CWP No. 10823 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10823 of 2003 DATE OF DECISION: August 04, 2010 Sarabjit Singh Khokhar and others .........PETITIONER(S) VERSUS State of Punjab and others ......RESPONDENT(S) CORAM: HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Rajiv Atma Ram, Sr. Advocate, for the petitioner(s). Ms. Charu Tuli, Sr. DAG, Punjab. AJAI LAMBA, J. (ORAL) 1. This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondents to remove the anomalies in the case of the petitioners while granting them same pay scales as given to SDO/SDE/AE in other departments of the State of Punjab. 2. It has been pleaded that the petitioners have been recruited by Punjab Public Service Commission and are governed by Punjab Department of Transport, Commercial Wing, Class-I Service Rules, 1998. Basic qualification provided for the post of Assistant Mechanical Engineer is Mechanical Engineer. The petitioners were recruited in the year 1991 in the pay scale of Rs. 2,200-4,000/-. Prior to appointment of the petitioners and during consideration of 2nd Pay Commission report, the post of Assistant CWP No. 10823 of 2003 2 Mechanical Engineer in Transport Department did not exist. Thereafter, 3rd Pay Commission in Chapter 91 of its recommendation report, dealing with Transport Department recommended under item no. 91.12 that post of Assistant Mechanical Engineer with specialization in Automobile Engineering shall carry a higher revised pay scale of Rs. 2,100-3,700/-. 3. The 3rd Pay Commission, as per the pleadings, also made recommendation under Chapter 78 dealing with PWD B&R Department and pay scales of Sub Divisional Engineers/Sub Divisional Officers to be Rs. 2,100-3,700/-, under item no. 78.4. 4. At the time of recommendation of 3rd Pay Commission, an anomalous situation had been created. Whereas in the case of the petitioners and SDEs, the recommendation was to place them in the pay scale of Rs. 2,100-3,700/-, however, while implementing the same, the petitioners were granted the scale of Rs. 1,800-3,200/- and Sub Divisional Engineers were granted higher scale of Rs. 2,200-4,000/-. 5. It has been pleaded that the petitioners are required to have the same qualification as SDEs and are required to perform same duties. Recruitment agency is also the same, yet the petitioners were given the scale of Rs. 1,800-3,200/- whereas SDEs were allowed the scale of Rs. 2,200- 4,000/-. The said facts were brought to the notice of the Authorities/Anomaly Committee. Vide order Annexure P-2 dated 15.02.1990, Assistant Mechanical Engineers were equated to SDE/SDO at item no. 6 of the said document and revised pay scale of Rs. 2,200-4,000/- was provided. It is under such circumstances that all recruitments made after 1990 to the post of Assistant Engineer were in the scale of Rs. 2,200- 4,000/-. CWP No. 10823 of 2003 3 6. It has been contended that the 4th pay commission submitted its report in May 1998 while granting a higher scale to SDE/A&Es in the Irrigation and Power Department, and PWD B&R departments. Same pay scale was recommended, however, while dealing with the Transport Department, grades of A&Es were not discussed. The 4th Pay Commission though did not deal with the category of petitioners specifically and individually, however, under professional category, it clearly stated that since recruitment agency is the same, conditions and qualifications of recruitment, nature of job being the same, these categories shall also carry the same pay scale. It has been pleaded that under the circumstances there can be no discrimination although there might not be a reference in the recommendations in the report of the pay commission in regard to transport department. 7. It has been contended that under the 4th pay commission report, under item no. 39.40, under professional categories, recommendation has been made that the categories of Sub Divisional Engineers/Assistant Engineers/Junior Engineers/Draftsmen and Surveyors being in small number but having the same qualification for recruitment, shall also be given revised pay scale applicable to these categories. The State of Punjab was to implement the recommendations of 4th Pay Commission by granting the same revised pay scales to the petitioners as is being done in the case of Sub Divisional Engineers/Assistant Engineers under PWD B&R and Irrigation and Power Departments. 8. Be that as it may, learned counsel contends that the issue has already been dealt with by this Court while dealing with CWP No. 17715 of 2007 decided on 11.05.2009 entitled Dhiraj Goel and others Vs. State of CWP No. 10823 of 2003 4 Punjab and others. 9. Learned counsel for the respondent-State states that judgment rendered by this Court in Dhiraj Goel's case (supra) would have no application to the facts of the present case. 10. I have considered the rival contentions. 11. In Dhiraj Goel's case (supra), the petitioners no. 1 to 47 were Sub Divisional Engineers working in the Department of Rural Development and Panchayats. Rest of the petitioners were working as Executive Engineers in the same department. The basis of the claim made in the said petition is that the qualifications provided and other conditions are same. However, the Sub Divisional Engineers in PWD B&R/Irrigation/Public Health Branches are being allowed a higher pay scale than the petitioners in the said writ petition who were serving in Rural Development and Panchayats Department, Punjab. Some audit objection has been raised whereupon the required pay scale was not given and difference of pay drawn by the said petitioners was sought to be recovered which action came to be challenged. 