Punjab-Haryana High Court
Jai Parkash vs State Of Haryana And Others on 9 November, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 12549 of 2010 1
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
CWP No. 12549 of 2010
Date of Decision:09.11.2012
Jai Parkash
.........Petitioners
Versus
State of Haryana and others
............ Respondents
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CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. I.D. Singla, Advocate
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
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AUGUSTINE GEORGE MASIH, J.(ORAL)
By this order, I propose to dispose of five writ petitions i.e. CWP No. 12549 of 2010, Jai Parkash vs. State of Haryana and others, CWP No. 10180 of 2011, Dhoop Singh vs. State of Haryana and others, CWP No.19440 of 2012, Abhay Singh and others vs. State of Haryana and others, CWP No. 21051 of 2010, Amar Singh and others vs. State of Haryana and others and CWP No. 24236 of 2011, Rajpal and others vs. State of Haryana and others, wherein common questions of facts and law are involved and the cases have been taken up for hearing with the consent of the counsel for the parties for disposal together. Facts are being taken primarily from CWP No. 12549 of 2010 titled Jai Parkash Versus State of Haryana and others.
Petitioner was appointed as Helper Carpenter on daily wages basis in December, 1995. He possessed the qualifications of matric with ITI diploma. His primary contention is that the petitioner is entitled to grant of CWP No. 12549 of 2010 2 technical pay scale of Rs. 1200-2040 w.e.f. 1.5.1990 in the light of the Haryana Government instructions dated 26.7.1991 (Annexure P-4), according to which an employee possessing the qualification as possessed by the petitioner is entitled to the said grade. His further contention is that as per the memo dated 5.7.1985 (Annexure P-1) issued by the Transport Commissioner, Haryana, the basic qualification prescribed for appointment to the post of Helper Carpenter was, perons having trained as Apprenticeship and ITI diploma holders. Petitioner fulfills that qualification and, therefore, in the light of this letter petitioner was appointed by the General Manager Haryana Roadways, Yamunanagar. Since the petitioner was required to possess the qualifications of matric with ITI for appointment to the post of Helper carpenter and he having fulfilled the said qualifications and appointed to the post of Helper Carpenter, is entitled to the revised technical pay scale of Rs. 1200-2040 as per the Haryana Government instructions dated 26.7.1991 (Annexure P-4) w.e.f. 1.5.1990. He has further supported the claim of the petitioner by placing reliance upon the judgment passed by this Court in CWP No. 9510 of 1994 titled Shamsher Singh and others vs. State of Haryana and others, decided on 22.12.2008 (Annexure A-1). Prayer is, thus, made that the writ petition be allowed and he be granted technical pay scale of Rs. 1200-2040 w.e.f. 1.5.1990.
Counsel for the respondents, on the other hand, submits that the petitioner was appointed on daily wage basis and no qualification is prescribed for appointment to the post of Helper prior to coming into force of the statutory Rules called the Haryana Transport Department, Haryana Roadways (Group-D) Service Rules, 1998, which came into effect vide CWP No. 12549 of 2010 3 notification dated 17.7.1998. Petitioner, although, may be possessing matric with ITI qualification but would not be entitled to the technical pay scale as claimed by him, in the light of the fact that there were no specific qualification prescribed for the post of Helper Carpenter, on which the petitioner was appointed. His further contention is that the memo dated 5.7.1985 (Annexure P-1) is only applicable to the appointments which were to be made to the Government Central Workshop, Haryana at Chandigarh and was not made applicable to the other establishments. No benefit, therefore, can be derived from the said memo. He accordingly, prays that the petitioner is not covered by the instructions dated 26.7.1991 (Annexure P-4) issued by the Government of Haryana, which would entitle the petitioner, to the grant of pay scale as has been claimed by him through the present writ petition. Accordingly, prayer has been made for dismissal of the writ petition.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
The basic question which needs to be decided and would have a direct bearing on the result of this petition is with regard to the applicability of the memo dated 5.7.1985 (Annexure P-1) issued by the Transport Commissioner, Haryana.
The assertion of the counsel for the respondents is that the said memo was applicable for filling up the posts of Helper to the Service Engineer, Government Central Workshop, Haryana at Chandigarh only and the same would not be applicable to the other establishments wherever the appointments were made to the post of Helpers, whereas the counsel for the petitioner asserts otherwise. Perusal of the said memo would show that apart CWP No. 12549 of 2010 4 from the said memo being applicable to filling up the vacant posts of the Helpers in Government Central Workshop, Haryana at Chandigarh would also be applicable to the other establishments in the light of the endorsement to the said letter, which reads as follows :
"Endst. No. 22565-81/EA-4/E-2 dated 5.7.85 A copy is forwarded to all the General Manager, Haryana Roadways, and S.K. Govt. Central Workshop, Haryana, Chandigarh.
