Punjab-Haryana High Court
Jai Pal vs State Of Haryana And Others on 12 September, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 19547 of 2011 and other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of Decision : September 12 , 2012
CWP No. 19547 of 2011
Jai Pal
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CWP No. 11452 of 2011
Rajpal and another
.... PETITIONERS
Vs.
State of Haryana and others
..... RESPONDENTS
CWP No. 3355 of 2012
Ram Phal and others
.... PETITIONERS
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Ram Niwas Sharma, Advocate,
for the petitioners (in CWP Nos. 19547 and 11452 of
2011)
Ms. Monica Thakur, Advocate,
for Mr. Puneet Bali, Advocate,
fore the petitioners (in CWP No. 3355 of 2012)
Mr. Harish Rathee, Sr. DAG, Haryana.
CWP No. 19547 of 2011 and other connected cases 2
AUGUSTINE GEORGE MASIH, J.
By this order, I propose to dispose of three writ petitions i.e. CWP No. 19547 of 2011 titled as Jai Pal vs. State of Haryana and others, CWP No. 11452 of 2011 titled as Rajpal and another vs. State of Haryana and others and CWP No. 3355 of 2012 titled as Ram Phal and others vs. State of Haryana and others, wherein common questions of fact 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. 19547 of 2011 titled as Jai Pal vs. State of Haryana and others.
Petitioner has approached this Court for issuance of a writ of mandamus directing the respondents to step up his pay at par with his junior Suresh Chander-respondent No. 4 by allowing the pay scale of ` 1200-2040 w.e.f. 01.05.1990 as the same pay scale has been allowed to his juniors having qualification of Matric and ITI diploma, whereas the same has been denied to him only on the ground that he does not possess the ITI qualification.
Petitioner was appointed as Store-Man on 04.11.1986. He possessed qualification of Matriculation. At the time of appointment, there was no qualification prescribed for the said post nor was any statutory Rule governing the service. Respondent No. 4 was appointed as a Store-Man on 09.02.1989. He possessed the qualifications of Matric and ITI diploma in Motor Mechanic Trade. CWP No. 19547 of 2011 and other connected cases 3 Petitioner was promoted as an Assistant Store Keeper on 21.02.2002 under the statutory Rules which came into effect in the year 1995 and thereafter, as Store Keeper w.e.f. 21.07.2006 and since then, he is discharging his duties to the entire satisfaction of his superiors. At the time of appointment of the petitioner and respondent No. 4 as Store-Man, there were no statutory Rules governing the service.
The Haryana State Transport Department, Haryana Roadways (Group-D) Services Rules, 1998 (hereinafter referred to as '1998 Rules') were framed by the respondents. According to these Rules, for the first time, qualification for the post of Store-Man has been prescribed as Certificate from ITI in Motor Mechanic Trade. The same is provided under Rule 7 (Appendix-B) attached thereto.
State of Haryana earlier framed the Haryana Transport Department (Group-C) Haryana Roadways Service, Rules, 1995 (hereinafter referred to as '1995 Rules') which deals with appointment/promotion to the posts of Assistant Store Keeper and Store Keeper apart from other posts. Rule 7 of the said Rules deals with the recruitment to the service and in Clause (n) thereof, the post of Assistant Store Keeper is mentioned as also the modes of appointment. Appendix-B to the Rules specify the different qualifications thereunder. For direct recruitment, the qualification prescribed is ITI Certificate in Motor Mechanic but for promotion, the said ITI Certificate is not required. What is required is five years experience as Store-Man. Further promotion from the post of CWP No. 19547 of 2011 and other connected cases 4 Assistant Store Keeper is to the post of Store Keeper, which post is to be filled up by 100% promotion. Qualification for this post is again provided in Appendix-B, which is three years experience on the post of Assistant Store Keeper. Since the petitioner fulfills the requisite qualifications for promotion to the post of Assistant Store Keeper and Store Keeper, he was promoted by the respondents to the said post.
