# Sushil Kumar Gautam & Ors v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-04
- **Case number:** WRIT A No. 20277 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-gautam-ors-v-state-of-u-p-ors-47368
- **Pages:** 10

## Headnote

A. Service Law - Upgrade and arrears of
grade pay - Government order dated
16.11.2011 - Where all things are equal
i.e. where all relevant considerations are
the same, persons holding identical posts
may not be treated differentially in the
matter of their pay merely because they
belong to different departments. (Para 17)

Constitution of India: Article 14, 39B - It is
the bounden duty of the State to treat similarly
situated
employees
equally,
and
if
it
discriminates similarly situated employees then
that will frustrate the object of equality that is
enshrined in Article 14 of the Constitution of
India. (Para 13, 20)
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
The Apex Court also has recognized that though
Article 39B is not part of Chapter III of the
Constitution
of
India
which
deals
with
fundamental rights, the principles enshrined
under Article 39B which is directive principle has
assumed the status of the fundamental right,
and hence are enforceable by the courts. (Para
21)

The action of respondents in not granting the
benefit of grade pay of Rs. 1900/- to the
petitioners is violative of Art. 14 of the
Constitution since such benefit has been
extended to Mate of PWD by GO dated
16.11.2011 and also employees of Irrigation
Department working in Meerut, Ghazipur and
Lucknow divisions. (Para 22)

B. Scope of Judicial Review - It is settled
in law that pay fixation is purely executive
function and should be left to the expert
to decide on it, but in a case where it
emanates from the record that the action
of the State is arbitrary and discriminatory
to its employees in denying their rightful
claim, this Court is not denuded of the
power to issue a command to the State
under Article 226 of the Constitution of
India
to
treat
all
similarly
situated
employees equally. (Para 23, 24)

The nature and duty performed by Mate of
Irrigation Department are similar to Mate of
PWD and, therefore, they are also entitled to
benefit of grade pay of Rs. 1900/-. (Para 14,
25)

Writ petition allowed. (E-4)

Precedent followed:

## Text

9 All Sushil Kumar Gautam & Ors. Vs. State of U.P. & Ors.
1205
dated 4.7.2020 whereby the request of the
petitioner for voluntary retirement from
service has been turned down, the decision
of opposite party no. 4 dated 17.4.2020
communicated
to
the
petitioner
on
23.4.2020, whereby the petitioner has been
informed that if the petitioner does not
submit
his
joining
pursuant
to
the
impugned resolution taken in 91st meeting
of the Board of Governors, SGPGI by
30.4.2020 the disciplinary proceedings
shall be initiated against the petitioner for
terminating
his
services,
which
are
contained as Annexure nos. 1, 2 and 3 to
the writ petition are patently illegal,
arbitrary, discriminatory and violative of
Article 14,16 and 21 of the Constitution of
India so those are not sustainable in the
eyes of law.

50. Accordingly the writ petition is
allowed.

51. The order dated 4.7.2020,
23.4.2020 passed by the opposite party no.
2 and the resolution of 91st Governing
Body meeting of SGPGI, Lucknow dated
17.4.2020 as contained in Annexure nos. 1
to 3, so far as it relates to the petitioner are
hereby set aside / quashed.

52. A writ in the nature of mandamus
is issued commanding the opposite parties
to reconsider the application of the
petitioner dated 5.5.2020 whereby the
petitioner has sought voluntary retirement
within a period of two months ignoring the
earlier impugned orders, as aforesaid, and
intimate the petitioner such decision
forthwith.

53. The petitioner shall also be
entitled for all consequential service
benefits admissible as per law.

54. Till the appropriate decision is
taken the petitioner shall neither be
compelled
to
submit his
joining
at
S.G.P.G.I. nor any coercive action shall be
taken against him.

