Punjab-Haryana High Court
D.K.Monga vs State Of Punjab & Another on 8 November, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 08.11.2012
C.W.P.No.15330 of 2010
D.K.Monga ...Petitioner
Versus
State of Punjab & another ...Respondents
Present : Mr. Tribhuwan Dahiya, Advocate, for the petitioner.
Ms. Sudeepti Sharma, DAG, Punjab, for respondent No.1.
Mr. Vikas Suri, Advocate, for respondent No.2.
C.W.P.No.10220 of 2010
Harminder Singh Madan ...Petitioner
Versus
State of Punjab & another ...Respondents
Present : Mr. Gurminder Singh, Advocate, for the petitioner.
Ms. Sudeepti Sharma, DAG, Punjab, for respondent No.1.
Mr. Rajdeep Singh Cheema, Advocate, for respondent No.2.
C.W.P.No.24006 of 2011
Kuldip Singh & others ...Petitioners
Versus
State of Punjab & another ...Respondents
Present : Mr. R.Kartikey, Advocate, for the petitioner.
Ms. Sudeepti Sharma, DAG, Punjab, for respondent No.1.
Mr. Vikas Suri, Advocate, for respondent No.2.
CWP No.15330 of 2010 2
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
This order shall dispose of the aforementioned three writ petitions filed by former and present Members of the Punjab Superior Judicial Services. Since the issue raised in all the writ petitions is common, therefore, the same are taken up for hearing together. However, for facility of reference, the facts are taken up from CWP No.15330 of 2010.
The petitioner joined Punjab Civil Services (Judicial Branch) on 10.05.1977 and was drawing pay of Rs.14,300/- on 12.11.1996 in the revised pay scale of Rs.13500-400-15900-450-16800. He was promoted as Additional District & Sessions Judge in the cadre of Punjab Civil Services governed by Punjab Superior Judicial Service Rules, 1963 (for short 'the 1963 Rules') on 12.11.1996. The pay scale for the Members of the Punjab Superior Judicial Service were revised vide notification dated 16.01.1998, but with retrospective effect i.e. 01.01.1996 granting pay scale of Rs.10025-275- 10300-340- 12000-375- 13500-400- 15900-450- 18600. The pay of the petitioner on promotion was fixed as Rs.14,700/- as on 12.11.1996, increased to Rs.15,100/- as on 1.11.1997 and to Rs.15,500/- as on 1.11.1998 with the grant of annual increments of Rs.400/-.
The petitioner points out that consequent to the acceptance of the recommendations of the Shetty Commission and in terms of the CWP No.15330 of 2010 3 directions of the Supreme Court in All India Judges' Association & others Vs. Union of India & others (2002) 4 SCC 247, the petitioner has been placed in the pay scale of Rs.16750-400-19150-450-20500 and has been granted annual grade increments on due dates i.e on 1st of November every year till the age of superannuation on 21.03.2001, when he was drawing salary of Rs.18,350/-.
The grievance of the petitioner is that a junior namely Shri Fatehdeep Singh - a direct recruit, joined on 10.05.1999. He was initially granted starting pay of Rs.10,025/- in the pay scale of Rs.10025-18600. However, he was granted six advance increments in lieu of his standing at the Bar and pay fixed as Rs.12,000/- from the date of his initial appointment. However, subsequent to the recommendation of the Shetty Commission, the pay of Shri Fatehdeep Singh has been fixed as Rs.19,150/- by giving him six advance increments of Rs.400/- in lieu of standing at the Bar from the date of initial appointment in the revised pay scale of Rs.16750-20500. It is, thus, contended that Shri Fatehdeep Singh was getting less salary in the pre-revised scale than the petitioner, but after revision, he is drawing more salary than the petitioner. Therefore, the salary of the petitioner is liable to be stepped up to the extent of the salary being drawn by his junior. It is contended that the salary of a junior cannot be more than the salary drawn by a senior.
The petitioner relies upon a circular dated 21.06.2000 (Annexure P-1) to contend that proviso to clause (iv) cannot be applied, as junior was not drawing more pay in the pre-revised scale. Therefore, the said circular cannot be taken into consideration for rejecting the representation of the petitioner, which was rejected on 21.08.2009. It is CWP No.15330 of 2010 4 contended that in terms of the judgment of the Supreme Court in All India Judges' Association's case (supra), a circular has been issued on 07.05.2003, wherein pay scale of Rs.16750-20500 has been granted to the District Judges at the entry level. Therefore, in terms of such circular, the pay of the petitioner is liable to be revised.
