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TMI Blog2013 (8) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 31 - SUPREME COURT] followed. Grant of Promotional Pay Scale – Whether the assesses who were sent on deputation from the Revenue departments, entitled to the same pay scale and other benefits as being provided to the Collections Amins of the Revenue department - Held that:- Thus the pay scale had already been provided, no relief can be granted in the Special Appeal - Relief to the petitioners cannot be denied due to pendency of the Special Appeal, which has no legs to stand - order set aside -The petitioners were also entitled to parity in pay scale and promotional pay scale was concerned - The petitioners have fundamental right under Article 14 of the Constitution for equal treatment - the counsel for the petitioners relying upon Article 14 and 39 (d) of the Constitution - the eligibility, mode of selection/ recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts were identical - The petitioners had made statement in this respect which has not been specifically denied – the claim of the petitioners has been denied on an irrelevant considerations - The responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin a period of two months. 3. Now the Review Application has been filed along with delay condonation application on 24.05.2012, on behalf of the respondents. In support of the Review Application, an affidavit of Gopal Ji Gupta, Deputy Commissioner, Commercial Tax, Allahabad has been filed. In paragraph-3 of this affidavit, various grounds for review have been taken. In ground No. 3-B and C, it has been stated that in the Supplementary Counter Affidavit, a wrong impression has been given that the claim of the petitioners had been accepted by the respondents. The Standing Counsel was misguided by this Supplementary Counter Affidavit at the time of hearing and could not brought to the notice of the Court that the claim of the petitioners had already been rejected by order dated 21.06.2007, by the Competent Authority as stated in the Counter Affidavit. It has been further stated that State of U.P. has also rejected the similar claims of parity in pay scale of the Collection Amins in Revenue departments by orders dated 14.01.2009 and 31.10.2011, copies whereof have also been filed along with Review Application. It has been stated that the petitioners have deliberately concealed thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is liable to be rejected. 6. I have considered the arguments of the counsel for the parties and perused the record. On behalf of the respondents, Counter Affidavit has been filed in the writ petition, in which claim of the petitioners has been denied and it has also been stated that their representation had been rejected by the competent authority by order dated 21.06.2007. In the meantime, State Government also by orders dated 14.01.2009 and 31.10.2011, rejected similar claims of the Collection Amins of other districts. After the order of State Government, it was not possible for Deputy Commissioner (Administration) Commercial Tax, Allahabad to grant any relief to the petitioners. The writ petition has been allowed on the basis of admissions in the Supplementary Counter Affidavit without examining the case on merits, which was an incompetent and inadvertent admission without noticing the order of the State Government. 7. Supreme Court in Oriental Insurance Co. Ltd. v. Gokulprasad Maniklal Agarwal, (1999) 7 SCC 578, held as follows:- "Learned counsel drew our attention to the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and we find that Rule 23 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record." 10. Supreme Court again in S. Thilagavathy v. State of Tamil Nadu, (2011) 6 SCC 365,, held as follows:- "However, we have noticed that the learned Judges of the Division Bench have not dealt with the case of the appellant insofar as her appeal arising out of Writ Petition No. 4318 of 1997 is concerned, wherein the appellant had challenged her reinstatement on Grade II post and had preferred the appeal clearly contending that she should have been reinstated on Grade I post on which she initially claimed to have been appointed in the year 1986. But it appears that this plea has not been dealt with by the Division Bench at all, which amounts to non-consideration of the appeal directed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 5500-9000/- to the petitioner after completion of their 14 years service, as being provided to the Collection Amins in the Revenue department. Subsequently the writ petition was amended and the prayer for quashing the order dated 21.06.2007 passed by Joint Commissioner (Karya Palak) Trade Tax, Allahabad, rejecting the representation of the petitioners, has been added. 