Punjab-Haryana High Court
Ranjit Singh And Ors vs State Of Punjab And Ors on 6 October, 2017
Author: Jaishree Thakur
Bench: Jaishree Thakur
CWP No. 25517 of 2012 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No. 25517 of 2012
Date of Decision: 06.10.2017
Dr. Ranjit Singh & Others ...Petitioners
Versus
State of Punjab & Others ...Respondents
CORAM: HON'BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Gurminder Singh, Sr. Advocate with
Mr. J. S. Gill, Advocate
for the petitioners.
Mr. Avinit Avasthi, AAG, Punjab.
JAISHREE THAKUR, J.
1. The petitioners herein seek issuance of a writ in the nature of Certiorari to quash the Notification No. 5/10/09.3FP1/1359 dated 21.12.2011 (Annexure P-10); order dated 02.07.2012 (Annexure P-11) and order dated 18.07.2012 (Annexure P-12) on the ground that these orders are in direct contravention of the law laid down by this Court in CWP No. 11697 of 1995 titled as Sarvjit Singh and others vs. State of Punjab (Annexure P-3) which judgment has become final as the SLP No. 2372 of 1997 stands dismissed.
2. In brief, the facts are that the petitioners herein are working as Agricultural Officer PAS-II in the Administrative Wing of the Department of Agriculture, Punjab. Their services are governed under the Punjab Agricultural Service (Class-II) Rules, 1974. As per Punjab Government's order dated 18.09.1992, a three tier pay scale from 01.01.1991 came into 1 of 12 ::: Downloaded on - 08-10-2017 10:45:50 ::: CWP No. 25517 of 2012 -2- effect which is as under:
(i) Pay scale of Rs. 2200-4000 at the time of entry into service;
(ii) Pay scale of Rs. 3000-4500 after 8 years of service;
(iii) Pay scale of Rs. 3700-5300 after 18 years of service.
3. This revision was done on the basis of similar restructuring in Health, Engineering and Veterinary Departments. An anomaly was created by the issuance of the orders since it provided pay scale on the basis of length of service and not on the basis of seniority. As a result, senior officers in the rank of Agricultural Officer with shorter length of service were given a lower pay scale than their juniors who had longer length of service but were working on a lower post. This anomaly came to be challenged by some of the officers of the Administrative Wing in the Agriculture Department in CWP No. 11697 of 1995 (supra). The writ petition was allowed holding that the impugned notification, insofar as it provides for grant of higher pay scale on the basis of completion of 8/18 years of service, is violative of Articles 14 and 16 of the Constitution of India. The respondents were directed to give the petitioners same pay scale being granted to their juniors who have completed 8/18 years of service prior to the petitioners with all consequential benefits including the arrears of pay w.e.f. 18.09.1992. This order was challenged before the Supreme Court in SLP No. 2372 of 1997 which stood dismissed. Consequently, an order was issued on 21.04.1997 that Class-I and Class-II Officers of the Administrative Wing of Department of Agriculture, irrespective of their length in service, be granted placement scale admissible to their junior's 2 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -3- w.e.f 18.09.1992.
4. The Punjab Civil Services (Revised Pay) (Fourth Amendment) Rules, 2001 were notified on 13th September, 2001 amending Punjab Civil Services (Revised Pay) Rules, 1998. The professional cadres working in the Agriculture Department were given the following pay scale:
(i) Rs. 7220-11660 at the time of entry into service;
(ii) Rs. 10025-15100 after 8 years of service; and
(iii) Rs. 12000-16350 after 16 years of service.
5. This again came to be challenged in Naresh Kumar Kataria and Others Vs State Of Punjab and Others in CWP No. 23138 of 2010 and during the pendency of the writ proceeding, the State Government issued a notification dated 21.12.2011 granting parity in pay scale to be effective from 01.12.2011 and granted the following pay scale to Agricultural Development Officers and the Agricultural Officers:
(i) Pay Band Rs. 15600-39100 plus Grade Pay Rs. 5400=initial pay Rs. 21000 (entry scale);
(ii) Rs. 15600-39100 plus Grade Pay Rs. 6600=initial pay Rs. 25250 after 4 years of service;
(iii) Rs. 15600-39100 plus Grade Pay Rs. 7600=initial pay Rs. 31320 after 9 years of service; and
(iv) Rs. 37000-67000 plus Grade Pay Rs. 8600=initial pay Rs. 46000 after 14 years of service.
6. This pay scale was approved by the High Court and it was directed that the effective date of revised pay scale would be 01.01.1996 instead of 01.12.2011. Pursuant to the orders of the High Court, another 3 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -4- order dated 02.07.2012 was issued by the finance department agreeing to the notional fixation of pay in the higher pay scales from the due date of completion of 4/9/14 years of regular service. Consequently, an order was issued on 16.09.2012 whereby the pay scale of petitioner No. 1 was fixed from 01.01.1996 after completing 9 years regular service in Rs. 12000 - 15500 and after completing 14 years on 23.07.1999 in pay scale of Rs.14300-18150. Aggrieved, the instant writ petition has been filed.