55. Before parting with, I put a note
of appreciation for Ms. Shama Parveen,
Law Clerk of this Court, for her useful
assistance.
----------
(2021)09ILR A1205
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 20277 of 2019

Sushil Kumar Gautam & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri B.S.Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Upgrade and arrears of
grade pay - Government order dated
16.11.2011 - Where all things are equal
i.e. where all relevant considerations are
the same, persons holding identical posts
may not be treated differentially in the
matter of their pay merely because they
belong to different departments. (Para 17)

Constitution of India: Article 14, 39B - It is
the bounden duty of the State to treat similarly
situated
employees
equally,
and
if
it
discriminates similarly situated employees then
that will frustrate the object of equality that is
enshrined in Article 14 of the Constitution of
India. (Para 13, 20)
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
The Apex Court also has recognized that though
Article 39B is not part of Chapter III of the
Constitution
of
India
which
deals
with
fundamental rights, the principles enshrined
under Article 39B which is directive principle has
assumed the status of the fundamental right,
and hence are enforceable by the courts. (Para
21)

The action of respondents in not granting the
benefit of grade pay of Rs. 1900/- to the
petitioners is violative of Art. 14 of the
Constitution since such benefit has been
extended to Mate of PWD by GO dated
16.11.2011 and also employees of Irrigation
Department working in Meerut, Ghazipur and
Lucknow divisions. (Para 22)

B. Scope of Judicial Review - It is settled
in law that pay fixation is purely executive
function and should be left to the expert
to decide on it, but in a case where it
emanates from the record that the action
of the State is arbitrary and discriminatory
to its employees in denying their rightful
claim, this Court is not denuded of the
power to issue a command to the State
under Article 226 of the Constitution of
India
to
treat
all
similarly
situated
employees equally. (Para 23, 24)

The nature and duty performed by Mate of
Irrigation Department are similar to Mate of
PWD and, therefore, they are also entitled to
benefit of grade pay of Rs. 1900/-. (Para 14,
25)

Writ petition allowed. (E-4)

Precedent followed:

1. Randhir Singh Vs U.O.I. & ors., 1982 (1) SCC
618 (Para 17)

2. State of Kerala Vs B. Renjith Kumar & ors.,
(2008) 12 SCC 219 (Para 18)

3. F.C.I. & ors. Vs Ashis Kumar Ganguly & ors.,
2009 (7) SCC 734 (Para 19)

4. K.T. Veerappa & ors. Vs State of Karnataka &
ors., (2006) 9 SCC 406 (Para 23, 26)

5. Haryana State Minor Irrigation Tubewells
Corporation & ors. Vs G.S. Uppal & ors., 2008
(7) SCC 375 (Para 24, 26)

(Delivered by Hon'ble Saral Srivastava, J.)

1. The petitioners by means of present
writ petition have prayed for the following
relief:-

"(i) Issue writ, order or direction
the nature of mandamus directing the
respondents to grant sanction upgrading
the petitioners' grade pay from Rs.1800/- to
Rs.1900/- w.e.f. 16.11.2011 when the Mates
of P.W.D. and other departments were
extended the benefits of grade pay
Rs.1900/-.

(ii) Issue writ, order, or direction
in the nature of mandamus directing the
respondents to pay the arrears of upgraded
grade pay since 16.11.2011 with interest
till date of its actual payment and revise
their pay/pension accordingly."

2. The case of the petitioners is that
petitioner no.1 was appointed as Beldar on
compassionate ground in January 1993 and
was promoted on the post of Mate in the
year 1999 and since then he is continuing
in Muzafar Nagar Division Ganga Canal,
Muzaffar Nagar. Petitioner no.2 was
appointed as Mate on compassionate
ground
on
04.06.1990
in
Tubewell
Division. The petitioners no.3 to 13 were
appointed
as
Mate
on
21.02.2009,
20.01.1990,
09.05.1989,
10.02.2009,
22.01.2006,
05.02.2009,
30.07.2003,
20.02.2009, 11.02.2009, 09.06.2003 and
19.06.1995 respectively in Muzaffar Nagar.
The petitioners no.14 and 15 were
appointed on 01.08.2003 and 26.11.1999 in
Muzaffar Nagar while petitioners no.16 and
17 were appointed in Etah on 06.02.1980
9 All Sushil Kumar Gautam & Ors. Vs. State of U.P. & Ors.
1207
and 08.01.1981. Petitioner no.17 has retired
on 31.01.2019 from Irrigation Division,
Etah and he is getting the pension on grade
pay of Rs.1800/-. Thus, all the petitioners
are working in Irrigation Department in the
State of U.P.

