Punjab-Haryana High Court
Chhaju Ram Hans vs Hon'Ble High Court Of Punjab And Haryana on 1 September, 2005
Equivalent citations: (2006)142PLR701
Author: S.S. Nijjar
Bench: S.S. Nijjar, Nirmal Yadav
JUDGMENT S.S. Nijjar, J.
1. The petitioner joined this High Court as a Clerk on 25.9.1967. At the time of filing of the writ petition, he has been working as an Officiating Reader w.e.f. 28.10.1994. His grievance is that although he is senior to one Prem Singh, he is being paid lesser salary than Prem Singh. He has, therefore, made numerous representations to the High Court for redressal of the aforesaid grievance. Ultimately, the representations have been dismissed by Order dated 18.3.2004 (Annexure PI). He has challenged the aforesaid Order by filing the present writ petition under Articles 226/227 of the Constitution of India.
2. It is not disputed that the pay of the petitioner and Prem Singh has to be fixed in accordance with the Punjab Civil Services Rules, Vol.1 Part-1. It is also not disputed that Prem Singh is junior to the petitioner and is drawing a higher salary than the petitioner. The petitioner claims that he is entitled to the fixation of his pay under Rule 4.14 (1&2) read with Rule 2.48 and 4.4(a)(i) of the Punjab Civil Services Rules Vol.1, Part-1,
3. The respondents have rejected the claim of the petitioner by passing a non-speaking Order dated 18.3.2004 (Annexure P-l). However, the respondents have tried to justify the aforesaid order in the written statement. It has been stated that the petitioner was appointed as Reader from the post of Assistant. His junior Prem Singh was appointed as Reader from the post of Superintendent Grade-II which is the next higher promotional post from the cadre of Assistant. The claim of the petitioner was examined by the District and Sessions Judge (Vigilance), Punjab. He has come to the conclusion that the claim of the petitioner is not covered under the instructions of the Punjab Government contained in Circular Letter No. 6/138/98-1FP-11/6763 dated 21.6.2000. This report of the District and Sessions Judge (Vigilance) was accepted by the Administrative Judge on 13.2.2004. Therefore, no legal right of the petitioner has been infringed.
4. We have heard the learned Counsel for the parties at length and perused the paper-book.
5. Mr. Akshay Bhan, learned Counsel appearing for the petitioner has submitted that the claim of the petitioner has been erroneously declined on the basis of Instructions dated 21.6.2000. The petitioner did not claim any benefit under the aforesaid instructions. The prayer of the petitioner was specifically for re-fixation of pay under the rules as contained in Punjab Civil Services Rules Vol.1, Part-1. The petitioner being senior to Prem Singh cannot be paid a lesser salary than his junior. In support of the submission, the learned Counsel relied on a judgment of this Court in Chanan Singh v. Punjab State Electricity Board, Patiala, 1992(2) R.S.J. 451. Learned Counsel has also relied on a judgment of the Supreme court in the case of High Court of Punjab and Haiyana v. Bahadar Singh. (Civil Appeal No.9943 of 1995, decided on 25.4.2001). Learned Counsel has also relied on the judgment Surinder Kumar Nauhria v. The Registrar, Cooperative Societies, Punjab, Chandigarh, 1993(2) R.S.J. 800.
6. On the other hand, Mr. Anupam Gupta, learned Counsel appearing for the High Court has submitted that the claim of the petitioner was examined under the Instructions dated 21.6.2000. Since the petitioner was directly promoted as Reader from the post of Assistant, he did not have the benefit of having the pay fixed in the cadre of Superintendent Grade-II. The petitioner was directly promoted as Reader from the cadre of Senior Assistant carrying pay scale of Rs. 1800-3200 (unrevised). On the other hand, Prem Singh was promoted as Reader from the cadre of Superintendent Grade-It carrying the higher pay scale of Rs.2000-3500 (unrevised). Therefore, the fixation of pay of the petitioner on his promotion as Reader from Assistant involves one step. In the case of Prem Singh, pay fixation involves two steps i.e. he was first promoted on the post of Superintendent Grade-II from the post of Assistant and thereafter, he was promoted as Reader from the post of Superintendent Grade-II. Since the petitioner was never posted in the cadre of Superintendent Grade-II, he cannot be given the benefit of pay fixation as given to Prem Singh, his junior. Learned Counsel has further submitted that the petitioner cannot take any advantage of the PCS Ruies, in view of the instructions dated 21.6.1990.
7. We have considered the submissions made by the learned Counsel for the parties. The report submitted by the District and Sessions Judge (Vigilance) was as under:-
According to Shri Chhaju Ram Hans, representationist, he was confirmed as an Assistant w.e.f. 1.11.1986 as per Office Order issued vide this Court's Endorsement No.l2427/E.I/V.Z.2(b) dated 22.5.1989 (Flag 'A;) but a junior person to him viz. Shri Prem Singh, Reader is getting higher salary in the promotional grade of Reader, Shri Chhaju Ram Hans has made prayer in his two representations that his pay may be stepped up and refixed in terms of Rule 4.14(1) and (2) read with Rule 4.4(a)(i) and Rule 2.48 of the Punjab Civil Services Rules, Vol. 1, Part-I, first in the substantive rank of Assistant after granting the pay benefit/increment/proforma promotion from the dates those were given to his junior Shri Prem Singh, Reader and thereafter, in view of the enhancement in the pay in the substantive rank, the pay in the officiating rank of Reader may be refixed. He also maintained that the ratio of judgments of this Court rendered in the case of "Chanan Singh v. P.S.E.B, Patiala, 1992(2) R.S.J. 451 (flag "B") and in the case of "Surinder Kumar Nauhria v. The. Registrar, Cooperative Societies, Punjab, Chandigarh, 1993(2) R.S.J. 800" (flag "C") is applicable in the matter of refixation of his pay. Shri Chhaju Ram Hans submits that the Punjab Government Instructions contained in the letter dated 21.6.1990 (flag "D") are not applicable in his case nor he has claimed any benefit thereunder.
