Premium Members Mobile view

Advanced Search Disclaimer

Search

Cites 3 docs

Article 14 in The Constitution Of India 1949

The Constitution Of India 1949
Article 39(d) in Tho Constitution Of India 1949
Citedby 0 docs

Qureshi Mohd.Salim Hadis And 2.Ors vs State QfMaharashtra Through Its.. on 21 Fobruary.2020
Get this document in PDF Print it on a file/printer Download Court Copy

Tiy out our Premium Member services: Virtual Legal Assistant. Query Alert Service and an ad-free
experience. Free for one month and pay only if you like it.

Uttarakhand High Court

Satyendra Kumar Sharma & Another ... vs Principal Secretary on 28 September, 2018

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ petition No. 410 (S/B) of 2014

Satyendra Kumar Sharma & another Petitioners

er Us

Principal Secretary, Deptt. of Finance

and others Respondents

ir.P1yush garg, Advocate tor the petitioners.

Mr. Pradeep Joshi, Standing Counsel for the State respondent nos. 1, 2 and 4.
Pr. Shobhit Saharia, Advocate for respondent no. 3.

Lordm Hon 'ble Rajiv Sharma, A.C.).

Hon'ble Lok Pal Singh, .

I'er Hon'ble Lok Pal Singh. J.] By means of present writ petition, the petitioners seek following
reliefs:

1) 1Ssue a writ, order or direction in the nature of certiorari tor quashing the decision taken

by the Pay Anomaly Committee, State of Uttarakhand dated 17.01.2014.

i1) SSue a wit, order or directlon 1n thee

nature of TdhddmOs
directing ne

respondent authorities to ux the basic pay of he petitioners at par with direct recruils or

withidentically placed other employees irom the dale of their respective promotions on the

post of Private Secretary. 1... Rs, 18750/- in the Grade Pay of Rs.6600, and
tne a r t e a s or
salary from the said date.
consequentialiy grant
 111) Issue any suitable order or direction whicn
writ, tne
Hon ble Court may deem fit and
proper in the circumstances of the case

V) Award the cost of the writ petition to the petitioners.

2) Factual matrix of the case, as nartaled in the writ

petition, are that the petitioners were initialy
appointed as Personal Assistant n the establishment of High Court of Uttarakhand in the pay scale of
Rs. 6500-10500. Petitioner no. Iand petitioner no. 2 were promoted on the post of Private Secretary in
the pay 10000
scale of Rs. -

I5200 on 24.12.2008 and 06.08.2009 respectively. In the meantime, State

of Uttarakhand vide Government Order dated
17.10.20O8,
pleased the pay Scales, as per was to revIse
recommendations of the Sixth Pay Commission. In the said Government Order, Pay Scales are
segregatcd in different Pay Bands with ditlerent Grade pays. The pay scale of Rs. 10000- 15200 was
placed in
Pay Band 3 with Grade Pay Rs. 6600. On
promotion, the respondent no. 3 rclying upon para
12 of the Government Order dated
17.10.2008 fixed the pay of the petitioners, less than minimui
Cntry pay as applicable to the direct recruits.

) reeing aggrieved. petitioners moved a representation before the High Court, who, in turn, reterred

the matter to the State Government. The "State

Pay Anomaly Committee" rejected the representatieon
of the petitioners vide order dated 17.01.2014 and retused to grant minimum entry pay to the
petitioners, as applicable to the direct recruits. Feeling futher aggrieved, petitioners have approuched
this Court by way of tiling present writ
petition.
4) Leamed counsel for the petitioners would submit that being a welfare state, the Government cannot
create two entry pays in one pay scale. 1.e., one tor promotees and another tor direct recruits, which 1s

apparent violation of Article 14 and 39 (d) of the Constitution of India. The action of State
Government is de hors the principle ot 'cqual pay tor equal work'. Placing reliance on the Giovernment

Orders dated 13.02.2009 and 11.09.2013. Learned counsel would further submit that vide order dated
13.02.2009 minimum entry pay is prescribed for direct recruits and vide CGiovemment Order dated
11.09.2013 Government was pleased to grant the minimum entry pay meant for direct recruit to those
employces whose pay scales have been upgraded to that stage. Leaned counsel would also submit that

identically placed persons promoted prior to 17.10.2008 were getting pay of Rs. 25,200- as minimum
entry pay from the date of their respective promotions whereof in the pre-revised pay scale their basic
pays were same as that of petitioners.

