Punjab-Haryana High Court
Sumitra Devi And Others vs State Of Haryana And Others on 22 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 8401 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
Date of Decision: 22.05.2012
CWP No. 8401 of 2011
Sumitra Devi and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 7908 of 2011
Anoop Singh and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 13518 of 2011
Shamsher Singh and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 13519 of 2011
Ram Rattan and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 13533 of 2011
Sudershan Kaur and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 13534 of 2011
Rakesh Kumar and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 8401 of 2011 2
CWP No. 15712 of 2011
Ranbir Singh and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 15713 of 2011
Tajpal and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 15714 of 2011
Rajender Pal and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 15715 of 2011
Suman Bala and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 15732 of 2011
Karamjeet Singh and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 15749 of 2011
Babloo and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CWP No. 8401 of 2011 3
CWP No. 7362 of 2012
Shashi Bala and others .....PETITIONERS
VERSUS
State of Haryana and others .....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT: Mr. Namit Kumar, Advocate,
for the petitioner(s).
Mr. Harish Rathee, Sr. DAG, Haryana.
AUGUSTINE GEORGE MASIH, J.
By this order, I propose to dispose of 13 writ petitions i.e. CWP Nos. 7908, 8401, 13518, 13519, 13533, 13534, 15712, 15713, 15714, 15715, 15732, 15749 of 2011 and 7362 of 2012 as common questions of facts and law are involved in these writ petitions.
Petitioners have approached this Court praying for a writ of mandamus directing respondents to grant them pay scale of Rs. 1200-2400 w.e.f. 01.05.1990 or with effect from the date of appointment whichever is later, as revised subsequently from time to time and consequently fix their pay and arrears along with interest in view of the notification dated 26.07.1991 as granted in the various judgments passed by this Court dealing with this very notification along with all consequential benefits. All petitioners possess qualifications of Matric or above without I.T.I. except petitioner in CWP No. 8401 of 2011 4 CWP No. 13518 of 2011where petitioner No. 1 to 8 possess B.Sc. degree without I.T.I. and petitioner No. 9 is Matric with I.T.I. and petitioners in CWP No. 7908 of 2011 where the petitioners are ex- servicemen and since their Army qualification has been treated as equivalent to I.T.I., they are claiming the benefit of pay scales. Since the instructions dated 26.07.1991 came into effect from 01.05.1990, the date of appointment of the petitioners is also relevant. All petitioners have been appointed prior to 01.05.1990 except petitioners in CWP No. 13518 of 2011 and petitioners No. 3, 10 and 11 in CWP No. 7362 of 2011 and petitioners No. 3 and 4 in CWP No. 7908 of 2011.
Petitioners contend that they are working as Wireless Operators in the Department of Police and since the post, on which they are working, is a technical post, they are entitled to the technical pay scale which has been granted by the State of Haryana as per its notification dated 26.07.1991 i.e. Rs. 1200-2040 w.e.f. 01.05.1990. Prior to the issuance of the notification dated 26.07.1991, different pay scales were prescribed for all the technical posts in various departments, for which minimum educational qualification prescribed was Matric with I.T.I./Polytechnic Certificate i.e. Rs. 750-940, Rs. 775-1025, Rs. 800-1150, Rs. 950-1400 and Rs. 950-1500. Vide this notification dated 26.07.1991, a decision was taken to modify entry No. 40 in Annexure 'A' of Government Instructions dated 23.08.1990 which stated that minimum educational qualification, as prescribed, is CWP No. 8401 of 2011 5 Matric with I.T.I. Certificate/Diploma from Polytechnic, pay scales would be Rs. 950-1400 and under the head 'modified scale of pay', it was mentioned, recruitment of non-Matric be stopped. The modification provided that for the technical posts in various departments, for which the minimum educational qualification prescribed is Matric with I.T.I. Certificate/Polytechnic, the modified pay scales w.e.f. 01.05.1990 shall be Rs. 1200-2040 and entry 40A was provided which states that for technical posts in various departments, for which minimum educational qualification prescribed is only I.T.I. Certificate/Diploma from Polytechnic without insistence on Matric, the modified pay scale would be Rs. 950-1400. All the petitioners, who are possessing the qualifications of Matric and are working on technical posts, claim pay scale of Rs. 1200-2040 w.e.f. 01.05.1990. The said benefit, despite representation submitted by the petitioners, having not been accepted despite recommendations made by the Inspector General of Police, Telecommunications, Haryana, vide Memo dated 05.08.2011 to the Director General of Police, Haryana, petitioners have approached this Court by way of these writ petitions. It has further been stated that Wireless Operators of Home Guards, Haryana, have been granted the pay scale of Rs. 1200-2040 w.e.f. 01.05.1990 vide notification dated 23.08.1990, which benefit has not been granted to the petitioners although they possess the same qualifications and are performing same duties as Wireless Operators.
