Punjab-Haryana High Court
Ham Raj Garg And Others vs Punjab State Electricity Board on 16 August, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Civil Writ Petition No.6943 of 1992
Ham Raj Garg and others
... Petitioners
Versus
Punjab State Electricity Board
... Respondent
2. Civil Writ Petition No.896 of 1994
Harbans Singh and others
... Petitioners
Versus
Punjab State Electricity Board
... Respondent
3. Civil Writ Petition No.3676 of 1994
Nand Lal and others
... Petitioners
Versus
Punjab State Electricity Board
... Respondent
4. Civil Writ Petition No.10408 of 1997
Sat Pal Sharma and others
... Petitioners
Versus
Punjab State Electricity Board
... Respondent
Date of decision: 16th August, 2010
1. Whether Reporters of local newspapers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 2
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. H.C. Arora, Advocate for the petitioners
in CWP No.6943 of 1992; 896 & 3676 of 1994;
Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Saurabh Arora, Advocate for the petitioners
in CWP No.10408 of 1997.
Mr. Sanjeev Sharma, Advocate for the respondents
in CWP No.6943 of 1992; 896 & 3676 of 1994;
Mr. N.S. Sitta, Advocate for the respondents
in CWP No.10408 of 1997.
KANWALJIT SINGH AHLUWALIA, J.
By this common order, four cases viz. (1) CWP No.6943 of 1992 (2) CWP No.896 of 1994 (3) CWP No.3676 of 1994 and (4) CWP No.10408 of 1997 shall be decided together.
Civil Writ Petition No.6943 of 1992 has been preferred by 49 employees of Punjab State Electricity Board (hereinafter referred to as, 'the Board'), who at the time of filing of the petition, were posted as Divisional /Revenue Accountants. In this writ petition, they have prayed that they be paid salary in the pay-scale of Rs.2200-4250 with effect from 1st January, 1986 as was being paid to Assistant Engineers of the Board on the basis of 'equal pay for equal work'.
Civil Writ Petition No.896 of 1994 has been instituted by six employees of the Board, who were promoted as Divisional Accountants from the post of Lower Division Clerk (LDC)/Upper Division Clerk (UDC). They have also renewed the same prayer that they should be paid salary equivalent to the salary drawn by Assistant Engineers/Sub Divisional Officers in the pay-scale of Rs.2200-4250 with effect from 1st January, 1986.
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 3 Civil Writ Petition No.3676 of 1994 has been filed by 25 Divisional/Revenue Accountants of the Board seeking the similar relief as has been sought in the above said two writ petitions.
During the pendency of the above said three writ petitions, another writ petition bearing Civil Writ Petition No.10408 of 1997 was filed by three employees of the Board, with a prayer that order dated 11th June, 1997 (Annexure P-9) be quashed as it had denied claim of the petitioners that they ought to be granted a pay-scale higher than that of Head Clerks, especially when the post of Divisional/Revenue Accountant is a promotional post and is higher than that of Head Clerk. It has been canvassed in the writ petition that the post of Head Clerk is a feeder- cadre-post for promotion to the post of Divisional/Revenue Accountant.
During the pendency of the above said writ petitions, the Board was bifurcated into two separate entities. Therefore, an application was filed that in place of Punjab State Electricity Board, Punjab State Power Corporation Limited and Punjab State Transmission Corporation Limited be substituted as respondents. Vide separates orders dated 19th July, 2010 and 4th August, 2010, these two Corporations were substituted as respondent No. 1(a) and 1(b).
During the course of arguments, the prayer that the petitioners be granted pay-scale equal to Assistant Engineers/Sub Divisional Engineers, has not been canvassed in the right earnest. The primary grievance projected by counsel for the petitioners is that once a person is promoted from the post of Head Clerk to that of Divisional Accountant and, therefore, the scale of Divisional Accountant cannot be lower than the post of Head Clerk. Promotional avenues envisage added responsibility, therefore the remuneration must be more than the post from which an employee is promoted. To appreciate the arguments Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 4 raised, it will be necessary to cull-out the facts from the above said writ petitions.
