Punjab-Haryana High Court
Gurcharan Singh And Others vs State Of Haryana And Others on 20 November, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.5492 of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CWP No.5492 of 1997
Date of Decision : 20.11.2013
Gurcharan Singh and others .....Petitioners
Vs.
State of Haryana and others ....Respondents
...
1. To be referred to Reporter or not ?
2. Whether the judgement should be reported in the Digest ?
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
Present : Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Abhishekh Arora, Advocate for the petitioners.
Mr. Deepak Jindal, DAG, Haryana for the State.
...
RAMESHWAR SINGH MALIK, J Feeling aggrieved against the impugned order dated 9.10.1996 (Annexure P-9) passed by respondent no.2, thereby denying the claim of parity to the petitioners with their counterparts in the government service, petitioners have approached this court by way of instant writ petition, seeking a writ in the nature of Certiorari for quashing the impugned order.
Petitioners also claim a writ in the nature of Mandamus directing the respondent authorities to grant the petitioners same higher pay scale which Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 2 has been granted to Junior Lecturer Assistant/Senior Lecture Assistant working in the government colleges, alongwith consequential service benefits.
Facts first.
To unravel the present controversy between the parties, brief narration of the essential facts would be required. Petitioners are working on the posts of Laboratory Assistant. It is the further pleaded case of the petitioners that vide communication dated 26.8.1988 (Annexure P-2), they were rightly ordered to be equated granting them parity of pay scale admissible to their counterparts in government service. Laboratory Assistant, the post on which the petitioners were working was granted the pay scale of ` 950-20- 1150-EB-25-1400. As the respondent-department has rightly prescribed the duties of Laboratory Attendants working in private affiliated colleges as similar to that of Laboratory Attendant working in government colleges, vide Annexure P-3, similar was the position qua the duties and working conditions of Laboratory Assistants like the petitioners. It is also the case set up by the petitioners that the post of Laboratory Assistant, being a promoted post and the post of Laboratory Attendant, being the feeder post, the petitioners were clearly entitled for the higher pay scale after having been promoted as Laboratory Assistant.
The method of recruitment has been provided in Rule 7 of the Haryana Affiliated Colleges (Security of Service) Rules, 1993( for short `1993 Rules') and relevant part thereof, reads as under :-
"Rule 7 :
Method of recruitment :
(1) Recruitment to the service shall be made
(a) to (f) xx xx xx xx Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 3
(g) In the case of Laboratory Assistant :
(i) by direct recruitment ; or
(ii) by promotion from the post of Laboratory Attendant"
The petitioners approached this court earlier also by way of CWP No.18922 of 1995, which was disposed of vide order dated 22.12.1995 directing the respondent authorities to consider and decide the claim of the petitioners, in accordance with law. In compliance of the order passed by this court, respondent no.2 passed the impugned order dated 9.10.1996(Annexure P-9). Having been left with no other option, petitioners have approached this court by way of present writ petition.
Notice of motion was issued and pursuant thereto, written statement was filed on behalf of the respondents. Vide order dated 4.11.1997 passed by a Division Bench of this court, the writ petition was admitted for regular hearing. That is how, this court is seized of the matter.
Learned Senior counsel for the petitioners submits that the specifically pleaded case of the petitioners have not been sufficiently denied by the respondents in the corresponding paragraphs of their written statement. In this regard, he places heavy reliance on the averments taken in paras 5 to 8 of the writ petition. He further submits that once the qualifications, nature of duties and conditions of service were identical, the action of the respondent- State in denying the parity to the petitioners was unreasonable. He next contended that once vide official communication dated 26.8.1988 (Annexure P-2), the respondent-department itself granted parity and rightly so, to the Laboratory Attendant, Laboratory Assistant and Tabla Player working in private affiliated colleges with their counterparts in government service, Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 4 impugned order was wholly arbitrary on the face of it and the same was liable to be quashed.
