Tag Archives: government service

Parity in Pay Scales – Equation of Posts

Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts, it was held in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122,  as under:

“the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.”

 It was held in Union of India v. P.K. Roy, AIR 1968 SC 850 that the following factors had been held to be determinative for considering the equation of posts,:

1. The nature and duties of a post;

2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;

3. The minimum qualifications, if any, prescribed for recruitment to the post; and

4. The salary of the post.

After referring to Union of India v. P.K. Roy, AIR 1968 SC 850,  the Hon’ble Apex Court, in  SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, held as under:

25. In  State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130 and  L.N. Mithila University v. Dayanand Jha, (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in  E.P. Royappa v. State of T.N., (1974) 4 SCC 3 Rooplal v. Lt. Governor, (2000) 1 SCC 644, wherein the Hon’ble Apex Court following the earlier judgment in  Union of India v. P.K. Roy, AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criteria should also be fulfilled.” Punjab SEB v. Thana Singh, (2019) 4 SCC 113.

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Conditions of Service – Governed by Statute

In the cases where the appointment and conditions of service are governed by statute, the relationship is that of status and not merely a contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant. In such cases, where the contract of service is not governed by statutory provisions, it is well settled that contract of service cannot be enforced by seeking reinstatement or continuance in employment since such a relief is barred under the Specific Relief Act. In Executive Committee of U.P. State Warehousing Corporation v. C.K. Tyagi, AIR 1970 SC 1244 it was held as under:

        “Under the common law the court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognized. The courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by statute.

        The position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognized exceptions to this rule and they are: to grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311 (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A staturoy body when it has acted in breach of a mandatory obligation, imposed by statute.” Ram Prasad v. State of U.P., 2019 (135) ALR 1.

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Inter Se Suitability

In English parlance, the word “suitable” is assigned the meaning as “appropriate, fitted for the purpose or acceptable”. Concise Oxford Dictionary defines the word “suitable” as “well fitted for the purpose; appropriate”. This ordinary meaning is to be given effect to as a general guide, unless this expression is given special meaning in a statute or rule in administrative instructions. In R. (Quintavalle) v. Human Fertilisation and Embryology Authority, (2005) 2 AC 561 : (2005) 2 WLR 1061 : 2005 UKHL 28, the House of Lords remarked that “the word “suitability” is an empty vessel which is filled with meaning by context and background”.

In service jurisprudence, where the word “suitable” is normally examined from the point of view as to whether a particular person is suitable to hold a particular post, it is construed as “fit” to hold that post. It would mean that the job profile and job requirement of a particular post would be seen and then, going by the calibre, competence, attributes, skill and experience of the candidate, it would be ascertained as to whether such a person would be able to discharge the duties of the post i.e. whether he is suited to carry out the functions of the post, to the satisfaction of his employer.

The prefix “inter se” has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing “suitability”, it has to be seen that a particular officer is not unfit for the post, when it comes to “inter se suitability”, it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. Union of India v. Manomoy Ganguly, (2018) 9 SCC 65.

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Public Employment – Transparency

An important requirement of public employment is that of transparency. Therefore, an advertisement must specify the number of posts available for selection and recruitment. The qualifications and other schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others. Renu v. District and Sessions Judge, (2014) 14 SCC 50.

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“Recruitment” and “Conditions of Service” – Distinction Between

A Division Bench of the Hon’ble Allahabad High Court in Dr. Rajeev Ranjan Mishra and others v. State of U.P. and others, 2008 (1) AWC 810, held as under:
“The distinction between rule of “recruitment” and “condition of service” is no more res integra having already been settled by the Apex court in catena of cases. In State of M.P. v. Shardul Singh, (1970) 1 SCC 108, the Apex Court held that the term “conditions of service” means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy v. State of A.P., (1997) 1 SCC 554. In Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575, the Apex Court held that where a rule permits relaxation of provisions pertaining to “conditions of service”, the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that “conditions of recruitment” and “conditions of service” are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed.”
In a Full Bench Judgment of the Gujarat High Court in A.J. Patel and others v. State of Gujarat and others, AIR 1965 Guj 23, with reference to Article 309 of the Constitution of India, it was held as under:
“From this Article it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and conditions relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts.” Raj Kumar Pandey and others v. State of U.P. and Others, (2014) 1 UPLBEC 224.

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Recovery of excess salary paid

In a recent judgment of the Supreme Court in Chandi Prasad Uniyal v. State of Uttarakhand, while dealing with the issue of recovery of excess salary paid to an employee and after considering various authorities it was held thus :
“The excess payment of public money which is often described as “taxpayers money” belongs neither to the officers who have effected overpayment nor to the recipients. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake or not. Possibly, effecting excess payment of money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc., because money in such situation does not belong to the payer or payee. Situations may also arise where both the payer and payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

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