Civil Writ Petition No.6943 of 1992 'Ham Raj Garg and others v. Punjab State Electricity Board' It is pleaded in this writ petition that the petitioners were promoted to the post of Divisional/Revenue Accountants after they had qualified Supervisory Accounts Service (Part-I) Examination (hereinafter referred to as, 'SAS Examination'). It is averred that the Board was having 80 Distribution Divisions, 25 Construction Divisions and 30 Protection, Transmission and Maintenance Divisions. Each Division was headed by an Executive Engineer. The accounts of each Division, receipt of revenue and disbursement of expenses were maintained and completed under the supervision of a Divisional/Revenue Accountant. It is stated that Rules 2.15 and 2.16 of the Punjab Departmental Financial Rules (hereinafter referred to as, 'the Rules') define the duties and functions of a Divisional Accounts Officer. The petitioners to justify their claim, have relied upon Article 226 of the Audit Code to say that they can also record a note of dissent in case of unnecessary expenditure. The function of a Divisional Accountant is also to supervise the work of Circle Assistant in the pay- scale of Rs.1800-3200; UDC in the scale of Rs.1200-2200 and LDC in the scale of Rs.950-1800. Therefore, it has been averred that the post of Divisional Accountant is superior to the post of Head Clerk. The post of Head Clerk is filled up by the Board on promotion from Circle Assistant/Assistant Revenue Accountants on seniority-cum-merit basis. There is no direct recruitment to the post of Head Clerk and the minimum qualification for the post of Head Clerk is Matric and he is not required to qualify any departmental accounts examination. Whereas, for becoming a Divisional/Revenue Accountant, one has to pass SAS Examination. But as per regulation 8-A of the Punjab State Electricity Board Accounts Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 5 Service Class-III, Regulations 1991 (hereinafter referred to as, 'the Regulations') a Divisional/Revenue Accountant is to be appointed by promotion from LDCs/UDCs/Circle Assistants/Assistant Revenue Accountants/Head Office Assistants/Head Clerks etc., only after they had qualified SAS Examination. The petitioners have laid much emphasis on the fact that historically Divisional/Revenue Accountants have always been placed in a higher scale of pay than the pay-scale drawn by Head Office Assistants. It is stated that at the time of inception of the Board the pay-scale of a Head Clerk was Rs.125-235, whereas, that of a Divisional/Revenue Accountant was Rs.130-355 and later-on the pay- scale of a Head Clerk was Rs.150-300 and that of a Divisional/Revenue Accountant was Rs.175-400. On 1st June, 1967, a Head Clerk was drawing the pay-scale of Rs.225-15-300/20-500, whereas a Divisional/Revenue Accountant was in the pay-scale of Rs.250-15- 295/20-535. Heavy reliance has been placed upon the following table to urge that except 1st January, 1986, when Divisional/Revenue Accountants were placed in a pay-scale lower than that of the Head Clerk, they have always been drawing higher pay-scale (Placing the Divisional/Revenue Accountants in a lower scale with effect from 1st January, 1986 is under challenge):
History of the pay scales of Divisional Accountants and Head Clerks which were allowed by the PSEB from time to time Name of Pay-scale Pay-scale Pay-scale Pay-scale Pay-scale the post as on during w.e.f.1.1.6 w.e.f.1.1.7 w.e.f.1.1.86 1.2.59 1960-61 7 8 Head Clerk 125-235 150/300 225/500 620/1200 2000/3500 (125-6- (150-10- (225-15- (620-20- (2000-50-
135/8-235) 300) 300/20- 700-25- 2400-60-
500) 850/30- 2700-75-
1000-40- 3000-100-
1200) 3500)
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 6
Divisional 130/355 175/400 250/535 750/1300 1880/3300
Accountant (130-10- (175-15- (250-15- (750-25- (1880-40-
250/15- 400) 295/30- 850/30- 2000-50-
355) 535) 1000-40- 2400-60-
This scale 1200/50- 2700-75-
was 1300) 3000-100-
tentatively 3300)
revised.
It has been further stated that Divisional/Revenue
Accountants are performing duties and holding positions analogous to that of Sub Divisional Officers, therefore, the Board has done a grave injustice by not granting pay-scale of Rs.2200-4250, which has been granted to the Sub Divisional Officers, who have been granted initial start of Rs.2400/-. Thus, the following two claims have been made in this writ petition:
(a) The nature of job, functions and duties of Divisional/Revenue Accountants, being supervisory in nature and the kind of responsibility, which has been entrusted to them, they cannot be treated lower than the Assistant Engineers/ Divisional Accounts Officers.