Petitioner has approached this Court with a grievance that respondents issued a seniority list of Store-Man in which petitioner was assigned seniority No. 68 and respondent No. 4 was placed at seniority No. 92. While the petitioner is drawing ` 9310/- as basic pay but respondent No. 4, who is junior to the petitioner, is drawing ` 12050/- as basic pay. This distinction has come into effect because of the fact that respondent No. 4 has been allowed technical pay scale of ` 1200-2040 w.e.f. 01.05.1990 having qualification of Matric and ITI diploma whereas the same has not been allowed to the petitioner on the ground that he is a non-ITI. This, the petitioner contends, is in violation of the decisions of the Government dated 23.08.1990 and 26.07.1991, by which general recommendations for grant of pay scales have been made for the post in various departments, for which minimum educational qualification prescribed is Matric with ITI Certificate/Polytechnic where pay scale of ` 1200- 2040 w.e.f. 01.05.1990 has been allowed to the employees working against the post in various departments for which minimum educational qualification has been prescribed is Matric with ITI. It CWP No. 19547 of 2011 and other connected cases 5 has been submitted that similarly placed employees, namely, Sh. Nafe Singh, Assistant Store Keeper, Sh. Ramesh Chandra, Assistant Store Keeper, Bhagat Singh, Assistant Store Keeper have been awarded the technical pay scale of ` 1200-2040 w.e.f. 01.05.1990, which benefit has not been granted to the petitioner. Claim for this scale is based upon the circulars dated 23.08.1990 and 26.07.1991.
Apart from a Division Bench judgment of this Court in CWP No. 2032 of 2000 titled as Attar Singh and others vs. State of Haryana and others, decided on 17.09.2002, wherein it has been held that even if the statutory Rules, on the date of coming into force of these circulars, did not prescribe the minimum qualifications for the said post, if an employee possessed the said qualifications, he was entitled to the technical pay scale of ` 1200-2040 w.e.f. 01.05.1990, reliance has also been placed upon the judgment of 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, wherein it was held that if the petitioners had the requisite qualifications to hold the post at the time of their recruitment, any qualifications prescribed subsequently will not affect their right to hold the post or their entitlement for the revised pay scale on the ground that they did not possess the qualifications prescribed later on. On this basis, it has been contended that the petitioner, at the stage of initial appointment as Store-Man, fulfilled the then prescribed qualifications and merely because now ITI certificate as been prescribed as a qualification for CWP No. 19547 of 2011 and other connected cases 6 appointment to the post of Store-Man would not disentitle him of the pay scale of ` 1200-2040, which has been granted to his juniors only on the ground that they possess ITI certificate/diploma qualifications. Accordingly, it has been prayed that the petitioner be held entitled to the technical pay scale of ` 1200-2040 which has been granted to his junior and similarly placed employees in the Transport Department.
Respondents have contested the claim, as has been made by the petitioner in the present writ petition. It has been submitted that since the creation of the State of Haryana in 1966 till 1995, there were no rules governing the service conditions of class III employees in the Transport Department of Haryana. These conditions were governed by various instructions issued by the Transport Commissioner from time to time. Class III employees were categorized as skilled, semi-skilled and unskilled. Haryana Transport Department (Group-C) Haryana Roadways Service, Rules, 1995 were framed and thereafter, Haryana State Transport Department, Haryana Roadways (Group-D) Services Rules, 1998 were notified, wherein the qualifications were statutorily provided for the various posts. Under the unskilled category, persons carry the designations of Helpers and Cleaners etc. Semi-skilled categories are Assistant Fitters, Assistant Electricians, Assistant Welders and Assistant Turner etc. whereas skilled categories carry the designations of Mechanics, Fitters, Electrician, Welders and Turner etc. A provision for direct CWP No. 19547 of 2011 and other connected cases 7 recruitment is only at the lowest level i.e. semi-skilled level and rest of the levels are filled up only by way of promotions. The Notifications dated 23.08.1990 and 26.07.1991 only contemplated of providing a particular pay scale to all the persons holding a technical post where the requisite qualification for the said post included ITI certificate in the respective trade. There is a difference between required qualification for a post and the qualification possessed independent of prescribed qualification. The terms and conditions of a post are always governed by the qualifications for the post and mere possession of a qualification independently without holding a post would not entitle a person to a particular scale/pay. The requisite qualification for the post of Assistant Store Keeper/Store Keeper by promotion is only Matric with Hindi+three years/five years experience. Only at the time of initial appointment is the qualification of Matric with ITI diploma prescribed. Respondent No. 4 is having the qualification of a technical post, which is Matric with ITI diploma and the petitioner does not fulfil the conditions of the technical post at the time of his initial appointment, therefore, he is not entitled to the technical pay scale of ` 1200-2040 and cannot be treated at par with his juniors. The posts of Store-Man, Assistant Store Keeper and Store Keeper are not notified as technical posts by the State Government and, therefore, the petitioner is not entitled to the claim, as has been made in the present writ petition.