3. It is stated that a Government Order
dated 16.11.2011 was issued by Special
Secretary, UP Government, Lucknow in
respect of class IV employees of Public
Works Department (hereinafter referred to
as 'PWD') of State of U.P. providing grade
pay of Rs.1900/- with amended pay scale
of Rs.5200-20200/- on the basis of the
report of 6th Pay Commission and
recommendation of Pay Committee (2008)
under G.O. dated 08.09.2010.

4. The State of U.P. issued another
Government Order dated 30.03.2016 based
on the Pay Committee recommendation
with an amendment in the pay scale for the
post
of
Daftari,
Jamadar
(Orderly),
Cyclostyle Operator, Photostat Operator,
and Head Gardner, etc. granting them grade
pay of Rs.1900/-.

5. Further, the case of petitioners is
that on 26.07.2016, Pramukh Abhiyanta
(Engineer-in-Chief), Irrigation Department,
U.P., Lucknow sent a letter to Deputy
Secretary, Irrigation and Water Resources,
UP, Lucknow requesting him to approve
upgrading the grade pay from Rs.1800/- to
Rs.1900/- on the basis of Government
Order dated 30.06.2016 which has provided
the benefit of grade pay of Rs.1900/- to
class IV employees.

6. It is also stated that the State
Government issued another Government
Order dated 29.05.2017 providing grade
pay of Rs.1900/- to class IV employees
working in Drainage & Tubewell Divisions
at Meerut, Ghazipur, and Lucknow and in
various other districts which are part of
irrigation department and accordingly,
grade pay of Rs.1900/- to class IV
employees working in aforesaid divisions
has been fixed.

7. It is also stated that Executive
Engineer
wrote
a
letter
to
Finance
Controller in the office of Engineer-inChief, Irrigation, and Water Resources, UP,
Lucknow requesting him to clarify as to
whether class IV employees of Muzaffar
Nagar Division be also extended the benefit
of grade pay of Rs.1900/-. The State
Government on 29.05.2018 sought a report
from the office of Engineer-in-Chief and
Head of Department, Irrigation and Water
Resources, UP, Lucknow for extending the
benefit of grade pay of Rs.1900/-.

8. Pursuant to the said letter, Senior
Staff Officer on behalf of Engineer-inChief, Irrigation, and Water Resources, UP,
Lucknow sent a report on 09.07.2018
recommending for grant of grade pay of
Rs.1900/- to the petitioners. Similar,
recommendations have been made by
Senior Staff Officer to Deputy Secretary,
Irrigation and Water Resources, UP,
Lucknow on 02.11.2018, 10.12.2018, and
18.12.2018 but the State Government did
not pay any heed to the recommendations
of Engineer in Chief for extending the
benefit of grade pay to the petitioners.

9. In the aforesaid backdrop, the
petitioners have prayed for the above relief.

10.

In
the
counter
affidavit,
respondents have not denied the fact that by
Government Order dated 16.11.2011, the
benefit of grade pay has been extended to
the employees of PWD for the post of Mate
and other posts like Carpenter, Mistri,
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
Plumber, Painter, Pump Operator, Welder,
Fitter and Turner, and other employees.
The respondents have also not denied the
averments made in paragraph 9 of the writ
petition that the benefit of grade pay of
Rs.1900/- has been extended to the
employees of the Irrigation Department in
respect to Meerut, Ghazipur, and Lucknow
divisions. Paragraphs 5 and 6 of the counter
affidavit are extracted herein-below:-

"5. That in reply to the contents
of paragraphs nos.6 and 7 of the writ
petition it is stated that the Government
Order dated 16.11.2011 was issued by the
State
Government
for
Public
Works
Department by which the pay band has
been fixed for the post of Mate and other
posts like Carpenter, Mistri, Plumber,
Painter, Pump Operator, Welder, Fitter,
Turner, etc. The aforesaid Government
Order does not apply to the petitioners
because the petitioners are working in
Irrigation Department and governed by
separate rules. Similarly, the Government
Order dated 30.03.20169 is also not
applicable in the case of the petitioners.

