Punjab-Haryana High Court
Narotam Singh And Others vs Union Of India And Others on 10 July, 2014
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-5902-2009
Date of decision:-10.07.2014
Narotam Singh and others
...Petitioners
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE AJAY TEWARI
Present: Mr. R.K. Malik, Senior Advocate,
with Mr. Samrat Malik, Advocate,
and Mr. Deepak Bhardwaj, Advocate,
for the petitioners.
Ms. Deepali Puri, Advocate,
for respondents No. 2 to 7.
Mr. Sanjiv Ghai, Advocate,
for respondent No. 8.
Respondent No. 9 formal party.
****
SANJAY KISHAN KAUL, C.J. (ORAL)
The dispute pertains to the employees of the Public Health Circle of Engineering Department of the Union Territory, Chandigarh comprising of various categories like tube-well operators, work munshis/mistries, fitters etc. who claim to be working in different Circles. The grievance is qua discrimination and disparity in matters of revision of pay scales between non-ITI certificate holders and ITI certificate holders who till 1999 had been getting the same pay scale, performing the same duties and were being treated at par at the time of initial recruitment. It is the case of the employees who are non-ITI certificate holders that they are senior to the ITI certificate holders and joined prior to the draft rules being prepared.
There were apparently two OAs filed before the Central Administrative Tribunal, Chandigarh Bench being OA-606-CH-2007 and Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh CWP-5902-2009 2 OA-746-CH-2007 by two sets of petitioners. Both these petitions were dismissed by a common judgement dated 28.11.2008 which has been assailed in the present writ petition under Article 226 of the Constitution of India.
We must note in the inception that the manner of drawing up of the petition in clubbing different class of employees has created considerable confusion. This is so as really speaking the complete case revolves around the manner of recruitment which is apparent from the public advertisement dated 06.05.1972 which reads as under:-
"Applications are hereby invited for the following work-charged posts so as to reach this office by 20.05.72:-
1. 15 Tube-well Operator Grade-I in the scale of Rs. 110-4-130/5-160/5-180 plus usual allowances as sanctioned by the Government from time to time.
Qualifications ITI Diploma/Certificate in the trade of Motor Mechanic/ICE with a practical experience of two years on operation, maintenance and upkeep of pumping sets of all types Oil Engines, Compressor.
Or Literate with 10 years practical experience in operation MTC and upkeep of water of supply pumping sets of all types Oil Engines, Compressor and generating sets.
2. 5 Tube-well Operator Gr-II in the scale of Rs. 100-4-140/5-160 plus usual allowances as sanctioned by the government from time to time.
Qualifications ITI Diploma Certificate in the trade of Motor Mechanic/ICE/Electrician or Electrical Supervisor or Licence with a practical Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh CWP-5902-2009 3 experience of one year on operation and upkeep of pumping sets of all types.
Or Literate with 5 years practical experience in operation and upkeep of water of supply pumping sets of various types."
The aforesaid advertisement was issued for recruitment of tube- well operators Grade-I and tube-well operators Grade-II. Thus, what the Tribunal was required to consider was this advertisement as well as the claim of such of the petitioners who had been recruited in pursuance to this public advertisement. No other advertisement has been annexed to show as to in what manner and how the other employees were recruited and, thus, in our view, it is not possible to opine on those employees who are in vacuum. We, thus, make it clear at the inception itself that the present judgement can have application only to the tube-well operators Grade-I and Grade-II recruited in pursuance to the public advertisement, referred to aforesaid, annexed as Annexure A/1 and the application filed before the Tribunal.
In sum and substance, the question which arose for consideration is; whether in pursuance to such an advertisement the recruitment has taken place and pay scales fixed, can subsequently distinct higher pay scale be given dependent upon one of the two sets of qualifications the employee possesses, once these two sets of qualifications have been equated in the advertisement? In our view, the answer to this question has to be in the negative.
It is the respondents who in their wisdom considered the two sets of qualifications as equivalent. They were not given distinct pay scales on the basis of possessing or not possessing the ITI certificate. Thus, any Pay Commission's recommendation thereafter cannot alter the service Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh CWP-5902-2009 4 conditions of an employee to his detriment. The process by which two different pay scales are given to two sets of employees recruited simultaneously by treating the two sets of qualifications as equivalent cannot be set at naught by carving a distinction as that would amount to the employee's service conditions being changed to his detriment. We do not doubt the proposition that if there are superior qualifications over one set of employees, a higher pay scale can be given. However, in the present case, the respondents in their own wisdom have equated the two.