12. The issue has been dealt with and decided by this Hon'ble Court in the following terms:- “With a view to justify the action of the respondents the reliance is placed upon the notification dated 19.5.1998 in so far it deals with various identified departments namely the PWD (B&R), PWD (Public Health). Similar benefit has been allowed to the Department of Irrigation and Power. Further reference is made to the Department of Rural Development & Panchayat in the same CWP No. 10823 of 2003 5 notification. It is contended that the Sub Divisional Engineers of the Department of Rural Development & Panchayat are also not granted the benefit. From the perusal of the aforesaid notification it seems that in so far the Department of Rural Development & Panchayat is concerned engineer category of the department is not indicated. It is necessary and pertinent to again revert back to the recommendations of the 4th Punjab Pay Commission, wherein the following observations have been made in para 39.40:- “ These categories however exist in small numbers in other departments also. We have considered the qualifications for recruitment to these categories and allocated revised pay scales to them in the chapter relating to Public Works Department (B&R). We recommend that in other departments also the same qualifications and revised pay scales may be made application to these categories.” The recommendations specifically provide that on consideration of the qualifications and other related considerations some of the departments like PWD (B&R) have been identified but this benefit be accorded to all other departments wherever such a cadre exists and it is based upon the aforesaid recommendations that in the pay revision notification the specific chapter under Schedule 2 i.e. the common categories posts have been introduced and the cadre of Sub Divisional Engineers is part of the such common category posts. This definitely has reference to the posts other CWP No. 10823 of 2003 6 than the Sub Divisional Engineers in Irrigation and Power, PWD (B&R) and PWD (Public Health) and may be such other departments, where such posts exist but have not been specifically dealt with under the pay revision. Merely because some departments have been specifically mentioned does not mean that the common category posts, which are also part of the pay revision rules are to be excluded from the purview of the pay revision rules. It is also contended that Annexure P-5 has been issued after the recommendations of the 4th Pay Commission. The circular dated 17.4.2000 contains only the executive instructions, though, it refers to the statutory notification dated 19.5.1998. It is settled principle of law that executing instructions cannot over-ride, nullify or even alter the statutory rules in any manner. Intention of the State Govt. is clearly indicated in the statutory rules framed under Article 309. Any subsequent circular or executive instructions cannot in any manner supplant the statutory rules and are deemed to be invalid and inoperative to the extent it intends to supplant or nullify the statutory rules. It is also relevant to notice that thereafter the State Govt. has framed the recruitment rules for the department of Rural Development & Panchayat namely the Punjab Rural Development & Panchayat (Group A) Technical Services Rules, 2002. Rule 5 deals with the grant of pay scales. Appendix A to the aforesaid rules provides the pay scale for the cadre of Sub Divisional Officer (Panchayati CWP No. 10823 of 2003 7 Raj) and reads as under:- Sr. No. Designation of the post Number of posts Permanent Temporary Total Scale of pay (in rupees). 3. Sub Divisional Officer (Panchayati Raj). 29 18 47 Rs. 7880-13500 (initial start Rs. 8,000/-). I have heard learned counsel for the parties at length. It is also necessary to take note of the fact that the State Govt. has thereafter made recruitment of the Sub Divisional Engineers in the Department of Rural Development & Panchayat in the year 2000 vide order dated 31.3.2000 in the pay scale of Rs. 7880-13500 with initial start at Rs. 8000/-. In view of the above circumstances, the contention of the respondents-State that such of the Sub Divisional Engineers, who are working in the Department of Rural Development & Panchayat are to be placed in a lower scale whereas the Sub Divisional Engineers, who are recruited in the year 2000 are entitled higher pay scale, is totally unwarranted and in contravention to mandate of Articles 14 & 16 of the Constitution. There cannot be a class within class. Once the entire cadre in all departments is placed in higher pay scale based upon the recommendations of the 4th Pay Commission and the recommendations have been accepted by the State and translated in to statutory rules, the petitioners cannot be discriminated against or given hostile treatment in the matter of grant of the pay scale. In the totality of the circumstances, this petition CWP No. 10823 of 2003 8 is allowed. The impugned order dated 9.1.2009 ordering recovery from the petitioners is hereby quashed and it is directed that the petitioners shall be deemed to have been placed in the pay scale of Rs. 7880-13500 in accordance with the mandate of the pay revision rules as notified vide notification dated 19.5.1998. Needless to say that they will be entitled to the benefit of all the subsequent pay revision, if any.” 13. In my considered opinion, the essence of the issue raised in this petition has been considered in the judgment rendered in Dhiraj Goel's case (supra). The recruitment process, qualifications and nature of job of the SDEs/SDOs and AEs working in various departments being the same; the 3rd Pay Commission having recommended the same pay scale to the petitioners as other Engineers holding the same posts in other department and the anomaly in implementation having been removed by virtue of order Annexure P-2 dated 15.02.1990, allowing revised pay scale to the petitioners viz. Rs. 2,200-4,000/-; 4th Pay Commission recommendation having come to the effect that all categories of SDEs/AEs having same qualifications for recruitment be given revised pay scale applicable to these categories; the recommendation having been accepted by the respondent- State, I find no reason for the respondents to allow the anomalies to exist. Same being the issue before this Court in Dhiraj Goel's case (supra), in my opinion, the objections raised on behalf of respondents to be not tenable in law or facts. 14. The petition accordingly is allowed. The respondents accordingly are directed to consider the matter afresh so as to remove the CWP No. 10823 of 2003 9 anomalies by granting them pay scales given to persons working in other departments on the same post. 04.08.2010 (AJAI LAMBA) shivani JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?