6. That in reply to the contents of
paragraphs nos.8 and 9 of the writ petition
it is stated that the Senior Staff Officer of
the Department has recommended the case
of the petitioners to provide the pay scale
of Rs.1900 but the same is still pending
before the State Government and on the
mere recommendation the petitioners have
no right to claim the aforesaid pay scale. It
is further stated that the Government Order
dated 29.05.2017 is only applicable to
Class-IV employees of the Irrigation
Department particularly holding the post of
Daftari,
Zildsaaj,
Machine
Operator,
Jamadar, and Pradhan Mali."

11.

Learned
counsel
for
the
petitioners has submitted that the benefit of
grade pay has been extended to Mate of
PWD
who
are
employees
of
State
Government by order dated 16.11.2011 on
the basis of the report of 6th Pay
Commission and recommendation of Pay
Committee (2008) under G.O. dated
08.09.2010. The action of the respondents
in not extending the same benefit to the
petitioners is illegal and arbitrary.

12. He further submits that the benefit
of grade pay of Rs.1900/- has been
extended
to
employees
of
Irrigation
Department for Meerut, Ghazipur, and
Lucknow divisions, and the petitioners are
identically situated as they are also
employees of Irrigation Department, posted
at Muzaffar Nagar, therefore, they cannot
be denied the benefit of grade pay of
Rs.1900/- which has been extended to the
employees of the same department. He
further
submits
that
several
recommendations have been made by
Engineer in Chief to Deputy Secretary,
Irrigation Department recommending for
grant of grade pay of Rs.1900/- to the
petitioners but respondents are sleeping
over the matter and have not yet extended
the benefit of grade pay of Rs.1900/- which
the petitioners are entitled to w.e.f.
16.11.2011 i.e. from the date such benefit
has been extended to class IV employees of
PWD.

13. Thus, the submission in nutshell is
that the action of respondents in not
extending grade pay of Rs.1900/- to the
petitioners is arbitrary and discriminatory
and defeats the very object of the right to
equality enshrined in Article 14 of the
Constitution of India.
9 All Sushil Kumar Gautam & Ors. Vs. State of U.P. & Ors.
1209

14. Learned Standing Counsel has
contended that the Government Order dated
16.11.2011 has been issued in respect of
Mate of PWD, and since the petitioners are
employees of Irrigation Department which
is different from PWD, therefore, the
petitioners
cannot
claim
parity
with
employees of PWD. He further submits that
recommendation
made
in
favour
of
petitioners by Engineer-in-Chief for grant
of benefit of grade pay of Rs.1900/- is
pending with State Government. He further
submits that fixation of pay is the domain
of
State
Government
and,
various
considerations are involved for extending
the benefit of grade pay, therefore, this
Court should refrain from issuing any
direction for granting the benefit of grade
pay to the petitioners.

15. I have heard learned counsel for
the
petitioners
and
learned
Standing
Counsel for respondents no.1 to 3.

16. The facts as emanates from the
record is that the petitioners are employees
of the Irrigation Department which is a
department of State of UP. The benefit of
grade pay of Rs.1900/- has been extended
to employees of PWD w.e.f. 16.11.2011.
Similarly, the benefit of grade pay of
Rs.1900/- has been extended to Mate
working in Drainage & Tubewell Divisions
of Meerut, Ghazipur, and Lucknow by
Government Order dated 29.05.2017. The
petitioners are identically situated of their
counterparts working at Meerut, Ghazipur,
and
Lucknow
Division
in
Irrigation
Department. The Government Order dated
29.05.2017 extending the benefit of grade
pay to the irrigation department is extracted
herein-below:-

"सिंख्या-1030/17-27-नसिं0-7-19(7)/

प्रेर्क

शम्भू नाथ,

सनचव,

उत्तर प्रदेश शासन।

सेवा में,

प्रमुख अनभयिा एविं नवभागाध्यक्ष,

नसिंचाई एविं जल सिंसाधन नवभाग,

उ0प्र0 लखनऊ

नसिंचाई एविं जल सिंसाधन अनुभाग-7
लखनऊः नदनािंक 29 मई, 2017

नवर्यः- उत्तर प्रदेश सनचवालय की
भाूँनत सनचवालय से इतर राजकीय नवभागोिं के
चतुथा श्रेणी कमाचाररयोिं को ग्रेड वेतन रु0 1900/-
नदये जाने से सबन्तित मुख्य सनचव सनमनत को
सन्दनभात प्रकरण पर दी गयी सिंस्तुनतयोिं पर नलये
गये ननणाय के कायाान्वयन के सबि में।