On behalf of the High Court, it is averred that Shri Fatehdeep Singh was directly appointed as Additional District & Sessions Judge in the cadre of Punjab Superior Judicial Service and his pay was fixed at Rs.12,000/- after granting him the benefit of practice at the Bar for 14 years, 05 months & 16 days as per Rules 13(3) & 13(4) of the 1963 Rules vide letter dated 24.01.2002. Subsequent to the acceptance of Shetty Commission's report, his pay has been fixed as Rs.19,150/-, whereas the pay of the petitioner has been fixed in such revised scale at Rs.16,750/- with next increment due on 01.11.1997. Therefore, the petitioner is not entitled to stepping up of pay on account of proviso of the instructions dated 21.06.2000. Reference is made to the communication dated 19.01.2004 (Annexure R-2/4), wherein Rule 13 of the 1963 Rules has been amended so as to grant Rs.16750-20500 as entry level pay scale to the District Judges and also when the draft amendment of Rule 13 was published to the effect that pay of the Members of the Service shall be fixed as per instructions issued from time to time. Reference is also made to communication dated 06.08.2001 (Annexure R-2/5), wherein it was communicated that the cases in which pay is fixed after giving the benefit of advance increments in accordance with the rules/instructions of the Government, then comparing the pay of junior officer with that of senior officer is mere imagination and is co-relative subject. The benefit of CWP No.15330 of 2010 5 stepping up of pay cannot be given to senior. The drawl of more pay by the junior, does not entitle him to be placed above the senior officer. He will get whatever is permissible to him under the rules/instructions.
The relevant extract of the 1963 Rules is as under:
"13. Pay of members of the Service - (1) On and with effect from the first day of January, 1978, the scale of pay of the members of the Service, other than those placed in selection grade, shall be of Rs.1580- 60-1700/75-2000/100-2400.
(2) Notwithstanding anything contained in sub rule (1), the initial pay of a direct recruit in the pay scale of Rs.1580-60-1700/75-2000/100-
2400 shall be fixed as follows:-
S.No. Length and extent of previous practice as an Initial pay to Advocate or pleader be allowed per month
1. Less than eleven years Rs.1580
2. Not less than eleven years, but less than Rs.1640 tweleve years
3. Not less than twelve years, but less than Rs.1700 thirteen years
4. Not less than thirteen years, but less than Rs.1775 fourteen years
5. Not less than fourteen years, but less than Rs.1850 fifteen years
6. Not less than fifteen years Rs.1925 Sub Rules 3 & 4 were inserted so as to grant benefit of revised pay scale w.e.f. 01.01.1986 in the pay scale of Rs.3000-100-4000-
125-5000-150-5600. Thereafter, the pay scales of the members of Punjab Superior Judicial Services were revised to Rs.10025-275- 10300-340- 12000-375- 13500-400- 15900-450- 18600 vide notification dated 16.01.1998 w.e.f. 01.01.1996. In terms of such notification and in terms of the statutory rules, pay of the petitioner as Member of the Punjab Superior Judicial Service was fixed as Rs.14,750/- on 01.11.1997 and CWP No.15330 of 2010 6 Rs.15,500/- on 01.11.1998 i.e. the salary which he was drawing on 10.05.1999, when Shri Fatehdeep Singh joined as Additional District & Sessions Judge and his pay fixed at Rs.19,150/-.
The recommendation of the Shetty Commission, which was accepted by the Supreme Court in All India Judges' Association's case (supra) is as under:
"9. ....After considering all the relevant circumstances the Commission recommended the following scales of pay:
(i) Civil Judges (Jr.Divn.) Rs.9000-250-10750-300- 13150-350-14550
(ii) Civil Judges (Jr.Divn.) (I Stage Rs.10750-300-13150-350-
ACP scale) 14900
(iii) Civil Judges (Sr.Divn.) (II Stage Rs.12850-300-13150-350-
ACP scale for Civil Judges 15950-400-17550
(Jr.Divn.))
(iv) Civil Judges (Sr.Divn.) (I Stage Rs.14200-350-15950-400-
ACP Scale) 18350
(v) District Judges (entry level) Rs.16750-400-19150-450-
20500
+
(II Stage ACP scale for Civil
Judges (Sr.Divn.))
