Jammu & Kashmir High Court
Anil Raina And Ors. vs State Th.P.D.D.And Ors. on 20 July, 2016
Author: B. S. Walia
Bench: B. S. Walia
1
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No.1911/2013
Date of Order : 20.07.2016
Anil Raina & ors. Vs. State & ors.
Coram:
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For petitioner(s) : Mr. Rahul Pant, Advocate.
For respondent(s) : Mr. Rupinder Singh, AAG.
i) Whether to be reported in : Yes/No.
Press/Media
ii) Whether to be reported in : Yes.
Digest/Journal
Judgment
Oral.,
1. Posts of Computer Operators were advertised vide advertisement Annexure-A dated 01.07.1997 for amongst other departments, the Power Development Department (PDD). Relevant extract of the advertisement is reproduced hereunder:-
Sr. Cadre. Name of Deptt. Tentative Qualification No. the post No. of Academic/Tech.
with grade. Posts
5. Divi. Computer PDD 15 10+2 with diploma in
Jammu Operator Computer programming
(1200-2040) from any recognized
institution.
6. -do- -do- 15 -do-
Divi.
Kashmir
2. Aforementioned details reveal that 15 posts of Computer Operator were advertised in the pay scale of Rs.1200-2040 for Jammu and 15 posts for Kashmir Division in the PDD for being filled up from amongst candidates possessing qualification's of 10+2 with Diploma in Computer Programming from any recognized institution. Pursuant to selection process conducted for filling up the posts advertised vide 2 advertisement Annexure-A dated 01.07.1997, the petitioners were selected and appointed as Computer Operators in the Power Development Department (PDD) in the pay scale of Rs. 1200-2040.
3. Grievance of petitioners is that although the petitioners were appointed as Computer Operators in the PDD in the pay scale of Rs.1200-2040 pursuant to advertisement Annexure A dated 01.07.1997, 20 posts of Computer Operator's were advertised for Kashmir Division and 30 posts for Jammu Division in the pay scale of Rs.2000-3200 with qualification of 10+2 and Diploma in Computers in the Forest Protection Force vide advertisement Annexure-B dated 24.12.1996 i.e. prior to advertisement Annexure-A dated 01.07.1997 although there was no basis whatsoever for having different pay scales.
4. Grievance is that qualifications for the post of Computer Operators in PDD as well as the Forest Protection Force are the same i.e. 10+2 with Diploma in Computers, besides the duties of the post of Computer Operators in the PDD are more onerous than the duties of Computer Operators in Forest Protection Force but still the Computer Operators in the PDD have been given lesser pay scale. Averment's to the above effect are contained in paragraph No.20(f) of the writ petition. It is contended that the averments have not been specifically denied by the respondents, in fact, the denial is completely evasive.
Learned counsel contends that in the absence of specific denial of plea of the petitioners of the duties being performed by them on the post of Computer Operators in the PDD being more onerous than the duties of Computer Operators in the Forest Protection Force, the claim of the petitioners is deemed to have been admitted, consequently the petitioners are entitled to the relief claimed and there is no justifiable reason for denying the same pay scale to Computer Operators in the 3 PDD as is admissible to Computer Operators in the Forest Protection Force.