CWP No. 8401 of 2011 6
Counsel for the petitioners contends that the petitioners are entitled to the technical pay scale as claimed by them on the ground that they are working on the technical posts and have been discriminated against vis-a-vis the Home Guard Wireless Operators who are performing the same functions and duties as the petitioners. His contention is that all petitioners, who have been initially either appointed as Constable-Wireless Operators or have been, after recruitment as Constables, appeared and passed the aptitude test for the post of Constable Wireless Operators, have been converted from the post of Constable to the Constable-Wireless Operators, are entitled to the technical pay scale despite they not possessing the qualifications of I.T.I. Petitioners No. 1 to 8, who possess the degree of B.Sc. in CWP No. 13518 of 2011, have been appointed in pursuance to an advertisement dated 09.08.1989 where for advertisement was issued for appointment to the post of Constable- Wireless Operators and the qualification prescribed therein was B.Sc. or Matriculation with Radio and T.V. Diploma from an I.T.I. and thus, they are entitled to the technical pay scale as B.Sc. degree has been treated as equivalent to I.T.I. by the respondents themselves. As Petitioner No. 9 in CWP No. 13518 of 2011 possess the qualification of Matric with I.T.I., thus, he is entitled to the benefit of instructions dated 26.07.1991. As regards Petitioners No. 1 and 2 in CWP No. 7908 of 2011, he submits that they are Ex-servicemen and the qualifications obtained CWP No. 8401 of 2011 7 by them during their Army service stand equated and recognized by the Government of Haryana vide its notification dated 21.01.1972 and in any case, he contends that petitioners No. 1 and 2 were appointed as Constable-Wireless Operators prior to 01.05.1990, which itself entitle them to the technical pay scale w.e.f. 01.05.1990 and petitioners No. 3 and 4 from the date of their appointment as Wireless Operators although they were appointed as Constables prior to 01.05.1990 in the light of their Army qualifications. In support of these contentions, counsel for the petitioners has placed reliance upon the judgment of this Court in CWP No. 2579 of 1997 titled as Mukesh Kumar vs. State of Haryana and others, to contend that the instructions dated 26.07.1991 are applicable to the Police Department. Similarly, in CWP No. 15535 of 1990 titled as Sandeep Mehta and others vs. State of Haryana and another, decided on 12.09.2002, this very aspect was reiterated with regard to the applicability of the instructions to the Police Department. A Special Leave to Appeal (Civil) No. 6402 of 2003 challenging this judgment was dismissed by the Supreme Court vide order dated 18.02.2005. Counsel for the petitioners contends that it has been held by this Court in CWP No. 18754 of 1991 titled as Gurdev Singh and others vs. State of Haryana and others, decided on 18.01.2010 that if the petitioners had the requisite qualifications to hold the post at the time of their recruitment, they would be entitled to the technical pay scales even if the qualification prescribed is changed subsequently. He CWP No. 8401 of 2011 8 refers to the judgment of this Court in CWP No. 6927 of 2009 titled as Suresh Kumar and others vs. State of Haryana and others, which was a case of Wireless Operators in the Police Department of Haryana where this Court relying upon Gurdev Singh's judgment (supra), proceeded to grant the petitioners the technical pay scale on the ground that they were working on the technical posts. On this basis, he contends that the petitioners are entitled to the technical pay scale as they are holding the technical posts.
