Punjab-Haryana High Court
Pannal Lal And Others vs Hsdc And Another on 4 February, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
C.W.P. No. 13966 of 1999 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. C.W.P. No. 13966 of 1999
Pannal Lal and others ..........Petitioners
Versus
HSDC and another ..........Respondents
2. C.W.P. No. 12619 of 2001
L.S. Tanwar ..........Petitioner
Versus
HSDC and another ..........Respondents
DATE OF DECISION: 04.02.2014
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Inderjeet Singh, Advocate
for the petitioners.
Mr. Vishal Gupta, Advocate
for the respondents.
****
DAYA CHAUDHARY, J.
This order will dispose of two petitions bearing C.W.P. Nos. 13966 of 1999 and 12619 of 2001 as similar facts and issues are involved in both the cases. For the sake of convenience, facts are being extracted from C.W.P. No. 13966 of 1999.
The prayer in the present petition is for quashing of remarks made against entry No. 59 of sanction order dated 12.10.1998 with regard to grant of pay scale of ` 3050-4350 for the post of Helper to mechanic, Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (2) which is only for those candidates, who were having ITI diploma as well as for quashing of orders dated 28.12.1998 and 29.1.1999 vide which their pay have been fixed in the pay scale of ` 2650-4000.
Briefly, the facts of the case are that the petitioners are working as Helpers to mechanic with the respondents-Corporation after their appointment on the post of Helper to mechanic. At the time of appointment, the petitioners were having qualification of matric with practical experience of three years in operations, maintenance, repair of processing equipment/machinery and on the basis of that qualification and experience, they were selected on the post of Helper to mechanic. As per advertisement, which was published in Daily Tribune dated 10.8.1985, total 11 posts of Helpers to mechanic were advertised and qualification and experience for said posts was either Diploma in mechanical or electrical trade with working experience of approximately six months in operations, maintenance and repair of seed processing equipment or matric passed with practical experience of three years in operations, maintenance, repair of processing equipment/machinery. The petitioners were matric pass with three years experience and on the basis of that qualification and experience, they were selected and appointed. All selected candidates who were either having diploma or were matric pass with experience were getting same pay scale which was revised from time to time. The pay scales of all the employees were revised w.e.f. 1.1.1996 but against entry No. 59, a clause was mentioned, whereby, two different pay scales were mentioned in the recommendations which were approved, that the pay scale of employees who were having ITI diploma were to be given pay scale of ` 3050-4350 and the candidates who were not having ITI diploma were placed under pay scale of ` 2610-3540. On the basis of that recommendation, the pay of petitioners and other Helpers to mechanic Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (3) were fixed. That entry No. 59 in the recommendation of pay scale is the subject matter of challenge in the present petition.
Learned counsel for the petitioner contends that two different pay scales cannot be granted to the employees who are working on the same post as there was no condition in the advertisement at the time of selection/appointment. Learned counsel further contends that not only the financial loss will be caused to the petitioners but the same will also affect their next promotion to the post of Junior Mechanic as the promotion to the next post is made on the basis of seniority-cum-merit. Learned counsel also contends that two different pay scales for candidates working on the same post is not only arbitrary, irrational but also violative of equality clause, which is contrary to provisions of Articles 14 and 16 of the Constitution of India. It is also the contention of learned counsel that in other Public Undertakings like Haryana State Electricity Board, the pay scale of ` 3050/- has been given to both ITIs and non-ITIs. The petitioners are senior to some of the Helpers to mechanic and have been drawing the same pay scale since their recruitment. The action of the respondents in granting lower pay scales to the petitioners viz-a-viz other Helpers to mechanic candidates, who are junior to the petitioners, is arbitrary and discriminatory and moreover their channel of promotion is also the same. Learned counsel for the petitioner has also relied upon the judgment of Hon'ble the Apex Court in the case of State of Punjab and another Vs. Surjit Singh and others JT 2009 (10) SC 424 and judgments of this Court in Narinder Kumar Vs. State of Haryaa and others passed in LPA No. 1847 of 2011 decided on 10.12.2012, Gurdev Singh and others Vs. State of Haryana and others 2012 (2) S.C.T. 125, Dr. Braham Dutt Vs. State of Haryana 1991 (3) SCT 125, Haryana State Electricity Board Vs. Onkar Singh 2001 (4) SCT 1102 and of Delhi High Court in Ajit Thapliyal Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (4) and others Vs. All India Institute of Medical Sciences passed in W.P. © 3976/2012 decided on 25.4.2013 , in support of his contentions.