7. Mr. Gurminder Singh, learned Senior Advocate, assisted by Mr. J. S. Gill, Advocate, appearing on behalf of the petitioners, contends that the notifications issued are in direct contravention of the judgment rendered in Sarvjit Singh's case (supra). The State Government is legally bound to grant the petitioners the revised pay scale irrespective of their length of service from 01.01.1996. The petitioners are senior but as a consequence of the impugned orders, they are now drawing lesser pay than their juniors.
8. Per contra, Mr. Avinit Awasthi, learned counsel appearing on behalf of the respondents-State, argues that the Agriculture Department, Punjab comprises four wings i.e. Administrative Wing, Statistical Wing, Geological Wing and Engineering Wing. Each wing has a separate cadre and separate chance of promotion. It is also submitted that the Punjab Government issued notification No. 16/74/92-Agri-1/15683 dated 26.08.1994 declaring all Agricultural Development Officers/PAS-2 and PAS-1 officers as PAS-1 officers accordingly, now all the Agricultural Development Officers/PAS-2 and PAS-1 formed one cadre i.e. PAS-1. It is contended that the ratio in case titled Saravjit Singh and Others Versus 4 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -5- State Of Punjab and Others (supra) is not applicable in the instant writ petition because the 4/9/14 scheme pay scales are being granted according to letter No. 5/10/09-5FPI/1369 dated 21.12.2011 as modified by the High Court by its judgment dated 05.01.2012. It is also submitted that the petitioners cannot be given the benefit of the aforesaid judgment because the 4/9/14 Assured Career Progressive Scheme (ACP) of pay scales have been approved by this Court.
9. I have heard the counsel for the parties and have also perused the record pertaining to this case.
10. The question that arises for consideration in the instant case is whether the notification dated 21.12.2011 and subsequent orders passed allowing revised pay scale on the basis of the condition of completion of 4/9/14 years of service and not on the basis of seniority would be in direct contravention of the law laid down by this Court in Sarvjit Singh's case (supra).
11. The question that was posed in Saravjit Singh's case (supra) was whether a person who is senior in Punjab Agricultural Service can be denied the pay scale which has been granted to the junior on the ground that the said Junior has been in longer period of service? This was answered in the negative by holding that "the pay scales of Rs. 3000 - 4500 and Rs. 3700 - 5300 are to be given after 8 years and 18 years of service respectively. The grant of higher pay scale merely on the basis of the length of the service without taking into consideration the seniority of the officers inter se, has definitely created anomalous situation whereby the seniors like the petitioners are admittedly getting lower pay than their juniors even 5 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -6- though they are working as subordinates to them. Such an action has already been held to be violative of Article 14 and 16 of the Constitution of India." Resultantly, the impugned notification dated 18.09.1992 was set aside which allowed a Junior to be given higher pay scale on completion of 8 years and 18 years of service as the case may be.
12. Certain Agricultural Development Officers had approached this Court by way of filing writ petition in the Naresh Kataria's case (supra) which had again sought to challenge a pay scale that had been given to them which was not at par with the members of the Veterinary Service, and equivalence was sought in the pay scale. During the pendency of the aforesaid writ petition, an order dated 21.12.2011 was passed which addressed the issue of the petitioners, and parity in the pay scales was maintained with the members of Veterinary Service. However in the revision of the pay scale, the condition of being eligible for the next scale on completion of 4/9/14 years was maintained which was similar to the earlier notification dated 18.09.1992 which allowed for a higher pay scale after completion of 8/16 years of regular service in the entry scale. This point was not argued before the learned Single Judge nor was it brought to his notice that by judgment rendered in Saravjit Singh's case (supra), the condition of completion of 8/16 years of regular service for grant of higher scale had been set aside.
13. The grievance of the petitioners seems to be limited to the condition of completion of 4/9/16 years of regular service for grant of a higher scale, by relying on the judgment rendered in Saravjit's case (supra).
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14. There are a catena of judgments where challenge had been made in a situation where a junior in service was drawing a higher pay. In one of such cases reported as State of Andhra Pradesh and others versus G Sreenivasa Rao and others (1989) 2 Supreme Court Cases 290, it was held as follows:
" 14. We do not agree with the High Court/Tribunal. Doctrine of "equal pay for equal work" cannot be put in a strait-jacket. Although the doctrine finds its place in the Directive Principles but this Court, in various judgments, has authoritatively pronounced that right to "equal pay for equal work" is an accompaniment of equality clause enshrined in Articles 14 and 16 of the Constitution of India. Nevertheless, the abstract doctrine of "equal pay for equal work" cannot be read in Article 14. Reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible.