5. Learned counsel states that the pay scale admissible to a Computer Operator in the PDD was Rs. 1200-2040 which was subsequently revised to Rs. 4000-6000 and as on date of filing of the writ petition the same was Rs. 5200-6000+G.P., Rs. 2400 in comparison to the initial pay scale of Rs. 2000-3200 to a Computer Operator in the Forest Protection Force revised to Rs. 6500-10500 currently Rs. 9300-34800+G.P. 4600. By referring to the averments in paragraph No. 9 of the writ petition it is contended that even in the Education Department the pay scale to Computer Operators was upgraded from Rs.5000-8000 to Rs. 6500-10500 vide order Annexure B1 dated 28.07.2009, thereby bringing the same at par with the pay scale of Computer Operators in Forest Protection Force where after the pay scale of Computer Operators in the Forest Protection Force was further revised. Reference is also made to the contents of paragraph No.20(f) of the writ petition to contend that the plea therein that duties performed by the petitioners are much more onerous than the duties being performed by Computer Operators in the Forest Protection Force or for that matter, the Education Department/other departments has not been specifically denied in the objections. Learned counsel further referred to the rules of the Education Department as per which qualification for the post of Computer Operators is mentioned as 10+2 with diploma in Computers. Relevant extract of the School Education (Subordinate) Service Recruitment Rules, 2008 is reproduced hereunder:-
Class Category Designation Grade Minimum Method of qualification recruitment for direct recruitment III D Computer 5000- 10+2 with 100% by Operator 8000 Diploma in direct 4 Computer recruitment Science from a Govt.
recognised Polytechnic, ITI, DOEACC accredited institute.
6. Learned counsel contends that in the absence of a specific denial to the contents of paragraph No.20(f) of the writ petition, the claim of the petitioners is justified and consequently, the petitioners are entitled to grant of the relief claimed. There is no basis whatsoever for the unjustified discrimination, even the impugned order Annexure K dated 22.08.2013 does not deal with the aforementioned aspects despite three rounds of litigation and directions to the respondents to consider the claim of the petitioners in the light of grievance of discrimination with counterparts in other departments.
7. Learned counsel further submitted that the impugned order Annexure K dated 22.08.2013 whereby the petitioners had been denied grant of pay scale of Rs.6500-10500 was primarily on account of the petitioners having applied and joined service in full knowledge of the scale admissible as per the advertisement, secondly of the petitioners having invoked the jurisdiction of this Court raising the plea of discrimination after a lapse of 07 years, thirdly on the ground that nature of duties of the petitioners were distinct from the nature of duties of Computer Operators of other departments, fourthly, of the matter having been taken up with the Finance Department as well as Information Technology Department and in the circumstances, as and when a decision was taken by the said department, relief, if found admissible, would be granted to the petitioners. Learned Additional Advocate General states that the relief claimed having been deferred to await outcome of the decision of the Finance Department pending 5 framing of rules by the Information Technology Department, impugned order Annexure-K had been passed on relevant considerations, therefore was immune from challenge.
8. That a perusal of the impugned order reveals that the petitioners initially invoked the jurisdiction of this Court by way of SWP No.1243/2006. The same was disposed of vide order Annexure-H dated 24.11.2006. Operative part of the order is reproduced hereunder:-
" The grievance projected by the petitioners in this writ petition is that their representation made to the respondents for consideration of their cases for the purpose of pay parity vis-à-vis their counter parts of Computer Operators in the Forest Department is not being accorded consideration.
Mr. Raina learned senior counsel for the petitioners submits that he would be satisfied if this writ petition is disposed of with a direction to the respondents to accord consideration to the representation filed by the petitioners.
Mrs. Hakim learned counsel for the respondents submits that respondents would have no objection for according consideration to the representation filed by the petitioners.
