Kewal Krishan Garg And Others vs The State Of Punjab And Another on 19 February, 2010

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Punjab-Haryana High Court

Kewal Krishan Garg And Others vs The State Of Punjab And Another on 19 February, 2010

1. The writ petition comes for consideration for fresh hearing on a remand from the Division Bench of this Court, after an earlier direction from the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.1436 of 2003 passed on 05.08.2003. The issue for judicial scrutiny is the parity in scales of pay for Research Assistant, Grade-B with that of Junior Engineers/Sectional Officers in the Irrigation Department. The parity in scales had been maintained in the 1st, 2nd and 3rd Pay Commissions and also for Class-1 and Class-II posts between Research cadre and the Engineering cadre in the Irrigation Department. At some point of time before 1968, the scales of pay for Research Assistants were Civil Writ Petition No.3285 of 1983 -2- even higher than the scales for JEs/SOs when the former were in pay scales of Rs.135-275 and the latter were in the scales of Rs.100-300. The Hon'ble Supreme Court had, during the pendency of the case, constituted a Committee consisting of the Chief Secretary and the Principal Secretary to the Government of Punjab to consider the issue of parity but the Committee passed a speaking order on 25.08.2003 that there was no ground for grant higher pay to obtain parity for Research Assistants, Grade-B with Junior Engineers. Objections had been filed to the Committee's report stating that the Committee had not properly taken note of the past recommendations of the Pay Commissions and the recommendations of the Department itself directing that parity should be maintained. On a remand to the Division Bench of this Court, it took note of the objections filed to the report and further directed that the issue relating to the grant of higher scales of pay to the petitioners by treating them at par by Sectional Officers deserved to be considered de novo in the light of the orders passed by the Committee appointed by the Hon'ble Supreme Court. The Committee's report on 25.08.2003 and the objections filed by the petitioners on 14.12.2003, therefore, would deserve our attention.

II. Relevant materials for launching on enquiry

a) Report of the Committee on petitioner's demand

2. The Committee found (i) that there had been only part parity of pay scales after 01.02.1968 between Research Assistants, Grade-B and JEs/SOs. The part parity itself was merely incidental with no conscious decision in mind; (ii) although the 2nd Pay Commission recommendations Civil Writ Petition No.3285 of 1983 -3- had accepted the parity of scales 570-1080 both for ROs and JEs, the notification of pay scales for JEs had been withheld because the State Government had constituted a high level Committee for considering the memorandum submitted by the Joint Action Committee on Punjab Engineering Association. The pay scales which had been held in parity at the initial level of 570-1000 for JEs, while the scales held by Research Assistants being 570-1080, the recommendation made by the Joint Action Committee of Punjab Engineering Association was an increase in scales to Rs.700-1200 with two advance increments and also providing for a selection grade with 25% of the posts at scale of Rs.800-1400. This was said to be a conscious decision keeping in mind the technical nature of the service of the JEs and the alleged specialized job requirement;

(iii) the 3rd Punjab Pay Commission again provided for a pay parity of 1500-2640 for both the streams, but on re-examination of the recommendation by an Anomalies Committee headed by Justice S.S.Sandhawalia, the post of JEs were put on a scale of Rs.1640-2925. The recommendation still provided that on a completion of service of 8 years, JEs should be granted two increments in addition to the annual increment normally due and on completion of regular service of 18 years, the JEs should be placed on a next higher scales of pay in the list of standard scales of pay sanctioned by the State Government namely at Rs.1800-3200 with the benefit of proficiency step up. After the report of the Anomalies Committee, the scales for JE w.e.f. 01.01.1986 became 1800-3200 against the existing pay of scales 700-1200 and in a scale of pay of 2000-3500 against the existing selection grade 800-1400. It Civil Writ Petition No.3285 of 1983 -4- appears that the Junior Engineers had still demanded higher scales, facilities and improvement in the living conditions and went on a strike on 12.11.1990. The Committee had again been set up to negotiate with the striking employees and it yielded to still higher scales when the pay scales at 1800-3200 was agreed to be supplanted by another scale of 2200-3900 after 18 years of service; (iv) the 4th Pay Commission did not recommend any change in the entry pay scale of Research Assistants or Junior Engineers but recommended the abolition of the senior scale of 2200-3900. The revised scales were 5800-9200 and for persons, who had been in the pay scales of 2200-3900 as Junior Engineers, the revision of scale was 7220-11320 as a measure personal to them.