As regards petitioners, who have been appointed after 01.05.1990 and do not possess I.T.I. or equivalent qualifications, he contends that there can be no discrimination between the employees on the basis of the date of appointment within the class and cadre when they are performing the same duties. Since their duties are technical in nature and they are holding technical posts, they are entitled to the technical scales. The judgment of this Court in Gurdev Singh's case (supra) does not distinguish between employees appointed prior or after 01.05.1990. He has also placed reliance upon a judgment of the Supreme Court in the case of State of Punjab and another vs. Suresh Kumar Sharma, 2010 (4) SCT 490, to contend that similar benefit should be granted to all if the same has been extended to some employees falling in the same cadre. Pressing forth the principle of 'equal pay for equal work', he has placed reliance upon the judgment of the Supreme Court in Alvaro Noronha Ferriera vs. Union of India, 1999 (2) SCT 685, to contend CWP No. 8401 of 2011 9 that an employer would be bound to go by the substance in consonance with the grant of equal pay for equal work and grant benefit. He contends that nature of work, duties and responsibilities of the Wireless Operators in Police Department are same as Wireless Operators in the Home Guard Department and, therefore, there cannot be any discrimination and they need to be treated similarly. Reliance has also been placed upon the judgment of the Supreme Court in Commissioner and Secretary to Government of Haryana and others vs. Ram Sarup Ganda and others, 2007 (2) SCT 476, to contend that non-grant of technical pay scales to the seniors would amount to discrimination and an anomaly would be created resulting in juniors getting higher pay than the seniors and, therefore, the seniors would be entitled to stepping up of their pay equivalent to that of their juniors. He, accordingly, prays that these writ petitions be allowed.
On the other hand, counsel for the respondent-State submits that except for petitioners in CWP No. 13518 of 2011, none of the petitioners possesses the qualifications prescribed for appointment to the post of Constable-Wireless Operators as advertised on 09.08.1989 (Annexure P-17) in CWP No. 8401 of 2011. He, thus, contends that the petitioners are not entitled to the technical pay scales as they do not fulfil the requirement for grant of the technical pay scale of Rs. 1200-2400 as provided under instructions dated 26.07.1991. He contends that none of the CWP No. 8401 of 2011 10 petitioners was appointed as Constable Wireless Operators except for petitioners No. 1 and 2 in CWP No. 7908 of 2011 and all of them were either posted or deputed in Telecommunication Wing. They were all recruited as General Duty Constables and since they do not possess the qualifications, they are not entitled to the pay scales, which have been claimed by them through these writ petitions. Reliance has also been placed by the counsel for the respondents upon the judgment of the Supreme Court in Civil Appeal No. 6328 of 1995 titled as State of Haryana and others vs. Jagat Singh and others, where similarly placed employees belonging to the Police Department had approached this Court for grant of the technical pay scale of Rs. 1200-2040 which relief was granted by this Court but the same was not accepted by the Supreme Court vide its judgment dated 13.08.1997. His contention is that the pay parity claimed by the petitioners with the employees of the other civil departments was rejected on the ground that there were other benefits granted to the employees of the Police Department which are not applicable to the employees of the civil departments and the same would disentitle them to the benefit of technical pay scales. His further contention is that the claim of the petitioners is based upon the grant of technical pay scale to the Wireless Operators of the Home Guard Department, which cannot be accepted at this stage as the matter is pending consideration with the Director General of Police, Haryana and, therefore, this ground of discrimination cannot be pressed by the CWP No. 8401 of 2011 11 petitioners at this stage. Accordingly, he prays for dismissal of the writ petitions.
I have heard the counsel for the parties and have gone through the records of the case.