CWP No. 19547 of 2011 and other connected cases 8 Counsel for the parties have made their submissions primarily based upon the pleadings, as have been referred to above. I have, with their assistance, gone through the records of the case.
The facts are not in dispute and, therefore, for brevity, are not being referred to again. It is not in dispute that at the time the petitioner and respondent No. 4 were appointed to the post of Store- Man, there were no statutory Rules governing the services and the petitioner was qualified to hold the said post. It is an admitted fact that till the coming into force of the 1995 Rules and the 1998 Rules, the service conditions of Class-III employees in the Transport Department of Haryana were governed by the instructions issued by the Transport Commissioner from time to time. Petitioner possessed the qualifications for appointment to the post of Store-Man when he was initially appointed. It is not disputed that prior to the coming into force of the statutory Rules, ITI qualification was not prescribed for the said post and for the first time, this qualification for recruitment to the post of Store-Man was introduced by the 1998 Rules. Under these Rules, the qualification now prescribed is Matric with ITI certificate in Motor Mechanic Trade. At the time of promotion of the petitioner as Assistant Store Keeper, the 1995 Rules have come into force, in Appendix B of the said Rules, the qualifications prescribed for the post of Assistant Store Keeper and that of Store Keeper are as follows:-
CWP No. 19547 of 2011 and other connected cases 9 "Sr. Designation of Posts Scale of Pay No. 1. 2. 3 Direct Promotional
18. Assistant Store (i) ITI certificate in Motor (i) Matriculation with Keeper Mechanic Hindi
(ii) Preference will be given to those having experience in handling automobile store or ledger (ii) Five years in Government semi-Govt. Experience as Departments or public Storeman undertakings
15. Store Keeper (i) Matriculation with Hindi
(ii) Three years experience on the post of Assistant Store Keeper"
A perusal of the above would show that for appointment to the post of Assistant Store Keeper by direct recruitment, ITI certificate in Motor Mechanic with certain preference has also been provided but for promotion, the requirement is Matriculation with Hindi and five years experience as Store Man. There is no direct recruitment to the post of Store Keeper and all the posts are to be filled up by promotion. Qualification prescribed for this post is Matriculation with Hindi and three years experience on the post of Assistant Store Keeper. Petitioner has been promoted to the post of Assistant Store Keeper as well as the Store Keeper, according to the statutory Rules as he possessed the requisite qualifications for the said post.
Notification dated 23.08.1990 was issued by the Government of Haryana to rectify the discrepancies in the pay scale CWP No. 19547 of 2011 and other connected cases 10 of State Government Employees w.e.f. 01.01.1986, which were pointed out by some Employee's Associations and also by some departments. According to this, a modified pay scale or `1200-2040 w.e.f. 01.05.1990 was granted where minimum educational qualifications for appointment to the post were prescribed as Matric with ITI Certificate/Polytechnic. Various pay scales mentioned therein were merged into this scale. Thereafter, a notification dated 26.07.1991 was issued with Entry No. 40, which was further modified, the same reads as follows:-
"It has been decided to modify the above entry as under:-
Sr. Name of the Posts Existing pay scale Modified scale of
No. as on 1.1.86 pay w.e.f. 1.5.90
40 General Recommendations 750-940 1200-2040
regarding technical posts in 775-1025 It has been decided
various departments for which that further
minimum Educational 800-1150
recruitment of non-
Qualification prescribed is Matric 950-1400 Matric be stopped.
with ITI Certificate/Polytechnic
950-1500
40(A) General Recommendations 750-940 950-1400
regarding technical posts in 775-1025
various departments for which
minimum Educational 800-1150
Qualification prescribed is only ITI 950-1400 Certificate/diploma from Polytechnic without insistence on Matric.
The above shall take effect from 1.5.1990."
