Punjab-Haryana High Court
Ved Parkash And Others vs State Of Haryana And Another on 11 May, 2010
Author: Permod Kohli
Bench: Permod Kohli
CWP No.5665 of 1991 (1 )
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 11.05.2010
(1). CWP No.5665 of 1991
Ved Parkash and others ... Petitioners
Versus
State of Haryana and another ... Respondents
(2). CWP No.6124 of 2002
All Haryana Irrigation Department Field
Karamchari Union ... Petitioner
Versus
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: Mr. R.L. Sharma, Advocate,for the petitioners.
Mr.RS Kundu, Addl. AG, Haryana,for the respondents.
PERMOD KOHLI, J.
Having common question of law and facts, both these petitions have been taken up and are being disposed of by this common order.
The petitioners in these cases are working on various technical posts like Chargeman, Operator, Pump Operator, Electrician, Fitter, Greaser's, Cleaner's, Chowkidars etc. for the last more than 20 to 25 years. They were placed in the different play scales. Respondent No.1 vide order dated 30.03.1982 (Annexure P-1) revised the pay scales of the employees of Haryana Government including the employees in the Irrigation Department. The technical posts in all the departments where the minimum educational CWP No.5665 of 1991 (2 ) qualification are prescribed as Matriculation with 2 years ITI, have been allowed the pay scale of Rs.480-760/- with effect from 01.02.1979 whereas the persons with qualifications of Matric without 2 years ITI certificate have been given the pay scale of Rs.420-700/- and under Matric with ITI certificate have been given the pay scale of Rs.400-660/-. It is the case of the petitioners that all the employees with the above said qualifications are holding the technical posts in the department and perform the same/similar duties/functions carrying the same responsibility and man the posts without distinction of qualification etc. The petitioners made representation dated 18.1.1984 (Annexure P-2) wherein demand was raised for the revised pay scales of Rs.480-760/-with effect from 1.1.1979, followed by representations dated 29.03.1985 and 08.04.1985 (Annexure P-3) and (Annexure P-4), respectively, for removal of the discrimination in the pay scales. During the pendency of their above said representations, the State of Haryana vide Memorandum dated 23.08.1990 (Annexure P-5) further revised the pay scales of its employees of all categories with effect from 01.05.1989. The petitioner also made representation claiming the revised pay scales, but nothing has been done by the respondents till date. Hence, this petition.
The controversy involved in the present writ petitions is squarely covered by a judgment of this Court rendered in CWP No.18754 of 1991 (Gurdev Singh and others Vs. State of Haryana and others) and other connected writ petitions, decided on 18.1.2010, wherein the following observations have been made:-
"Respondents have not produced any rule of recruitment at the time of the appointment of the petitioners on CWP No.5665 of 1991 (3 ) various posts. It is common case of the petitioners that at the time of their appointment to various posts, they were fully qualified. It is not the case of the respondents that at the time of recruitment of the petitioners, they were ineligible or not possessed of the requisite qualifications prescribed for the pots held by them. These very rules and a similar issue came up for consideration before a Single Bench of this Court in CWP No.10414 of 1993 decided on 2.9.1994 titled as Labh Singh and others Vs. State of Haryana and others, reported as 1995 (1) RSJ,
345. In the aforesaid case some of the petitioners were possessed of the qualification of matric with ITI, whereas some were having qualification of only ITI. They were working as mates in the State of Haryana. They claimed the revised pay scale of Rs.1200-2040/- on the ground that they are working against technical posts for which qualification prescribed is matric with ITI and thus entitled to the revised pay scales. However, the State Govt. placed them in pay scale of Rs.750-940/- pleading that they are Class-IV employees and not entitled to the revised pay scale. It was noticed that there were no statutory rules at the time of recruitment of those writ petitioners and they were recruited on the basis of the sponsorship from the Employment Exchange and were having qualifications as notified by the department to the Employment Exchange. Those qualifications were laid CWP No.5665 of 1991 (4 ) 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 by virtue of Annexure-D, appended to the Technical Memo No.6/88, the department has prescribed the qualifications for appointment on the posts 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 CWP No.5665 of 1991 (5 ) Exchange. It is, thus, clear that each of the petitioner had been recruited with the qualification of I.T.I. and some of qualification of Matric with I.T.I.
8. In the result, the writ petitions are allowed. The notices issued by the respondents seeking revision of the pay of the petitioners are declared illegal and are hereby quashed. The respondents are restrained from revising the pay scale of the petitioners. Costs made easy."
The aforesaid judgment was followed by another Division Bench of this Court in case of Raj Karan Vs. State of Haryana reported as 2003 (1) RSJ,119, wherein following observations have been made:-
"9. After hearing the learned counsel for the parties and having given our thoughtful consideration to the entire controversy, we find that the present petition deserved to succeed. It is the admitted position between the parties that there were no minimum educational qualifications prescribed for the post, when the petitioner was appointed to the same. Still further, there is no dispute that the petitioner did not 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 CWP No.5665 of 1991 (6 ) 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 Judgment 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. Hon'ble Supreme Court in case of B.N.Saxena Vs. New Delhi Municipal Committee and others (1990) 4 SCC 205 has held as under:
"7. The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsman without possession any qualification. Experience gained for a considerable length of time is itself a qualification (see the observation in State of U.P. Vs. J.P. Chaurasia). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsman without any diploma qualification should acquire such qualification for further promotion. Such a view would CWP No.5665 of 1991 (7 ) not be consistent and coherent with the revised rule is independent of the rest. The High Court seems to have erred in this aspect of the matter."
There is another aspect the qualification is to be seen at the time of recruitment. A person possessing the requisite qualification at the time of recruitment cannot be denied the benefit of the pay scale, if, at any subsequent stage the qualifications are modified.
Hon'ble Supreme Court in case of Chandigarh Madhavrao Dadwa Vs. Union of India reported as 1998 (4) RSJ considered the similar question and held as under:-
"47. To put it in a nutshell, the change in the essential qualification made in 1990 or 1998 of the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered for applied with retrospective effects so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmation."
Thus, if the petitioners had the requisite qualification to hold the post at the time of their recruitment, any qualification prescribed subsequently will not effect their right to hold the post or their CWP No.5665 of 1991 (8 ) entitlement for the revised pay scales on the ground that they do not possess the qualification prescribed later on.
In the light of the aforesaid judgments and in view of the interpretation which can be placed with Item No.40 of pay revision rules of 1986 the petitioners, if, working on technical posts cannot be deprived of the revised pay scales of Rs.1200-2040/- either on the ground that they are non-matric or that they are ITI or not or even they are having trade certificate of a different trade. According to the memo No.6/1988 noticed in Labh Singh's judgment-three years experience in trade was also to be considered as equivalent to ITI.
These petitions are, accordingly, allowed. Respondents are directed to release the revised pay scale of Rs.1200-2040/- to the petitioners who are working on technical posts from the date of revision i.e. 1.5.1990."
The aforesaid observations are fully applicable to the facts of the present writ petitions.
In view of the above, present writ petitions are allowed. The respondents are directed to release the revised pay scales, revised from time to time/from the date of revisions, to the petitioners with regard to the posts held by them. However, the arrears shall be restricted to 38 months preceding the date of the filing of the present writ petitions. No costs.
A copy of this order be placed on the record of connected file.
11.05.2010 (PERMOD KOHLI)
BLS JUDGE
CWP No.5665 of 1991 (9 )