(b) LDCs/UDCs/Circle Assistants/Head Office Assistants/Head Clerks constitute a feeder cadre for promotion to the post of Divisional/Revenue Accountant, therefore, a Head Clerk cannot be placed in a higher scale of pay than that of a Divisional Clerk, as before 1st January, 1986 the Divisional/Revenue Accountants were already placed in a higher scale of pay than the scale drawn by the Head Clerks.
Respondent-Board has raised a preliminary objection to contend that the Divisional/Revenue Accountants are not entitled to get wages and allowances at par with Sub Divisional Engineers/Assistant Engineers, as this issue stood settled by the Award pronounced by the Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 7 Industrial Tribunal Punjab on 29th October, 1993. Reliance has been placed upon the following extract of the Award:
"I have considered the evidence and heard the parties. SDOs are appointed by the Chairman of the Punjab State Electricity Board and Divisional Accountants are appointed by the Chief Accounts Officer. So their appointing authority is not the same. The job and work of Sub Divisional Officer is completely field oriented, as he has to look after the electric supply and maintenance of lines, whereas the job of the Divisional Accountant is office oriented and he is not to work in field. Sub Divisional Officer is appointed either from the persons, who are degree holders in Engineering or Junior Engineers, who have a Diploma and they have also quota. Divisional Accountants are not required higher qualifications and are promoted from the Accountants. There is no similarity or equalness between the Divisional Accountants and Sub Divisional Officers. There sphere of work, nature of duty and the qualifications are different. In this situation, there is no justification in the demand of Divisional Accountants to be equated with Sub Divisional Officers."
It is further submitted that the sphere of work, nature of duties and functions/responsibilities at the level of Divisional Accountants/Assistant Engineers are entirely different, so are the qualifications prescribed. It was submitted that Assistant Engineers are recruited directly from the persons who hold a degree in Engineering with specialization in the field of Electrical, Electronics Communication etc. or they are promoted from the persons holding a degree of AMIE. It is further averred that a Divisional Accountant cannot be equated with a Head Clerk, as the Head Clerk after change of cadre from the administrative side to the cadre of Divisional Accountant on accounts side gets avenues for further promotion. It is also submitted that a Head Clerk can only be promoted as a Circle Superintendent, whereas after taking Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 8 shift from administrative side as a Head Clerk to accounts side as a Divisional Accountant, one can rise higher in the ladder of career by getting promotions as an Accounts Officer, Senior Accounts Officer, Deputy Chief Accounts Officer/Deputy Chief Auditor/Deputy Financial Advisor and Chief Accounts Officer/Chief Auditor. Civil Writ Petition No.896 of 1994 'Harbans Singh and others v. Punjab State Electricity Board' And Civil Writ Petition No.3676 of 1994 'Nand Lal and others v. Punjab State Electricity Board' These writ petitions and the replies thereto, in sum and substance, reiterate the facts, grievances and arguments noticed above in CWP No.6943 of 1992. However, in CWP No.896 of 1994, the petitioners have spelt-out their grievances in precise words as under:
"i) That the petitioners are being deprived of the pay scale of Rs.2200-4250/-, as admissible to the Assistant Engineers/ Sub Divisional Officers which is a post declared as equivalent in status to the post of Divisional Accountant/Revenue Accountant as per various decisions and orders which would be referred to in the subsequent paragraphs in this writ petition.
ii) That the present pay scale of the petitioners has been fixed lower to the pay scale given to the Head Clerks in the Electricity Board although post of the Divisional/Revenue Accountant is promotional post for the Head Clerks, and although qualifications for recruitment of the Divisional/Revenue Accountants, and their status and responsibility have been much higher than those of the Head Clerks."
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 9 Civil Writ Petition No.10408 of 1997 'Sat Pal Sharma and others v. Punjab State Electricity Board' This writ petition, filed later in time, is more detailed and contains facts chiseled in the context of rules reproduced. It is stated that the post of Divisional/Revenue Accountant is governed by Punjab State Electricity Board Accounts Service Class-III Regulations, 1991. According to these Regulations, the posts of Divisional Accountant are filled-up, inter-alia, by promotion from amongst the LDCs/UDCs/Circle Assistants/Assistant Revenue Accountants/Head Office Assistants/Head Clerks, who opt for cadre of Divisional Accountants and have two years service as such. The feeder cadres are also required to pass SAS Examination. Regulation 8 of the Regulations has been reproduced as under:
"Appointment to the service:
Appointment to the service shall be made in the following manners:-
i) by direct appointment as provided in Regulation 8(A)
ii) by promotion as provided in Regulation 8(a).
iii) by transfer of an official already in service of any other State Electricity Board or Govt. or any other undertaking of the Govt. If a suitable candidate is not available by the aforementioned two methods.