A perusal of the above notification would clearly indicate that the modified scale of pay of `1200-2040/- w.e.f. 01.05.1990 was to be granted to the technical posts in various departments, for which minimum educational qualification prescribed is Matric with ITI CWP No. 19547 of 2011 and other connected cases 11 Certificate/Polytechnic. As regards Entry 40(A), this was again regarding technical posts in various departments, for which minimum educational qualification prescribed is only ITI Certificate/diploma from Polytechnic without insistence on Matric. For this, the modified scale of pay w.e.f. 01.05.1990, as recommended, was ` 950-1400. The emphasis in this notification is on the technical posts in various departments, for which a technical qualification has been prescribed for entry into service or for appointment to the said post. Persons possessing these qualifications and were in service on 01.05.1990 were to be granted the modified pay scales of `1200-2040/- or `950- 1400/- w.e.f. 01.05.1990 as per the qualifications prescribed under the Rules/Instructions governing the terms of appointment to the post. In the light of the above, it can safely be said that the pay scale of `1200-2040/- or `950-1400/- was only applicable to the persons, who possess the said qualifications.
This Court while deciding CWP No. 18754 of 1991 titled as Gurdev Singh and another vs. State of Haryana and others on 18.01.2010 when dealing with Item No. 40 of the notification dated 23.08.1990, held as follows:-
"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 CWP No. 19547 of 2011 and other connected cases 12 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 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 CWP No. 19547 of 2011 and other connected cases 13 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. CWP No. 19547 of 2011 and other connected cases 14 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 fact 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 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 CWP No. 19547 of 2011 and other connected cases 15 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 CWP No. 19547 of 2011 and other connected cases 16 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 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" CWP No. 19547 of 2011 and other connected cases 17
Thereafter, relying upon the judgments of the Supreme Court in the cases of B.N.Saxena vs. New Delhi Municipal Committee and others, (1990) 4 SCC 205 and Madhavrao Dadwa vs. Union of India, 1998 (4) RSJ, has held that the petitioners had the requisite qualifications to hold the post at the time of their recruitment and any qualification prescribed subsequently will not affect the 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. It was further held that the interpretation which can be placed with Item No. 40 of Pay Revision Rules of 1986 is that the petitioners, if working on technical posts, cannot be deprived of the revised pay scale of `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.
What really stands out is that the Court in Gurdev Singh's case (supra) was dealing with a case where the petitioners were, on the date of their appointment, possessing the requisite qualifications prescribed for the post and when the notifications dated 23.08.1990 and 26.07.1991 had come into force i.e. 01.05.1990, the Rules prescribed the minimum qualifications for appointment to the said post as Matric with ITI Certificate/Polytechnic. It was not a case where on the date of issuance of the notification(s) or on the coming into effect of the said notification(s), there were no statutory Rules/Instructions governing the service, which did not prescribe the qualifications of Matric with ITI for appointment. CWP No. 19547 of 2011 and other connected cases 18 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 ` 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. CWP No. 19547 of 2011 and other connected cases 19 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 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 CWP No. 19547 of 2011 and other connected cases 20 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 been admittedly accepted by the State of Haryana after the same was upheld by the Supreme Court and implemented.
Reading of both the above judgments in conjunction with each other, the conclusion, which can be drawn, is that the post, for which the qualification prescribed is Matriculation with ITI as on 01.05.1990 or from the date such a qualification is prescribed, if the employee possesses such qualification would entitle him, who is working on the said post, to the technical scale of ` 1200-2040 along with consequential revised pay scale. Employees, who were appointed to a post prior to the prescription of such a qualification of CWP No. 19547 of 2011 and other connected cases 21 Matriculation with ITI, cannot be denied the benefit of higher technical pay scale from the date such a technical qualification is prescribed for the post on the ground that they do not possess the qualification of Matriculation with ITI as these employees possessed the requisite qualifications at the time of their recruitment to the post. When applying these principles, which have been culled out by this Court in pursuance to the above judgments and the instructions dated 26.07.1991, to the case in hand, petitioners cannot be denied the higher technical pay scale of ` 1200-2040 w.e.f. 17.07.1998 when the 1998 Rules were notified as regards the post of Storeman and the corresponding higher technical pay scale w.e.f. 31.01.1995 to the post of Assistant Store Keeper and Store Keeper as on this date, the 1995 Rules were notified by the Government of Haryana provided the petitioners were working on the said post(s).
