on the basis of

equal pay for equal work, but on the basis of previous equal pay.

It is now well settled that parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying

the same scale of pay. In fact, one of the functions of the Pay Commission is to identify the posts which deserve a higher scale of pay than what was

earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts.

The Pay Commission has two functions; to revise the existing pay scale, by recommending revised pay scales corresponding to the pre-revised

pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending

upon the nature of duties and functions attached to those posts. Therefore, the mere fact that at an earlier point of time, two posts were carrying the

same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale.

As noticed above, one post which is considered as having a lesser pay scale may be assigned a higher pay scale and another post which is

considered to have a proper pay scale may merely be assigned the corresponding revised pay scale but not any higher pay scale. Therefore, the

benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge

duties and functions identical with, or similar to, each other and that the continuation of disparity is irrational and unjust.

(Emphasis supplied).

Further reliance has been placed by the learned A.A.G., upon a recent decision of the Hon’ble Apex Court inP unjab State Power Corporation

Ltd. Vs. Rajesh Kumar Jindal & Ors., reported in (2019) 3 SCC 547, wherein the law has again been laid down as follows :-

Burden of proof on the person claiming parity of pay-scale

Ordinarily, the scale of pay is fixed keeping in view the several factors i.e.

(i) method of recruitment;

(ii) level at which recruitment is made;

(iii) the hierarchy of service in a given cadre;

(iv) minimum educational / technical qualifications required;

(v) avenues of promotion;

(vi) the nature of duties and responsibilities; and (vii) employer’s capacity to pay, etc.

It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be

determinative;

(i) The nature and duties of a post;

(ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;

(iii) The minimum qualifications, if any, prescribed for recruitment to the post; and

(iv) The salary of the post (vide Union of India v. P.K. Roy).

**** **** ****

The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. The person

claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of

pay scales. ----------."" (Emphasis supplied).

Placing reliance on these decisions, learned A.A.G. submitted that the writ petitioner failed to make out any case, or ground on which the parity in

the pay-scales could be claimed by writ petitioner, as it was the burden upon the writ petitioner to establish their case of parity with the pay-scales of

Lab Technician and X-Ray Technician, in which they have utterly failed. Learned A.A.G. accordingly, submitted that the impugned order passed by

the Hon’ble Single Judge cannot be sustained in the eyes of law, in as much as, the Hon'ble single Judge has directed to enhance the pay-scale

only on the basis of 'previous equal pay', and not on the basis of 'equal pay for equal work', and other considerations as pointed out by the Apex Court.

Learned counsel for the respondent writ petitioner, on the other hand has opposed the prayer, submitting that the Hon’ble Single Judge, by

giving direction for making parity in the pay-scales of Health Visitors (Tuberculosis) and Lab Technicians and X-Ray Technicians, has also taken into

consideration the fact that the basic qualification for the entry point of all these three posts was I.Sc. pass. Learned counsel has also pointed out from

the impugned order that taking into consideration the fact that earlier the Health Visitors (Tuberculosis) were given the higher pay-scale than Lab

Technicians and X-Ray Technicians in the 3rd Pay Revision, which was gradually brought down, below to the pay-scales of the said posts by 6th Pay

Revision, which had no rational behind it, the Writ Court has directed for making parity in the pay-scales of all the three posts. It is submitted that

there is no illegality in the impugned order passed by the Hon’ble Single Judge, and no case for interference therein, is made out.

Having heard learned counsels for both sides and upon going through the record, we find force in the submission of the learned A.A.G. that the

Hon’ble Single Judge has wrongly come to the conclusion that no rational was pointed out by the State Government for giving lower pay-scale to

the Health Visitor (Tuberculosis). In the counter-affidavit filed before the writ Court it was clearly stated that the post of Health Visitor (Tuberculosis)

was given the same pay-scale, as was given to the similar post in the National Tuberculosis Institute, Bangalore. The fact also remains that this point

has been considered by the Fitment Committee and the Fitment Appellate Committee and both these Committees have discussed the matter and have

submitted their reports, on the basis of which the pay-scale of the post of Health Visitor (Tuberculosis) was fixed, but these reports were not

challenged by the writ petitioner before the writ Court. The law is well settled by the Hon’ble Supreme Court in State of West Bengal's case

(supra), in which, it is clearly mentioned that the parity in the pay-scales could be claimed only if it could be shown that subject post and reference

category posts carry similar or identical duties and responsibilities and it could not be done simply because of the fact that both posts were earlier

enjoying equal pay. The law has been made clear that the parity claimed must be on the basis of 'equal pay for equal work', but not on the basis of

'previous equal pay'. The other grounds have also been mentioned by the Hon’ble Apex Court in Punjab State Power Corporation Ltd.'s case

(supra), wherein it has also been held that the burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the

person claiming such right. We find from the impugned order that the direction for giving ‘equal pay’ to all the three posts have been made only

on the basis of 'previous equal pay' and not on the basis of 'equal pay for equal work', and as such the impugned order passed by the Hon’ble

Single Judge cannot be sustained in the eyes of law.

For the foregoing reasons, this Letters Patent Appeal succeeds. The impugned order dated 27.07.2017, passed by the Hon’ble Single Judge in

W.P.(S) No. 3606 of 2015, is hereby, set aside.

This appeal is accordingly, allowed. The pending I.A. also stands disposed of.