3. Referring to the pay scales recommended by the Pay Commissions and which for the Junior Engineers, it had been persistently raised on account of the special Committees appointed and by resort to strike and fresh negotiations, the Committee in its speaking order dated 25.08.2003 concluded (i) that there was never a complete parity between the pay scales of Research Assistants, Grade-B and Junior Engineers of the Irrigation Department; (ii) there was merely an incidental pay parity as on 01.02.1968 and it was departed from, by a conscious decision when the pay scales were revised w.e.f. 01.01.1978; (iii) even the intervention sought at the instance of Research Assistants for a pay parity through Civil Writ Petition No.3285 of 1983 merely resulted in the Court directing the Government to consider the representations and keeping in view the differences in the nature of jobs. The State Government had decided on higher scales for Junior Engineers than the Research Civil Writ Petition No.3285 of 1983 -5- Assistants, Grade-B. The order concluded that the Pay Commissions recommendations were never to be taken as final and by the very nature of things being recommendatory, they were not binding on the Government which alone had to take a final decision keeping the attendant factors in view. The Committee concluded that in no way the pay scales of the posts of Research Assistant and Junior Engineers could be directly correlated. There were clear differentiation in duties, areas of operation, level of responsibilities and conditions in which duties were to be performed; the Anomalies Committees had persistently recommended for higher scales of pay for Junior Engineers.

4. Annexures to the speaking order revealed that the educational qualification for Research Assistant, Grade-B was B.Sc/BA degree in the 1st division from the recognized University, while for a Junior Engineer it was matriculation with three years diploma in engineering. Yet another annexure gave out the job description of Junior Engineers and Research Assistants to delineate the different types of activities and responsibilities.

(b) Department's recommendations

5. The Department of Irrigation and Power itself, while considering the recommendations of the 4th Pay Commission, took note of the Pay Commission recommendations 1, 2, 3 and 4 and by its proceedings dated 28.07.1998 recommended to place Research Assistant, Grade-B minimum at par with Junior Engineer and to keep complete parity from Class-III to Class-I on Research cadre with Engineering cadre. It also proposed that the post of Research Assistant, Grade-A, which was the Civil Writ Petition No.3285 of 1983 - 6- promotional post of Research Assistant, Grade-B and which had basic qualification equivalent to the Assistant Research Officer (ARO) that is M.Sc minimum higher secondary class, could be upgraded and merged with ARO. By such upgradation, the Committee felt that there would be no financial burden on the State Exchequer. The persons working as Research Assistant, Grade-A were having more than 15 years of service to their credit and were quite eligible for the promotion post as ARO.

c) Petitioner's objections

6. The petitioners have given their objections to the report of the Committee by pointing out that its inference that the parity of scales for Research Assistants, Grade-B and Sectional Officers was merely incidental and not conscious as clearly wrong by the fact that in all the Pay Commission recommendations, the parity had been maintained. Adverting to the reference in the impugned order of the Committee that the notification of the pay scales of Junior Engineers of the 2nd Pay Commission had been withheld, the petitioners would state that it is deliberately misleading since the pay scales 570-1080 was notified on 18.08.1980 and that it was only on account of the agitational ways adopted by the JEs/SOs, the pay had been raised to 700-1200. The petitioners would also point out that when the 3rd Pay Commission had recommended parity of scales for both the categories at 1500-2640, actually the JEs were enjoying the higher scales of 700-1200 while the Research Assistants were in the scale of 570-1080 and in spite of such difference, the Punjab Pay Commission appraised various parameters and yet again restored the pay parity for both the posts. The increase in pay Civil Writ Petition No.3285 of 1983 -7- scales had at all times been granted to Sectional Officers/JEs only by their own ways of protest and not on account of any recommendations of any expert body that they deserved any higher scales. Even after the 3rd Pay Commission recommendations, the Junior Engineers had gone on strike for nearly 130 days and the State Government had issued an appeal on 04.01.1991 condemning the strike and terming it as unjustified and untimely. It was only on account of prolonged agitation coupled with the strength in number that enabled the JEs/SOs to obtain higher scales of pay.