The stand of the respondents that the petitioners are not entitled to the higher technical pay scale as they do not possess the requisite qualifications for the post, cannot be accepted in the light of the judgment of this Court in Gurdev Singh' s case (supra). As per the 1998 Rules, the qualification prescribed for appointment to the post of Storeman is ITI Certificate in Motor Mechanic Trade w.e.f. 17.07.1998, the date of notification of the said Rules. Petitioners were appointed as Storeman prior to the coming into force of these Rules and, therefore, are entitled to the technical pay scale of `950- 1400. Thereafter, on their promotion to the post of Assistant Store CWP No. 19547 of 2011 and other connected cases 22 Keeper, for which educational qualification prescribed for direct recruitment is ITI Certificate in Motor Mechanic trade whereas for promotion, it is Matriculation with Hindi and five years experience as Storeman, the petitioners are entitled to higher promotional technical pay scale which is granted to a storeman placed in pay scale of ` 1200-2040 as they possess the requisite qualification of Matriculation with Hindi as also the experience as a Storeman on the principle that junior cannot get higher pay than the senior especially when he possesses the qualifications prescribed for promotion and is promoted prior to his junior from the same cadre. Since in the feeder cadre i.e. the Storeman, the qualifications of Matric with ITI Certificate in Motor Mechanic Trade is the minimum educational qualification prescribed for direct recruitment and the petitioners also possess Matriculation in Hindi as prescribed under the rules for promotion, they are entitled to this higher technical pay scale. Similarly as a Store Keeper, although there is no direct recruitment but the qualification prescribed for promotion is Matriculation with Hindi and three years experience on the post of Assistant Store Keeper, this post again, in the light of the fact that the Assistant Store Keeper is entitled to the higher technical pay scale as mentioned above, would entitle a promotee to the higher technical pay scale of the Store Keeper as well.
A question still arises with regard to the grant of technical pay scale of ` 1200-2040, which has been granted to the juniors to CWP No. 19547 of 2011 and other connected cases 23 the petitioners w.e.f. 01.05.1990 by the respondents. Reference of such persons has been made in para 10 of CWP No. 19547 of 2011, namely, Sh. Nafe Singh, Sh. Ramesh Chandra and Sh. Bhagat Singh. It has not been specifically denied by the respondents that these persons are not junior to the petitioners and similarly placed as the petitioners. Since these persons are junior to the petitioners and have been granted the higher technical pay scale w.e.f. 01.05.1990, petitioners cannot be discriminated against with regard to the grant of the revised pay scale of ` 1200-2040 w.e.f. 01.05.1990. That apart, reference has been made to Suresh Chander-respondent No. 4 in CWP No. 19547 of 2011, who is junior to the petitioner and has been granted the technical pay scale of ` 1200-2040 w.e.f. 01.05.1990. The only reason assigned by the respondents for granting him the pay scale of ` 1200-2040 is that he was possessing the qualification of the Matriculation with ITI Certificate on 01.05.1990. It has been admitted by the respondents that there was no qualification prescribed for the post prior to the coming into force of the statutory Rules in the years 1995 and 1998. Despite that, the technical pay scale has been granted to respondent No. 4 w.e.f. 01.05.1990 only on the ground that he possessed the said technical qualifications. This cannot be made the only basis for non-grant of the technical pay scale to the petitioners when they have been appointed on the post of Storeman as per the qualifications applicable and prescribed for the post at the time of their appointment and this qualification of CWP No. 19547 of 2011 and other connected cases 24 Matric with ITI certificate was prescribed for appointment subsequently.
It is not in dispute that as a Storeman, petitioners were senior to the persons who have been mentioned as respondents in the writ petitions. In the light of the Division Bench judgment passed by this Court in the case of Attar Singh (supra) petitioners cannot be denied the higher technical pay scale w.e.f. 01.05.1990 or from the date persons junior to them have been granted the said pay scale.
In view of the above, these writ petitions are allowed. Petitioners are held entitled to the technical pay scale of ` 1200-2040 with effect from the date their juniors have been granted the said pay scale and corresponding promotional pay scales from the dates of their promotion as Assistant Store Keeper and then Store Keeper.
A direction is issued to the respondents to fix the pay scales of the petitioners accordingly and release the arrears to the petitioners within a period of three months from the date of receipt of certified copy of this order. The payment of arrears shall, however, be restricted to 38 months prior to the date of filing of the writ petitions.
(AUGUSTINE GEORGE MASIH )
September 12, 2012 JUDGE
pj
CWP No. 19547 of 2011 and other connected cases 25 CWP No. 19547 of 2011 and other connected cases 26