) Learmed counsel for the petitioners drew our attention towards the judgments of Hon'ble Delhi High

Court dealing with the same controversy. A Division Bench of Hon'ble Delhi lHigh Court in the WP (C)
No. 7379 of 2017 (Union of India Vs. Shashi Kant and others) decided on 26.09.2017, relying on

Judgments of Hon'ble Apex Court was pleased to direct the respondents to fix pay of promotees at the
evel of minimum entry pay as applhcable tor direct recruits. He would further submit that after

ismisal of appeal, Giovermment of India, Ministry of Finance vide order dated 13.2.2018 (Annexure
N0.4 to the Misc. Application) was pleased to grant minimum entry pay to promotees, as applicable to

ne direct recruits along with arrears. The Division Bench of Hon'ble Delhi High Court in WP (C)
634 of 2017, Government of NCT of Delhi & Anr. Vs. Somvir Rana & Ors. decided on
5.03.2017 was pleased to grant minimum entry pay to the promotees meant tor the direct reeruits. The
pecal Leave Petition preferred by the Giovemment of NCT of Delhi in the said case, vide SLP/ Diary
0 23663 of 2017, was dismised in limine vide order dated 01.09.2017. The lHon'ble Apex Court has
observed as under:

"Once the question, In principle, has been settled, it is only approprate on lhe part o1 the

Government of india to Issue a Circular so that it will save the time of the Court and the

Administrative Depatients apart trom avoiding unnecessary and avoidable expenditure.

6) Learned Standing Counsel TOr the state of Uttarakhand would submit that there is no provision for

granting entry level pay in uovermet Order dated 17.10,2008 to those who are already in service as
on 01.01.2006 i.e. promotees an, neretore, has reiteruted the corTectness of the stand taken by the

ndents He would further subrmit that no direet recruit actualy Joimed the post in the present
 dC, lnasmuch as the
post of Private Secretary is purely a
promotional post,
discrimination.
) Leamed counsel for respondent no. 3 would submit that respondent no. 3 has simpiy rowcu

overmment orders issued from time to time. The respondent nos. I and 2 are bound by governinent
orders and it was upto the State Government to correct the pay fixation of the petitioners and ISsue

orders accordingly.

8) we have heard learned counsel for the

parties and perused the entire material available on
recor
9) he present case involves very short controversy as to whether there can be two minimum basic

pays for one pay scale?

10) A COnjoint reading ol Ciovernment Order dated 17.10.2008 and 11.09.2013, would reveal that the

minimum revised basie pay of a person working in the pay scale of Rs. 10000 - 15200 (pre revised)

before 01.01.2006 was Rs. 25,350- (Rs. 18750 +Rs. 6600). As per Government order dated

13.02.2009, minimum entry pay for direct recruits, recruited on or after 01.01.2006, in the Pay band 5

with Grade Pay Rs. 6600 (pre revised Rs. 10000 15200) is also Rs. 25.350/- (Rs. 18750 + Rs. 6600).

In other words, as per Sixth Pay Commission, the minimum entry pay for direct recruits in Pay Band

with Grade of Rs. 6600- is Rs. 25.350-

1) The Govermment Order dated 17.10.2008 deals with the îixation of pay on promotion. AS per pard
12, there are two ways for fixation of pay on promotion viz. (i) from one grade pay to another and

(i) from one pay band to another. In first situation, the fixation will be done as follows:

i) One inerement cqual to 3% of the sum of the pay in the pay band and the existing grade
pay will be computed and rounded off to the next multiple of 10. This will be added to the
existing pay in the pay band. The grade pay corresponding to the promotion post will

thereafter be granted in addition to this pay in the pay band.

(11) In second situation., the same methodology will be followed. However, if the pay in the

pay band after adding 1he increment is less than the minimum of the higher pay band to

which promotion is taking place. pay in the pay band will be stepped to such minimum pay.

2) Having examined the Government Order dated 17.10.2008, we find that said G.O. itself caters to

Siluation where pay of the promotee after using he methodology preseribed in the Ciovernment Order
found to be lesser than the minimum of the higher pay band of the promotional post, the same needs
o De stepped up to the minimum of the pay seale of the promotional post. The said Government Order,
n our view, itself provides for stepping up ol pay of the promotees of the minimum of the higher pay

band to which post promotion has taken place.

