M G PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner an employee of the State of Gujarat holding the post of Helio Printer at Government Photo Litho Press Ahmedabad has instituted the present petition under Article 226 of the Constitution of India in the context of his grievance that the State Government has acted in an arbitrary and discriminatory manner in regard to the fixation of the payscales of the cadre of Helio Printers in the wake of the recommendations made by the Gujarat State Second Pay Commission as per the report submitted in 1975.

(2.) The corresponding payscales of the cadres of Helio Printer Camera Operator Vandyke Operator and Technical Assistant since 1960 have been as under :- Helio Camera Vandyke TechnicPrinter Operator Operator al Ass (H.P.) (C.O.) (V.O.) istant (T.A.). Pay scales 115-130 100-130 85 -135 85-135 in operation from 1961 to 1961 till the recommendations of First Pay Commission (Sarela Commission) became operative in 1967. Pay scales as per 125-200 125-200 125-200 125-200 Sarela Commission recommendations in operation from 1967 till the recommendations of Second Pay Commission (Desai Commission) Pay scales recommen 260-350 250-350 260-350 260-350 ded by the Second (260-350) Pay Commission i.e. the Desai Commission. Pay scales as per 260-430 350-560 260-430 260-430 Gujarat Civil Services (Revision of Pay) Rules 1975 framed in the context of the recommendations of the Second Pay Commission in the course of the implementation of the said recommendations.

(3.) The aforesaid Explanatory Memorandum makes it abundantly clear that the rules have been made in order to implement the recommendations made by the Gujarat State Second Pay Commission. It is in the context of these facts that the petitioner has instituted the present petition and has challenged the legality and validity of the rules on the ground that the rules in so far as they affect the pay fixation of H.P. are arbitrary and discriminatory and are violative of Articles 14 and 16 of the Constitution. The necessary averments to the effect that parity has always been maintained between these categories has been made in paragraph 21A of the petition. The State Government has not controverted these averments. All that the State Government has done is to assume the posture that the recommendations of the Pay Commission were considered by the aforesaid Committee and the rules had been framed in the light of the recommendations made by the said Committee as per Annexure K. As discussed earlier neither the Committee nor the State Government was aware that in framing rules in the aforesaid manner the parity existing in these cadres was being disturbed to the advantage of one single cadre viz. the cadre of C.O. and the result of the fixation is that the other cadres which have always been awarded pay scales at par with the cadre of C.O. or higher than the cadre of C.O. have been awarded lower pay scales. Now an anomalous situation has arisen having regard to the fact that neither the Committee appointed in that behalf nor the State Government evinced awareness of this dimension at the material time before framing the rules in order to implement the recommendations of Desai Pay Commission. The grievance of the petitioner is therefore justified. What then is the remedy ? The Court exercising jurisdiction under Article 226 of the Constitution of India cannot amend the rules or direct that the pay scales awarded to the various cadres be substituted by pay scales determined by the Court. The Court cannot determine pay scales. The Court cannot undertake the exercise of evolving a policy decision on the question of maintaining or disturbing parity between different cadres. The Court can step in for a limited purpose. Even in order to ensure that no obnoxious discrimination is practised or to enforce the doctrine of equal treatment to equals the Court cannot determine whether the functions discharged are similar or comparable and the financial rewards should be similar or comparable in the context of the conclusion reached in this behalf. That burden rests on the shoulders of the establishment. Of course it cannot shut its eyes to the finding recorded by the Second Pay Commission in paragraph 49 of the report. The competent authority has neither considered the view point of the Commission nor formed its own opinion of this question about the very existence of which it appears to have been totally oblivious. All said and done having regard to the fact that in implementing the recommendations of the Second Pay Commission the State Government has taken the decision without proper application of mind the State Govern ment must be called upon to reconsider the question in the light of the foregoing discussion and render a fresh decision. No doubt the State Government is not bound to accept the recommendations of the Pay Commission in toto. It is open to the State Government to accept the recommendations with modifications. However in making the modifications the State Government is bound to apply its mind and take an informed decision after considering all the relevant elements. The pay scales of different cadres are fixed having regard to the nature of the duties performed by them and having regard to the similarity in the duties discharged by the employees in the other cadres as also having regard to the existing parity or disparity as the case may be between the different cadres If some principle of public policy or public interest demands on rational (and not on capricious) grounds existing structures can be altered. But all that has to be done in an informed manner on rational grounds. If there are good grounds which can be supported by reason and fairness disparity can be removed and parity can be achieved or parity can be disturbed in special circumstances. But that cannot be done without application of mind or without realising the consequences in an arbitrary manner in the absence of some reasonable or rational basis. In so far as this grievance is concerned the petitioner must therefore succeed. We will issue appropriate directions in this behalf in a short while after dealing with the second grievance urged on behalf of the petitioner.