For disposal of the claims, as asserted by the petitioners in these writ petitions, the same will have to be divided into primarily two sets of petitioners i.e. who have been appointed prior to 01.05.1990 and others after this date. It could not be disputed by the counsel for the respondents in the light of the judgment passed by this Court in the cases of Suresh Kumar (supra) and Sandeep Mehta (supra) against which Special Leave to Appeal preferred by the State stands dismissed, that instructions dated 26.07.1991 would apply to the Department of Police, Haryana, which read as follows:-
"Subject: Revision of pay scales of Technical Posts. Sir, I am directed to invite your attention to the subject noted above and to say that the pay scales of some technical posts were revised as follows vide entry No. 40 in Annexure 'A' of Govt. Instructions No. 6/23/3 PR (ID)-88 dated 23rd August, 1990:-
Sr. No. Name of post Existing Pay Modified Pay
Scale Scale
Department for 950-1400 Recruitment of
which minimum non-Matric be
CWP No. 8401 of 2011 12
educational qualification stopped.
prescribed is Matric with
ITI Certificate/Polytechnic
2. It has now been decided to modify the above entry as under:-
Sr. No. Name of the Post Existing Pay Modified Scale of Scale as on pay 1.5.1990 1.1.1986 40 General 750-940 1200-2040 Recommendations 775-1025 regarding technical posts 800-1150 in various departments 950-1400 for which minimum 950-1500 Educational Qualifications prescribed is Matric with ITI Certificate/Polytechnic.
40A. General Recommendations 750-940 950-1400 regarding technical posts 775-1025 in various deptts. for which 800-1150 minimum educational 950-1400 qualification prescribed is only ITI certificate/diploma from Polytechnic without insistence on Matric.
3. The above shall take effect from 1.5.1990."
A perusal of the above would show that as per entry No. 40 in Annexure 'A' of Government Instructions dated 23.08.1990, minimum educational qualifications for the technical posts came to CWP No. 8401 of 2011 13 be prescribed as Matric with I.T.I. Certificate/Diploma from Polytechnic and it was further stated therein that recruitment of non- Matric be stopped, meaning thereby that there were either no minimum qualifications prescribed for appointment to the technical posts or the same were prescribed but there was difference in qualifications in different departments. Wherever the technical posts existed, for which minimum educational qualification prescribed was to be Matric with I.T.I., the pay scales were modified vide Instructions dated 26.07.1991 as Rs. 1200-2040. As is apparent from the advertisement dated 09.08.1989 (Annexure P-17 in CWP No. 8401 of 2011), the qualifications prescribed were B.Sc. or Matriculation with Radio or T.V. Diploma from an I.T.I. Thus, Constables-Wireless Operators, who were appointed to the said post prior to 01.05.1990, irrespective of their possessing I.T.I. Certificate or not being Matric, would be entitled to the pay scale of Rs. 1200-2040. Reference in support of this conclusion of mine can be made to the judgment of this Court in Gurdev Singh's case (supra) where it was held as follows:-
" Thus, if the petitioners had the requisite qualifications to hold the post at the time of their recruitment, any qualification prescribed subsequently will not affect 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.
CWP No. 8401 of 2011 14
In the light of the aforesaid judgments and in view of the interpretation which can be placed with item No. 40 of pay revision rules of 1986 the petitioners, if, working on technical posts cannot be deprived of the revised pay scales of Rs. 1200-2040/- either on the ground that they are non-matric or that they are ITI or not or even they are having trade certificate of a different trade. According to the Memo No. 6/1988 noticed in Labh Singh's judgment- three years experience in trade was also to be considered as equivalent to ITI."
Accordingly, CWP No. 8401, 13519, 13533, 15712, 15713, 15714, 15732 and 13518 of 2011 are allowed as also qua petitioners in CWP No. 7362 of 2012 except petitioners No. 3, 10 and 11 and CWP No. 7908 of 2011 qua petitioners No. 1 and 2 stands allowed. Respondents are directed to grant the pay scale of 1200- 2040 w.e.f. 01.05.1990 as revised from time to time to the petitioners within three months from the date of receipt of certified copy of this order. However, the arrears shall be restricted to 38 months preceding to the date of filing of the writ petitions by them.
Petitioners No. 3 and 4 in CWP No. 7908 of 2011 have been appointed as Constable Wireless Operators after 01.05.1990. They belong to the Ex-serviceman Category and possess qualifications of Matric and Trade Proficiency Certificate obtained by CWP No. 8401 of 2011 15 them under the Trades authorized in Defence Services Regulations Qualifications Regulations for Soldiers 1958. These qualifications possessed by the petitioners have been duly recognized by the Government of Haryana vide notification dated 21.01.1972 (Annexure P-4A in CWP No. 7908 of 2011). Since the petitioners possess the said qualifications, which have been declared as equivalent qualifications to Matric with ITI certificate in Radio Mechanic, the petitioners are held entitled to the technical pay scale of Rs. 1200-2040 with effect from the date of their appointment as Constables-Wireless Operators and subsequently as revised from time to time. Arrears shall be restricted to 38 months prior to the date of filing of the writ petition and the same be paid to the petitioners within three months from the date of receipt of certified copy of this order.
