1. The petitioner, an employee of the State of Gujarat holding the post of Helio Printer at Government Photo Litho Press, Ahemadabad, has instituted the present petition under Art. 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 pay-scales 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 pay-scales of the cadres of Helio Printer, Camera Operator, Vandyke Operator and Technical Assistant since 1960 have been as under :
Helio Camera Vandyke TechnicalPrinter Operator Operator Assistant(H.P.) (C.O.) (V.O.) (T.A.)Pay-scales in 115-130 100-130 85-135 85-135operation from1961 to 1967 tillthe recommendationsof First PayCommission(Sarela Commission)became operative in1967.Pay-scales as per 125-200 125-200 125-200 125-200Sarela Commissionrecommendations inoperation from1967 till therecommendationsof Second PayCommission(Desai Commission).Pay-scales recommended 260-350 250-250 260-350 260-350by the Second PayCommission, i.e., (260-350)the Desai Commission.Pay-scales as per 260-430 350-560 260-430 260-430Gujarat CivilServices (Revision of Pay)Rules, 1975 framed in thecontext of the recommendationsof the Second Pay Commissionin the course of theimplementation of thesaid recommendations.
It is thus not in dispute that there was parity in the pay-scales of the aforesaid categories, viz., H.P. & C.O., V.O., from 1961 onwards till 1975 when the Desai Pay Commission made its recommendations. There was parity between these cadres in the pay-scales prior to the constitution of the Sarela Pay Commission. The same parity was maintained by the Sarela Pay Commission between these four cadres. Then came to be constituted Second Pay Commission known as the Desai Pay Commission. The Desai Pay Commission also recommended maintenance of parity by recommending similar pay-scales except in regard to the cadre of C.O. In regard to the other three cadres, viz., cadres H.P., V.O., and T.A. The pay-scale recommended was uniform pay-scale of Rs. 260-350. In regard to C.O. the pay-scale recommended was Rs. 250-350. On a perusal of the recommendation of the Pay Commission which is contained in the underquoted paragraphs, viz., paragraphs 47, 48 and 49 of the report in Vol. II (part-I at page 230, it is abundantly clear that the pay Commission intended to maintain the same parity.
'47. ..... ..... ..... .....(xxiv) ...... ..... ..... }...... ..... ..... }...... ..... ..... } Rs. 125-200Camera Operator Helio }Printer Vandyke Operator }...... ..... ..... }48. .... ...... ..... ..... 49. The Commission has examined the case of this category of staff particularly having regard to their duties, functions and promotional channels vis-a-vis those of corresponding categories in the latter presses and found that the functions do not differ much. There may be difference here and there but it may not be so much as to warrant special attention. Accordingly, the Commission recommends that all these posts should be placed on the scale of Rs. 260-350. Incidentally, several posts of smiths, carpenters, etc., on this scale have also been grouped under the proposed scale of Rs. 260-350 in the common categories.'
For the purposes of the present petition, suffice it to say that even according to the recommendations of the Second Pay Commission, viz., the Desai Pay Commission there was complete parity between these cadres. At the cost of repetition it may be stated that parity in the matter of pay-scales between these four cadres has been established since 1961 and it has prevailed till 1975 (in point of fact the pay-scale of H.P. was the highest till the First Pay Commission introduced absolute parity). The Second Pay Commission, i.e., Desai Pay Commission recommended a uniform pay-scale and recommended fixation of the pay-scale of Rs. 260-350 for all these categories. It is also common ground between the parties that these recommendations were scrutinized by a committee appointed by the State Government consisting of the Secretary, Industries, Mines & Power Department, and nine other officials. The scrutiny was made in order to give effect to and implement the recommendations of the Pay Commission with or without modifications. The minutes of the meeting held on 6-5-1975 in the Chamber of the Secretary, Industries. Mines & Power Department, whereat all the members of the Committee had remained present have been produced by the State Government at Annexure 'K'. The question regarding fixation of pay-scales of this Department has been dealt with in paragraph 6 of the said report which may be reproduced verbatim for the sake of preciseness :
'(6) Pay scales recommended by the Second Pay Commission.
(a) It was agreed that I.M.P.D. will recommend for consideration of Government in Finance Department upward revision of pay scales as mentioned in column No. 3 below :
Scale ScaleExisting recommended recommendedpay scales by 2nd Pay by thisCommission Department1. 130-240 260-400 290-4802. 125-200 260-350 260-4303. 125-160 260-350 260-4004. 110-140 210-270 260-350 (b) It was decided to recommend to F.D. that in respect of the posts of enlarger, photographer and camera operator, the pay scales that would be prescribed for similar posts in other Departments such as CID. Directorate of Information and Agriculture Dept. on the basis of Second Pay Commission should be prescribed for these posts in Printing and Stationary Department.
(c) In respect of higher scale demanded by the Offset printers on par with the Rotary Operator in was agreed that the question should be examined in detail by the D.G.P.S. and proposal should be submitted to the Government early.'