(vi) District Judges (selection grade) Rs.18750-400-19150-450-
21850-500-22850
(vii) District Judges (super time scale) Rs.22850-500-24850
[
The Government of Punjab has issued a Circular dated 07.05.2003 as directed by the Supreme Court on the basis of the recommendation of the Shetty Commission. However, in the said circular instead of sign '+', the word 'and' has been used, which makes the reading of such circular little confusing. As per the recommendation of the Shetty Commission, the entry level pay scale of the District Judge is Rs.16750-20500. The said pay scale is also the II Stage ACP scale for Civil Judges (Senior Division). Thus, after grant of II Stage ACP scale, a Civil Judge (Senior Division) would stand at par in the matter of pay with the pay of District Judge (in the cadre of Superior Judicial Service). On CWP No.15330 of 2010 7 the basis of the order of the Supreme Court and the circular issued by the State Government on 07.05.2003, the pay of the petitioner and that of the direct recruit was fixed by granting him benefit of the years at the Bar of the said respondent in terms of Rule 13 of the 1963 Rules in the pay scale of Rs.16750-400-19150-450-20500.
The Circular dated 21.06.2000 (Annexure P-1) in respect of removal of anomaly by stepping up of pay of senior Government employee drawing less pay than their juniors has the following clause:
"(iv) The Anomaly should be directly as a result of application of the provisions made under Rule 8(a) and (b) of the Punjab Civil Services (Revised Pay) Rules, 1998, the assured Career Progression Scheme or any orders regulating pay fixation on such promotion in the revised scale.
Provided further that the benefit of step up under this scheme shall not be admissible to the senior employee, if the junior employee was drawing more pay in the pre-revised/revised scale than the senior by virtue of any advance increments granted to him or any inflation in pay other than by way of normal pay fixation."
The argument of learned counsel for the petitioner is that proviso to clause (iv) is not applicable, as the junior employee was not drawing more pay in the pre-revised scale. The junior got higher pay in revised pay and, therefore, the pay of the petitioner is liable to be stepped up.
We do not find any merit in the argument raised. Both i.e. the petitioner and Shri Fatehdeep Singh - a direct recruit member of Punjab Superior Judicial Service, are in the same pay scale of Rs.16750- 400-19150-450-20500. Since Shri Fatehdeep Singh was directly recruited CWP No.15330 of 2010 8 from amongst the members of the Bar, he is granted benefit of his years of practice in terms of Rule 13 of the 1963 Rules. Thus, he gets additional increments, which make his pay more than the pay of the petitioner. In terms of such Rule, the pay of Shri Fatehdeep Singh was fixed at Rs.12,000/- in the pre-revised pay scale which was that of the petitioner, but after granting benefit of his years of practice at the Bar. Thus, it is not a case of anomaly, but of higher pay granted to the junior on account of his experience at the Bar for the purposes of increments, which is recognized benefit under the Rules.
We also do not find any merit in the argument that the proviso is not applicable in the present case. The proviso is applicable if the junior employee was drawing more pay either in pre-revised or revised pay scales but by virtue of advance increments granted to him other than by normal pay fixation. In other words, the benefit of advance increments granted to Shri Fatehdeep Singh cannot be made basis for claiming stepping up in salary in pay, as it is a case of grant of advance increments in terms of the Rules. Both, the petitioner and Shri Fatehdeep Singh, are in the same pay scale, but the junior is getting more pay only on account of additional increments in terms of the Rules. Therefore, in terms of the proviso, which is applicable with full rigour, the claim of the petitioner for stepping up of his pay is untenable.
It has also come on record that 1963 Rules have since been replaced by Punjab Superior Judicial Service Rules, 2007 (for short 'the 2007 Rules'). There is no corresponding provision in the 2007 Rules for granting benefit of advance increments for the years spent in the legal profession. However, the said fact will not entitle the petitioner to seek CWP No.15330 of 2010 9 stepping up of the pay for the reason that the additional increments were granted to the direct recruits in lieu of standing at the Bar in terms of the statutory Rules. Therefore, grant of such increments cannot form basis for stepping up of pay of the seniors.