The ratio of the law laid down in the judgments relied upon by Shri Chhaju Ram Hans, representationist that a senior person is entitled to all those benefits which a junior in the cadre is getting and the pay of a senior cannot be less than that of his junior cannot be disputed but has to be seen, viewed and interpreted in the light of the relevant rules and instructions in the matter. Shri Chhaju Ram Hans has not come up with any acceptable plea and ground as to why his case is not governed by the instructions as contained in the Government of Punjab dated 21.6.1990 that regulates the removal of anomaly by stepping up of the pay of a senior employee drawing such pay less than that of a junior counter-part on account of either grant of proficiency step-up to the junior or by the virtue of application of Rule 18 of the Rules on promotion in the case of junior. As per part-II of the Instructions dated 21.6.1990 issued by the Government of Punjab, the senior and junior employee should belong to the same cadre post with the same pay scale in the feeder post as well as promoted post. Further instruction as embodied in Circular letter No.6/138/98-IFP-II/6793 dated 21.6.2000 (Flag "E") that deal with the subject "Removal of Anomaly by stepping up the pay of a senior employee drawing pay less than a junior employee says that the Governor of Punjab is pleased to decide that:-
In such cases the pay of senior employees shall be stepped upto the level of pay of the juniors, if by the operation of normal pay fixation rules and option exercised vide orde,r dated 15.10.1998 has approved the opinion of the learned Joint Registrar (Rules) regarding giving the proforma promotion to him as Superintendent Grade-II and similar request made by Mr. M.S. Gill, Reader to stepping up of his pay was declined vide Orders of Hon'ble the Chief Justice dated 9.11.1994 (Flag 'G').
8. We are of the opinion that the, aforesaid report is clearly contrary to the law laid down by this Court in the case of Chanan Singh (supra) and Surinder Kitmar Nauhria (supra) The claim of the petitioner could not have been rejected on the basis of the executive Instructions dated 21.6.2000. The petitioner had claimed fixation of his pay under Rule 4 of Punjab Civil Services. Under Rule 3.13 of the Punjab Civil Services Rules, it is provided that unless the lien of an employee is suspended under Rule 3.14 or transferred under Rule 3.16, a government employee holding substantively a permanent post retains the lien on that post. Since 20.10.194, the petitioner had been holding the post of Reader in an officiating capacity. Since Prem Singh was junior to the petitioner, he could not be granted a higher pay than the petitioner. Under Rule 4.14(i) and (ii) read with Rule 4.4(a)(i), the petitioner would be entitled to re-fixation of pay as Reader w.e.f. 2.8.1995, 18.1.1996 and 5.5.1997. The relevant rules are as under:-
Rule 4.14.
(1) Subject to the provisions of Rules 4.13 and 4.16, a Government employee who is appointed to officiate in a post shall draw the presumptive pay of that post.
(2) On an enhancement in the substantive pay, as a result of increment or otherwise, the pay of such Government employee shall be refixed under Sub-rule (i) from the date of such enhancement as if he was appointed to officiate in that post on that date were such refixation to his advantage.
Rule 2.48, Presumptive pay of a pout: -
When used with reference to any particular Government employee, means the pay to which he would be entitled, if he held the post substantively and were performing its duties, but it does not include special pay unless the Government employee, performs or discharges the work or responsibility, on consideration of which the special pay was sanctioned.
Rule 4.4(l)(i):-
When appointment of the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 4.13) than those attaching to such permanent post he will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post.
9. A perusal of the aforesaid Rules would show that the petitioner was entitled to draw the presumptive pay of the post of Reader from the date he was officiating as such. The aforesaid pay is to be fixed on the presumption that the petitioner held the post substantively. Under these Rules, the petitioner would clearly be entitled to the re-fixation of his pay over the above the pay which was being drawn by his junior Prem Singh. The petitioner would also be entitled to all the consequential benefits. In the case of Bahadur Singh (supra), the Supreme Court examined a similar situation and held that senior employee cannot be paid less than his junior colleague. In view of the above, we are of the considered opinion that the order passed by the High Court on 18.3.2004 (An-nexure P-l) is not sustainable. 10. In view of the above, the writ petition is allowed. The Order dated 18.3.2004'(Annexure P-l) is quashed. The petitioner is held entitled to the re-fixation of his pay at different stages from the dates the same was granted to his junior Prem Singh. The petitioner shall be entitled to all the consequential benefits such as arrears of salary etc. Let the consequential benefits be paid to the petitioner within a period of two months of the receipt of a certified copy of this Order. No cost.