QUALIFICATIONS AND MODE OF APPOINTMENTS 8(A) The mode of appointment and the minimum educational and other qualifications and experience required for different classes of posts in the service shall be as under:-
Name of Method of appointment Minimum Minimum
post educational experience
& other
qualification
s
1&2 XXX XXX XXX
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 10
3. Divisional i) By appointment from After 2 years
Accountant amongst Apprentice passing SAS service.
Divisional Accountant Part-I
ii) By promotion from Examination
amongst LDCs/UDCs/
Circle Asstts/ ARA/Head
Office Asstt./ Head Clerk,
ASK/SK who opt for the
cadre of Divisional
Accountant.
4. XXX XXX XXX
Relying upon the table, which has already been reproduced in CWP No.6943 of 1992, it has been averred that the promotional post of Divisional Accountant has throughout been in a pay-scale higher than the feeder post of Head Clerk except after 1st January, 1986 when the post of Divisional Accountant was placed in the lower pay-scale as compared to that of the Head Clerk.
One of the petitioners, Surinder Kumar Garg, had earlier filed CWP No.5087 of 1997 in this Court and a Division Bench of this Court on 11th April, 1997 passed the following order:
"The petitioners in the first instance would file a detailed representation mentioning all the facts, circumstances and events which have taken place during the year 1992 uptil today, if the petitioners file such a representation, the same would be decided by the authorities concerned without any delay and preferably within a period of one month of the making of such a representation. The decision be taken by a speaking and well reasoned order."
It is stated that in pursuance of the aforesaid order, a representation (Annexure P-8) was submitted and vide impugned order (Annexure P-9), the same was rejected. Before a reference is made to the impugned order (Annexure P-9), it will be pertinent to notice that the Divisional Accountants of the Board have been agitating their claim for the grant of pay-scale higher than that of the Head Clerk, in various forums of the Board. A reference can be made to minutes of the meeting Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 11 held on 14th September, 1992 between the Member/Finance, PSEB and PSEB Accounts Audit & Administrative Services Association (Regd.), which read as under:
"The Association told that since the inception of the Board till 1986 the pay scale of Divisional Accountants/Revenue Accountants has always been higher than that of Head Clerk and Head Draftsman. They further informed that before 1986 the grade of Head Clerk was 620/1200 and that of Head Draftsman was 700/1200 whereas the pay scale of Divisional Accountants/ Revenue Accountants was 750/1300 but after the revision of 1986 in pay scales the pay scales of Divisional Accountant is Rs.1880/3300 and that of Head Clerk and Head Draftsman is Rs.2000/3500. They have demanded that this anomaly may be removed and that the Divisional Accountants be given higher pay scale than that of Head Clerk and Head Draftsman on the basis of earlier pay scales.
Member/Finance and Accounts has opined that this demand is genuine on the face of it still it is desired that the Deputy Secretary/P.R.C. should consider this matter and see that how this category has been discriminated and put up the case."
On 15th June, 1995 another meeting was held and the same was deferred to await the report of the Anomaly Sub Committee. Thereafter, another meeting was held on 16th September, 1996 and a perusal of the minutes (Annexure P-7) of that meeting reveals that the matter was postponed to await the report of Wage Formation Committee. The impugned order (Annexure P-9), while deciding representation (Annexure P-8), relied heavily on the report of Pay Anomaly Committee. This order noticed the broad parameters drawn by the Anomaly Committee to cause intervention. The Anomaly Committee had drawn the following guidelines to cause or not to cause interference:
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 12
(a) The anomaly arising in the matter of pay-scales after 1st January, 1978 should be looked into where there is some glaring anomalous position.
(b) The parity anomalies were to be considered among the categories of employees having similar nature of duties and responsibilities.
(c) The employees of the Board have been allowed Govt.
scales, corresponding to the scales granted by the Govt. to the corresponding categories of posts.
Therefore, pay structure and the pay-scales were to be kept in consonance with the pay-scales granted to Govt. employees pertaining to various categories of posts. The demand of pay parity by the ministerial staff with the technical staff was kept out of consideration. To decide the representation (Annexure P-8), a Committee was constituted consisting of the Chief Auditor, Legal Advisor and Deputy Secretary (Finance). This Committee reiterated the report of the Anomaly Committee to deny higher pay-scales to the Divisional/Revenue Accountants than that of Head Clerk on the ground that Head Clerk has got only one promotional avenue as Circle Superintendent, whereas Divisional Accountant after shifting the cadre from ministerial to accounts side, has a chain of promotions available.
