Punjab State Power Corporation Limited vs Rajesh Kumar Jindal & Others

Judicial review: Parity in pay scale sought by employees – Interference by court – Held: Equation of posts and revision of pay scale is within the domain of the Government – Matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision by considering the nature of duties and responsibilities – Ordinarily, the courts will not enter upon the task of job evaluation – Aggrieved employees claiming parity must establish that they are unjustly treated by arbitrary action or discriminated – Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. Allowing the appeals, the Court

HELD: 1.1 Equation of posts and revision of pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. Ordinarily, the courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission etc. The aggrieved employees claiming parity must establish that they are unjustly treated by arbitrary action or discriminated. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. [Paras 14, 16] [302-A-B; 303-B]

1.2 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. 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. [Para 20, 23] [305-E; 306-D-E]

1.3 The duties and nature of work of Head Clerks and Internal Auditors are entirely different. Head Clerk works under XEN, Drawing and Disbursement Officer and there is only one Head Clerk in the Division Office. Head Clerk is the Head of the establishment in the Divisional Office and total work of the establishment is under the control of the Head Clerk. The Head Clerk disburses the salaries and other payments of the Subdivisions and Division Offices and also maintains the leave and other miscellaneous works for the Sub-divisions and the Division Offices and discharges administrative functions and thus, has more responsibilities. Per contra, Internal Auditor works under the control of Chief Auditor. Duty of the Internal Auditor is to audit the billing of the Revenue Department of the Sub-division Office which includes billing of domestic supply to large supply. Internal Auditors work in the Sub-division and there can be one or more Internal Auditors as per quantity of work. [Para 24] [307-C-E]

1.4 It is the duty of an employee seeking parity of scale of pay to prove that the educational qualifications required for both the posts, mode of recruitment and the nature of work performed by them are one and the same. There are neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Internal Auditors is similar with that of the Head Clerks. Merely on the ground that the cadre of Internal Auditors are placed in Group XII along with the Head Clerks, cannot be a ground for seeking parity of pay scale. [Para 25] [307-F-G]

1.5 Considering the post of Internal Auditors, the mode of recruitment (55% from direct recruitment and 45% by promotion from amongst ARAs/Circle Assistants), nature of work and the promotional avenues available to the Internal Auditors, the Pay Anomaly Committee constituted by the appellant-Board took the view that Internal Auditors be allowed revised scale of pay of Rs.1800-3200. Considering the Pay Anomaly Committee Report 08/1990, appellant-Board revised the existing scale of pay of Internal Auditors from Rs.1640-2925 to Rs.1800-3200 with the benefit of promotional increment to Circle Assistants/ARAs on their promotion to the post of Internal Auditors. By the same order, the existing scale of pay of the post of Head Clerks was revised from Rs.1640-2925 to Rs.2000-3500. Considering the grievances, the second pay Anomaly Committee took the view that having regard to the nature of duties and responsibilities attached to the posts and skill involved in the performance of the job, the nature of duties of Head Clerks and the Internal Auditors and the promotional avenues available to them are entirely different and that there is no parity of the categories of Revenue Accountants/Divisional Accountants and Internal Auditors with the Head Clerks and that they cannot claim parity. [Paras 27-29] [308-C-D; 309-C-F]

1.7 Though the submission of the respondents that where the employer has been maintaining parity in the pay scales of two posts of Head Clerks and Internal Auditors over a period of time then, if the pay scale of one post is revised, the said parity of pay scale is to be maintained and disturbing such parity would be arbitrary and violative of the Article 14 and Article 16 of the Constitution, appear to be attractive, but when considered in the light of the well settled principles, there is no merit in the contention. Equation of posts and revision of pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. The Pay Anomaly Committee has given elaborate reasons for revising the pay scales of the Head Clerks at Rs.2000-3500 and Internal Auditors at Rs.1800-3200. The conclusion arrived at by the experts/Pay Anomaly Committee are not susceptible to judicial review and the courts are not to interfere with the decision of the Government which is based on the opinion of the experts. [Para 31] [311-G-H; 312-A-B]

1.8 The Circle Assistants had been asked to exercise their option to go in the channel of promotion of Head Clerks or in the channel of Internal Auditors. Those who have chosen the channel of Internal Auditors post on 03.10.1990 have consciously chosen to exercise the option of Internal Auditors being mindful of the fact that the pay scale of the Head Clerks is higher than that of Internal Auditors; yet they have chosen to exercise the option of Internal Auditors. They cannot make a grievance about their revised scale of pay at Rs.1800-3200 which is not on par with the Head Clerks. Likewise, the Internal Auditors who have been directly recruited as Internal Auditors, have consciously applied for the post of Internal Auditors in the scale of pay of Rs.1800-3200, cannot raise a plea claiming parity of pay scale as that of the Head Clerks, since they have been directly recruited as per advertisement against the post of Internal Auditors. [Para 32, 33] [312-C-F]