In view of the submissions made, this petition is disposed of with a direction to the respondents to accord consideration to the representation of the petitioners filed for seeking pay parity vis-à-vis their counter parts Computer Operators in the Forest Department, within a period of three months. Connected CMP shall also stand disposed of."6
9. That in compliance of the orders of the Court in SWP No.1243/2006 dated 24.11.2006, Government, vide order No.258-PDD of 2007 dated 31.08.2007, rejected the claim of the petitioners for enhancement of pay scale from Rs.4000-6000 to Rs.6500-10500. Resultantly, the petitioners invoked the jurisdiction of this Court for the 2nd time vide SWP No.1984/2007 by challenging Government Order No.258-PDD of 2007 dated 31.08.2007. The same came to be disposed of vide order Annexure-H dated 01.09.2009(page No. 54). Relevant extract of the said order is reproduced hereunder :-
"This Court while disposing of the aforementioned writ petition filed by the petitioners had specifically directed that the respondents to examine the case of the petitioners who are seeking parity vis-à-vis their counter part Computer Operators in the Forest Department but a perusal of the order impugned shows that the respondents have not considered the case of the petitioners in accordance with the directions issued by this Court in the aforementioned writ petition. The respondents as indicated above, had to examine the case keeping in view the fact that the counter parts of the petitioners in the Forest Department have been given the grade of Rs.6500-10500. The respondents while rejecting the claim of the petitioners had to give reasons as to why the petitioners are not entitled to the similar pay scale as has been given to the Computer Operators in the Forest Department. In absence of any reasons to that effect, the order impugned is held to be passed not in consonance with the order dated 24th Nov' 2006 passed by this Court in SWP No.1243/06. The order impugned is, accordingly, set aside and the respondents 7 are directed to consider the case of the petitioners afresh and make compliance of the aforementioned order passed by this Court in its letter and spirit within a period of two months from the date, a copy of this order is made available to the respondent authorities by the petitioner. Disposed of accordingly."
10. Learned counsel contends that vide Annexure-H at page 54 of the paper book, order dated 31.08.2007 was set aside with a specific directions to the respondents to consider and examine the case of the petitioners afresh keeping in view the plea that petitioners counter parts in the Forest Department had been given grade of Rs.6500-10500 and one of the reasons for setting aside the impugned order was that the respondents had failed to give reasons for rejecting the claim of the petitioners as to why they were not entitled to the same pay scale as had been given to their counter parts i.e. Computer Operators in the Forest Department. Thereafter, Finance Department vide its U.O.No.A/20(07)-1152 dated 06.01.2011 returned the departmental proposal with the following observations :-
"Returned. The instant proposal/issue was deliberated upon by the pay Anomaly Committee constituted vide Govt. Order No.1387-GAD of 2009 dated 08.10.2009. The report/recommendations of Pay Anomaly Committee approved vide Cabinet decision No.262/24/2010 dated 10.12.2010 on this issue is as under:-
"4.9.1. The Computer Operators of prisons department have demanded that they be placed in the pay band of Rs.9300- 34800+4200. Presently, they are placed in the pay band of Rs.5200-20200+2400.
Similarly, Data Entry Operators of Excise/Commercial Taxes Department have 8 demanded that they be placed in the pay band of 9300-34800+4200 on par with Data Entry Operators of Forest Department. Presently, DEOs of E&CT department are placed in the pay band of Rs.5200-20200 with GP of Rs.2400.
4.9.2. The Committee observed that the Information Technology personnel like Computer Operators/Data entry Operators are enjoying different pay scales in different departments. This differential set of scales for a similar post in different departments was an anomalous position which warranted expeditious and qualitative intervention lest it should trigger a series of anomalies and by implication litigations in the matter. However, it felt that only IT department is qualified to lead this intervention. The committee observed that these are specialized posts for which IT department need to lay down appropriate eligibility criteria and mode of recruitment including an adequate organizational model. There is a view that a State Informatics Service may be constituted by the IT Department and all the IT personnel in different departments may be caused to be borne upon it for uniformity and cadre stability as is the case with the personnel of accounts and planning service.
These IT personnel like accounts and planning personnel could be posted to
different department even as their lien and promotional prospects remain in their parent department(IT).
4.9.3. Accordingly, the Committee decided that all the cases resting with PAC may be referred to Information & Technology Department for appropriate classification of their status and for constitution of a unified 9 service of these personnel. IT department may also lay down an appropriate recruitment framework for these posts on a most immediate basis to regulate their service conditions in an effective manner in a time bound manner as per deliberations between the Committee and the Administrative Secretary IT."
