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ALLAHABAD HIGH COURT
Ashok Bhushan, Ram Autar Singh, JJ.
Shiv Charan Lal Kushwaha & Anr -Appellant
Versus
State of U.P. & Ors -Respondent
Special Appeal No. 9 of 1998
Decided On : 08-10-2010
U.P. HEALTH WORKERS AND HEALTH SUPERVISORS (REGULATION OF PAY) ACT, 1996 - VALIDITY - PROSPECTIVE OPERATION - RECOVERY OF SALARY PAID TO THE PETITIONERS TILL THE DATE OF ENACTMENT IN THE FAMILY PLANNING HEALTH ASSISTANTS (HIGHER SCALE) - NOT PERMISSIBLE.
Fact of the Case:
Writ petitions were filed challenging the Ordinance No. 35 of 1995 and Act No. 2 of 1996. The validity of the Act of 1996 was upheld by the Hon'ble Single Judge however, with the rider that the Act will be enforced prospectively from the date it has been enacted. It was held that till the date of enactment of the validating Act, the petitioner shall be entitled to the same pay scale as was being paid to the Family Planning Health Assistants (Lower Scale) and thereafter from the date of enactment in the pay scale fixed by the validating Act. Hon'ble Single Judge, while clarifying the Division Bench judgment dated 11.3.1988 held that the direction by the Division Bench has to be interpreted to mean that this Court directed payment of salary in the pay scale of Family Planning Health Assistants (Lower Scale) and not Family Planning Health Assistants (Higher Scale). Hon'ble Single Judge further directed that any salary paid to the petitioners in the pay scale of Family Planning Health Assistants (higher Scale) up to the date of enactment be recovered.
Finding of the Court:
The court held that the Act of 1996 was a valid enactment. The Legislature could have change the basis of the judgment by bifurcating the cadres defining the various categories of health workers and prescribing their pay scales. The view of the Hon'ble Single Judge that the said enactment operate prospectively is fully justified in view of the ratio of the above noted judgments. As observed above, the appeal filed by the State against the judgment partly allowing the writ petition i.e. making the Act to operate prospectively has already been dismissed by this Court and the Apex Court. The said question is already settled.
Issues: 1. Whether the U.P. Health Workers and Health Supervisors (Regulation of Pay) Act, 1996 is valid? 2. Whether the Act should operate retrospectively or prospectively? 3. Whether the salary paid to the petitioners till the date of enactment in the Family Planning Health Assistants (Higher Scale) can be recovered?
Ratio Decidendi: 1. The court held that the Act of 1996 was a valid enactment. The Legislature could have change the basis of the judgment by bifurcating the cadres defining the various categories of health workers and prescribing their pay scales. 2. The court held that the Act should operate prospectively. 3. The court held that the salary paid to the petitioners till the date of enactment in the Family Planning Health Assistants (Higher Scale) cannot be recovered.
Final Decision: Both the appeals are partly allowed to the extent as indicated above. The parties shall bear their own costs.
These two appeals have been filed against the same judgment of learned Single Judge dated 1.12.1997 passed in writ petition No. 12882 of 1995 and two other connected writ petitions. The appellant Shiv Charan Lal Kushwaha filed writ petition No. 12882 of 1995 and appellant Smt. Shobha Sharma filed writ petition no. 17788 of 1995 which were connected and decided by common judgment, allowing the writ petitions partly.
We have heard Sri G.K. Singh, learned Counsel for the appellant in appeal No. 9 of 1998 and Sri S.D. Kautilya, learned counsel appearing for the appellant in appeal no. 13 of 1998. Sri Zafar Naiyer, learned Additional Advocate General assisted by Sri Y.S. Bohara, learned Standing Counsel have been heard for the State.
The facts leading to filing of the above mentioned writ petitions have been noted in detail by Hon'ble Single Judge, which need no repetition except noticing few facts that are necessary for deciding these appeals. It is sufficient to refer the facts of special appeal No. 9 of 1998 for deciding these appeals. The Health Department of State of U.P. had two categories of the staffs to implement National Malaria Eradication Programme namely; (a) House Visitor pay scale of 80-140 (b) Surveillance Inspectors and Malaria Inspectors pay scale Rs. 120-220. Vide order dated 22.7.1965, the Government took a decision to implement the integrated malaria maintenance and Family Planning Programme in which House Visitors were designated as Basic Health Workers and Surveillance Inspectors and Malaria Inspectors were retrenched and re-appointed on a newly created posts of Family Planning Health Assistants. In Health Department, there was another category of employee known as Social Workers with graduate qualification in social science in the payscale of 120-220. Social Workers were designated as Family Planning Health Assistants, payscale 160-320. With effect from 23.7.1981 multipurpose workers scheme sponsored by the Central Government was launched in which the Basic Heath Workers and other remaining categories of workers were integrated and were named as Health Workers. The categories in the Scheme were as follows:
"1. Health Workers (Male);
(a) Basic Health Workers, pay scale Rs. 185-265.
(b) House Visitors, pay scale Rs. 185-265.
(c) Vaccinators, pay scale Rs. 170-225.
(d) Family Planning Health Assistants, lower scale Rs. 230-385.
(e)Trachoma, pay scale Rs. 230-385.
2. Health Workers (Female);
A.N.M./Family Welfare Workers, Pay Scale Rs. 185-265.
3. Health Supervisors (Male);
(a) Family Planning Health Assistants (higher scale) Rs. 300-500.
(b) Health Inspectors, Pay Scale Rs. 280-460.
(c) Senior Malaria Inspectors, Pay Scale Rs. 300-500.
(d) Malaria Inspectors, pay scale Rs. 230-385.
(e) Small Pox Inspectors, pay scale Rs. 230-385.
(f) Surveillance Inspectors, Pay Scale Rs. 250-425. "
The writ petition No. 15904 of 1983 Shiv Charan Lal Kushwaha and others Vs. State of U.P. and others was filed by the category of basic health workers and other two categories namely; House Visitors and A.N.M. praying for same pay scale as was being given to Family Planning Health Assistants (Lower Scale). During the pendency of the aforesaid writ petition, another writ petition No. 4281 of 1984 was filed by the Family Planning Health Assistants (Lower Scale) claiming equal pay to Family Planning Health Assistants (Higher Scale). On 2.4.1985, the writ petition No. 4281 of 1984 was allowed, accepting the claim of family Planning Health Assistants (lower scale) to be given the pay scale of Family Planning Health Assistants (higher scale). In writ petition No. 15904 of 1983, an Amendment application claiming the pay scale of Family Planning Health Assistants (higher scale) Rs. 470-735, which amendment was allowed on 4.3.1986. The writ petition No. 15904 of 1983 was allowed by the Division Bench of this Court on 11.3.1988, directing the respondents to pay the same salary to the petitioners as was being paid to Family Planning
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