Punjab-Haryana High Court
Harcharan Singh And Others vs The State Of Punjab And Others on 8 April, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Writ Petition No.8135 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision:08.04.2011
Harcharan Singh and others ......Petitioners
Versus
The State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Pawan Kumar, Senior Advocate,
with Mr.Saqib Ali Khan, Advocate,
for the petitioners.
Mr.Sartaj Singh Gill, Deputy Advocate General, Punjab,
for the respondents.
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MEHINDER SINGH SULLAR, J. (oral) Tersenessly, the relevant facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that petitioners-Harcharan Singh and S.P.Singh (Assistant Geologists), Ashok Kumar Goel (Geo Technologist) and Arun Kumar (Geophysicist), were working on their respective posts in the Department of Industries, State of Punjab. The posts of Assistant Geologist and Geo Technologist were stated to have been equated with the posts of Deputy Director (Industries), for the purpose of pay scales vide extracts of 1st and 2nd Pay Commission report/recommendations (Annexures P-1 and P-2). Similarly, the post of Assistant Geophysicist was claimed to be equated with the post of Assistant Geologist, for the purpose of pay scale by way of extract of 3rd Pay Commission report (Annexure P-3).
2. The petitioners claimed that prior to the recommendation of the First Pay Commission, the posts of Assistant Geo Technologist and Assistant Geologist Civil Writ Petition No.8135 of 1991 2 were in the higher pay scale of Rs.350-900, whereas the pay scale of the Deputy Director( Industries) was in the lower grade of Rs.350-850. The First Pay Commission recommended the identical pay scale of Rs.350-900 for these posts in the year 1968. After the removal of anomaly, the pay scales of both the posts were upgraded and the higher scale of Rs.400-1100 was sanctioned, by means of order dated 15.02.1971 (Annexure P-3/A). However, the State again created an anomaly in the pay scales in the year 1976 and sanctioned the pay scale of Rs.400- 1250 to the Deputy Director (Industries) with effect from 21.10.1976 (Annexure P-
4), without granting the corresponding benefits to the petitioners. The anomaly was not removed in spite of the representations(Annexures P-5 and P-6) filed by them and the recommendation made by the Director of Industries by virtue of letter dated 07.11.1977(Annexure P-7) in this regard were ignored by the respondents. Meanwhile, the Government appointed the Second Pay Commission and directed the petitioners to ventilate their grievances before the 2nd Pay Commission, vide letter dated 27.01.1978 (Annexure P-8).
3. Sequelly, the case of the petitioners further proceeds that the Second Pay Commission recommended the identical pay scales of Rs.940-1850 for both sets of the indicated posts. However, the Government sanctioned the different pay scales of Rs.850-1700 to the posts of the petitioners vide Notification dated 22.02.1980(Annexure P-9). The petitioners filed the representations (Annexures P-10 and P-11) for removal of anomaly created by way of Notification (Annexure P-9). The Government was stated to have further raised the pay scale for the post of Deputy Director(Industries) from Rs.940-1850 to Rs.1200-1850 with effect from 01.01.1978 on 07.03.1984 and created further distance between the two sets of the indicated posts. The next representation(Annexure P-14) filed by them was not considered and anomaly was not removed in this behalf.
4. Likewise, it was explained by the petitioners that Third Pay Commission did not go into any question in this respect, except that post of Civil Writ Petition No.8135 of 1991 3 Assistant Geophysicist, was equated with that of the post of Assistant Geologist. They were again kept in the grade of Rs.850-1700, as per Entry Nos.23 and 24, whereas the pay scale of the Deputy Director(Industries) were raised to Rs.940- 1850. According to the petitioners, the Third Pay Commission converted/revised the pay scales from Rs.850-1700 to Rs.2100-3700 and that of the Deputy Director (Industries) from Rs.1200-1850 to Rs.2400-4000 vide extract/recommendations of Third Pay Commission report (Annexure P-15). This anomaly in the pay scales was not removed by the respondents despite the representation (Annexure P-16) filed by them in this behalf.
5. In this manner, the petitioners did not feel satisfied and preferred the instant writ petition, claiming the same revised pay scale of Rs.2400-4000 equivalent to the posts of the Deputy Director(Industries) and challenged the impugned pay scales granted by way of order (Annexure P-15), invoking the provisions of Articles 226/227 of the Constitution of India.