Learned Senior counsel for the petitioners next contended that since the Laboratory Assistants were not being granted the pay scale of promoted post and were being paid the pay scale of feeder post i.e. Laboratory Attendant, CWP No.4176 of 1988 (Sunder Lal Jain Vs. State of Haryana) was filed before this court, which was allowed by a Division Bench judgement of this court and in compliance thereof, respondent authorities issued the communication dated 19.10.1995 (Annexure P-5) placing the Junior Lecture Assistant in higher pay scale than that of Laboratory Attendant. It needs to be noted here that the pay scales of Junior Lecture Assistant and Laboratory Attendant in government colleges, which were at par earlier were made different vide Annexure P-5 dated 19.10.1995 in compliance of the Division Bench judgement of this court in Sunder Lal Jain's case (supra). In support of his arguments, learned Senior counsel for the petitioners, also relies upon the Division Bench judgement of this court in Braham Singh and others Vs. State of Haryana and others, 2008(3) SCT 555, to contend that the controversy involved is squarely covered. Finally, he prays for setting aside the impugned order by allowing the present writ petition.
Per contra, learned counsel for the State submits that since the service rules, qualifications and conditions of service of the Junior Lecture Assistants working in the government colleges and Laboratory Assistants working in private affiliated colleges were different, both these posts could not be equated. He further submits that in the given fact situation of the present case, the impugned order Annexure P-9 was passed after considering all the pros and cons of the case. Petitioners were not entitled for the parity, which is Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 5 being claimed by them. Respondent no.2 proceeded on factually correct and legally justified approach while passing the impugned order, which deserves to be upheld. He prays for dismissal of the writ petition.
Having heard the rival contentions of learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this court is of the considered opinion that in the given fact situation of the present case, the instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record that petitioners are working as Laboratory Assistants, being duly qualified and eligible for the post. It is also not in dispute that some of the petitioners were promoted from the post of Laboratory Attendants to their present posts of Laboratory Assistants. As depicted from communication (Annexure P-2) dated 26.8.1988, pay scales of the post of Laboratory Attendant i.e. feeder cadre post and that of Laboratory Assistant i.e. the next promoted post were the same, which was arbitrary on the face of it. It is common knowledge that an employee, who is eligible and competent to hold the higher promoted post, would be obviously entitled for higher pay scale also than to the employee holding a feeder post in the service hierarchy.
When this anomalous situation was brought to the notice of this court by an aggrieved employee namely, Sunder Lal Jain (Laboratory Assistant) like the petitioners, a Division Bench of this court came to his rescue allowing his Writ Petition No.4176 of 1988, vide judgement dated 12.10.1994. Since it is one of the issues involved herein, it would be appropriate to refer to the relevant observations made by the Division Bench in Sunder Lal Jain's case Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 6 (supra) and the same read as under :-
" After hearing learned counsel for the parties and going through the records of the case, this court is of the considered view that the defence projected by the respondents is not entirely correct. Whereas there may be justification for placing under matric Lab. Attendants in a lower pay scale of Rs.750-1,025/-, there is absolutely no justification for equating the pay scale of Matriculate Lecture Lab. Assistant with that of Jr. Lecture Assistant. Admittedly, Jr. Lecture Assistant/Jr.Assistant, as the case may be, is promoted from the post of Laboratory Assistant and Senior Lecture Assistant/Sr. Assistant, as the case may be, is promoted from the post of Jr. Lecture Assistant/Jr. Assistant. A person who is matriculate with science and has five years experience as Laboratory Attendant/Museum Assistant in a college and has studied Hindi upto Matric alone can be promoted to the post of Jr. Lecture Assistant and a Jr. Lecture Assistant having matric qualification with science with five years experience as Jr. Lecture Assistant/Ten years experience as Lab. Assistant or B.Sc. qualifications can alone be promoted as Senior Lecture Assistant. It is clear that post of Jr. Lecture Assistant is a promotional post from that of Lab. Assistant whereas Senior Lecture Assistant is a promotional post from that of Jr. Lecture Assistant. The basic requirements for the post of Lab. Assistant as regards qualifications and experience are also different and as mentioned above, job requirements of Sr. Lecture Assistant are Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 7 also of more serious nature than that of Lab. Assistant. In considered view of this court, it is totally unreasonable to place a junior post and higher post in the same pay scale. A Division Bench of this court in Har Kishan and another Vs. State of Punjab and another, 1987(5) S.L.R. 539, held that "when a lower post is equated with regard to pay scale with the promotional post, it was a clear anomaly and was highly irrational."
Another Division Bench of this Court in P.L. Goyal Vs. State of Haryana and others, 1990(5) S.L.R. 108, held that "reducing the pay scale on promotion would be violative of Articles 14 and 16 of the Constitution of India."