It will be seen that in regard to the existing pay-scale of Rs. 125-200 which was applicable to all four categories (viz. H.P., C.O., V.O. & T.A.) the scale recommended by the Department itself was a uniform scale of Rs. 260-430. It is also evident that the Second Pay Commission had recommended a uniform pay-scale of Rs. 260-350 in regard to all these categories. There is no discussion in the report of the aforesaid Committee in regard to the question of disturbing the parity between these cadres. All the four cadres comprised in the existing pay-scale of Rs. 125-200 were required to be fixed in the new pay-scale. The report of the committee shows that the Committee was not aware of the fact that the parity between these four cadres which existed from 1961 onwards and which was recommended by the Desai Pay Commission was bought to be disturbed. It is no doubt true that in clause (b) of paragraph (6) it has been mentioned that the Camera Operator should be fixed in the same pay-scale as would be prescribed for similar posts in other departments such as (1) C.I.D. (2) Directorate of Information and (3) Agriculture Department. There is no discussion whatsoever in regard to the question of maintaining or disturbing the parity between the cadre of C.O. on one hand and the remaining three cadres, viz., H.P., V.O. and T.A. on the other. There was no occasion to consider this dimension and it has not been considered. It appears that it was not realised that the effect of the decision reflected in clause (b) in regard to C.O. would result in disturbing the existing parity between these four cadres. And without realising this aspect the Committee has made its recommendations which are now reflected in the Rules of 1975. The explanatory memorandum at the foot of the rules reads as follows :
'The Gujarat Civil Services (Revision of Pay) Rules, 1975 have been made to implement the recommendations made by the Gujarat State Second Pay Commission with respect to the pay scales of Class-I, Class-II, Class-III and Class-IV, employees of the Government.'
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 Arts. 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 Art. 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 practiced 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 for 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 obvious. 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 Government 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 found 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 nor 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 manners 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.
3. The second grievance of the petitioner is that till 1975 the employees belonging to each of the three cadres, viz., H.P., C.O. & V.O. were considered eligible for promotion to the post off Head Photographer which carried a higher pay-scale. It has not been disputed by the State Government that this was so. Till 1975 recruitment to the promotion post of Head Photographer was made from four sources, viz., from the employees belonging to the aforesaid four cadres. The situation has been altered to the disadvantage of the other two cadres, viz., H.P. & V.O. and to the advantage of C.O. by framing statutory rules dated November 1, 1976 as per Annexure 'B' (known as the Head Photographer Recruitment Rules, 1976) under Art. 309 of the Constitution of India. Under these rules the employees belonging to the cadre of C.O. and some lather cadres are eligible for promotion to the higher cadre of Head Photographer. The petitioner has also challenged the constitutional validity of the rule having regarded to the fact that the cadre of H.P. which was so far considered to be eligible for recruitment to the post of Head Photographer has now been excluded. In our opinion, the constitutionality of the rule cannot be challenged because it cannot be said that H.Ps. have a legal right to be considered eligible for the post of a Head Photographer merely because they were considered eligible so far or merely because the employees of the cadre of C.O. who were drawing a similar pay-scale have been considered to be eligible under the impugned rules. The learned counsel for the petitioner, however, submits that exclusion of the cadre of H.P. by framing rules at Annexure 'B' has been done merely by reason of the fact that now the cadre of C.O. carries a higher pay-scale than that of the cadre to which the petitioner belongs, viz., H.P. This may or may not be so. We cannot indulge in conjectures in order to find out what operated on the mind of the rule making authority who framed the rules under Art. 309 of the Constitution. That would be beyond our province in exercise of jurisdiction under Art. 226. No relief can therefore, be granted in regard to this grievance made by the petitioner and the relief claimed by him in the context of this grievance. However, if the contention of the petitioner in that the cadre of H.P. has been excluded merely by reason of the fact that the C.O. has been awarded higher scale than the cadre of H.P. and allied cadres, it will be for the State Government to consider whether an amendment of the rules is called for. While we cannot direct the State Government to amend the rules, we can certainly recommend to the State Government to consider the recommendation made by the Second Pay Commission in respect of the H.P. and allied cadres in this behalf on merits in case these cadres have been excluded merely by reason of the aforesaid circumstance.
4. In the result, the petition partly succeeds to the following extent :
(1) Respondent No. 1 State of Gujarat is directed to examine the question as regards the pay-scale that should be awarded to Helio Printers in the light of the recommendation of the Second Pay Commission in the context of the admitted fact that from 1960 onwards their duties and functions have been considered to be similar to those discharged by the cadre of Camera Operators and they have been awarded pay-scale on par with the pay-scale awarded to Camera Operator or slightly higher than the pay-scale awarded to Camera Operator for almost 15 years and to take an appropriate decision on merits on rational grounds and to take appropriate measures to give effect to the same by 31st October, 1980 after giving reasonable opportunity to the petitioner in this behalf.
(2) We may say that the same reasoning will apply mutatis mutandis to Vandyke Operator and Technical Assistant. Though they have not joined in the present petition, fairness demands that the State Government shall consider their case also on merits after giving them reasonable opportunity of hearing in that behalf. We, however, can do no more than make our recommendation in this behalf.
(3) Fairness also demands that we make another recommendation. If the request of the petitioner and/or the allied cadres is granted on merits in the wake of the aforesaid order, the respondent-State shall consider giving retrospective effect to the decision with effect from the date of the enforcement of the Gujarat Civil Services (Revision of Pay) Rules, 1975. The State Government will also consider on merits the representation made by the petitioner in the context of the grievances in regard to the promotion to the post of Head Photographer in the light of the discussion made hereinabove.
(4) Rule is made absolute to the aforesaid extent with no order as to costs.