6. Levelling a variety of allegations and narrating the sequence of events, in all, the petitioners claimed that as the posts on which, they were working, were equal/equated to the posts of the Deputy Director(Industries), therefore, they were entitled to the same revised pay scale of Rs.2400-4000 as well, instead of their own pay scale of Rs.2100-3700. On the basis of aforesaid allegations, the petitioners claimed the revised pay scales equivalent to the pay scale assigned to post of the Deputy Director in the Industries Department, in the manner depicted here-in-above.
7. Faced with the situation, the respondents contested the claim of the petitioners and filed the written statement, inter alia, admitting that the petitioners were working on the aforementioned posts at the relevant time and the pay scales assigned to their posts and to the posts of the Deputy Director(Industries). However, it was clearly denied that the post of Assistant Geologist and Assistant Technologist were equated with that of the posts of the Deputy Director Civil Writ Petition No.8135 of 1991 4 (Industries), for the purpose of pay scale. It was explained that at no stage, it was described that the petitioners were entitled to the grant of pay scale, which would be granted to the Deputy Director. The equation of the posts of the petitioners with the posts of the Deputy Director, for the purpose of parity/pay scale, was deeply disputed by the respondents.
8. The case set-up by the respondents, in brief, insofar as relevant, was that the Government of Punjab granted the pay scale to these posts, after considering the recommendation of the Pay Commission as well as the other factors like educational qualification, experience, nature of job/duties and also the fact that the post of Deputy Director is a promotional post to the higher post of the District Industry Officer and equivalent posts. According to the contesting respondents that since the nature of duties/job, educational qualification and experience etc. of the Deputy Director Industries were entirely different than that of the posts held by the petitioners, therefore, they were not entitled to claim the grant of the same pay scales, in view of the law laid down by this Court in case Kewal Ram Sharma and others Versus The State of Punjab, 1989(3) SLR 507. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal.
9. Controverting the allegations contained in the written statement and reiterating the pleadings of the petition, the petitioners filed the replication. That is how, I am seized of the matter.
10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition in this regard.
11. Ex facie, the argument of the learned counsel that as the posts on which the petitioners were working, were equated to the posts of Deputy Director Civil Writ Petition No.8135 of 1991 5 (Industries), therefore, they were entitled to the same revised pay scales assigned to the posts of the Deputy Director n(Industries), is neither tenable nor the observations of the Hon'ble Supreme Court in case Employees of Tannery and Footwear Corporation of India Ltd. and another Versus Union of India and others, AIR 1991 Supreme Court 1367, are at all applicable to the facts of the present case, wherein, on the peculiar facts and in the circumstances of that case, it was observed that the petitioners (therein) were entitled to the similar parity in the matter of pay scales with the staff falling in four categories employed with the same Cotton Corporation of India, especially when such employees were having the same pay scales in the year 1970. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the petitioners in the instant controversy in this context.
12. As is evident from the record that the petitioners claimed that their posts of Assistant Geologists, Geo Technologist and Geophysicist were equal and were equated with the posts of Deputy Director(Industries), as per the extracts of the recommendations of three Pay Commissions reports (Annexures P-1 to P-3). Therefore, they are entitled to the same pay scales of Rs.2400-4000 assigned to the post of Deputy Director, but the respondent-State has sanctioned their different revised pay scale of Rs.2100-3700 and did not remove the anomaly, despite repeated representations in this behalf. On the contrary, the contesting respondents have stoutly denied their claim. Thus, it would be seen that the facts of the case are neither intricate, nor much disputed. Moreover, the controversy boils down to a very narrow compass.
13. Such, thus, being the position on record, now the short and significant question, though important, that arises for determination in this case, is whether the petitioners are entitled to claim the same revised pay scales attached to the posts of Deputy Director(Industries) or not?
Civil Writ Petition No.8135 of 1991 6
14. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative.
15. It is not a matter of dispute that the petitioners were working on their respective posts of Assistant Geologists, Geo Technologist and Geophysicist. The specific stand of the respondents is that the posts of Assistant Geologist and Assistant Geo Technologist were never equated by the State Government to the posts of Deputy Director for the purpose of pay scale as the qualification, experience, nature of duty and responsibility of both category of posts were entirely different. Moreover, the post of Deputy Director is feeder/promotional post to the posts of higher grade. Therefore, the petitioners are not entitled to claim the pay scales of the posts of the Deputy Director(Industries). This matter is not res integra and is well-settled.