In Civil Writ Petition 10534 of 1991 (Mani Ram and others Vs. State of Haryana and others) decided by me on September 20, 1993, it was held that "it was legitimate aspiration of every citizen to be better placed, both in status and pay of promotion and if this is to be frustrated, it will obviously damper the growth of the man which is a natural desire of everyone."
If there is no increase in the emoluments of a citizen on his promotion, no one would ever work with zeal and dedication nor would he ever like to acquire better experience and more qualifications. This would result into complete stagnation. The action of the respondents in equating the promotional posts with that of inferior posts in the matter of pay scale would obviously result in restricting the natural aspiration of human being to go higher and higher in his service graph and would, thus, Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 8 he wholly arbitrary. A direction is, thus,issued to forthwith fix the pay of petitioners in the scale immediately higher than the one they were getting on a lower post from which they were promoted. This Court is of the considered view that the authorities responsible for fixing the pay scales of petitioners should immediately get down and see through that the justice is done to the petitioners by fixing them in a pay scale commensurate to their nature of duties and post. This exercise must be done within six months from today. However, petitioners be paid forthwith all the arrears that might be due to them by fixing them in a pay scale immediately higher to that they were getting on the post from which they were promoted. This petition deserves to be allowed with costs quantified at Rs.3,000/-."
Respondent no.2 proceeded on a misconceived approach, while passing the impugned order dated 7.10.1996 (Annexure P-9). He placed heavy reliance on two communications dated 16.6.1996 issued by the Deputy Registrar (Colleges), Kurukshetra University and dated 18.6.1996 issued by the Registrar, Panjab University to the effect that no duties of Laboratory Attendants and Laboratory Assistants were prescribed by the universities. The letters written by both the universities were hardly relevant and were of no consequence so far as the claim of the petitioners was concerned. Since respondent no.2 failed to keep in mind the above said observations made by a Division Bench of this court in Sunder Lal Jain's case (supra), the impugned order cannot be sustained.
Sahni Greesh2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 9
So far as the different service rules were concerned, it was a matter of record and not in dispute. Services of the petitioners (Laboratory Assistants) were governed by `1993 Rules', whereas the service conditions of their counterparts i.e. Junior Lecture Assistants working in government colleges were governed under the Haryana Education (College Cadre) Group B Service Rules 1986. However, a close perusal of both sets of service rules would show that except the age of superannuation, there was no difference in the service conditions. Further, once respondent no.2 has rightly equated the Laboratory Assistants in private affiliated colleges with their counterparts working in government service vide Annexure P-2 in the matter of pay scales as well as in the nature of duties, vide Annexure P-3, respondent no.2 fell in serious error of law, while ignoring the official record of his own office i.e. Annexures P-2 and P-3 at the time of passing of the impugned order Annexure P-9. Thus, the impugned order cannot be sustained, for this reason also.
This court has found force in the contention raised by learned Senior counsel for the petitioners that the present case was squarely covered by a Division Bench judgement of this court in Braham Singh and others Vs. State of Haryana and others (supra). The petitioners therein were also working as Laboratory Assistants. Thus, the case before the Division Bench was close to the facts of the present case. On the other hand, learned counsel for the State could not distinguish the Division Bench judgement in Braham Singh's case (supra).
The relevant observations made by the Division Bench, which can be gainfully followed in the present case, read as under :-
"2. In the written statement filed by respondents nos.1 and 2, it Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 10 has been pleaded that principle of equal pay for equal work cannot be invoked where working conditions are substantially different. It is pleaded that Government employees have quite different working conditions as compared to the employees of Private Aided Colleges. For example, the Government employees work on a transferable basis and the employees retire at the age of 58 years. In the Private Colleges, the employees retire at the age of 60 years and their jobs are non-transferable.
3. We have heard Mr. Saurabh Bajaj, Advocate appearing for the petitioners and Mr. Ajay Gupta, Senior Deputy Advocate General, Haryana, appearing for respondents nos.1 and 2 and have perused the records.
4. Learned counsel for the petitioners has cited the case of Haryana State Adhyapak Sangh and others Vs. State of Haryana and others, 1990(1) Recent Services Judgements 444 wherein it was held as under :-
" xx xxx xx. It is, therefore, incumbent upon respondents to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in Government schools with effect from January 1, 1986 and fix the salaries of the teachers employed in aided schools in the revised pay scales with effect from January 1, 1986 and pay the salaries and Dearness Allowance to these teachers on that basis.