3. The admitted facts are that petitioners were appointed as Collection Amins in Collectorate, Allahabad on permanent posts. Their date of appointment and date of confirmation as given in the chart supplied by the Standing Counsel are as follows:- Name of the petitioner Date of appointment Date of confirmation Shamsher Ali, P-7 04.12.1976 -Rs. 200-320 03/11/88 Rajendra Prasad PandeyP-5 22.02.1978 -Rs.354-454 05/17/95 Balram Pandey, P-6 21.10.1982 -Rs.354-454 12/30/88 Inam Ullah, P-2 04.08.1983 -Rs.354-454 09/05/86 Lakshmi Kant SrivastavP-4 04.08.1983 -Rs. 354-454 09/05/86 Fateh Bahadur Singh, P-1 05.09.1985 -Rs. 354-454 10/06/88 Surendra Bahadur S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40-2900/- to the Collection Amins in Revenue department. In compliance of the aforesaid order of this Court, State of U.P. issued another Order dated 31.07.2006 giving pay scale of Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/- to the Collection Amins in Revenue Department. This pay scale has been revised on the basis of report of Pay Commission w.e.f. 01.01.1996 as Rs. 1640- 2900 and promotional pay scale as Rs. 5500-9000/- 5. As stated above, at the time of sending the petitioners on deputation, they were getting pay scale as given in the Revenue department. However under Rule-23 of the U.P. Trade Tax Collection Amins Service Rules, 1995, pay scale of Rs. 950-1500/- has been prescribed for the Collection Amins in Trade Tax department. Promotional pay scale was Rs. 1600-2300 has been prescribed. When the anomaly was brought to the notice of the Government, State of U.P. by the Government Order dated 03.12.1994 refixed the pay scale to Rs. 975-1660/- but subsequently this benefits has been withdrawn. The pay scale Rs. 950-1500/- has been revised on the basis of the report of Pay Commission as Rs. 3200-4900 and promotional pay scale as Rs. 4000-6000 w.e.f. 01.01.1996. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romotion to the Collection Amins as such promotional pay scale cannot be given to them. The Standing Counsel, however supplied a chart during arguments showing that the petitioners were given selection grade, promotional grade on completion of 14 years service, next higher grade on completion of 18 years service and next higher grade on completion of 26 years service. Thus the reasons given in the impugned orders are false. 7. I have considered the arguments of the parties and examined the record. In this writ petition, two questions arise for consideration namely (i) Whether the petitioners who were sent on deputation from the Revenue departments, entitled to the same pay scale and other benefits as being provided to the Collections Amins of the Revenue department? and (ii) Whether minimum qualification, mode of recruitment, nature of work and duties and degree of responsibility of the Collection Amins, in Revenue department and Collection Amins, in Trade Tax department are same and employer is the same as such the petitioners are also entitled to parity in pay scale and promotional pay scale? 8. Rule 22 of U.P. Fundamental Rules provides as follows: Rule-22:- The initial su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promotional pay scale as Rs. 1640-2900/- but same benefits has not been given to the Collection Amins in Trade Tax department. In the Rules of 1995, pay scale of Rs. 950- 1500 and promotional pay scale of Rs. 1600-2300 has been fixed. The petitioners were absorbed in Trade Tax Department by the notification dated 20.06.2007 as such prior to 20.06.2007, they had lien to their original posts and were entitled to pay scale of Rs. 975- 1660 and promotional pay scale as Rs. 1640-2900/- as given to the Collection Amins in the Revenue department by Government Order dated 03.06.1989 and 03.09.1994. The petitioners have been illegally discriminated without any basis. 11. Respondent-4 in the impugned order dated 21.06.2007 and the Government in the orders dated 14.01.2009 and 31.10.2011 have given a totally strange and false reason that as in the Trade Tax department, there is no promotion avenue for the Collection Amins as such they were not entitled to the promotional pay scale. From the chart supplied by the Standing Counsel, it is proved that the petitioners are given Selection Grade, Promotional Grade and Next Higher Grade. Thus there was totally non application of mind at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right." (b) In State of M.P. v. Pramod Bhartiya, (1993) 1 SCC 539, held as follows: "12. The material abovementioned goes to show that (a) the qualifications prescribed for the lecturers in the Higher Secondary Schools and the non-technical lecturers in Technical Schools are the same; (b) service conditions of both the categories of lecturers are same and (c) that the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition in Section 2(h) reads: "2. (h) ''same work or work of a similar nature' means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the difference, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment;" (c) In State of West Bengal v. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225, held as follows: "18. The principles relating to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts. 19. The principle "equal pay for equal work" is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the court should avoid applying the principle of equal pay for equal work." 14. Thus in view of the latest pronouncement in Steel Authority of India Limited (Supra) in which earlier judgments have been considered, Supreme Court held that that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/ recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The petitioners in paragraphs-27 and 28 of the writ petition has made statement in this respect which has not been specifically denied. In the impugned order dated 21.06.2007 and in the order of Government dated 14.01.2009 and 31.10.2011 also nothing has been mentioned justifying different treatment. Thus there is no dispute regarding equality in eligibility, mode of selection/recruitme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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