महोदय,

उपयुाि
नवर्यक
वररष्ठ
स्टार्
अनधकारी
(अनध0-5)
कायाालय
प्रमुख
अनभयिा, नसिंचाई नवभाग, उ0प्र0 लखनऊ के
पत्र सिंख्या 964/अनध0-5/चतुथा श्रेणी, नदनािंक 2007-20-07-2016 एविं पत्र सिंख्या-जी-109/अनध05/लखनऊ, नदनािंक 27-03-2017 का कृपया
सन्दभा ग्रहण करने का कि करें।

2- इस सबि में मुझे यह कहने का
ननदेश हुआ है नक नसिंचाई नवभाग में चतुथा श्रेणी
के दफ्तरी, नजिसाज/साइक्लोस्टाइल आपरेटर
(डुप्लीकेनटिंग मशीन आपरेटर), जमादार तथा
प्रधान माली के पदोिं, नजन पर चतुथा श्रेणी के
ननम्नतम पद से पदोन्ननत नकये जाने की व्यवस्था
वतामान में नवद्यामन है। ऐसे चतुथा श्रेणी के उि
पदोिं पर, नवत्त नवभाग के शासनादेश सिंख्या-
21/2016/वे0आ0-2-397/दस-20168(मु0स0स0)/2011 टी0सी0 नदनािंक 30 माचा,
2016 द्वारा की गयी व्यवस्था के िम में वतामान
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
में अनुमन्य वेतन बैड-1 रु0-5200-20200 एविं
ग्रेड
वेतन
रु0
1800/-
के
स्थान
पर
उच्चीकृत/सिंशोनधत वेतन बैड-1 रु0- 520020200 एविं ग्रेड वेतन रु0 1900/- इस आदेश के
ननगात नकये जाने की नतनथ से, अनुमन्य नकये
जाने की श्री राज्यपाल महोदय सहर्ा स्वीकृत
प्रदान करते हैं।

3- यह आदेश नवत्त नवभाग के
अशासकीय
सिंख्या-वे0आ0-2-528/दस-2017,
नदनािंक 24-05-2017, में प्राप्त उनकी सहमनत से
ननगात नकये जा रहे हैं।

भवदीय

ह0अप0

(शम्भू नाथ)

सनचव।"

17. At this point, it would be apt to
refer few judgments of the Apex Court
wherein the Apex Court has held that
where all things are equal i.e. where all
relevant considerations are the same,
persons holding identical posts may not be
treated differentially in the matter of their
pay merely because they belong to different
departments. In the case of Randhir Singh
Versus Union of India and Others 1982
(1) SCC 618, the Apex Court allowed the
writ petition under Article 32 of the
Constitution of India filed by DriverConstable in Delhi Police Force under
Delhi Administration who demanded that
his pay scale should at least be the same as
the scale of pay of other drivers in the
service
of
the
Delhi
Administration.
Paragraphs 6 and 8 of the said judgment are
extracted herein-below:-

"6. The counter-affidavit does not
explain how the case of the drivers in the
Police Force is different from that of the
drivers in other departments and what
special factors weighed in fixing a lower
scale of pay for them. Apparently in the
view of the respondents, the circumstance
that
persons
belong
to
different
departments of the Government is itself a
sufficient circumstance to justify different
scales of pay irrespective of the identity of
their powers duties and responsibilities. We
cannot accept this view. If this view is to be
stretched to its logical conclusion, the
scales of pay of officers of the same rank in
the Government of India may vary from
department to department notwithstanding
that
their
powers,
duties
and
responsibilities are identical. We concede
that equation of posts and equation of pay
are matters primarily for the Executive
Government and expert bodies like the Pay
Commission and not for Courts but we
must hasten to say that where all things are
equal
that
is,
where
all
relevant
considerations are the same, persons
holding identical posts may not be treated
differentially in the matter of their pay
merely because they belong to different
departments. Of course, if officers of the
same rank perform dissimilar functions and
the powers, duties and responsibilities of
the posts held by them vary, such officers
may not be heard to complain of dissimilar
pay merely because the posts are of the
same rank and the nomenclature is the
same.