7. Referring to the tabulation giving the nature of duties and responsibilities, by the very nature of activities, they could not be identical but they worked on the same platform. While Junior Engineers dealt primarily on construction/execution sites, the Research Assistants, Grade-B dealt with the research and quality control with regard to the very same work. The basic qualifications, the area of operation, nature of duties and level of responsibilities were if at all more onerous for Research Assistants than Junior Engineers. The petitioners would also contend, with reference to the history of the Bhakra Nangal Project, that the technical and sophisticated nature of job undertaken by the Research Assistants were far superior and without their work, the construction/ execution of work could not have been possible. The order of the Committee was also to show to be defective by the fact that it did not address an issue which the Hon'ble Supreme Court specifically directed to examine, namely, of the parity of scales of Class-I and Class-II posts between the Research cadre and the Engineering cadre. All the Pay Civil Writ Petition No.3285 of 1983 -8- Commissions had always equated the Class-I and Class-II posts on parity. It also faulted the report by pointing out that the recommendations of the Irrigation Department itself had not been taken note of, in spite of specific directions from the Hon'ble Supreme Court. III. Speaking order of the Committee did not follow the triad of mandate issued by the Supreme Court

8. Apart from reiterating the contentions raised in the objections to the order of the Committee, the learned counsel appearing for the petitioners states that the nature of activities of the Engineering Wing and the Research Wing could not be expected to be the same for they performed in two diverse fields with different objects; their difference was as obvious as chalk to cheese and the parity had therefore to be examined only from the manner in which the expert bodies like the Pay Commission had dealt with, during all the times from 1st Pay Commission to the 4th Pay Commission; from the nature of educational qualification that they had; the productivity and the importance to the organization. The defects in the order dated 25.08.2003 could not be missed, for it did not, in my view, squarely address three important aspects which the Hon'ble Supreme Court had directed that it should look into. The first direction was the recommendations of the 1st, 2nd and 3rd Pay Commissions. It could not be denied that all the three Pay Commissions had recommended parity and as pointed out by the petitioners in their objections after the 2nd Pay Commission had provided for a parity, the Anomalies Committees had revised the pay scales for the Engineering Division at higher scales of 700-1200 and the 3rd Pay Commission again restored the parity. The finding that the parity was Civil Writ Petition No.3285 of 1983 -9- purely incidental was, therefore, definitely not justified. The parity of scales even for Class-I and Class-II between Research cadre and Engineering cadre as directed by the Hon'ble Supreme Court to be examined were not squarely addressed by the Committee. Same way, the recommendation of the Department for parity of scales had also been missed by the Committee. On all the three important aspects, the Committee had erred.

9. The learned counsel appearing for the respondent would submit that the next promotional post for the Research Assistant, Grade-B was Research Assistant, Grade-A and the promotional post carried pre- revised scales of 620-1200 which was even less than the scale of 700- 1200 granted to the Engineering Division. This, in my view, is wholly irrelevant for consideration whether parity of scales could be offered between Research Assistant, Grade-B and JEs/SOs in the light of what has been observed by the Department in its recommendations when it had pointed out that Research Assistant, Grade-A that required basic qualifications equivalent to the Assistant Research Officers i.e. M.Sc could be upgraded and merged with the Assistant Research Officers post itself since the persons working as RA Grade-A had more than 15 years of service and they were themselves therefore eligible to the posts of ARO. I am merely pointing out to show that even in the recommendations of the Department, it was alive to the situation that the promotional post to the Research Assistant Grade-A carried a pre-revised scale which was less than the pre-revised scale of JEs and SOs. The problem was not insurmountable and necessary adjustments could Civil Writ Petition No.3285 of 1983 - 10 - always be made, as observed in the recommendations of the Department. It may not be even specifically necessary to go into the said aspect.

10. If the case must be examined only on the three parameters outlined by the Hon'ble Supreme Court, it leaves me with no doubt that the petitioners were entitled to a parity as demanded by them with JEs and SOs. There is simply no valid justification for denying to them of what is justly due to them. If they were not sufficiently vocal as their colleagues in the Engineering Department, that was not their own fault. At a negotiating table, the physical strength obtains a favourable psychological edge but for the objective consideration by the persons at the helm, the lung power alone cannot be decisive. Courts are certainly not expert bodies to decide on what would be the appropriate scales, but if the expert bodies like Pay Commissions had provided for parity at all times and such parity existed even for the higher post in the respective division of the Research Wing and the Engineering Wing and the Department also knew that there was an imperative for parity, the petitioners shall be entitled to the relief as asked for in the petition and they shall have the same scales of pay as the Junior Engineers/Sectional Officers.

IV. Conclusion

11. The members of the petitioner association in so far as they belonged to the cadre of Research Assistants-Grade B at the time of filing of the writ petition are entitled to parity as demanded and the computation of the arrears by working out their scales on the scales drawn by JEs/SOs shall be made and paid within a period of 8 weeks Civil Writ Petition No.3285 of 1983 - 11 - from the date of the receipt of the copy of the order. The writ petition is allowed with cost assessed at Rs.10,000.

(K.KANNAN) JUDGE 19.02.2010.

sanjeev

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