Punjab-Haryana High Court
(O&M;) State Of Haryana & Ors vs Baldev Krishan & Anr on 10 September, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No.4318 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.4318 of 2005
Date of Decision : 10.9.2014
State of Haryana and others ......Appellants
Vs.
Baldev Krishan Sachdeva and others ......Respondents
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
Present : Mr. Anupam Sharma, AAG, Haryana.
Mr. J.S. Yadav, Advocate for the respondents.
...
1. To be referred to the Reporter or not ?
2. Whether the judgement should be reported in Digest ? RAMESHWAR SINGH MALIK, J It is defendants' second appeal against the concurrent findings recorded by both the learned courts below, whereby suit for declaration with consequential relief filed by the plaintiffs-respondents, was decreed.
Brief facts of the case, as recorded by the learned first appellate court in paras 3 and 4 of the impugned judgement, are that respondents- plaintiffs (hereinafter referred to as the plaintiffs) instituted a suit before learned trial court with material averments that they have retired from Education Department Haryana as HES-Class II as Principal and DEO, Rewari, respectively. Kishan Lal Sharma, retired Principal, Govt. Senior GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 2 Secondary School, Dharuhera was junior to them in HES Class-II. He was promoted from Headmaster from Govt. High School, Nandrampur Bas from the scale of Rs.2000-3500, HES Class-III to Principal, Govt. Senior Secondary School, Dharuhera in the pay scale of Rs.200-4000, Group B vide Financial Commissioner and Secretary, Haryana Govt. Education Department, Chandigarh order dated 13.7.1992. The said Kishan Lal Sharma joined in category B as Principal on 22.7.1992 in Govt. Senior Secondary School, Dharuhera and was drawing basic pay of Rs.3600/- after availing two additional increments after completion of 8 and 18 years of service, as per Finance Department, Haryana letter dated 14.5.1991. He availed the second additional increment w.e.f. 1.7.1992 and thereafter he was promoted in Group-B category vide order dated 13.7.1992. In Group-B category basic pay of the said Kishan Lal Sharma was in the pay scale of Rs.2200-4000 and was fixed at Rs.3700/- w.e.f. 22.7.1992, whereas the plaintiffs who were senior to Kishan Lal Sharma were drawing less basic pay. The plaintiffs preferred representations to the department to enhance/step up their basic pay and make it at par that of Kishan Lal Sharma, who was junior to them and was promoted in category-B and as such was drawing more basic pay than the plaintiffs. But the department did not pay any heed to their representation,which necessitated them to file the suit. On these material averments, the plaintiffs prayed that a decree of declaration to the effect that basic pay of the plaintiffs was liable to be fixed at par with their junior Kishan Lal Sharma, a retired Principal, Govt. Senior Secondary School, Dharuhera alongwith all consequential benefits of service with interest at the rate of 25% per annum on the arrears due, till payment, be passed in their favour and against the defendants. GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 3
The appellants/defendants (hereinafter referred to as the defendants) put up appearance on notice and filed joint written statement and controverted the pleadings of the plaintiffs in toto by taking several preliminary objections, inter alia as to locus standi, maintainability and cause of action of the plaintiffs filed the suit against the defendants. However, basic broad facts as to the status of the plaintiffs and that of Kishan Lal Sharma having retired as Principal was not disputed, but it was contended that Kishan Lal Sharma with whom the plaintiffs are seeking parity, was working as Headmaster in Group-C prior to his promotion as Principal in Group-B w.e.f. 22.7.1992. He was granted two additional increments as per Govt. Policy/Instructions on completion of 8 and 18 years of regular satisfactory service, whereas the plaintiffs were working as Lecturer prior to their promotion w.e.f. 24.4.1987 to 5.5.1987. The scheme of granting two additional increments was introduced in the year 1991/1992. Therefore, the plaintiffs were not entitled to two additional increments as they were already working in Group-B since 1987. The plaintiff and said Kishan Lal Sharma had different cadres and posts, therefore, their case could not be equated and as such the plaintiffs were not entitled to any benefit which their junior Kishan Lal Sharma availed according to government policy. As per clarification given by the Govt. from time to time, the pay of plaintiffs could not be stepped up as they do not belong to the same cadre and post prior to their promotion to Group-B. According to their representations were not considered and were rightly rejected. It was also pleaded that suit of the plaintiffs was time barred and prayed for dismissal of the same.
On completion of pleadings of the parties, the learned trial GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 4 court framed the following issues :-
"1. Whether the plaintiffs are entitled for basic pay and pay at par with their junior Kishan Lal Sharma retired Principal in the scale 2200-4000 with all consequential benefits of pay during their service and revision of their pension and retiral benefits after retirement with all arrears alongwith interest as alleged ? OPP.
2. Relief."
In order to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing learned counsel for the parties and going through the evidence brought on the record, the learned trial court came to the conclusion that plaintiffs have duly proved their case. Accordingly, their suit was decreed vide impugned judgement and decree dated 8.10.2004. Feeling aggrieved, defendants filed their first appeal, which also came to be dismissed by the learned Additional District Judge, vide impugned judgement and decree dated 9.9.2005. Hence this second appeal at the instance of the defendants.
Learned counsel for the appellants submits that plaintiffs have failed to prove their case. There was hardly any evidence produced by the plaintiffs on the record of the case, which could be said to be sufficient to decree their suit. They were promoted to the post of Head Master from a different feeder cadre, whereas their alleged junior Sh. Kishan Lal Sharma was not similarly placed, as alleged by the plaintiffs. Since the learned courts below failed to appreciate this material aspect of the matter, the impugned judgements and decrees were not sustainable in law. In support GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 5 of his contention, learned counsel for the State relies on a judgement of the Hon'ble Supreme Court in Union of India Vs. O.P. Saxena, (1997) 6 Supreme Court Cases 360. He prays for setting aside the impugned judgements and decrees, by allowing the present appeal.