1.9 Exercise of option for promotion as Internal Auditor was a “conscious option”. Further, it was always open to the appellant-Board to revise the scale of pay in terms of Regulation 3(g) of the Punjab State Electricity Board (Revised Pay) Regulations, 1988. That apart, while recommending the different pay scales for Head Clerks and Internal Auditors, the Pay Anomaly Committee was conscious about those Circle Assistants/ARAs who have already exercised their option for promotion as Head Clerks between 01.01.1986 to 03.10.1990. The Pay Anomaly Committee in para (5.1) of its report expressed its view that the option may be given to the employees who have been promoted between 01.01.1986 to 03.10.1990 as Head Clerks and Internal Auditors for the post of Head Clerk, provided some vacancies are available in the cadre of Head Clerk. The Pay Anomaly Committee has also expressed its view that once they are appointed as Head Clerks, they will be given the seniority as would have been if they would have exercised their option as Head Clerks in the first instance on promotion from Circle Assistants/ARAs. [Para 34, 35] [313-A-D]

1.10 The promotional avenues which are available to all the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks. Therefore, for this reason also, option of Internal Auditors which has been exercised by the Internal Auditors was a “conscious option” exercised by them because of more promotional avenues may available in the channel of Internal Auditors. That apart, the pay scales available in the promotional channel for Internal Auditors are also sharply higher than the Head Clerks. From submission of the appellant-Board, it is found that the increase in the pay scale is much higher on promotion against the post in the Internal Auditor promotional channel. Thus, for the said reason also, the choice of Internal Auditors made by all the persons (including those who have exercised the option between 01.01.1986 to 03.10.1990) is a reasoned choice keeping in view the greater promotional avenues and the higher pay scales which are available. [Paras 36, 37] [314-A-E]

1.11 The direct recruited Internal Auditors are entitled to a time-bound promotional scale on completion of nine years of service Rs.1900-3300 (unrevised) and sixteen years of service Rs.2000-3500 (unrevised). However, no such time-bound promotional scale is available to Head Clerks. Head Clerks are not directly recruited and their appointment as Head Clerk is by promotion only. [Para 38] [314-F-G]

1.12 The Court has to keep in mind that a mere difference in service conditions, does not amount to discrimination. Unless there is complete identity between the two posts, they should not be treated as equivalent to claim parity of pay scale. No doubt, Internal Auditors were earlier placed in the same group namely Group XII; but educational qualifications for the post of Head Clerk and mode of recruitment are different. As submitted by the appellant-Board, that in 1980, there were only four posts in Group XII but subsequently some posts were added to Group XII and in total fourteen posts. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the submission of the Internal Auditors for claiming parity of pay scale with that of Head Clerks merely on the ground that the post of Internal Auditor was placed in Group XII, then if such parity of pay scale may have to be extended to all other posts, it would have huge financial implication on the finance of the Board which is a service-oriented institution owing to the consumers. [Para 39] [315-A-E]

1.13 The Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The Single Judge erred in recording that the respondents were in the same category of “Sub Fire Officers” within the same group which have been decided by the earlier judgment dated 21.01.2010. [Para 40][315-F-H]

1.14 Merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was the “conscious exercise of option”, the impugned judgment cannot be sustained and is set aside. [Para 41][316-A-B]

Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353 : [2000] 4 Suppl. SCR 638 ; S.C. Chandra and Others v. State of Jharkhand and Others (2007) 8 SCC 279 : [2007] 9 SCR 130 ; Union Territory Administration, Chandigarh and Others v. Manju Mathur and Another (2011) 2 SCC 452 :

[2011] 1 SCR 883 ; State of Haryana and Others v. Charanjit Singh and Others (2006) 9 SCC 321 : [2005]

4 Suppl. SCR 57 ; Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research and Others (2012) 12 SCC 666 : [2012] 8 SCR 831 ; Steel Authority of India Limited and Others v. Dibyendu Bhattacharya (2011) 11 SCC 122 : [2010] 13 SCR

429 ; Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850 : [1968] 2 SCR 186 ; Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC

643 : [2006] 4 Suppl. SCR 66 - referred to.