8. It is true that the principle of
'equal pay for equal work' is not expressly
declared by our Constitution to be a
fundamental right. But it certainly is a
Constitutional goal. Article 39(d) of the
Constitution proclaims ''equal pay for
equal work for both men and women" as a
Directive Principle of State Policy. 'Equal
pay for equal work for both men and
women' means equal pay for equal work for
everyone and as between the sexes.
9 All Sushil Kumar Gautam & Ors. Vs. State of U.P. & Ors.
1211
Directive principles, as has been pointed
out in some of the judgments of this Court
have to be read into the fundamental rights
as a matter of interpretation. Article 14 of
the Constitution enjoins the State not to
deny any person equality before the law or
the equal protection of the laws and Article
16 declares that there shall be equality of
opportunity for all citizens in matters
relating to employment or appointment to
any office under the State. These equality
clauses of the Constitution must mean some
thing to everyone. To the vast majority of
the people the equality clauses of the
Constitution would mean nothing if they
are unconcerned with the work they do and
the pay they get. To them the equality
clauses will have some substance if equal
work means equal pay. Whether the special
procedure prescribed by a statute for trying
alleged robber-barons and smuggler kings
or for dealing with tax evaders is
discriminatory,
whether
a
particular
Governmental policy in the matter of grant
of licences or permits confers unfettered
discretion on the Executive, whether the
take-over of the empires of industrial
tycoons is arbitrary and unconstitutional
and other questions of like nature, leave the
millions
of
people
of
this
country
untouched. Questions concerning wages
and the like, mundane they may be, are yet
matters of vital concern to them and it is
there, if at all that the equality clauses of
the Constitution have any significance to
them. The Preamble to the Constitution
declares the solemn resolution of the
people of India to constitute India into a
Sovereign Socialist Democratic Republic.
Again the word 'Socialist' must mean
something. Even if it does not mean 'To
each according to his need', it must at least
mean 'equal pay for equal work'. "The
principle of 'equal pay for equal work' is
expressly recognized by all socialist
systems of law, e.g, Section 59 of the
Hungarian Labour. Code, para 2 of Section
111 of the Czechoslovak Code, Section 67
of the Bulgarian Code, Section 40 of the
Code of the German Democratic Republic,
para 2 of Section 33 of the Rumanian Code.
Indeed this principle has been incorporated
in several western labour codes too. Under
provisions in Section 31 (g. No. 2d) of Book
I of the French Code du Travail, and
according
to
Argentinian
law,
this
principle must be applied to female
workers
in
all
collective
bargaining
agreements. In accordance with Section 3
of the Grundgesetz of the German Federal
Republic, and clause 7, Section 123 of the
Mexican Constitution, the principle is given
universal significance" (vide: International
Labour Law by Istvan Szaszy p. 265). The
preamble to the Constitution of the
International
Labour
Organisation
recognises
the
principle
of
'equal
remuneration for work of equal value' as
constituting one of the means of achieving
the improvement of conditions "involving
such injustice, hardship and privation to
large numbers of people as to produce
unrest so great that the peace and harmony
of the world are imperiled". Construing
Articles 14 and 16 in the light of the
Preamble and Article 39(d), we are of the
view that the principle 'Equal pay for Equal
work' is deducible from those Articles and
may be properly applied to cases of
unequal scales of pay based on no
classification or irrational classification
though these drawing the different scales of
pay do identical work under the same
employer."

18. In the case of State of Kerala
Versus B. Renjith Kumar and Others
(2008) 12 SCC 219, the Apex Court
dismissed the Civil Appeal filed by the
State of Kerala and affirmed the judgment
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
of Kerala High Court who has allowed the
writ petition filed by Presiding Officer,
Industrial Tribunals claiming pay parity
with District Judges. Paragraphs 21 and 22
of the said judgment is reproduced hereinbelow:-

"21. The principle of "equal pay
for equal work" has been considered,
explained and applied in a catena of
decisions of this Court. The doctrine of
"equal pay for equal work" was originally
propounded as part of the Directive
Principles of State policy in Article 39(d) of
the Constitution. Thus, having regard to the
Constitutional mandate of equality and
inhibition against discrimination in Articles
14 and 16, in service jurisprudence, the
doctrine of "equal pay for equal work" has
assumed the status of fundamental right.
(see Randhir Singh v. Union of India
(1982) 1 SCC 618 and D.S. Nakara v.
Union of India (1983) 1 SCC 305].