Reply on behalf of respondents No.1 and 2 has been filed and the same is on record.
Learned counsel for the respondents submits that two different pay scales on the basis of different educational qualification is well reasoned and it has been upheld in catena of judgments. The decision of granting two pay scales was taken by the committee purely on the basis of merit and after considering the qualification possessed by the employees who are working on the post of Helpers to mechanic and the same has been allowed by the Finance Department. Learned counsel for the respondents has also relied upon the judgment of this Court in Surinder Kumar Sharma Vs. Haryana Agricultural University, Hissar 1993 (3) S.C.T. 354, in support of his contentions.
Heard the arguments advanced by learned counsel for the parties and have also gone through the impugned orders as well as other documents available on the file.
Admittedly, at the time of advertisement of posts of Helper to mechanic, the petitioners fulfilled the qualification and experience required for the said post. The pay scale was also mentioned in the advertisement. The qualification and experience of said post as mentioned in the advertisement is reproduced as under:-
"Diploma in Mechanical or Electrical Trade with working experience of approximately 6 months in operations, maintenance and repair of seed processing equipment.
Or Matric pass with practical experience of three years in operations, maintenance, repair of processing Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (5) equipment/machinery.
The petitioners were matric pass with practical experience of three years in operations, maintenance, repair of processing equipment/machinery and on the basis of that qualification and experience, they were selected and appointed as Helpers to mechanic in the pre- revised pay scale of ` 350-500. On the basis of aforesaid advertisement, total eleven candidates were selected, out of which, eight were ITI diploma holders with six months experience and other three candidates, petitioners herein, were matric with practical experience as prescribed in the advertisement. A seniority list of all candidates who were selected was also finalized. Thereafter pay scales were revised w.e.f. 1.1.1986 and they were kept in pay scale of ` 775-1025 and again the pay scales were revised w.e.f. 1.1.996. Vide order dated 12.10.1998 the approved recommendations of different categories of employees were sent. Against entry No. 59 two different pay scales were mentioned for ITI candidates and non-ITI candidates. The ITI candidates were kept in the pay scale of ` 3050-4350 and non-ITI candidates were kept in the pay scale of ` 2610- 3540.
The action of the respondents in keeping the petitioner in lower pay scale is the subject matter of challenge in the present petition on the ground that two different pay scales cannot be given when the petitioners were fulfilling the requisite qualification and experience at the time of advertisement. Two different qualifications were required as per advertisement and the petitioners were fulfilling the qualification of matric with experience and for that ITI was not the requirement. By keeping the similarly situated employees in two different pay scales, the action of the respondents is arbitrary, irrational and violative to Articles 14 and 16 of the Constitution of India. It has also been argued that there is no rational Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (6) qualification for granting two different pay scales as even for next promotion the petitioners are entitled for consideration.
Now the question for consideration before this Court is whether the petitioners can be kept in lower pay scale viz-a-viz their counter parts, who were also selected/appointed against the same advertisement.
