Punjab-Haryana High Court
Akshma Verma And Others vs State Of Haryana And Others on 20 September, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No.23699 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.23699 of 2011 (O & M)
Date of decision:-20.09.2012
Akshma Verma and others
...Petitioners
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. H.C. Arora, Advocate
for the petitioners.
Ms. Shruti Jain, AAG Haryana.
Mr. Vir Bhan Singla, Senior Panel Counsel,
Govt. of India, for respondent No.4.
AUGUSTINE GEORGE MASIH J.(Oral)
C.M. No.11107 of 2012 Application is allowed and the written statement of respondent No.4 is taken on record.
Civil miscellaneous application stands disposed of. CWP No.23699 of 2011 CWP No.23699 of 2011 -2- Petitioners have approached this Court with a grievance that they are not being paid the minimum of the regular pay-scales on the post of Instructors in the Industrial Training Institute, Kaithal, which is being paid to the regular employees. Asserting this right reliance has been placed upon the letter dated 30.12.2008 (Annexure P-3) issued by the Government of India, Ministry of Labour and Employment, Directorate General of Employment and Training, wherein it has been so mentioned. Reliance has also been placed upon the letter issued by the Financial Commissioner and Principal Secretary, Haryana Government, Industrial Training and Technical Education Department, dated 31.8.2009 (Annexure P-5) to contend that the petitioners are entitled to the minimum of the pay- scales at par with newly appointed regular employees. Reliance on the Full Bench judgment of this Court in CWP No.14796 of 2003 titled 'Avtar Singh vs. State of Punjab and others' decided on 11.11.2011 (Annexure P-12) in support of this contention. Claim has also been made in the writ petition that the petitioners No.1 and 2 being female ITI Instructors have not been granted the benefit of maternity leave as per instructions issued by the respondents dated 22.6.2000 (Annexure P-8).
Counsel for the petitioners contends that the petitioners are entitled to grant of minimum of the pay-scales as has been fixed by the letter dated 30.12.2008 (Annexure P-3) issued by the CWP No.23699 of 2011 -3- Government of India, which has been accepted by the respondents as is apparent from the letter dated 31.8.2009 (Annexure P-5) issued by the Financial Commissioner and Principal Secretary, Government of Haryana, Industrial Training and Technical Education Department. He asserts that there cannot be distinction between a contractual employee and an employee working on regular post specially when they are performing the same duties. Reference has also been made to the letter dated 05.4.2010 (Annexure P-6) wherein it has been stated that the ITI Instructors, who enter into a contract with the Government, would be entitled to the minimum of pay of Rs.12,500/- per month, whereas, those, who have chosen not to execute the said contract of the agreement would be entitled to the DC rates as per their terms of appointments. On this, counsel for the petitioner asserts that this is violative of the principal of the equality as merely the basis of the contract or nature of appointment cannot be made the basis for grant of different pay/salary. He further stated that all the petitioners were appointed initially on DC rates but some of the petitioners have executed the contract and are now being paid consolidated monthly salary of Rs.12,500/-. This the counsel for the petitioner contends is discriminatory in nature and cannot be said to be in accordance with law. He accordingly prays that the present writ petition deserves to be allowed.
On the other hand, counsel for respondents No.1 to 3 CWP No.23699 of 2011 -4- contends that the consolidated salary of Rs.12,500/- is being paid to those contractual employees, who have entered into an agreement with the respondents. They are being paid the amount on the basis of the agreement whereas the Instructors, who have chosen not to execute an agreement, are being paid according to the initial amount of pay, which was contracted at the time of their appointment. Since the petitioners have accepted the terms and conditions of the appointment, they cannot claim now that they are being discriminated against. In case the petitioners execute the agreement they shall be entitled to the salary of Rs.12,500/- as per the letter dated 31.8.2009 (Annexure P-5). As regards the assertion of the petitioners that petitioners No.1 and 2, who are female ITI Instructors, are not being granted the benefit of the maternity leave, it has been specifically stated in para No.5 of short reply filed that the facility of maternity leave to the married female Instructors (contractual engagees) has already been provided as per Government instructions dated 22.6.2009. She contends that the claim of the petitioners based upon the letter dated 30.12.2008 (Annexure P-3) that they are entitled to the minimum pay-scales at par with the newly appointed regular employees cannot be accepted in the light of the specific amount mentioned in the letter dated 31.8.2009 issued by the Government of Haryana, which has been assessed to Rs.12,500/- per month. The claim of the petitioners with regard to casual leaves CWP No.23699 of 2011 -5- has also been accepted by the respondents in their short reply filed in the Court. She contends that the letter dated 30.12.2008 (Annexure P-3) of the Government of India is only recommendatory in nature and as such has no binding force. Accordingly, prayer has been made for dismissal of the present writ petition.