) from the perusal of the Government Order dated 17.l10.2008, it can be said that promotee is also

etited for step up to the minimum of pay in pay band with grade pay. It is a settled position that a
direct recruit gets minimum of the pay scale and Government Order dated 13.02.2009 preseribes the
minimum entry pay for direct recruit. In this way. it can safely be construed that if basic pay of
promotce remains less than that of direct recruit, then in such eventuality, it should be stepped up upto
Ihe level of direct recruit. In other word, a promotee is also entitled to get the minimum entry pay

mcant for direct recruit. if he is draw ing pay less than that of pay meant for direct recruit. Our
conclusion gets fortification from the judgments of Hon'ble Supreme Court and Hon'ble Delhi High
Lourt in the case of Somvir Rana and Shashikant (supra). After judgment of Hon'ble Supreme Couri,
uovernment of India has alrcady 15sued Cireular granting the minimum entry pay, meant for direct

recruit, to the promotees.

14) State cannot creale class alOngst ine ckass. Our State is weltare State. It cannot create two

minimum entry pay in one pay scale, one for direct roeruit and another for promotee that too without
any cogent reason, rationale or JustlricattOn. Even though no direct recruit joins in the present case
bur
 by way of Sixth Pay Commission, State Ciovernent deciuted to give revINC puy
g O v e m m e n t e m p l o y e e s . It is settled position that by implementing ew pay commissio, ou pauy

are replaced by new ones. It is also settled that every puy sele hias one minnum eniry pay hereorc
m i n i m u m entry pay for one pay scale
and person il l jos
uovemnent cannot create two dillerent
particular pay scale, then he s entitled te get the minmum entry pay of that pay scale irrespective o
of learncd StandinE
the fact how he the cadre. Therelore, we find no lorce in the argument
joins
Counsel for the State that no direct reeuitment took place in the present matter. In our vicw, dilieren
and violates
would lead to invidious discrimination
fixation pay tor promotees and dircct recruits
ol
Article 14 of the Constitution of India. The same pay scale cannot have two different entry pay, one lo

for diflerent entry pay one lor promolces

the promotces and other for direct reeruts. The provision two

for work
violative of the principle of "equal pay cqual
and another for direct recruits is clearly
enshrined in Article 39A of the Constitution of India.

aftidavit stated that the claim of the pettoner

is rejected
15) Respondents in para 37 of the counter
I1
of Union of India.
because he poliey of iovernment of Uttarakhand is similar to the policy
and administralion
Government of Utarakhand, makes different policy. it will ereate hardship
minimum entry pay,
inconvenience. The Government of India has already issued a Circular granting
afllidavit, theretore, in
deviate from its stand taken in the counter
now, the State of Dtarakhand cannot
there
to direct recruius, as
our view, petitioners are also cntitled to get minimum entry pay, applicable
different pays in same pay scalcC.
can be no justification for granting two

Orders. The Governiment

Government of Uttarakhand had issued the aforesaid Government
16) The
be
the Siate of Uttarakhand. There
cannot a

Orders issued by the State Government are binding upon

has issucd the
from its own stand. But the State Government, who itself
departure by the State itselt
Government Orders. The similar situation
aforesaid Government Orders, departed from the spirit of the
decided the matter in favour
Court. The Delhi High Court
came for adjudication before the Delhi High leave to
petitioners. An appeal with special
similarly
the situated persons as that of the present
of Court vide order dated
01.09.2017.
India was dismissed by Hon'ble Apex
appeal filed by the Union of India, much less all on

Court is binding throughout the territory of

The judgment of Hon'ble Supreme
has already been decided by the
Governments. Though the controversy
the courts as well as the State decide in the
remains for the Court to
Court dated O1.09.2017, nothing
inal verdict of Hon'ble Apex to the present
diScussed the facts and law applicable
Court has elaborately
present lis. Besides, this
case.

to be allowed. The same is allowed. lmpugned

the writ petition deserves
) ln view of the above, are dirccted to grant the
is quashed. Respondents
order passed by the Pay Anomaly Committee
at
and re-tix the pay of petitioners,
for the direct recruits
to the petitioners meant
inimum entry pay 6600-
Band 3 with Grade Pay Rs.
recruits in
for direct Pay
tne level
of minimum entry pay, applicable promotions. Respondents
from the date of ther respective
4s per (Government Order dated 13.02.2009 this
of pay 1ixalion pursuant to the order passed by
are further directed to pay the arrears arising out
from
the petitioners within a period of three months
Court. The above benefits shall be granted to

today.

No order as to costS.
18)

(LOk Pal Singh, 3.) (Rajiv Sharma, A.C.J.)|

28.09.2e18

Neg