Now moving on to the claim of the petitioners, who have been appointed after 01.05.1990 on the post of Constable-Wireless Operators and do not possess qualifications of I.T.I. i.e. petitioners in CWP Nos.13538, 15715 and 15749 of 2011 and petitioners No. 3, 10 and 11 in CWP No. 7362 of 2011, their claim needs to be directed to be considered by the respondents on the ground that similarly placed Wireless Operators of Home Guard Department, Haryana, have been granted the said pay scale and their nature of work, responsibilities and duties are virtually similar and rather more technical. This claim of the petitioners and similarly placed employees stand CWP No. 8401 of 2011 16 recommended by the Inspector General of Police, Telecommunications, Haryana to the Director General of Police, Haryana. In these recommendations dated 05.08.2011, in paras 1 to 3, it has been stated as follows:-
"1. Vide Commissioner and Secretary to Govt. Haryana Finance Department Letter No. 6/23/3PR (FD)-88 dated 23.08.1990, the pay scales of Wireless Operators of Home Guards Haryana were modified w.e.f. 01.05.90 as detailed in Annexure 'A' (copy enclosed) from Rs. 950- 1500/- to Rs. 1200-2040/-.
2. Telecommunication Wing is a Technical Wing and its nomenclature was changed from wireless to Telecommunication. This is providing communication network to the Police Department as well as share communication with the Police Departments of the adjoining states and Central Security agencies to maintain the law and order in the state. Officials of this wing operate the wireless sets on the various channels as well as the computers with the advanced technology, hence a provision of special pay was made at the time of the enlistment of the existing civilian Radio Personnel of this wing under Section 2 of the Police Act, 1861 vide Govt. Memo No. 6238-M-60/17180 dated 18th May, 1960 (copy enclosed) and thereafter this wing was bifurcated in Punjab & Haryana State in 1966 and at present operators CWP No. 8401 of 2011 17 (constable) are being given special pay @ Rs. 60/-. Thus the duties of Telecommunication Wing are more Technical than an operator of Home Guards but the pay scales of the operators (constable) of this wing have not been modified as of the operators of Home Guards, resultantly they are getting inferior pay scale since 01.05.1990, which is an anomaly in the pay scales, hence the operators(Constable) of this wing are also required to be granted at least same (modified) pay scale as granted to the Wireless Operators of Home Guards.
3. It is, therefore, requested that State Govt. may kindly be requested to grant the modified pay scales to the operators (Constable) of Telecommunication Wing as granted to the Wireless Operators of Home Guards vide aforementioned Finance Department letter, so that the anomaly in the pay scale taken place could be rectified."
In view of the above, there appears to be substance and merit in the recommendations made by the Inspector General of Police, which need to be considered sympathetically and at an early date by the Government. The Court could have proceeded to decide this issue of discrimination but since the matter is already recommended and pending consideration of the competent authority , therefore, in the opinion of the Court, it would be just and appropriate that the decision be taken by the Government at its own level first.
CWP No. 8401 of 2011 18
Accordingly, these petitions are disposed of and a direction is issued to the Financial Commissioner and Secretary to the Government of Haryana, Department of Home Affairs and Department of Finance, Haryana, as also the Director General of Police, Haryana, to consider and decide the recommendations made by the Inspector General of Police, Telecommunications, Haryana, vide his Memo No. 375/CRC-II dated 05.08.2011, within a period of three months from the date of receipt of certified copy of the order. Decision so taken be conveyed to the petitioners forthwith.
Photostat copy of this order be placed on the paper- books of other connected cases.
(AUGUSTINE GEORGE MASIH)
May 22, 2012 JUDGE
pj
CWP No. 8401 of 2011 19