16. An identical question came to be decided by the Hon'ble Apex Court in case State of Haryana and another Versus Civil Secretariat Personal Staff Association, 2002(6) SCC 72. After considering the entire matter, it was held as under:-
"The High Court has ignored certain settled principles of law for determination of the claim to parity of pay scale by a section of government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same designation under the Central Government. Such comparison based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was unrebutted. Even assuming that there was no specific rebuttal of the averment in the writ petition, that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities and the Civil Writ Petition No.8135 of 1991 7 qualifications for recruitment to the posts of PAs in the State Civil Secretariat with those of PAs of the Central Secretariat.
The claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted in Secy. Finance Deptt. case, 1993 Supp (1) SCC 153, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. The priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable, ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. In the present case, the High Court has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre."
17. Not only that, again the Hon'ble Supreme Court considered an identical matter in case Union of India Versus Arun Jyoti Kundu and others, Civil Writ Petition No.8135 of 1991 8 (2007) 7 Supreme Court Cases 472 and ruled as under:-
"It was open to the Government to extend a benefit to a set of its employees with effect from a particular day on the basis of some anomaly found in the report of the Fifth Pay Commission. In such a case there would arise no discrimination because the very implementation of the Fifth Pay Commission. Report would not entitle the respondents to any benefit. The fact that notwithstanding the Fifth Pay Commission not recommending, particularly, the payment of higher scale to two sets of typists, typists in English language and typists in Hindi language, the Government chose to give them relief with effect from 31-1-2000 would not justify an inference of discrimination or a finding that the authority has acted arbitrarily or unreasonably. Once the recommendations of the Pay Commission are accepted, in full, it could also give effect to it from the date recommended in that behalf. But when admittedly no provision was made in respect of the English and Hindi typists and they pointed to the anomalies and the Government on the basis of the recommendation of the Anomalies Committees decided to give them the scale with effect from 31-1-2000, it could not be held to be discriminatory or to be beyond the power of the Government.
When a concession was being extended as distinct from implementing a specific recommendation of the Pay Commission with reference to a particular point of time, it is open to the Government to provide that the benefit it proposes to give, would be available only from a notified date. The very right to their benefit arose because of the decision of the Government to extend to them a particular benefit not specified in the Fifth Pay Commission Report. It is, therefore, not possible to postulate that the decision of the Government must be given retrospective effect.
The recommendations of Pay Commissions are subject to acceptance or rejection. Unless the Government has accepted the recommendation to merge the cadres, the court cannot proceed on the basis of the recommendation alone or to direct the Government to accept the recommendation. Pay Commissions are constituted for evaluating duties and functions of the employees and the nature Civil Writ Petition No.8135 of 1991 9 thereof vis-a-vis the educational qualifications therefor. Although the Pay Commission is an expert body, the State in its wisdom and in furtherance of its valid policy may or may not accept its recommendations."
18. The same view was again reiterated by the Hon'ble Apex Court in cases State of West Bengal Versus Subhas Kumar Chatterjee (2010) 11 SCC 694 and Rameshwar Dayal Versus Indian Railway Construction Co.Ltd. and others, (2010) 11 SCC 733 and held that the Court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter, which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter, which is for the executive to discharge. Even the recommendations of the Pay Commissions, are subject to acceptance or rejection by the appropriate Government. The Courts cannot compel the State to accept the recommendations of the Pay Commission. It was also ruled that the State Government is under obligation to follow the statutory rules and give only such pay scales as are applicable under the statutory provisions. Neither the Government can act contrary to the rules nor the Court can direct the Government to act contrary to the rules. No mandamus lies for issuing direction to the Government to refrain from enforcing the law. No Court can issue direction to act in contravention of the rules as it would amount to compel the authorities to violate the law. Such direction may result in destruction of rule of law.
19. What is not disputed here is that since the Punjab State granted the different pay scales to the different indicated posts, after considering the recommendation of Pay Commission as well as the variety of other factors like educational qualification, experience, nature of job and duties and the fact that the posts of Deputy Director(Industries) is a promotional post to the higher post of the District Industry Officer etc. In this manner, the petitioners cannot claim the parity in the pay scales assigned to the posts of Deputy Director (Industries), as claimed Civil Writ Petition No.8135 of 1991 10 by them. Therefore, the contrary arguments of the learned counsel for the petitioners deserve to be and are hereby repelled under the present set of circumstances. The ratio of the law laid down by the Hon'ble Apex Court in the aforementioned judgments "mutatis-mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
20. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
21. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed in the obtaining circumstances of the case.
April 08, 2011 (MEHINDER SINGH SULLAR)
seema/AS JUDGE
Whether to be referred to reporter?Yes/No