An identical issue came up for consideration before this Court in a case titled as Labh Singh Vs. State of Haryana and others reported as 1995 (1) SCT 311. In that case, some of the petitioners were possessing qualification of matric with ITI, whereas, some were having only ITI. They were working on the posts of mates in State of Haryana. They claimed the revised pay scale of ` 1200-2040 on the ground that they were working against technical post for which qualification prescribed was matric with ITI and thus they were entitled to the revised pay scale. However, the State Government placed them in the pay scale of ` 750-940 by pleading that they are class IV employees and are not entitled to revised pay scale. On consideration of the issue, the following observations were made:-
" 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 Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (7) 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 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 judgement 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 possess the qualifications of Matriculation with I.T.I certificate and it was Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (8) 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. 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 Draftsmen 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 Draftsmen without any diploma qualification should acquire such qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (9) doubt that the second limb of 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 Chandraprakash 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 or 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 confirmations."
In Randhir Singh Vs. Union of India, AIR 1982 Supreme Court 879 the final court declared that if Articles 14 and 16 of the Constitution of India were construed in the light of the Preamble and Articles 39 (d), it is clear that the principle equal pay for equal work is deductible from those Articles and may be properly applied to case of unequal scale of pay based on no clarification of irrational classification though those drawing the different scales of pay do identical work under the same employer.
In Food Corporation of India Workers Union Vs. F.C.I., Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (10) 1990 (4) SLR 745 there was disparity in the wages between employees posted at FCI depots in Assam, Bihar and Orissa etc. from those employed in West Bengal. Employees were getting higher wages in West Bengal. Nature of work performed by two categories was not different. In this background, their Lordships of the final Court issued directions to remove this disparity.
In State of Haryana v. Tilak Raj and others JT 2003 (5) SC 544, it has been held that the principle of equal pay for equal work is not always easy to apply. It has been held that there are inherent difficulties in comparing and evaluating the work of different persons in different organisations or even in the same organisation. It has been held that this concept requires, for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. It has been held that the problem about equal pay cannot be translated into a mathematical formula. It was further held as follows:
A scale of pay is attached to a definite post and in case of a daily-wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-à-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of 'equal pay for equal Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (11) work' is an abstract one."
Hon'ble the Apex Court in Bhagwan Dass and others Vs. State of Haryana and others (1987) 4 Supreme Court Cases 634 has held that if the duties and functions of the temporary appointees and regular employees are similar, there cannot be discrimination in pay merely on the ground of difference in modes of selection. It was held that the burden of proving similarity in the nature of work was on the aggrieved worker. We are unable to agree with the view that there cannot be discrimination in pay on the ground of differences in modes of selection. As has been correctly laid down in Jasmer Singh case persons selected by a Selection Committee on the basis of merit with due regard to seniority can be granted a higher pay scale as they have been evaluated by the competent authority and in such cases payment of a higher pay scale cannot be challenged.
In the present case, the petitioners were possessing the requisite qualification to the post of Helper to mechanic at par with their counter parts who were having ITI qualification. Subsequently they were put in different pay scales, which would result in not only the financial loss but discrimination as well as irrational also. Both the categories of employees are performing same nature of duties and as per advertisement all of them were kept in same pay scale. Subsequently to keep them in two different pay scales is not only irrational but unjust also.
Accordingly keeping in view the settled position of law as well as the facts and circumstances as mentioned above, the present petitions i.e. C.W.P. Nos. 13966 of 1999 and 12619 of 2001 deserve to be allowed and entry No. 59 in sanction order dated 12.10.1998 as well as orders of pay fixation dated 28.12.1998 and 29.1.1999 are quashed. The respondents are directed to grant pay scale of ` 3050-4350 to the Pooja Sharma 2014.02.06 11:24 I attest to the accuracy and integrity of this document High Court, Chandigarh C.W.P. No. 13966 of 1999 (12) petitioners and fix their pay in the revised pay scale as has been granted to other Helpers to mechanic w.e.f. 1.1.1996 along with interest at the rate of 12% per annum. The necessary exercise be done within a period of four months from the date of receipt of certified copy of the order and arrears be paid to the petitioners within a period of two months thereafter.
4.2.2014 (DAYA CHAUDHARY)
pooja JUDGE
Pooja Sharma
2014.02.06 11:24
I attest to the accuracy and
integrity of this document
High Court, Chandigarh