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2012 Supreme(Bom) 1411
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
B.P. DHARMADHIKARI & SUNIL P. DESHMUKH, JJ.
Smt. Matlane Kalpana Nishikant & Ors.
Vs.
The State of Maharashtra & Ors.
Writ Petition No. 9096 of 2010
Decided on : 31st July, 2012
Mr. SACHIN S. DESHMUKH, Advocate for petitioner.
Mr. S.K. TAMBE, AGP for respondent State/Authorities.
Mr. S.R. BARLINGE, Advocate for respondent No.3.
Headnote:Constitution of India, 1950 - Articles 14, 16(1) and 39(d) - Pay scale of Section Officer.
Eligibility criteria of 4 years experience for better pay scale to Section Officers, neither discriminatory nor arbitrary. - It is not the case of petitioners that the scale of Rs. 6500-10500/- is u njust and can never be the pay- scale for said cadre and because of nature of duties of post of Section Officer, its pay-scale ought to have been always fixed in scale of Rs. 8,000-13,500/-. Judgment delivered on 30.7.2010 here at Aurangabad in W.P. 4085 of 1996 has dealt with their grievance about wrong fixation in wage revision on 1.1.1986 and hence, probably said grievance is not reiterated here. Thus independent entitlement of entire cadre of Section Officer as such to the pay scale of Rs. 8,000-13,500/- or breach of right to draw salary in it is not the controversy presented. Hence, no case showing violation of principle ’of equal pay for equal work or then any undue favour to senior Section Officers to the prejudice of juniors can be or is established. A better or higher pay scale is introduced and extended to entire cadre and every incumbent including petitioners after 4 years of service, and that by itself does not imply that a further subdivision has been effected in otherwise equals and is not sufficient to attract Article 14 of the Consti tution of India. It is a benefit available to all on uniform basis upon completion of 4 years in the cadre Thus for a valid reason of removing disparity between two cadres are one with State and the other under Judiciary, same service condition is introduced with effect from 1.10.2003 and by applying recognized criterion of experience, is made functional after 4 years. Seniors and more experienced in the cadre are given a better scale. This is not a case where equals have been treated unequally or of hostile discrimination. In reply affidavit, it has been urged that the Section Officers with 4 years experience/seniority perform better and superior quality of work. The grant of higher pay scale to them is necessary to avoid frustration and stagnation. It may also act as an incentive. But as petitioners have failed to discharge the basic burden on them, it not necessary to embark on merits of this defence. Even otherwise, there is no effort to assail this defence.
Constitution of India - Articles 14, 16(1) and 39(d) - Government Resolution dated 29.1.2010 - Payscale of Section Officer. Requirement of 4 years’ experience to be eligible for higher or senior scale cannot be said to be either discriminatory or arbitrary.
Requirement of 4 years experience is an intelligible differentia which has rational nexus to the object sought to be achieved.
When object is to bring party in same cadre under State and in judiciary, extending better pay-scale to the senior Section Officers treating these with 4 years experience as eligible as already in vogue under State Government is not a hostile discrimination at all. Nobody is singled out and all Section Officers can enjoy it after putting is requisite length of service.
This better scale is not deemed to any Section Officer but he has to wait for it for four years. The same, therefore, cannot be said to be either discriminatory or arbitrary.
1. Looking to the nature of the controversy, we have heard matter finally by issuing Rule & making it returnable forthwith, with consent.
2. Heard parties on Civil Application 8800 of 2012 for adding applicants who are Section Officers as party petitioners. Application is allowed. Necessary amendment be carried out immediately.
3. The petitioners who are Section Officers, claim that as all of them are identically situated, and are performing same duties, there cannot be any discrimination in their salaries. The moment a Section Officer is found entitled to pay scale of Rs.8,000-13,500/-, all Section Officers must be extended that pay scale and ceiling of completion of 4 years service as Section Officer imposed vide Govt. Resolution, dated 29.1.2010 is, therefore, arbitrary & violative of Art. 14, 16(1) & 39(d) of the Constitution of India. By placing reliance on the judgment of the Apex Court in the case of "D.S. Nakara and others Vs. Union of India" reported at AIR 1983 SC 130 : [2007 ALL SCR (O.C.C.) 38], learned counsel submits that a homogeneous class cannot be subjected to such treatment thereby artificially creating two different sections or groups within it.
4. Learned AGP for respondent Nos. 1 and 2, and Advocate Barlinge for respondent No.3 are opposing the petition. They submit that there is no such classification here. Reliance is being placed on reply affidavit filed by the law & judiciary. They rely upon State of U.P. vs. J.P. Chaurasia-(1989) 1 SCC 121 to urge that merit, experience as also need to avoid stagnation & frustration are relevant factors to grant such senior or super or selection grade or pay-scales. One of the contentions is writ under article 226 of the Constitution of India can not be issued & only remedy available to the petitioners is to move on administrative side. In support, they invite our attention to judgment delivered on 30.7.2010 at Aurangabad in W.P. 4085 of 1996.
5. Perusal of Govt. Resolution dated 29.1.2010 shows that Section Officer in employment of State Government were extended a non functional pay scale of Rs.8000-13500/- after completion of 4 years of service from 1.10.2003. The issue of extending similar treatment to Section Officers working in judiciary was engaging attention of State Government and hence, the impugned decision dated 29.1.2010 has been taken. This decision introduces entitlement to pay scale of Rs.8000 - 13500/- for the first time and confers it upon those Section Officers who have put in 4 years as such. The pay scale of the cadre of the Section Officers is Rs. 6500-10500/- as per Vth wage revision. Even after 29.1.2010, pay scale of a Section Officer who has not completed 4 years service is Rs.6500-10500/-. In this situation, it is apparent that for the first time, a new condition of service has been created and only those Section Officers who have put in 4 years as such, have been conferred with that benefit. The benefit has been extended from a date i.e. 1.10.2003. The selection of date 1.10.2003 is not in question before us. It is the requirement of putting in 4 years service which has been argued to be arbitrary.
6. The Government has extended same treatment to Section Officers in judiciary which it had already extended to Section Officers working with it, For its commencement purpose, it has selected the same date. The requirement of putting in 4 years service, by itself, cannot be viewed as arbitrary or unreasonable. Though, Section Officers may not have same service conditions, the State Government has found that the cadre needed to be conferred with a non functional pay scale of Rs.8000-13500/- after 4 years.
7. In case of "D.S. Nakara, (2007 ALL SCR (O.C.C.) 38]" (supra), the Honourable Apex Court was considering the liberalization of pension and formula evolved for it. Benefit of that formula was extended to only to employees who had retired after a particular date. Thus, after prescribing it, there existed two sets; one, which was receiving pens