15. "Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the 7 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -8- equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal. (Emphasis supplied)
16. In Federation of All India Customs & Central Excise Stenographers v. Union of India [(1988) 3 SCC 91 : 1988 SCC (L&S) 673 : (1988) 7 ATC 591] Sabyasachi Mukharji, J. considered earlier judgments of this Court on the point and observed: (SCC p. 100, para 7) "Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the 8 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -9- same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right."
15. While deciding the question whether a Junior can be granted higher pay for justifiable reasons the Supreme Court in Govt of A.P. and Ors vs. V. Veera Raghavan (1999) 9 SCC 266 held that a senior cannot invoke the doctrine of equality to seek parity in pay with him. It was held "when a single running pay scale is provided in a cadre, the constitutional mandate of equal pay for equal work is satisfied. Ordinarily, grant of higher pay to a junior would ex façai be arbitrary; but if there are justifiable grounds for doing so, the senior cannot invoke the doctrine of equality. In the present case, the higher pay drawn by the juniors of the respondent is on account of their larger actual length of service in the Cadre of District Munsifs. There is, therefore, good reason for their drawing more pay than the respondent." (emphasis supplied)
16. In a similar case the Division Bench of this Court was seized of 9 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -10- a matter where it was averred that a junior in service was getting a higher pay scale and the petitioners sought a step up of their pay. The Division Bench in D.K. Monga and others vs. State Of Punjab and others, 2014 (8) R.C.R. (Civil) 534 after referring to the ratios as laid down in several judgments by the Supreme Court held that "Coming to the facts of the present case, the junior has earned additional increments in terms of the statutory Rules. Both the petitioner and the junior are in the same pay scale, but in terms of the Rules, the junior has got additional increments. Such fixation of pay on account of additional increments is a benefit personal to the drawee. It does not affect the seniority nor violates the principle of 'equal pay for equal work', as the equality is in the pay scale and not in the matter of pay fixation in that pay scale. Fixation of pay is dependent upon length of service in the feeder cadre, as the case may be, or higher pay on account of higher qualification (emphasis supplied). May be in the same pay scale, a senior may suffer a punishment of stoppage of increments and draw less salary than his junior. Will it mean that his pay is required to be stepped up because his junior is drawing a higher salary? In our opinion, the concept of 'equal pay for equal work' enshrined under Article 39(d) of the Constitution read with Article 14 is in respect of the pay scale to a category of post and not in respect of pay fixation of an individual in that pay scale. Though in certain situation, the payment of higher pay to the category based upon higher qualification has been upheld, but a senior is not entitled to stepping up of his pay on account of the fact that a junior is drawing higher pay on account of reasons which are purely personal to him."
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17. There is nothing in the Constitution or in any statutory rule that a junior cannot get a higher salary than a senior, particularly, when the junior has put in a larger number of years of service, as compared to the senior, who may be a new recruit. The question of a pay anomaly is a matter for consideration of an expert body and not within the domain of this Court. In any event, these are the matters to be decided by the Executive, and it is not proper for this Court to encroach upon in this field. The Courts must exercise judicial restraint and not interfere in such matters which are not within their domain. Orders for creation of posts, regularization, fixing pay scales etc. etc. are all executive or legislative functions and it is not within the domain of the Courts to regulate these functions except when it can be established that there is any violation of the rights of an individual or any administrative decision is taken which is wholly unconstitutional.
18. However, as far as this writ petition is concerned the situation is somewhat different. No doubt, there are judgments to the extent that seniors cannot claim parity or raise objection to the higher pay scale the junior is drawing on account of his longer length of service, but there is already a judicial precedent laid down in Saravjit Singh's case (supra) where a Division Bench of this Court has already gone into this question and has held that notification dated 18.09.1992 which allowed for a higher pay scale on completion of 8/18 years of regular service in the entry scale is not sustainable. A similar situation has arisen under Notification No. 5/10/09-5FP1/1369 dated 21.12.2011 (Annexure P-10), wherein it has been specified that higher pay scale would be available on completion of 4/9/14 years of service in a scheme that replaced the earlier one to tackle stagnation in service. For the sake of judicial propriety, this Court is found bound to 11 of 12 ::: Downloaded on - 08-10-2017 10:45:53 ::: CWP No. 25517 of 2012 -12- follow the ratio as laid down since it pertained to the same Department.
19. Therefore, it is held that Annexure P-10 notification dated 21.12.2011 is not in consonance with the judgment rendered in Sarvjit Singh's case (supra) and consequently the present writ petition is allowed and order dated 21.12.2011 along with consequential orders of 02.07.2012 and 18.07.2012 are hereby set aside. The respondents are directed to recalculate the pay and other allowances of the petitioners and release the same within a period of 03 months from the date of receipt of this order.
October 06, 2017 (JAISHREE THAKUR)
Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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