Per contra, learned counsel for the plaintiffs-respondents submits that after having been promoted from different feeder cadre, both the plaintiffs and their junior Kishan Lal Sharma were member of the same cadre. Seniority list was common. Kishan Lal Sharma was admittedly junior of the plaintiffs and he was still drawing more salary than the plaintiffs. He concluded by submitting that in view of these undisputed facts, suit of the plaintiffs was rightly decreed by both the learned courts below by recording concurrent findings of fact, leaving hardly any scope for interference at the hands of this court. Learned counsel for the respondents- plaintiffs places reliance on the following judgements of the Hon'ble Supreme Court. Commissioner and Secretary to Govt. of Haryana and others Vs. Ram Sarup Ganda and others, 2007(2) SCT 476, Er. Gurcharan Singh Grewal and another Vs. Punjab State Electricity Board and others, 2009(1) SCT 623 and Division Bench judgements of this Court in Ishwar Chand Walia Vs. State of Haryana and others, 2001(3) RSJ 241, Chanan Singh Vs. Punjab State Electricity Board, Patiala, 1992(2) RSJ 451. He prays for dismissal of the appeal.
Having heard learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that present one is not a fit case warranting interference at the hands of this court, while exercising its appellate jurisdiction under Section 100 of GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 6 the Code of Civil Procedure (`CPC' for short), for the following more than one reasons.
During the arguments, learned counsel for the State could not dispute the basic facts, which have gone unrebutted on record, including that the plaintiffs as well as their junior Kishan Lal Sharma were member of the same cadre. Kishan Lal Sharma was drawing more salary than the plaintiffs, despite being their junior. Learned Counsel for the State was fully justified in not denying these facts, because it was a matter of record. There was no other distinguishable feature to deny the claim of the plaintiffs on any justified ground. A bare combined reading of both the impugned judgements would show that each and every aspect of the matter was duly examined, considered and rightly appreciated by both the learned courts below, before passing their respective impugned judgements. Having said that, this court feels no hesitation to conclude that the learned courts below committed no error of law, while passing the impugned judgements and the same deserve to be upheld.
So far as the judgement relied upon by learned counsel for the appellants is concerned, there is no dispute about the law laid down therein. However, on close perusal of the cited judgement, it has been found to be of no help to the appellants, being distinguishable on facts. Further, it is the settled proposition of law that peculiar facts and circumstances of each case are to be examined, considered and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
GREESH SAHNI2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 7
Once the abovesaid peculiar facts of the case have gone undisputed on record that despite being junior to the plaintiffs, Sh. Kishan Lal Sharma was drawing higher salary, this serious anomaly was bound to be removed. Plaintiffs were entitled in law to be paid at par with their junior namely; Kishan Lal Sharma. The view taken by this court also finds support from the judgement of the Hon'ble Supreme Court in Ram Sarup Ganda's case (supra). Similar view has been taken by a Division Bench of this court in Ishwar Chand Walia's case (supra). Again, the Hon'ble Supreme Court in Er. Gurcharan Singh Grewal's case (supra) reiterated the settled proposition of law in this regard. Relevant observations made in para 13 of the judgement, read as under :-
" Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant no.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant no.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant no.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant no.2."
Before arriving at a judicious conclusion, the learned first GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 8 appellate court rightly re-appreciated the facts of the case as well as the evidence available on record, in correct perspective, so as to record its independent findings in paras 9 to 19 of the impugned judgement. The relevant findings recorded by the learned Additional District Judge in para 19 of the impugned judgement, read as under :-
" This clarification does not say that it is inter-se the employees of Group C & D. When the employees of different groups falls in same hierarchy here in Group B, they become employees of the same cadre. In point raised in clause No.10, the word "same cadre" is to be construed in the light of clarification which clearly speaks that where there are anomalies where the senior who has already taken two promotions within his line, the plaintiffs' line was of category C being the Lecturer and that of Krishan Lal Sharma before elevating to the category B of Principal was also `C' being the Headmaster and as such became ineligible to the higher standard scale and their junior (Krishan Lal Sharma) account of policy mentioned above became eligible for second higher standard pay scale, in that event the senior employee was entitled for fixation/step up of the pay equal to that of junior. So to say that the plaintiffs were not entitled for grant or step up of pay is not tenable. The observation of learned trial court on this account are well merited. Even otherwise, principle of natural justice and the rule of equal pay for equal work is a fundamental GREESH SAHNI 2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 9 right and pay anomaly in the same has to be struck down clarification has given to meet out such anomalies. So, I find there is no illegality in the observations made by learned trial court. They are upheld. The providing of 8% interest on the arrears is also not on higher side and justified."
During the course of hearing, learned counsel for the appellants could not point out any jurisdictional error or patent illegality, apparent on the record of the case in either of the impugned judgements. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned courts below. Further, no question of law, much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this court, while exercising its appellate jurisdiction under Section 100 CPC, as held by the Hon'ble Supreme Court in Naryanan Rajendran and another Vs. Lekshmy Sarojini and others, 2009 (2) RCR (Civil) 286. Thus, it can be safely concluded that the impugned judgements rendered by the learned courts below suffer from no illegality and the same deserve to be upheld, for this reason as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
GREESH SAHNI2014.09.25 12:34 I attest to the accuracy and integrity of this document Chandigarh RSA No.4318 of 2005 10
Resultantly, instant appeal stands dismissed, however, with no order as to costs.
10.9.2014 (RAMESHWAR SINGH MALIK)
GS JUDGE
GREESH SAHNI
2014.09.25 12:34
I attest to the accuracy and
integrity of this document
Chandigarh