2. They are advised that while sending requisition to Employment Exchange for filling of posts of Helpers, Qualifications circulated vide this office memo No. 20208/AE-4/E-2 dated 19.6.84 may be strictly adhered to.
Sd/-For transport Commissioner, Haryana."
A perusal of the above, would show that strict adherence to the qualifications as prescribed in the memo was made mandatarily to be followed while making appointment to the posts of Helpers. If that be so and in the light of the fact that the petitioner was appointed subsequent to the issuance of this memo and also fulfills the qualifications as prescribed therein, the petitioner was mandated to fulfill the said qualifications which would entitle him for appointment to the post of Helper, having possessed the said qualifications the petitioner was appointed. Notification dated 26.7.1991 prescribes that a person who fulfills the mandate of the Rules which provide for the prescribed qualification as matric with ITI and possess the said qualifications is entitled to the technical pay scale of Rs. 1200-2040. The petitioner, since, fulfills the said qualification, is entitled to the said benefit.
That apart the claim of the petitioner is fully covered by the CWP No. 12549 of 2010 5 judgment passed by this Court in Shamsher Singh's case (supra), where one of the grounds of qualifications as possessed by the petitioner was the same.
In another case i.e. CWP No. 2032 of 2000 titled as Attar Singh Fitter and others vs. State of Haryana and others, decided on 17.09.2002, a Division Bench of this Court, while dealing with the case of the petitioners who were Matric and possessed ITI Diploma and were performing the duties in the workshop and were working against technical posts when the notification dated 23.08.1990 was issued modifying the pay scales w.e.f. 01.05.1990 while dealing with an objection, which was taken by the respondents that the prescribed qualification for the post to which the petitioners were initially appointed, is not Matriculation with ITI/Polytechnic and, therefore, the mere fact that the petitioners possessed the aforesaid educational qualifications and technical qualifications did not entitle them to the claim of the modified pay scale of Rs. 1200-2040, held as follows:-
"9. Shri Rajneesh Narula, the learned counsel for the petitioners has submitted that the petitioners were possessing the qualification of Matric and also possessed ITI certificates and on the basis of the academic and technical qualifications, the petitioners are entitled to the pay scale of Rs. 1200-2040 with effect from May 1, 1990 i.e. the date from which the other persons similarly situated are being paid the said scale. Shri Narula has relied upon a Division Bench judgment of this Court in Ram Kishan and others vs. State of Haryana and others (CWP No. 7920 of 1993) decided on December 01, 1993. Shri Narula submits that on the face of it, it is apparent that the petitioners are working in the workshop of the Haryana Roadways and on the CWP No. 12549 of 2010 6 basis of their qualifications and because of the fact that the posts were of technical nature they were entitled to the benefit of the aforesaid modification of pay scale.
10. On the other hand, Shri Amol Rattan, the learned Assistant Advocate General has submitted that the prescribed qualifications for the post to which the petitioners were initially appointed is not matriculation with ITI/Polytechnic and therefore, the mere fact that the petitioners possessed the aforesaid educational and technical qualifications did not entitle them to claim the modified scale of Rs. 1200-2040.
11. After hearing the learned counsel for the parties and having given our thoughtful consideration to the entire controversy, we find that the present petition deserves to succeed. It is not in dispute that the petitioners did possess the qualifications with ITI certificates and it was only on the basis of the aforesaid qualifications that they were actually appointed in the workshop run by the Haryana Roadways. The judgment of the Division Bench in Ram Kishan's case (supra) wherein a direction had been issued to the State of Haryana to refix the pay of the petitioners according to their qualification the matriculation with ITI certificates supports the contention raised by the petitioners. Subsequently, a Single Bench judgment of this Court in Labh Singh and others vs. State of Haryana and others, 1995 (1) Recent Service Judgments 345 followed the directions issued in Ram Kishan's case (supra).
Thus, in this view of the matter, the present writ petition is allowed and the order dated February 12, 1999 Annexure P-5 is hereby quashed. The respondents are directed to fix the pay of the petitioners in the pay scale of Rs. 1200-2040 with effect from May 01, 1990 as per the circular dated August 23, 1990."
The judgment rendered by the Division Bench of this Court has CWP No. 12549 of 2010 7 been admittedly accepted by the State of Haryana after the same was upheld by the Supreme Court and has been implemented also.
In the light of the said judgment the petitioner fulfills the mandate of the Rules and possess matric with ITI diploma and, therefore, is entitled to the technical pay scale of Rs. 1200-2040 w.e.f. 1.5.1990.