Having noticed the facts, now it is time to deal with the arguments advanced by counsel for the parties.
Mr. Rajiv Atma Ram, Senior Advocate assisted by Mr.Saurabh Arora, Advocate, appearing for the petitioners in CWP No.10408 of 1997, has relied upon a judgment rendered by a Division Bench of this Court in 'Har Kishan and another v. State of Punjab' 1987 (5) SLR 539 to contend that once regulation 8 of the Regulations Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 13 specifies that Head Clerk, after passing SAS Examination, is to be promoted as Divisional Accountant, then in no way the stance of the respondent-Board that an incumbent on the promoted post will draw a scale of pay lower than the post from which he was promoted, can be held tenable. It is stated that in this way an anomaly exists. To borrow the words from the Division Bench Judgment rendered in Har Kishan's case (supra), it is highly irrational to place a junior post and a higher post in the same scale of pay. In the present case, it is otherwise. Higher post is getting lower scale of pay. Thus, this Court should allow the writ petition.
To fortify this submission, further reliance has been placed upon another judgment of a Division Bench of this Court rendered in 'Sunder Lal Jain v. State of Haryana' 1995(2) SLR 94, wherein relying upon 'Mani Ram and others v. State of Haryana and others' (Civil Writ Petition No.10534 of 1991, decided 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." In Sunder Lal Jain's case (supra), it was further held as under:
"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, be wholly arbitrary."
Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 14 Having canvassed the point that pay-scale of the promoted post cannot be lower than the post from which promotion is caused, Mr.Ram has submitted that he is conscious that the administrative action cannot be made subject matter of a judicial review until such a decision is unreasonable, unjust and prejudicial to a section of the employees and is taken in ignorance of material and relevant factors. In support of this submission, 'Haryana State Minor Irrigation Tubewells Corporation and others v. G.S. Uppal and others' (2008) 7 Supreme Court Cases 375 has been cited. The relevant portion of this judgment reads as under:
"21. There is no dispute nor can there be any to the principle as settled in the abovecited decisions of this Court that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. (See K.T. Veerappa v. State of Karnataka - (2006) 9 SCC 406.) In the light of above, this Court will have to examine as to whether the decision of the respondent-Board to grant higher pay-scale to the post of Head Clerk from which one is promoted as Divisional Accountant, a post with lower pay-scale, is unreasonable, unjust and prejudicial to interests of the employees or not.
Before this course is adopted, it is necessary to take note of the arguments advanced by counsel for the respondent-Board.
It is submitted that LDC/UDC/Circle Assistant/Assistant at Head Quarter/Assistant Revenue Accountant, all are in lower scale of pay Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 15 and after passing of SAS Examination they are promoted to the post of Divisional Accountant, therefore, for all these ranks appointment to the post of Divisional Accountant is a promotion. It is only in the case of a Head Clerk that an option is given to change the cadre from ministerial staff to that of account staff, where more opportunities of promotion accrue. It is submitted that among all the petitioners, only Satpal Sharma was holding a charge of officiating Head Clerk, whereas Megh Raj Garg was actually working as Head Clerk. Therefore, except these two persons, all other petitioners promoted to the post of Divisional Accountant are from the rank of LDC/UDC and others. Therefore, in actual terms, it was promotion for them.
Mr. Sanjeev Sharma, Advocate appearing for the respondent Board, has stated that the Pay Commission and the Anomaly Committee noticed various factors to grant higher pay-scale to the Head Clerks, which can be enumerated as under:
(a) One is promoted to the post of Head Clerk after having put-in service of 25 years or more.
(b) The post of Head Clerk is almost end of the road, so far as promotional avenues are concerned. Head Clerk could only be promoted to one post higher in rank, i.e. Circle Superintendent.
(c) In case of Divisional Accountant, as noticed by the Anomaly Committee, there are various opportunities of promotion.