11. Learned counsel submitted that the matter which had been referred by the Finance Department to the Information Technology Department vide U.O. dated 20.12.2012 was returned with the following remarks :-
"The Power Development Department is advised to consider the case of IT personnel working in the department on their own till recruitment rules of Information Technology Department are finalized and an organizational model of IT personnel is set up in the department."
12. That the matter was thereafter again taken up by the PDD Department vide U.O. No.PDD/VI-J/104/2006 with the Finance Department vide U.O. No.A/20(07)-IV-54 dated 26.03.2013, which returned the proposal with the following remarks :
"Returned. The department is advised to accord consideration to the petitioners case afresh as ordered by the Court and revert to the Finance Department thereafter if needed."
13. Learned AAG states that pursuant thereto, a decision was taken by the PDD rejecting the claim of the petitioners on the ground that the posts had been approved by the Planning Department for the PDD vide Order No.129-PD of 1996 dated 04.12.1996 with the pay scale of 10 Rs.1200-2040 while the Posts of Computer Operators for Forest Department were approved by the Planning Department vide orders of the same date but with pay scale of Rs.6500-10500 pre-revised. Learned counsel for the petitioner on the other hand states that the pre-revised scale in the year 1996 at the time of creation of the posts was Rs.2000-3200 and not Rs.6500-10500 and that there was no basis whatsoever for the Planning Department to have created posts of Computer Operators in different departments with different pay scales when the qualification for appointment on the said post in the two departments were the same whereas the duties and responsibility of the post in the PDD were more onerous than those in the Forest Protection Force. Besides, there was no material whatsoever on record to justify the cryptic stand that the work and responsibility of the two posts were different, therefore, different pay scales were granted.
14. The second ground for denial of the scales claimed was that the posts of Computer Operator were advertised by the Forest Department vide advertisement Annexure B dated 24.12.1996 whereas the pay scales approved for the posts advertised in the PDD vide advertisement dated 01.07.1997 clearly mentioned pay scale of Rs. 1200-2040, therefore, once there was acceptance of the terms and conditions of appointment by the petitioners, a contract arose between the employer and employee, therefore, it was not subsequently open to the petitioners to turn around and challenge the same.
15. Other grounds for denial of the relief claimed was of the claim having been made belatedly, therefore was hit by delay and laches, that the Forest Department was a distinct and different department than the Power Development Department and Computer Operators working in the Forest Department were different set of employees from those working in the PDD, therefore the petitioners could not claim 11 parity. Last ground for denial of relief was that the Information Technology Department was already in the process of finalizing the grades for Computer Operators in different departments on the basis of nature of work, qualification etc., therefore, the claim of the petitioners would be subject to decision of the Information Technology Department on its framing recruitment Rules for Information Technology personnel and grades as would be determined by the Information Technology Department for Computer Operators of all the departments including those already employed in PDD would be taken up for consideration and the petitioner would be placed in the grade as determined by the Information Technology Department.
16. I have heard learned counsel for the parties, considered the submissions and am of the considered view that the claim of the petitioners is liable to be allowed.
17. It is not in dispute that the qualification's for the posts of Computer Operator in the PDD as well as the Forest Department are identical. Although, a specific averment has been made in paragraph No.20 (f) of the writ petition that the duties of the Computer Operators in the PDD are more onerous than the duties of the Computer Operators in the Forest Department as well as Education Department, there is no specific denial of the same in the objections and that reply in respect thereto is completely evasive and does not deal with the point in issue. Even otherwise, the objections cannot be more than what is set out in the impugned order and perusal thereof reveals that the aforementioned ground is not the basis for denying relief to the petitioners.