5. The above observations of the Hon'ble Supreme Court, no Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 11 doubt, are in respect of the pay scales of the teaching staff employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in Government schools, but in principle the observations are applicable to the non-teaching staff as well. In para No.15-A of the writ petition, it has been alleged by the petitioners that the other non-teaching staff in the respondent-College i.e. Clerk, Peon etc. are getting the similar pay as their counterparts in Government Colleges, but this benefit has been denied to them. In para 15-B of the writ petition, it has further been pleaded by the petitioners that Laboratory Attendants (Matric with Science) in the Government Aided Schools in Haryana are also getting the similar pay scales as their counterparts in the Government Schools. However, the petitioners have been deprived of the same. There is no satisfactory reply to these averments of the petitioners in the written statement. Impliedly, these averments have been admitted by the respondents.
For the aforesaid reasons, this writ petition succeeds. The respondents are directed to grant parity to the petitioners in the matter of pay scales with the pay scales as granted, from time to time, by the Government of Haryana to the employees similarly situated in the Government Colleges with effect from the dates the petitioners became eligible thereto after their induction into the respondent-College. The petitioners will be entitled to all the consequential benefits flowing from the fixation of their pay as such. However, the arrears of pay will be restricted to three years Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 12 preceding the filing of this writ petition."
Petitioners have taken their specific and categoric averments in paras 5 to 8 of the writ petition, which have not been properly denied by the respondents in corresponding paragraphs of their written statement. Thus, factual aspect of the matter stands impliedly admitted by the respondents. Once that is so, there was no justification with respondent no.2 in denying the parity to the petitioners, particularly when the respondent-department itself has granted parity of pay scales to the Laboratory Assistants at par with their counterparts working in the government service, vide Annexure P-2. Having said that, this court feels no hesitation to conclude that respondent no.2 failed to appreciate the true factual aspect as well as legal position while passing the impugned order. Therefore, the impugned order cannot be sustained for this reason, as well.
Further, during the course of arguments, learned counsel for the State could not put into service any substantive argument so as to convince this court to take a different view than the one taken hereinabove. State has no authority to treat the unequals as equals and vice versa. When pointed question was put to learned counsel for the State on communication dated 26.8.1988 (Annexure P-2) and also the letter dated 5.11.2009 issued by respondent no.1 directing implementation of judgement in Braham Singh's case (supra), he had no answer.
Similarly, qua Sunder Lal Jain's case (supra), which has attained finality in view of the order dated 28.8.1995 (Annexure P-4) passed by the Hon'ble Supreme Court, he was confronted with the implementation order Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 13 thereof, vide Annexure P-5 dated 19.10.1995 and its applicability to the facts of the present case, he had again no answer, obviously because it was a matter of record and could not have been disputed. As respondent no.2 failed to delve deep into real crux of the matter while passing the impugned order, the same is not sustainable.
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 in the peculiar fact situation of the present case, instant writ petition deserves to be allowed.
Consequently, impugned order dated 7.10.1996 (Annexure P-9) passed by respondent no.2 is hereby ordered to be set aside. Petitioners (Laboratory Assistants) are declared entitled to the same pay scales admissible to their counterparts i.e. Junior Lecture Assistants in government colleges in view of the law laid down in Braham Singh's case (supra). Petitioners are also declared entitled for grant of next higher pay scale meant for the post of Laboratory Assistants being the promoted post, than that of Laboratory Attendants being the feeder post, in view of the law laid down by this court in Sunder Lal Jain's case (supra).
Petitioners shall also be entitled for the consequential service benefits arising from re-fixation of their pay. However, it is made clear that petitioners shall be entitled for arrears of pay only upto three years preceding the date of filing of the present writ petition. The entire exercise shall be completed by respondent no.2 within a period of three months from the date of receipt of a certified copy of this order, failing which petitioners shall be Sahni Greesh 2013.11.28 10:56 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.5492 of 1997 14 entitled for the arrears of salary alongwith interest @ 9% per annum from the date the amount became due till the date of its actual payment.
Resultantly, with the observations made and directions issued, as hereinabove, present writ petition stands allowed, however, with no order as to costs.
20.11.2013 (RAMESHWAR SINGH MALIK)
GS JUDGE
Sahni Greesh
2013.11.28 10:56
I attest to the accuracy and
integrity of this document
High Court, Chandigarh