The doctrine of "equal pay for equal work", as enshrined in Article 39 of the Constitution of India, is not a doctrine of exactitude that a junior and senior have to have exactly drawn equal salary up to rupee and paise. Such doctrine contemplates that all things being equal, the pay should be equal in respect of such similar employees. The doctrine of 'equality' enshrined in Article 14 read with Article 39 is that the members of the Service discharging similar functions shall not be discriminated in the matter of pay-scale. All the Members of the cadre of Punjab Superior Judicial Service are placed in the same pay scale, but if some of the Members have earned extra increments, as in the present case on account of their experience at the Bar, that will not be an act of discrimination or arbitrariness. The pay scale remains the same, but it is the fixation of pay, which is different in case of Members of the Service fixed in the same pay scale. The fixation of individual's salary cannot be made basis to claim stepping up of pay, as pay fixation is dependent upon numerous factors such as higher qualification, number of years put in the feeder cadre and grant of additional increment or on on account of any other reason etc. Learned counsel for the petitioner has referred to the judgments of the Supreme Court in Gurcharan Singh Grewal & another Vs. Punjab State Electricity Board & others (2009) 3 SCC 94, Commission and Secretary to Govt. of Haryana & others Vs. Ram Sarup Ganda & others 2007 (2) SCT 476 and Kamlakar Vs. Union of CWP No.15330 of 2010 10 India 1999 (4) SCC 756 as well as of Division Bench of this Court reported as Chhaju Ram Hans Vs. Hon'ble High Court of Punjab & Haryana 2006 (1) PLR 701 and Mrs. Krishna Goyal Vs. Hon'ble High Court of Punjab & Haryana 2006 (6) SLR 557 in support of his contention that the pay of a senior is to be stepped up.
However, we find that such judgments are not helpful to the argument raised. In Gurcharan Singh Grewal's case (supra), one of the writ petitioners was granted benefit of higher pay scale during the pendency of the writ petition before this Court. It was argued before the Supreme Court by the Board that due to disparity in the incremental benefits, it led to anomaly of one of the appellants getting lower salary in the promotional scale. We do not find that said judgment can be canvassed for a proposition that in all cases, the pay of the senior has to be stepped up. That was a case where there was a difference in the pay on account of the incremental benefits. We are unable to find out that such anomaly was in any way similar as in the present case i.e. advance increments in terms of the statutory Rules. Therefore, the said judgment is not helpful to the argument raised.
In Ram Sarup Ganda's case (supra), the Assured Career Progression Scale was not granted to the employees, who were working in Group C but were initially appointed in Group D. It was found that manner of appointment is not sufficient to deny the benefit of ACP scale. Thus, a direction was issued to revise the pay scale of the employees and if in case of any anomaly, if the employees who on fixation of ACP scales, are in receipt of lesser salary than their juniors in the same cadre/post, then their salary shall be stepped up accordingly. The said CWP No.15330 of 2010 11 judgment is not applicable to the present case where the junior was granted benefit of advance increments in terms of the statutory Rules.
In Kamlakar's case (supra), the Supreme Court has held that Members of one cadre are entitled to the same pay scale and the birth marks have no relevance in this connection. It was held to the following effect:
"12. .....Once they were all in one cadre, the distinction between direct recruits and promotes disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. ....."
In fact, the said judgment supports the view that equal treatment is for the payment of the pay scale and not the pay fixation of an individual employee.
In Chhaju Ram Hans and Mrs. Krishna Goyal's cases (supra), it was the facts of each case, which led to passing of the order of stepping up of the pay of the senior and also the earlier judgments of the Supreme Court in State of A.P. Vs. G. Sreenivasa Rao (1989) 2 SCC 290; Union of India Vs. R. Swaminathan (1997) 7 SCC 690 and Government of A.P. Vs. V. Veera Raghavan (1999) 9 SCC 266 were not brought to the notice of the Benches.
In G. Sreenivasa Rao's case (supra), the Supreme Court has held that doctrine of 'equal pay for equal work' cannot be put in a strait- jacket and that reasonable classification based on intelligible criteria having nexus with the object sought to be achieved is permissible. It was CWP No.15330 of 2010 12 held to the following effect:
"15. "Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal."
In R. Swaminathan's case (supra), it was held to the following effect:-
"7. ........... The difference in the pay of a junior and a senior in the cases before us is not as a result of the application of Fundamental Rule 22(I)(a)(1). The higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promotions which he got in the past. Because of the proviso to Rule 22 he may have earned increments in the higher pay scale of the post to which he is promoted on account of his past service and also his previous pay in the promotional post has been taken into account in fixing his pay on promotion. It is these two factors which have increased the pay of the juniors. This cannot be considered as an anomaly requiring the stepping up of the pay of the seniors."CWP No.15330 of 2010 13
In Veera Raghavan's case (supra), it was held by the Supreme Court to the following effect:-
"3. The position in law has been clearly laid down by this Court in State of A.P. v. G. Sreenivasa Rao (1989) 2 SCC 290. In para 15, this Court has observed that equal pay for equal work does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre, the constitutional mandate of equal pay for equal work is satisfied. Ordinarily, grant of higher pay to a junior would ex facie be arbitrary; but if there are justifiable grounds in doing so, the seniors cannot invoke the equality doctrine. In the present case, the higher pay drawn by the juniors of the respondent is on account of their longer actual length of service in the cadre of District Munsifs. There is, therefore, good reason for their drawing more pay than the respondent." (Emphasis Supplied)."