This Court while deciding CWP No. 19547 of 2011 Jai Pal vs. State of Haryana and others on 18.01.2010 and other connected matters has held as under:-
"xxx xxx xxx xxx xxx From the reading of Pay Rules, 1986 Item No. 40 it appears that the revised pay scale has been prescribed for various technical posts in which the minimum educational qualification prescribed is matric with ITI, meaning thereby that any person, who is working on any technical post for which the minimum qualification prescribed is matric with ITI certificate whether he is in lower pay scale of 750-940 or various higher pay scales referred to above including Rs. 950-1500/- is to be placed in the revised pay scale of Rs. 1200-2040/-. The rule does not prescribe that only an employee working on the technical post possessing the qualification of matric with ITI is to be granted the revised pay scale. Pay scales of the posts and grades have been revised and not of the employees with higher qualifications. It is not in dispute that all the petitioners are working on one or the other technical posts and are in the different pay scales amongst five unrevised pay scales and are working since last 20 to 30 years. The endorsement under the revised pay scale further strengthens the argument that the future recruitment of the non-matric has been stopped, its natural corollary is that in past non-matrics have been recruited against the posts for which the qualification prescribed is matric with ITI.
Respondents have not produced any rule of recruitment CWP No. 12549 of 2010 8 at the time of the appointment of the petitioners on various posts. It is common case of the petitioners that at the time of their appointment to various posts, they were fully qualified. It is not the case of the respondents that at the time of recruitment of the petitioners, they were ineligible or not possessed of the requisite qualifications prescribed for the posts held by them. These very rules and a similar issue came up for consideration before a Single Bench of this Court in CWP No. 10414 of 1993 decided on 2.9.1994 titled as Labh Singh and others Vs. State of Haryana and others reported as 1995 (1) RSJ 345. In the aforesaid case some of the petitioners were possessed of the qualification of matric with ITI, whereas some were having qualification of only ITI. They were working as mates in the State of Haryana. They claimed the revised pay scale of Rs. 1200-2040 on the ground that they are working against technical posts for which qualification prescribed is matric with ITI and thus entitled to the revised pay scales. However, the State Govt. placed them in pay scale of Rs. 750- 940/- pleading that they are Class-IV employees and not entitled to the revised pay scale. It was noticed that there were no statutory rules at the time of recruitment of those writ petitioners and they were recruited on the basis of the sponsorship from the Employment Exchange and were having qualifications as notified by the department to the Employment Exchange. Those qualifications were laid down in technical memo issued by the department. In some cases the revised pay scales were granted and withdrawn. On consideration of the issue the Hon'ble Court made following observations:-
" 7. Learned Deputy Advocate General has not been able to show as to how the Executive Engineer has made recruitment on the posts of T.Mates without there being any qualification. In act the stand taken by the respondents stands belied by the fact that in the standing order issued by the department qualification for the post of T. Mates has been prescribed as I.T.I pass in CWP No. 12549 of 2010 9 respective trade or three years experience in the trade concerned. These qualifications have been enumerated in Annexure D contained in Technical Memo No. 6/88 containing rules and instructions for running and upkeep of vehicles and other machinery working in Public Works Department (Building & Roads), Haryana. This document has been published under the authority of the Govt. of Haryana and, therefore, there is no reason to believe that these are not the prescribed qualifications. To me it is clear that by virtue of Annexure D, appended to the Technical Memo No. 6/88, the department has prescribed the qualifications for appointment on the post of T.Mates and precisely for this reason the Executive Engineer had incorporated these qualifications in the various notifications sent by it to the Employment Exchange. It is thus clear that each of the petitioner had been recruited with the qualification of I.T.I and some of qualification of Matric with I.T.I.
8. In the result, the writ petitions are allowed. The notices issued by the respondents seeking revision of the pay of the petitioners are declared illegal and are hereby quashed. The respondents are restrained from revising the pay scale of the petitioners. Costs made easy."
The aforesaid judgment was followed by another Division Bench of this Court in case of Raj Karan Vs. State of Haryana reported as 2003(1)RSJ 119, wherein following observations have been made:-
" 9. After hearing the learned counsel for the parties and having given our thoughtful consideration to the entire controversy, we find that the present petition deserved to succeed. It is the admitted position between the parties that there were no minimum educational qualifications prescribed for the post, when the petitioner was appointed to the same. Still further, there is no dispute that the petitioner did possess the qualifications of CWP No. 12549 of 2010 10 Matriculation with I.T.I certificate and it was only on the basis of the aforesaid qualifications that the petitioner was actually appointed as a Technical Mate on work charge basis originally on April 1, 1978. Subsequently, the services of the petitioner were regularized on the aforesaid post w.e.f. January 1, 1987. Under these circumstances, when the petitioner was granted the scale of Rs. 1200-2040 w.e.f. May 1, 1990, in accordance with the policy decision, then the said benefit now cannot be withdrawn merely because there were no statutory rules, laying down any educational qualification for Technical Mate."