22. In the latest judgment, a twoJudge Bench this Court in the case of
Union of India v. Dineshan K.K. (2008) 1
SCC 586 held that if the necessary material
on the basis whereof the claim for parity of
pay scale is made is available on record
with necessary proof and that there is equal
work of equal quality and all other relevant
factors are fulfilled the decision of the
Central Government denying the benefits of
same rank and pay structure to a Radio
Mechanic in Assam Rifles as was given to
other Central Paramilitary Forces was
held to be clearly irrational and arbitrary
and thus, violative of Article 14 of the
Constitution."

19. In the case of Food Corporation
of India and Ors. Versus Ashis Kumar
Ganguly and Others 2009 (7) SCC 734,
the Apex Court dismissed the Civil Appeal
filed by Food Corporation of India and
affirmed the judgement of Calcutta High
Court whereby he directed to grant advance
increment to 57 deputationist employees.
Paragraph 36 and 37 of the said judgment
is reproduced herein-below:-

"36. Submission of the learned
Additional Solicitor General that Article 14
of the Constitution of India postulates a
valid classification cannot be said to have
any application in the instant case. The
High Court, in our opinion, has rightly
found that in the matter of grant of benefits
under the proviso appended to Regulation
81, all the employees were similarly
situated.

37. In a case of this nature, legal
right of the respondents emanated from
violation of the equality clause contained in
Article 14. If they were otherwise similarly
situated, there was absolutely no reason
why having regard to the provisions
contained
in
Article
39-A
of
the
Constitution of India, the respondents
should be
treated
differently.
It
is,
therefore, not a case where persons
differently situated are being treated
differently as was submitted by Mr.
Sharan."

20.

Thus,
from
the
aforesaid
judgments, it can be safely culled out that
the Apex Court has held that it is the
bounden duty of the State to treat similarly
situated employees equally, and if it
discriminates similarly situated employees
that will frustrate the object of equality that
is
enshrined
in
Article
14
of
the
Constitution of India.

21. The Apex Court also has
recognized that though Article 39B is not
part of Chapter III of the Constitution of
9 All Sushil Kumar Gautam & Ors. Vs. State of U.P. & Ors.
1213
India which deals with fundamental rights,
the principles enshrined under Article 39B
which is directive principle has assumed
the status of the fundamental right, and
hence are enforceable by the courts.

22. Applying the principles enunciated
by the Apex Court in the aforesaid
judgments, this Court is of the opinion that
the action of respondents in not granting the
benefit of grade pay of Rs.1900/- to the
petitioners is violative of Article 14 of the
Constitution since such benefit has been
extended to Mate of PWD by Government
Order dated 16.11.2011 and also employees
of Irrigation Department working in Meerut,
Ghazipur and Lucknow divisions.

23. So far as the argument of learned
Standing Counsel that fixation of pay is
purely the domain of the executive, as
various considerations are involved in the
fixation of pay, therefore, the Court should
refrain from issuing any direction to the State
and leave it open to the State to take the
appropriate decision. It is settled in law that
pay fixation is purely executive function and
should be left to the expert to decide on it, but
in a case where it emanates from the record
that the action of the State is arbitrary and
discriminatory to its employees in denying
their rightful claim, this Court is not denuded
of the power to issue a command to the State
under Article 226 of the Constitution of India
to treat all similarly situated employees
equally. It would be apt to refer to the
judgement of the Apex Court in the case of
K.T. Veerappa and Others Versus State of
Karnataka and Others (2006) 9 SCC 406.
Paragraph 13 the said judgment is reproduced
herein-below:-

"13. He next contended that
fixation of pay and parity in duties is the
function of the Executive and financial
capacity of the Government and the
priority given to different types of posts
under the prevailing policies of the
Government are also relevant factors. In
support of this contention, he has placed
reliance in the case of State of Haryana v.
Haryana Civil Secretariat Personal Staff
Assn. (2002) 6 SCC 72 and Union of India
v. S.B. Vohra (2004) 2 SCC 150. There is
no dispute nor can there be any to the
principles as settled in the case of State of
Haryana v. Haryana Civil Secretariat
Personal Staff Assn. (2002) 6 SCC 72 that
fixation of pay and determination of parity
in duties is the function of the Executive
and the scope of judicial review of
administrative decision in this regard is
very limited. However, it is also equally
well-settled that the courts should interfere
with administrative decisions pertaining to
pay fixation and pay parity when they find
such a decision to be unreasonable, unjust
and prejudicial to a section of employees
and taken in ignorance of material and
relevant factors."

24. Similarly, in the case of Haryana
State
Minor
Irrigation
Tubewells
Corporation and Others Versus G.S.
Uppal and Others 2008 (7) SCC 375, the
Apex Court has held that when the decision
of the administrative authority of pay
fixation and pay parity is unreasonable,
unjust and prejudicial to a section of
employees, the Court can interfere with the
said decision. Paragraph 21 of the said
judgment is reproduced herein-below:-

"21. There is no dispute nor can
there be any to the principle as settled in
the above-cited decisions of this Court that
fixation of pay and determination of parity
in duties is the function of the Executive
and the scope of judicial review of
administrative decision in this regard is
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
very limited. However, it is also equally
well-settled that the courts should interfere
with
the
administrative
decisions
pertaining to pay fixation and pay parity
when they find such a decision to be
unreasonable, unjust and prejudicial to a
section
of
employees
and
taken
in
ignorance of material and relevant factors.
[see K.T. Veerappa v. State of Karnataka
(2006) 9 SCC 406]"

25. In the case in hand, the benefit of
grade pay of Rs.1900/- has been extended to
Mate of PWD w.e.f. 16.11.2011. The
petitioners are also employees of State.
Though the departments are different, but the
nature of the job performed by them is
similar to the nature of the job performed by
Mate working in PWD. This fact is
discernible from the record as the benefit of
grade pay has been extended by the State of
U.P.
to
Mate
working
in
Irrigation
Department
in
Meerut,
Ghazipur
and
Lucknow Divisions, and also from several
recommendations which have been made by
Engineer-in-Chief
to
Deputy
Secretary,
Irrigation Department by placing reliance
upon Government Order dated 16.11.2011
extending the benefit of grade pay of
Rs.1900/- to Mate of PWD. Thus, from the
facts detailed above, the only conclusion
which can be drawn is that the nature and
duty performed by Mate of Irrigation
Department are similar to Mate of PWD and,
therefore, they are also entitled to benefit of
grade pay of Rs.1900/- to the petitioners.

26. Since the State Government is
sleeping over the matter since 20 July 2016
when the recommendation was made by
Engineer-in-Chief
to
Deputy
Secretary,
Irrigation Department, and petitioners are
facing financial loss on account of the
inaction of the State Government, therefore,
applying the principles laid down by the
Apex Court in the cases of G.S. Uppal
(supra) and K.T. Veerappa (supra), this
Court is of the opinion that it is a fit case
where the Court should intervene and
exercise its power under Article 226 of the
Constitution of India commanding the
respondents to extend the benefit of grade
pay of Rs.1900/- to the petitioners.

27. For the reasons given above, the
writ petition is allowed and a writ of
mandamus
is
issued
commanding
respondents no.1 & 2 to extend the benefit of
grade pay of Rs.1900/- to the petitioners
w.e.f. 16.11.2011 when such benefit has been
extended to Mate of PWD. It is further
directed to the respondents to fix the pay of
petitioners on the basis of grade pay of
Rs.1900/- and also calculate arrears of salary
w.e.f. 16.11.2011 and pay the same to the
petitioners within three months from the date
of production of the copy of this order before
them.
----------
(2021)09ILR A1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 21036 of 2021

Avnesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jayashanker Shukla

Counsel for the Respondents:
C.S.C.

Service Law - Transfer - Grievance of the
petitioner that by means of impugned