18. Apart from the aforementioned position, the main point on which the claim of the petitioners is resisted is that the matter has been referred to the Information Technology Department for proper 12 classification of the status of Computer Operators for constitution of a unified service and that the Information Technology Department had been requested to lay down an appropriate recruitment framework for aforesaid posts on a most immediate basis to regulate their service conditions in an effective and time bound manner. In respect thereto, decision of the Information Technology Department as contained in U.O. dated 20.12.2012 returning the case forwarded by the Finance Department to the PDD is relevant. Relevant extract of the same is as under:-
"The Power Development Department is advised to consider the case of IT personnel working in the department on their own till recruitment rules of Information Technology Department are finalized and an organizational model of IT personnel is set up in the department."
19. In the aforementioned background, contention of learned counsel that the petitioners claim could not be kept in suspended state of animation for indefinite period of time till non-finalization of the recruitment rules by the Information Technology Department, more so, since Information Technology Department had itself advised the PDD to consider the case of its Information Technology personnel at its own level till finalization of recruitment rules of the Information Technology Department merits acceptance.
20. Learned counsel referred to paragraph No.9 of the decision of the Hon'ble Supreme Court in case titled Randhir Singh vs. Union of India & ors., reported as 1982 (1) SCC 618. Paragraph No.9 of the judgment is reproduced hereunder :-
"9. There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration 13 and the Central Government. If anything, by reason of their investiture with the 'powers, functions and privileges of a police officer', their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver- constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the drivers-constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect."
21. Learned counsel also referred to paragraph No.2 of the decision of the Hon'ble Supreme Court in case titled Dhirendra Chamoli & anr. vs State of U.P. reported as 1986 (1) SCC 637. Relevant extract of the same is reproduced hereunder :
"2. ......It is peculiar on the part of the Central Government to urge that these persons took up 14 employment with the Nehru Yuvak Kendras knowing fully well that they will be paid only daily wages and therefore they cannot claim more. This argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a Welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value. These employees who are in the service of the different Nehru Yuvak Kendras in the country and who are admittedly performing the same duties as Class IV employees, must therefore get the same salary and conditions of service as Class IV employees. It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees."15
22. Learned counsel contended that had there been a specific denial of the averments of the petitioners' performing more onerous duty than their counterparts in other departments, the position would have been different. But since there was no specific denial of the petitioners performing more onerous duty than Computer Operators in other departments despite a specific averment having been made by the petitioners and the qualifications of the posts of Computer Operators in all the Departments being the same, there was no basis for denying same pay scale to the petitioners as was admissible to their counterparts in other departments.
23. Learned counsel contends that the only basis for taking up the stand qua grant of different pay scales is of the Planning Department having given different pay scales, therefore, the same being indicative that work and responsibilities of the posts in the two departments were different. Learned counsel further states that the basis for Planning Department having granted different pay scales has not been set out in the objections / counter nor the record in respect thereto has been produced, therefore, the stand is merely a conclusion or inference and that without referring to the material on the basis of which the conclusion is based, the plea thereof is liable to be rejected.
24. There is merit in the submissions of learned counsel for the petitioners. Although, the petitioners were required to prove that qualifications and responsibilities of the post of Computer Operators in the PDD are similar to those in the Forest Protection Force and the Education Department in order to be entitled to pay scales as admissible to their counter parts in said departments, yet that point need not hold this Court for the simple reason that the only basis for denying the same pay scales to the Computer Operators in the PDD as admissible to computer operators in the Forest Protection Force is that 16 the Planning Department vide same order had placed the Computer Operators in the PDD and in the Forest Department in different pay scales, therefore, the same was indicative of work and responsibilities of the two posts being different. However, the plea as raised is noticed to be rejected for the simple reason that despite categorical averment in paragraph No. 20(f) of the writ petition of the duties being performed by the petitioners on the post of Computer Operator in the PDD being more onerous than the duties being performed by Computer Operators in the Forest Protection Force, there is no specific denial of the said averments in the objections. Besides, neither has any record in respect thereto been produced in order to substantiate the said stand. In view thereof, it is clear that the basis for denial is merely on surmises and conjectures. The claim could have been denied by referring to the duties of the Computer Operators in the PDD and the Computer Operators in the Forest Department. Neither the same has been done nor has record in respect thereto, been produced in order to substantiate the stand. In view thereof, it is clear that the basis for the denial is merely on surmises and conjectures. In the circumstances, the plea that Computer Operators in the PDD were not granted identical pay scale by the Planning Department on account of likelihood of their having different duties and responsibilities is bereft of merit, liable to be rejected and is, accordingly, rejected.
25. As regards, the plea that the petitioners had accepted the terms and conditions of appointment, therefore, could not turn around and seek grant of higher scale, the answer in respect thereto, lies in the decision of the Hon'ble Supreme Court in Dhirendra Chamoli's case (Supra). Relevant extract of the same is reproduced as under:-
"It is peculiar on the part of the Central Government to urge that these persons took up employment with the Nehru Yuvak 17 Kendras knowing fully well that they will be paid only daily wages and therefore, they cannot claim more. This argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a Welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument."
In view thereof, the plea as raised by learned AAG on behalf of the respondents is rejected.
26. As regards the plea of the claim being hit by delay and laches, there appears to be some merit in the stand of learned counsel for the respondents. However, said plea also need not hold the Court in view of the fact that the claim for grant of pay scale at par with identically situated Computer Operators is a continuing cause of action, therefore, the claim of the petitioners can be allowed by directing the respondents to grant the petitioners the benefit of pay scale at par with Computer Operators of other departments i.e. Forest Protection Force as well as Education Department with effect from the date of existence of anomaly i.e. initial date of their appointment while restricting the difference on account of arrears on grant of higher pay scale for a period of three years two months prior to the institution of the writ petition. At this stage, learned counsel submits that the petitioners invoked the jurisdiction of this Court initially in the year 2006 therefore, the petitioners are entitled to arrears since the date of accrual of anomaly. The plea of the petitioners merits acceptance. Hon'ble Full Bench of the Punjab & Haryana High Court in Rajbir Singh and others versus Haryana State Electricity Board and others, 2009 (3) S.C.T. 543 considered issue regarding date from which anomaly is to be removed and held as under :
18
"Once it is acknowledged that a mistake has been committed, whereby an anomaly has arisen, the mistake has to be remedied in such a manner, that the aggrieved party does not have any adverse effect of the mistake/anomaly. This would be possible if an anomaly in pay scales is corrected retrospectively with effect from the date when the anomalous pay scale was introduced. On the other hand, if the mistake/anomaly is corrected from a future date, the concerned individual will have to suffer the effect of the anomaly, from the date it had arisen, till the date it was remedied. The late determination would be iniquitous and unacceptable in law as it would not be able to stand the test of Article 14 of the Constitution of India, which postulates equality before the law and equal protection of the laws".
Accordingly, while holding entitlement of the petitioners for removal of anomaly w.e.f. date the same came into existence, entitlement to arrears is restricted for the period indicated above prior to institution of SWP No. 1243/2006.
27. Another argument raised by learned AAG is that there is no claim in the writ petition with regard to parity with the Computer Operators in the Education Department. This plea is noticed to be rejected for the simple reason that the claim as set out in the writ petition has to be read as a whole and the mere fact that the plea has not been raised in the prayer in the writ petition and has been raised only in the writ petition would not derogate from the rights of the petitioners.
28. Writ petition stands allowed in the aforementioned terms. Needful be done and orders of this Court be complied within a period 19 of three months from date of submission of certified copy of this order and arrears on account of entitlement be also paid within the aforesaid period, failing which, arrears shall be paid to the petitioners along with interest @ 6% per annum with effect from the date of entitlement indicated above till the date of payment. In the eventuality of payment not being made in accordance with the decision of this Court, interest payable in respect thereto be recovered by the Government from the officer/official responsible for delay in compliance with the directions of this Court.
( B. S. Walia ) Judge.
Jammu 20.07.2016 Ram Murti