Counsel for the respondent-Board has further submitted that the authorities have failed to amend the rules after accepting the report of the Pay Commission. Furthermore, it was for the Head Clerks to take a conscious decision whether to make a shift in their career towards Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 16 accounts branch or not. Counsel for the respondent-Board has highlighted the following portion of the report of Pay Anomaly Committee:
"That Committee constituted in 5/93, also did not recommend any improvement in the scale of Divnl.Acctt./Revenue Acctt. Considering that there is no parity of these categories with the Head Clerks as their nature of duties are different, promotional channels are different. The promotion to the post of Head Clerk comes almost at the fag end of his service, which ends at the level of Circle Supdt. only, that too if turn for promotion comes, whereas in the case of Divnl.Acctt./Rev. Acctt. Even LDCs/UDCs/S.Typists etc. having 2/3 years service, get promotion as such, after negotiating DAE of Ministerial Estt. and then SAS Part-I. They cannot thus compare themselves with those promoted as Head Clerks after putting more than 25/30 years' of service in various capacities before getting promotion as Head Clerks. The experience has its own weight and cannot be undermined. SAS Part-I Exam. is not obligatory. Whosoever aspires for a brilliant and accelerated career can opt to do so and has the chance to become SAS Acctt. And on clearing Part-II Exam; he becomes entitled for promotion as A.O./Sr.A.O. and so on."
Considering the entire gamut of facts, which have been laid before this Court and the arguments advanced, this Court is of the opinion that for a person holding the post of Head Clerk, appointment to the post of Divisional Accountant cannot be held as a promotion. In support of this view formulated by this Court, a reference can be made to 'Tarsem Singh and another v. State of Punjab and others' 1994 (3) SCT 604. In the Labour Department, from the ministerial staff one was eligible to seek promotion to the post of Labour Inspector. Holder of the rank of a Superintendent was also eligible to be promoted as Labour Inspector. The post of the Superintendent was having a higher scale of Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 17 pay than the post of a Labour Inspector. The Hon'ble Apex Court came to a conclusion that for a person holding post of Superintendent, it can in no way be termed as promotion and he is not entitled to be appointed as a Labour Inspector. Relevant portion of the judgment rendered in Tarsem Singh's case (supra) is reproduced as under:
"5. The question for our consideration is whether the Superintendents in the pay-scale of Rs. 350-450/- (revised Rs. 2000-3500/-) can seek "promotion" to the post of Labour Inspector having the pay-scale of Rs. 200-450/-(revised Rs. 1500-2640/-). A learned single Judge of the Punjab and Haryana High Court has answered the question in the affirmative. The Letters Patent Bench has upheld the judgment of the learned single Judge. This appeal by way of special leave is against the judgments of the High court.
6. Naresh Kumar and Tarsem Kumar respondents in the appeals herein, were promoted to the post of Assistant in the Punjab Labour Department on December 4,1975 and February 17, 1977 respectively. Tarsem Singh - appellant, joined the department as Stenographer on March 15, 1976. Roshan Lal - appellant, was promoted to the post of Assistant on March 3, 1977. It is not disputed that Naresh Kumar and Tarsem Kumar were senior to the appellants in the cadre of Assistant/Stenographer. The respondents were further promoted to the post of Superintendent on July 22, 1988. The appellants were promoted to the post of Labour Inspector Grade I under Rule 8(1)(a)(i) of the Rules on may 8, 1991. The respondents challenged the promotion of the appellants to the post of Labour Inspector by way of a writ petition before the High Court on the ground that the post of Superintendent held by them, was a ministerial post and as such they being ministerial employees were entitled to be promoted to the post of Labour Inspector earlier to the appellants. As mentioned above, this contention of the respondents was accepted by the High Court.
7. We are constrained to say that the language of Rule 8(1)(a)(i) on the face of it is deceptively ambiguous Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 18 and, has led to this unnecessary litigation between the employees. Often, we come across statutory rules/executive instructions, purporting to regulate the conditions of service of the Government employees, which are drafted in such a casual manner that they create problems for the employees rather than straightening their service-conditions. Lack of application of mind is writ large on most of the statutory rules/executive instructions regulating the recruitment and conditions of service of employees. It is high time that the concerned Government authorities should have a fresh look at the existing rules/executive instructions with a view to make them simple and easy to operate.
8. Rule 8(1)(a)(i) of the Rules provides that 25 per cent of the posts of Labour Inspector are to be filled by way of promotion from amongst the ministerial employees. There are 16 cadres under the heading "ministerial staff", employing large number of persons. Every ministerial employee can stake his claim to be considered for promotion to the post of Labour Inspector. There is no indication in the rule as to how and in what manner the promotions of such a large number of ministerial employees to the cadre of Labour Inspector is to be regulated.