In Government of W.B. Vs. Tarun K. Roy & others (2004) 1 SCC 347, considering the argument of 'equal pay for equal work', the Supreme Court held that such doctrine does not contemplate that only because the nature of work is same, irrespective of educational qualifications or source of recruitment or other relevant consideration, the said doctrine would be automatically applied. The holders of a higher qualification can be treated as a separate class. It found that treating graduates in Science as equal with the persons having technical qualification will be in contravention of the Statutory Rules. It was held to the following effect:
"30. The respondents are merely graduates in Science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this Court to the respondents on the aforementioned ground, the same will be in contravention of the statutory rules. It is trite that this Court even in exercise of its jurisdiction under Article 142 of the Constitution of India CWP No.15330 of 2010 14 would not ordinarily grant such a relief which would be in violation of a statutory provision."
A Division Bench of this Court in State of Punjab Vs. Sarabjit Singh & others 2012 (1) SCT 419 has examined the provisions of Punjab Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1997, wherein challenge was to the higher pay scale to the graduate Clerks than a non-graduate Clerks. It was held that the recommendations of the Shetty Commission in respect of the Court staff are not available to the non-graduate Clerks. It was held to the following effect:
"16. The same principles were followed in the case of Shyam Babu Verma Vs. Union of India (1994) 2 SCC 521, wherein it has been held that it is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them. Hon'ble the Supreme Court after interpreting Section 31 of the Pharmacy Act, 1948, came to the conclusion that when the said Section itself conceives of different types of Pharmacists with reference to their academic qualifications and experience, then no fault can be found either with the Pay Commission or the respondents in putting the Pharmacists Grade-B in two categories with reference to their qualifications and experience and prescribing two scales of pay. It has further been observed that in most of the services the scale of pay is linked with the academic performance and experience. Therefore, it cannot be held that for one service there should be only one scale of pay ignoring the persons who possess the higher qualifications. The nature of work may be more or less the same, but scale of pay may vary based on academic qualification or experience which justifies the classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. ...."
The Supreme Court in another judgment reported as State of West Bengal v. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225, has examined the claim of parity in pay of the Inspector, Agricultural Minimum Wages with those Inspectors CWP No.15330 of 2010 15 (Cooperative Societies), Extension Officers (Panchayats) etc. It was held that the principle of 'equal pay for equal work' is not a fundamental right, but a constitutional goal and that a post having lesser pay scale may be assigned a higher pay scale and another post which is considered to have a proper pay scale may merely be assigned the corresponding revised pay scale, but not any higher pay scale. It observed as under:
"19. The principle "equal pay for equal work" is not a fundamental right, but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
xxx xxx xxx
25. As noticed above, one post which is considered as having a lesser pay scale may be assigned a higher pay scale and another post which is considered to have a proper pay scale may merely be assigned the corresponding revised pay scale but not any higher pay scale. Therefore, the benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge duties and functions identical with, or similar to, each other and that the continuation of disparity is irrational and unjust."
Coming to the facts of the present case, the junior has earned additional increments in terms of the statutory Rules. Both the petitioner and the junior are in the same pay scale, but in terms of the Rules, the junior has got additional increments. Such fixation of pay on account of additional increments is a benefit personal to the drawee. It does not affect the seniority nor violates the principle of 'equal pay for equal work', as the equality is in the pay scale and not in the matter of pay CWP No.15330 of 2010 16 fixation in that pay scale. Fixation of pay is dependent upon length of service in the feeder cadre, as the case may be, or higher pay on account of higher qualification. May be in the same pay scale, a senior may suffer a punishment of stoppage of increments and draw less salary than his junior. Will it mean that his pay is required to be stepped up because his junior is drawing a higher salary? In our opinion, the concept of 'equal pay for equal work' enshrined under Article 39(d) of the Constitution read with Article 14 is in respect of the pay scale to a category of post and not in respect of pay fixation of an individual in that pay scale. Though in certain situation, the payment of higher pay to the category based upon higher qualification has been upheld, but a senior is not entitled to stepping up of his pay on account of the fact that a junior is drawing higher pay on account of reasons which are purely personal to him.
In view of the above, we do not find any merit in the present writ petitions. The same are accordingly dismissed.
(HEMANT GUPTA)
JUDGE
08.11.2012 (RAJIV NARAIN RAINA)
Vimal JUDGE