I have heard the submissions made by learned counsel for the parties and their their able assistance have gone through the records of the case carefully.
As per letter dated 30.12.2008 (Annexure P-3) issued by the Government of India, recommendation has been made that the Instructors appointed on contract basis may be granted the salary at par with the regular faculty. It is only a recommendatory letter, which has been acted upon by the respondents and in pursuance thereto and accordingly letter dated 31.8.2009 (Annexure P-5) has been issued while referring to the above letter dated 30.12.2008 (Annexure P-3), wherein it has been decided by the respondents that the Instructors/Senior Instructors and craft instructors appointed on contract basis/DC rates are to be given concolidated salary at par with newly appointed regular employees in the minimum of the pay scale of Rs.9300+3200=12,500/- per month. This, however, is to be effective from the date of their acceptance of the advice by the Finance Department and no other allowances shall be added to it. It is apparent that this letter fixes the salary of the contractual CWP No.23699 of 2011 -6- employees to Rs.12,500/-, which has further been clarified vide letter dated 05.04.2010 (Annexure P-6), which would be payable to only those employees, who executed/entered into agreement under the instructions dated 16.2.2009 issued by the Chief Secretary, Haryana. Other employees, who have been appointed on contract basis at DC rates, if they do not execute any agreement, would continue to get the salary accordingly. The petitioners, who have executed the agreement, are being paid Rs.12,500/- per month and those who have preferred not to enter into the agreement, are being paid as per DC rates, which is inconsonance with the policy issued by the Government. Reliance upon the Full Bench judgment of this Court in the case of Avtar Singh's case (supra) would not be helpful to the claim of the petitioners as the appointment of the petitioners on contractual basis was not against a regular sanctioned post as it has not so been asserted by the petitioners in the writ petition. If their appointment is not against a regular sanctioned post, the benefit of the Full Bench judgment cannot be granted to the petitioners. The nature of appointment and the post held by the petitioners, who are contractual employees, are quite different from those who have been appointed on regular post, therefore, they cannot claim the regular pay-scale merely because they are working as Instructors in a Government ITI. The service contract determines the rights and liabilities of the parties. Here the petitioners were initially appointed CWP No.23699 of 2011 -7- on contract basis on DC rates and there has been no violation of the said condition on the part of the respondents. An option has been given to the petitioners to enter into an agreement, which would entitle them to the pay of Rs.12,500/- per month. Those petitioners, who opted for the said agreement, are being paid accordingly.
Therefore, in the light of these, the assertion of the petitioners that they are being discriminated against cannot be accepted as the petitioners have opted the nature of payment of their remuneration on the basis of their appointment offer i.e. DC rates or contractual agreement rates. There is, thus, no merit in the contention of the petitioners that they are entitled to the minimum of the pay-scale or the amount of Rs.12,500/- per month without even executing the agreement as per the terms of the letter dated 05.4.2010 (Annexure P-6).
As regards the claim of the petitioners No.1 and 2 for the grant of maternity leave, as has been stated in the reply filed by the respondents, the facility of maternity leave to the married female Instructors (contractual engagees) has already been provided as per Government instructions dated 22.6.2009, under which the petitioners can assert their right, if any, by making a representation to the respondents, if they have not been granted the said benefit till date. If such a representation is made, the same shall be considered and decided by the respondents within a period of three months of CWP No.23699 of 2011 -8- such submission of the representation and consequently the benefits should be released to them within a further period of one month.
At this stage counsel for the petitioners has stated that the petitioners, who have not yet executed the agreement with the respondents will execute the same and their claim for grant of benefit from the initial date of their appointment or from the date of issuance of the letter dated 05.4.2010 (Annexure P-6) maybe considered.
The said claim would be within the domain of the respondents and it is left open for the petitioners to enter into such an agreement and thereafter make a representation to the respondents, which may be considered and decision taken accordingly.
An apprehension has been expressed by the counsel for the petitioners that if they enter into an agreement with the respondents, their services would be terminated on the computation of the agreement. Suffice it to say that it is by now well settled that the service of a contractual employee can be terminated as per the agreement. However, it has further been held that a contractual employee cannot be replaced by another contractual employee, merely because the period of earlier contract has expired. The apprehension of the counsel for the petitioners is mis-placed. However, it is clarified that in case any of the petitioners or an employee, who violates any of the conditions of agreement, the CWP No.23699 of 2011 -9- service of such employee can be terminated as per terms of the agreement.
The writ petition stand disposed of with above observations.
Sd/-
September 20, 2012 ( AUGUSTINE GEORGE MASIH ) Vijay Asija JUDGE