9. A person holding the post of Superintendent may be a "ministerial employee" but unless his appointment to the post of Labour Inspector can be made by way of promotion, he is not eligible under Rule 8(1)(a)(i) of the Rules. Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour. Opting to come to a lower pay-scale or to a lower post cannot be considered a promotion, it is rather a demotion. A superintendent in the Labour Department who is holding a higher pay-scale and higher status cannot seek promotion to the post of Labour Inspector which post is lower in grade and status. Since a ministerial employee - under Rule 8(1)(a)(i) - can be appointed Labour Inspector only by Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 19 the process of promotion, a Superintendent, who is in a higher pay-scale, cannot seek promotion to the post of Labour Inspector and as such is not eligible for the same under Rule 8(1)(a)(i). Even otherwise it is difficult to comprehend why a person drawing a higher pay-scale and enjoying a better status as a civil servant should hanker for a post which is carrying lesser pay and is comparatively of lower status. We are, therefore, of the view that only those ministerial employees are eligible for promotion under Rule 8 (1)(a)(i) who are in the pay-scale which is equal or lower than the pay-scale of the post of the Labour Inspector. The State Government was justified in issuing the instructions dated May 5, 1991 to the effect that promotions to the posts of Labour Inspector Grade-II and Grade-I from the ministerial cadre shall be from amongst the incumbents holding the posts of lower scales or the same scale and the persons holding posts carrying higher scale of pay shall be deemed to have forfeited their right to be considered for promotion to the rank of Labour Inspector Grade-I. The High Court fell into patent error in holding that the instructions ran counter to the provisions of Rule 8(1)(a)(i) of the Rules. When examined in view of the meaning given by us to the expression "promotion", the instructions are only supplemental to the Rules and are not contrary to the same."
In view of the ratio of above judgment, it can be safely inferred that it was for the Head Clerk to make a conscious decision to opt for the post of Divisional Accountant or not. During the course of arguments it has been informed that even if the Head Clerk who had opted to shift the cadre from the ministerial staff to the accounts side, their pay was protected. In other words, no monetary loss accrued to such incumbent, but new vistas of promotion were opened. Thus, a Head Clerk having opted to become a Divisional Accountant cannot make a grouse that he should necessarily be granted a higher pay-scale. This is Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 20 so inferred, because except for the post of Head Clerk, for all other posts in the feeder cadre, it is a promotion and grant of higher pay-scale too.
This Court finds substance in the arguments noticed by the Pay Anomaly Committee to reject the claim of the petitioners. In the impugned order (Annexure P-9), the grounds enumerated to decline the prayer of the petitioners are valid and appropriate. Thus, neither the stand of the Anomaly Committee can be termed as unreasonable nor prejudicial to the interests of Head Clerks.
The second argument advanced that right from the very inception, Divisional Accountants were drawing a higher pay-scale than that of the Head Clerks, therefore, shift made with effect from 1st January, 1986 is not justifiable, is required to be examined by this Court. It was held by Hon'ble the Apex Court in 'Secretary Finance Department and others v. West Bengal Registration Service Association and others' 1993 Supp (1) SCC 153 that equation of post and determination of pay- scales is primarily a function of the executive and not the judiciary. It should be left to the expert bodies, like Pay Commission. It was observed by Hon'ble the Apex Court as under:
"12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 21 and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him
(vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level,
(x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as Civil Writ Petitions No. 6943 of 1992; 896 & 3676 of 1994; and 10408 of 1997 22 well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice."
On the touchstone of the above observations, no fault can be found with the reasoning given by the Pay Anomaly Committee. This view has been further reiterated by Hon'ble the Apex Court in 'State Bank of India and another v. M.R. Ganesh Babu and others' 2002 (4) SCC 556; 'Union of India and another v. S.B. Vohra and others' (2004) 2 SCC 150; and 'State of Haryana and another v. Haryana Civil Secretariat Personal Staff Association' 2002(6) SCC 72.
In view of the law propounded by Hon'ble the Apex Court, as aforesaid, the reasoning adopted by the Pay Anomaly Committee suffers from no infirmity. Thus, this Court cannot come to the rescue of the petitioners and the present petitions are hereby dismissed, being devoid of any merit.
[KANWALJIT SINGH AHLUWALIA] JUDGE August 16, 2010 rps