The aforesaid Division Bench judgement of this Court was challenged before the Hon'ble Supreme Court in various SLP/Appeals. All the SLP/Appeals were dismissed vide order dated 31.7.2007.
xxx xxx xxx xxx xxx"
Further the Haryana Government has while implementing the judgment of this Court has granted benefit of technical pay scale to even those employees whose qualification was not even matric with ITI and they were appointed prior to 1.5.1990 on technical post whose qualification now is matric with ITI under the Statutory Rules.. The letter No. 6/83/2009-3PR (FD) dated 9.8.2010 reads as under :-
"While disposing of a bunch of CWP in main CWP No. 18754 of 1991, the Hon'ble High Court considered item No. 40 of instructions No. 6/23/3PR(FD)-88, dated 23.8.1990 and 26.7.1991 give observation as under:-
"From the reading of Pay Rules, 1986 Item No. 40 it appears that the revised pay scale has been prescribed for various technical posts in which the minimum educational qualification prescribed is matric with ITI, meaning thereby that any person, who is working on any technical post for which the minimum qualification CWP No. 12549 of 2010 11 prescribed is matric with ITI certificate whether he is in lower pay scale of 750-940 or various higher pay scales referred to above including Rs. 950-1500/- is to be placed in the revised pay scale of Rs. 1200-2040/-. The rule does not prescribe that only an employee working on the technical post possessing the qualification of matric with ITI is to be granted the revised pay scale. Pay scales of the posts and grades have been revised and not of the employees with higher qualifications. It is not in dispute that all the petitioners are working on one or the other technical posts are in the different pay scales amongst five unrevised, pay scales and are working since last 20 to 30 years. The endorsement recruitment of the non-matric has been stopped, its natural corollary is that in past non-matrics have been recruited against the posts for which the qualification prescribed is matric with ITI."
So far as the claim of the person who were appointed prior to 1.5.1990 on these posts, whose qualification was not matric with ITI is concerned, the observation of Hon'ble High Court on this issue are as under:-
There is another aspect the qualification is to be seen at the time of recruitment. A person possessing the requisite qualification at the time of recruitment cannot be denied the benefit of the pay scale, if, at any subsequent stage the qualifications are modified. Hon'ble Supreme Court in case of Chandraprakash Madhavrao Dadwa Vs. Union of India reported as 1998(4) RSJ considered the similar question and held as under:-
" 47. To put it in a nutshell, the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment CWP No. 12549 of 2010 12 qualifications could not be altered for applied with retrospective effects so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmations."
Thus, if the petitioners had the requisite qualification to hold the post at the time of their recruitment, any qualification prescribed subsequently will not effect their right to hold the post or their entitlement for the revised pay scales on the ground that they do not possess the qualification prescribed later on."
The same issue has been again considered by the Hon'ble High Court while disposing of CWP No. 10074 of 2010 and CWP No. 10276 of 2010 with the observations which are as under :-
"In view of the above, the petitioners notwithstanding the fact that they are non-matric are entitled to the pay scale of Rs. 1200-2040 w.e.f. 1.5.1990. However, the petitioners shall be entitled to only notional benefits of the aforesaid pay scale and their salary will be fixed at par with juniors without any monetary benefits of arrears. The petitioners shall be entitled to the pay revision, if any thereafter."
In view of the above quoted judgments of Hon'ble High Court, it has been decisioned to grant the benefit of payscales of Rs. 1200-2040 notionally w.e.f. 1.5.1990 and actually from issuance of this letter to those employees whose qualification was not matric with ITI and they were appointed prior to 1.5.1990 on technical post whose qualification is matric with ITI under the provisions of service rules/draft service rules/qualification prescribed otherwise."
The above letter further fortifies the claim as made by the petitioners in these writ petitions where the State has granted pay scale of Rs. 1200-2040 w.e.f. 1.5.1990 even to those employees who were appointed and working on technical posts on or before 1.5.1990 and were not even CWP No. 12549 of 2010 13 possessing qualification of matric with ITI but were eligible for appointment as per then prevelent rules/instructions governing such appointment although matric with ITI has been prescribed now under the provisions of the service rules/draft service rules/qualifications prescribed otherwise. Petitioners are on a better footing as they were holding the qualifications of matric with ITI at the time of their initial appointment.
In view of the above, the present writ petitions are allowed. It is held that the petitioners are entitled to the technical pay scale of Rs. 1200- 2040 w.e.f. 1.5.1990. Direction is issued to the respondents to grant the technical pay scale of Rs. 1200-2040 w.e.f. 1.5.1990 to the petitioners on notional basis. Petitioners shall, however, be entitled to the arrears limiting it to 38 months prior to the date of filing of the writ petition. Arrears be released to the petitioners within a period of three months from the date of receipt of certified copy of the order.
09.11.2012 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE