[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. [CASE NUMBER] The [ENTITY] and others Appellants Versus [ENTITY] and others Respondents 2. [CASE NUMBER] [ENTITY] and another Appellants Versus [ENTITY] and others Respondents Date of Decision:14.8.2012 CORAM:- HON'BLE MR.JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Present: Ms. [ENTITY], D.A.G. Punjab, for the appellants. Mr. [ENTITY], Advocate. Mr. [ENTITY], Sr. Advocate with Mr. [ENTITY], Advocate. Mr. [ENTITY], Sr. Advocate with Mr. [ENTITY], Advocate. Mr. [ENTITY], Advocate for the respondents. [ENTITY], J.
This order will dispose of [CASE NUMBER] and [CASE NUMBER] as similar facts and law points are involved in these cases.
The [ENTITY] is in appeal against the order of the learned Single Judge of this Court dated 7.5.2009 passed in [CASE NUMBER] and 15 connected writ petitions decided by the common judgment impugned in this appeal.
Learned Single Judge has quashed the notification dated 17.2.1989 (Annexure P-3) issued by the Government of Punjab revising pay scales of the teaching staff of the Education Department issued under the [ACT]. This notification provided different pay scales for a composite group of employees of the Education Department holding the posts of "Art & Craft, PTI, MTI, Drawing Masters and Agriculture Teachers" on the one hand and another group of language teachers imparting education in Hindi, Punjabi, Hindi, Urdu and Sanskrit.
In the first instance the [ENTITY] filed [CASE NUMBER] impugning the decision of the learned Single Judge. The appeal was disposed of by granting liberty to the appellant to move the learned Single Judge through review application. The following order was passed:-
"Learned counsel for the appellants has submitted that there were certain subsequent developments including enactment of certain legislations which were required to be placed before the learned Single Judge hearing the writ petition. However, the same could not be so placed due to inadvertence. Accordingly, it is submitted that the appellants should be allowed to amend the appeal and bring the subsequent events and legislations on record. We have considered the submission advanced by the learned counsel for the appellants.
If subsequent event including the relevant legislations could not be placed before the learned Single Judge, in fitness of things, the appellants should have filed a review petition to bring the same on record so that the learned Single Judge hearing the writ petition can have the benefit of the said events and the legislations enacted. To permit the appellants to do so at the appellate state may not be appropriate as the same may amount to consideration of issued by the Appellate Court which were beyond the purview of the issues arising before the learned Single Judge. We, therefore, are of the view that instead of entertaining this LPA, it would be more appropriate for the appellants to file a review petition, if so advised.
We, therefore, dispose of the LPA in the above terms granting liberty to the appellants to move the learned Single Judge by way of a review petition."
In terms of the above order, the appellant/[ENTITY] filed [CASE NUMBER] before the learned Single Judge inter alia on the ground that provisions of the [ACT] (for short "[ACT]") had not been brought to the notice of learned Single Judge. The [ACT] came into effect on 1.1.2005. The [ACT] entitled the teachers like "Art & Craft, PTI, MTI, Drawing Masters and Agriculture Teachers" and the other group of language teachers imparting education in Hindi, Punjabi, Urdu and Sanskrit to the pay scale of Rs.1410- 2640 w.e.f. 1.1.1986 in accordance with the notification dated 17.2.1989 and such teachers were not entitled to higher pay scale of Rs.1640-2925 at par with a separate group of teachers i.e. in Punjabi/Hindi/Urdu/Sanskrit. The review application was dismissed by the learned Single Judge by order dated 4.1.2011. In review, the State inter alia pressed [SECTION] of the [ACT] in its defence. [SECTION] of the [ACT] reads as follows:
"3. Grant of pay scale as per rules and notifications:-
Notwithstanding anything contained in any instruction, rules or law for the time being in force and any judgment, decree, order and decision of any Court, Tribunal or Authority, the teachers shall be entitled only to the pay scales of the revised posts held by them, which were granted under the [ACT] read with Finance Department Notification No.10/3/89-FPI/953 dated 20th January 1989 and the State Govt. Notification No.11/64/87-2Edu.6/666 dated the 17th February, 1989 irrespective of their qualifications with effect from the 1st day of January 1986 and nothing more than that shall be payable to them."
[SECTION] is in statutory supersession of all previous notifications granting benefits of pay scales to teachers and restricts pay scales according to the [ACT] irrespective of qualifications w.e.f. 1.1.1986. The notification dated 17.2.1989 had reduced the pay scale in respect of Art & Craft, PTI, MTI and Drawing Teachers etc. by not accepting the recommendations of 3rd Punjab Pay Commission in respect of the group.
The learned Single Judge dismissed the review application and rejected the case of the State built on the foundations of the [ACT]. The learned Single Judge held that the [ACT] is prospective in nature and any benefit which had already flown from Government notification cannot be taken away by such an enactment. The Court did not accept the argument of the State that the [ACT] takes away the right of the writ petitioners which had accrued on their acquiring higher qualifications between the years 1971 to 1975 and on the basis of the recommendations of the 3rd Pay Commission duly approved and accepted by the State. It would not be out of place to state that the vires of [ACT] has been upheld by this Court in Beant Singh & others v. [ENTITY] & others (CWP 14634 of 2009 and connected cases) decided on 30.8.2010.
In this background both the orders, that is, the main order and the review order have been made subject matter of challenge in this appeal.
The impugned notification dated 17.2.1989 (Annexure P-3) deals with 21 cadre posts at the primary school level education and 6 ex cadre posts in Punjab Education Service-Class II.
In the present case we are concerned with posts/groups falling at serial Nos.5 and 6 of the impugned notification which lay down as follows:
S.No Category Present Scale Revised Scale Remarks . in Rs.
C & V Tr. i.e. 570-1080 (with 3 1640-2925 Sr. These scales Punjabi/Hindi/ adv. Increments to Scale after 8 will be given Urdu Sanskrit Punjabi/Hindi/Urdu years service as a measure /& 5 adv 1800-3200, personal to increments to Sr. Scale after the present Sanskrit Tr. 18 yrs. incumbents & Service 2000- in future 3500 masters be appointed as language 5 masters.
Art and Craft SV Rs.570-1080 (with 1410-2640 Sr. Trs. 3 adv. Increments Scale after 8 to A & C Trs. years service 1500-2640, Sr. Scale after
18 years service 1640- 6 2925 The notification dated 17.2.1989 was issued in pursuance to Finance Department Notification dated 20.1.1989. Prior to the notification Language Teachers and Art and Craft teachers were in the same pay scale of Rs.570-1080. The only distinction between the two categories prior to revision was with respect to Sanskrit teachers who were entitled to 5 advance increments while Punjabi, Hindi, Urdu teachers were entitled to three increments on parity with Art and Craft teachers with three advance increments. The incentive to Sanskrit teachers may possibly have been because of short supply of teachers of this category. The respondents before the writ court were Art and Craft teachers who are commonly known as Classical & Vernacular teachers (C & V).
In order to examine the validity of the notification dated 17.2.1989, it is of primary importance to examine the [ACT] which govern the service conditions of the successful respondents-writ petitioners before the learned Single Judge. [SECTION] regulates the pay of members of the service and lays down as under:
"10 Pay:- Members of the service will be entitled to such scale of pay as may be authorized by the Government from time to time. The scale of pay at present in force are specified in Appendix "A" against each post."
Both categories of posts i.e. language teachers and Art and Craft teachers are mentioned in [SECTION] to the Rules. [SECTION] contains two sections A and B i.e. Men's Branch and Women's Branch respectively. The post and pay scales of Teachers, that is, Sanskrit Teachers, Punjabi Teachers, Drawing Teachers, Physical Training Masters, Manual Training Instructor, Arts and Crafts Teachers, Hindi Teachers have been grouped/clubbed together in parenthesis showing these posts mentioned from serial IV to VII together in Men's Branch which reads as follows:
(iv) 82 140-10-220 (v) 20 105-7-140 (vi) 71 70-3-80/4-120 (for Shastries only) (viii) 225 50-3-80/4-100 (Start of Rs.65 to [ENTITY], [ENTITY] and Drawing Teachers in 50/100 Grade)
In the Women's Branch entries V to VII, the posts of Punjab Teachers, Hindi Teachers, Sanskrit Teachers and Junior Teachers have been shown in single parenthesis while entry 'VIII' is separate. The old pay scales at the time of promulgation ranged from Rs 140-10-220 decending to Rs 50- 3-80/4 etc. The notification dated 17.2.1989 was amended by notification dated 3.5.1991. The pay scale of Art and Craft SV teachers was revised to Rs 1600-2620 with Rs 1640-2925 Senior Scale after 8 years service and Rs 1800-3200, Senior Scale after 18 years of service. Both notifications were made to operate retrospectively from 1.1.1986.
The stand of the appellant in its defence to the notification dated 17.2.1989 before the learned Single Judge was that the two groups of teachers i.e. language teachers and Art and Craft teachers had different educational qualifications in direct recruitment and the two sets of employees performed different duties and responsibilities and formed two separate and independent classes or groups. For language teachers higher qualifications are prescribed under the rules. The qualifications required for posts mentioned in [SECTION] are contained in [SECTION] to the Rules. These have been indicated separately for each post and the relevant extract from [SECTION] reads as follows:
Drawing Masters, Art and Matriculation with a pass in the intermediate Craft Masters Diploma Course of three years in duration in any of the Arts and Crafts from the Government School of Arts, Punjab, and a further course of one year's Teacher's Training Sanskrit Teacher Shastri, S.T.C. Or with O.T. Certificate Hindi Teacher [ENTITY], S.T.C., or with O.T. Certificate Punjabi Teacher Honours in Punjabi with training (S.T.C. Or O.T. Certificate) Physical Training S.T.C. With training in Physical Education or Instructor with a certificate in Physical Education from the Y.M.C.A., Madras, if considered suitable by D.P.I. Preference in the forme case being given to candidates with 2 years' training in S.T.C. Course.
Drawing Masters, Art and Matriculation with a pass in the intermediate Craft Masters Diploma Course of three years in duration in any of the Arts and Crafts from the Government School of Arts, Punjab, and a further course of one year's Teacher's Training Agriculture Teacher S.T.C. With training in agriculture at the Teachers' Training Class at the Punjab Agricultural College, Ludhiana/Lyalpur.
Drawing Teacher Drawing Master's Certificate preferably from the Nayo School of Arts of the Government School of Arts, Punjab, Smla.
Manual Training Craftsmen's certificate preferably from the Instructor Mayo School of Arts, Lahore, or Government School of Arts, Simla.
There can be no doubt that the qualifications required for direct recruitment to the four categories of posts falling in language teaching category is higher than those prescribed for Art and Crafts Teachers. The qualification of [ENTITY] in Hindi/Punjabi for language teaching is treated equivalent to the B.A. degree. Whereas the minimum qualification required for appointment as Art and Craft teachers was lower.
The case set up by the writ petitioners/respondents is that the recommendations of 3rd Pay Commission which granted the same pay scales, Senior and Selection Grade to both categories could not have been over-ridden by the Punjab Government and departed from by notifying higher and lower pay scales for the two competing categories in the impugned notification dated 17.2.1989.
The learned Single Judge accepted the view canvassed by the writ petitioners/respondents that once the Pay Commission had recommended the same pay scale for both categories, the Punjab Government was bound to accept the recommendation of the Pay Commission and could not have departed therefrom and the same could be achieved only by making a back reference to the Pay Commission for its reconsideration to examine the matter, given that the Pay Commission is an expert body and, therefore, the notification dated 17.2.1989 was invalid as it transgressed the recommendations.
The argument that parity should be continued amongst those who were all along at par with each other prevailed before the learned Single Judge on two grounds, firstly, that both Art and Craft Teachers and Language Teachers formed one cluster/category in the matter of grant of pay scales and secondly, that both the groups had a common seniority in a single gradation list. The defence of the State was noticed by the learned Single Judged based on qualification and performance of different duties justifying placement of one group in the higher pay scale. The plea of the appellant based on difference in duties and responsibilities has been held as of no consequence since the Court drew an inference that both groups formed a homogeneous whole who have been found to be the same set of employees who are otherwise in the same cadre/cluster.
The learned Single Judge has relied upon the decisions viz [PRECEDENT]; Pritam Das and others v. [ENTITY] and another 2001(3) RSJ 357; [PRECEDENT] and [PRECEDENT] to hold as under:
"To sum up the ratio of the aforesaid judgements, suffice it to say that the settled legal position that emerges is that once the State accepts the recommendations of the Pay Commission, it has no discretion to implement it differently for one set of employees than the other set of employees. Particularly it cannot apply different parameters or yardsticks to the same set of employees, who are otherwise in the same cadre/cluster that too without the issue being examined by the expert body. The Pay Commission is admittedly an expert body and its recommendations should not and cannot be brushed aside lightly in an arbitrary manner. The plea raised by the respondent-State that they are performing different duties is of no consequence. The petitioners are not invoking the doctrine of equal pay for equal work rather their contention is that all along they have been treated as members of the one category of service and were placed in the same pay scale and the Third Pay Commission recommended the same pay scales for the petitioners and other categories but were sought to be segregated by the Government in gross contravention of the recommendations of the Pay Commission."
It cannot be gainsaid that the Pay Commissions are recommendatory bodies. It is one thing to say that the recommendation of an expert body such as the Commission deserves great respect but it is another thing to say that the recommendations are per se binding on the State Government and the State Government can make no departure therefrom.
The learned Single Judge has assumed and to our mind not entirely correctly that in the present case the State accepted the recommendation of the Pay Commission. There is nothing available on record of this case in the shape of assertion and admission that the State Government had accepted the recommendation of the Pay Commission, and therefore, the notification dated 17.2.1989 could not have been departed from after acceptance. If the presumption on which the argument proceeds is not found factually correct then the judgment in appeal would be in error. The Pay Commissions though play a vital role but are largely advisory in nature. The notification dated 17.2.1989 issued by the State Government grants different pay scales to different categories of teachers which was within its executive and legislative discretion to classify posts on different educational qualifications. This is legally permissible. Higher qualification may justify higher pay scale. There can be no doubt that the service rules applicable, framed under proviso to [SECTION] of the [ACT], lay down higher qualifications for language teachers and lower qualifications for Art and Craft teachers keeping in view the qualification of [ENTITY] required for language teachers is equivalent to degree of Bachelor of Arts and for Art and Craft teachers the requirement is of certificate and one year diploma in the trade or craft.
In a series of judgments, the Supreme court has time and again held that classification on the basis of higher pay scales is permissible; nature of duties and responsibilities attached to post and many other relevant factors may go into the ultimate decision of fixing pay scales. For the reason that the pay scales of both categories were at par prior to the impugned notification would not persuade us to order continuance of that parity without being shown palpable arbitrariness in the impugned notification dated 17.2.1989. We do not think that both the groups formed a single unified class or that the departure brought about by the impugned notification is unreasonable, arbitrary, oppressive and unlawful.
In [PRECEDENT], it has been held that the recommendation of Pay Commission are not binding on the State and cannot be enforced by issuing a writ of or in the nature of mandamus. The State can make rules in exercise of powers under proviso to [SECTION] contrary to the recommendations by evolving policy decision and give the same a retrospective effect. In this case, the Supreme Court considered [SECTION] of the [ACT]. [SECTION] of the said Rules reads as under:
"3. Revised scale of pay- The revised scale of pay applicable to any post carrying existing scale shown in columns 2 and 3 of Annexures I and II respectively shall be the corresponding pay scale shown in column 4 thereof in respect of that post."
By reason of the provisions of the said Rules, two different scales of pay were prescribed for non graduates (dying scale) and for fresh recruitment and for existing BSc/BSc (Agriculture) of Agricultural Extension Officers. The Pay Commission of the State desired and recommended that the same scale of pay be given irrespective of their educational qualification. The recommendations were not accepted by the State. Paras 13 to 16 of the judgment read as under:
"13. Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to [SECTION] of the [ACT] can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of [SECTION] of the [ACT]. A dying scale was provided by the State for the non-graduates. Fresh recruitments were to be made only from amongst the persons who held the requisite educational qualification. With a view to avoid any discrimination between the new recruits and the serving employees who possessed the same qualification, the State cannot be said to have acted illegally in granting a higher scale of pay also for the existing degree-holders.
14. [SECTION], it is trite, does not forbid a reasonable classification.
15. [SECTION] forbids class legislation but permits reasonable classification subject to the conditions that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved. ( See [PRECEDENT])
16. [ACT]al interpretation is a difficult task. Its concept varies from statute to statute, fact to fact, situation to situation and subject-matter to subject-matter. A classification based on educational qualification has been applied by a [ACT] Bench of this Court as far back as in 1968 in [ENTITY]."
In coming to the conclusion the Supreme Court noticed the dicta of its earlier decisions in [PRECEDENT]; [PRECEDENT]; [PRECEDENT].
In [PRECEDENT], it was laid down:
"The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them."
In [PRECEDENT], the Court held that in case of bifurcation of the cadre of Inspectors in the Housing Department of the Government of West Bengal into Grade I and Grade II and upgrading 20% of the posts in the cadre to be filled up from amongst the senior and meritorious members of the cadre on the principle of seniority-cum-merit was permissible notwithstanding the identicalness of the duties performed by the inspectors in the two grades. There was nothing discriminatory in this.
In [PRECEDENT], it was held that the recommendations of the Pay Commission can be accepted or rejected by Government pursuant to its policy and neither the Court nor a Tribunal can direct the Government to accept the recommendations and implement the same from the date recommended in that behalf.
There must be, however, reason for the State to depart from the recommendations of the Pay Commission on some discernible principle in exercise of its executive and legislative authority in the matter of prescription of pay scales. In the present case pay scales fixed by rules framed under proviso to [SECTION] of the [ACT] would override any recommendations of the Pay Commission to the contrary.
With great respect we are unable to endorse the view expressed by the learned Single Judge while quashing notification dated 17.2.1989 to the extent it provides different pay scales to Art and Craft group and to the language group. Having expressed our inability to agree with the view of the learned Single Judge, we are left with no option but to set aside the order and hold the notification dated 17.2.1989 as legal and valid. However, the view expressed by us may be given effect to for all intents and purposes w.e.f. 7.5.2009, the date of the judgment in appeal.
The appeals are, accordingly, allowed.
( [ENTITY] ) ( [ENTITY] ) JUDGE JUDGE 14.8.2012 [ENTITY]