Learned counsels for the parties have referred to different judgements before us to substantiate their plea. Cases cited by the petitioners:
(a) Dr. Nawal Kishore Verma and another Vs State of Bihar and others 2014(1) SCC 150. The issue of pay revision/pay parity qua the qualification of Homeopathic doctors was in question when lower pay scale was granted to one set of doctors who were diploma holders as against the degree holder doctors. Reliance was placed on notification of the Government of Bihar that the diploma holders and degree holders were to be treated equally and, thus, keeping in mind the equivalence the benefit of the higher pay scale was also granted to the diploma holders on parity with the degree holders.
(b) S.P. Singh, Deputy Director Vs State of Haryana 1999(4) SCT 843 (learned Single Judge of the Punjab and Haryana High Court). The petitioners employed as District Dairy Development Officers possessed degree in Dairy Science which the State itself put at par with degree in Veterinary Science and Animal Husbandry. A parity was, thus, claimed by the petitioners and it was held that the respondent - State was not justified in carving out a classification for giving different pay scales to employees Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh CWP-5902-2009 5 performing duties of the same post who possessed different degrees as referred to aforesaid.
Cases cited by respondent No. 8:
(a) State of Mysore and another Vs P. Narasing Rao, 1968 AIR (SC) 349. The dispute arose qua employees who had been employed as Tracers in the Engineering Department of the Ex-Hyderabad State which included both matriculates and non-matriculates without distinction of pay.
On re-organization of States, a part of the area of the Hyderabad State became part of the new Mysore State and the employees were allotted to the new Mysore State. Similarly, Tracers from Bombay State were also absorbed in the new Mysore State and both in the old Mysore State and the Bombay State there were two grades admissible to matriculate and non- matriculate Tracers. The new Mysore State, thus, created the two grades dependent upon whether the Tracer was a matriculate or non-matriculate which was assailed by one of the non-matriculate Tracers who was originally employed with the Ex-Hyderabad State. It is in this context the Hon'ble Supreme Court observed that the creation of two scales of Tracers in the new Mysore State for persons doing the same kind of work did not amount to discrimination.
(b) Vimal Krishan Nagpal & others Vs The P.S.E.B. 2003(4) SLR 72 (learned Single Judge of the Punjab and Haryana High Court as he then was). The question of classification on the basis of qualifications for grant of different pay scales on a post was justified and upheld by the learned Single Judge as the job of the post was highly technical requiring skill of engineering and, thus, those possessing degree in engineering could reasonably be granted a higher pay scale than those promoted or appointed Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh CWP-5902-2009 6 merely on the basis of experience on lower posts in relaxation of requisite qualifications (emphasis supplied).
In our view, the judgements cited by the petitioners fairly apply to the facts of the present case. As far as the judgements cited by learned counsel for respondent No. 8 are concerned, we have already pointed out that the first judgement of the Hon'ble Supreme Court arose out of the re-organization of the States and the pre-existing two grades in two of the three States whose areas were merged in the new State necessitating a commonality of the nature of grades. It is in that context, as in Bombay/old Mysore there were two existing grades, that the new State of Mysore carved out the two grades. Similarly, in the second judgement, as referred to, there are two distinguishing features; firstly, it was a highly technical post and secondly the persons who had been promoted without the engineering qualifications had been so promoted in relaxation of requisite qualifications.
In our view, the fundamental issue in the present case is arising from the nature of advertisement issued by the respondents for the posts in question where either of the two qualifications was requisite to carry out the task of the post and, thus, in the wisdom of the respondents those two sets of qualifications were treated at par by insertion of the word "or" between them. The scales of pay fixed were also the same for a considerable period of time and it is on the Pay Commission's recommendation that a revision took place. If the higher pay scale was given to persons with one set of qualifications holding the ITI certificate, then same pay scale would have to be granted to the other sets of persons recruited under the said advertisement.
We are thus of the view that such of the Grade-I and Grade-II tube-well operators who were recruited in pursuance to the advertisement Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh CWP-5902-2009 7 (Annexure A/1) before the Tribunal are entitled to parity of pay scale with the ITI certificate holders. The respondents would do the necessary calculation and remit the arrears to the eligible persons within a period of two months from today.
The petition is allowed limited to the aforesaid extent leaving parties to bear their own costs.
At request of learned senior counsel for the petitioners, we clarify that if any of the petitioners before us or other employees seek to rely on our judgement to claim parity, they would have to file a representation which would be examined in accordance with law by the respondents.
(SANJAY KISHAN KAUL) CHIEF JUSTICE (AJAY TEWARI) JUDGE 10.07.2014 Amodh Sharma Amodh 2014.07.11 17:25 I attest to the accuracy and integrity of this document chandigarh