CWP NO. 19385 OF 2003 15 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO. 19385 OF 2003 DATE OF DECISION:26.05.2010 Rajan Nanda s/o Sh. A.P.Nanda, Reader, Punjab & Haryana High Court ........PETITIONER VERSUS Punjab and Haryana High Court and others ......RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sanjiv Bansal, Advocate, for the petitioner. Mr. Raman Mahajan, Advocate, for respondent No. 1. None for respondents No. 2 to 5. *** AUGUSTINE GEORGE MASIH, J. The petitioner has, through this writ petition, challenged the report dated 27.11.2004 (Annexure P-9), whereby the claim of the petitioner for stepping up of his pay at par with his junior Sh. Ram Chand, as has been done in the case of respondents No. 2 to 5, has been rejected as also the order dated 12.05.2003 (Annexure P-6) declining the claim of the petitioner and the order dated 31.10.2000 (Annexure P-2) passed in respect of respondents No. 2 to 5 stepping up their pay at par with that of Sh. Ram Chand. The petitioner had pleaded that he was appointed as a Clerk in the Punjab and Haryana High Court on 21.03.1989 and promoted as CWP NO. 19385 OF 2003 15 Senior Scale Stenographer w.e.f. 28.08.1990. He was promoted as Judgment Writer w.e.f. 09.10.1995 and thereafter promoted as Reader w.e.f. 08.11.2000 and is working as such. Respondents No. 3 to 5 were drawing less pay than the petitioner till their promotion as Judgment Writers whereas Ram Chand was drawing higher pay than the petitioner as well as respondents No. 2 to 5. A comparative chart depicting the same is as follows:-_ Name Date of joining Pay Date of Pay as Sr. Scale fixed promotion fixed Stenographer as Rs. as J.W. at Rs. ____________________________________________________________ Petitioner Rajan 28.08.90 1800 09.10.1995 2130 Nanda Rspdt Jagjit 31.07.90 1800 13.01.1994 2000 No. 2. Singh Rspdt. Nirmal 18.12.90 1800 30.11.1994 2000 No.3. Kant Rspdt. Bharat 21.12.90 1800 30.11.1994 2000 No. 4 Bhushan Rspdt. G.S.Kang 21.12.90 1800 30.11.1994 2000 No. 5 Junior Ram Chand 16.04.91 1840 09.10.1995 2090 Sh. Ram Chand, who is junior to the petitioner as well as respondents No. 2 to 5, applied for the post of Senior Scale Stenographer from the source meant for Lower Court Employees and on his appointment, his pay was protected at Rs. 1840/- whereas the petitioner and respondents No. 2 to 5 were given initial start of Rs. 1800/-. Except this, for all intents and purposes, Ram Chand is junior to the petitioner as well as respondents No. 2 to 5. Sh. Bharat Bhushan-respondent No. 4, after his promotion as Judgment Writer, represented to respondent No. 1 for stepping up of his pay equal to his junior Sh. Ram Chand. The said CWP NO. 19385 OF 2003 15 representation was accepted and order dated 31.10.2000 (Annexure P-2) was passed by respondent No. 1 stepping up the pay of Sh. Bharat Bhushan-respondent No. 4 equal to that of Sh. Ram Chand w.e.f. 01.02.1997. Thereafter, Sh. Jagjit Singh-respondent No. 2, Nirmal Kant- respondent No. 3 and Sh. G.S.Kang-respondent No. 5 also made representations to respondent No. 1 for stepping up of their pay at par with Sh. Ram Chand. The matter was considered and their representations were also accepted and their pay stepped up equal to that of Sh. Ram Chand. On 09.04.2002, the petitioner made a representation for stepping up of his pay w.e.f. the date when respondents No. 2 to 5 had been granted the said benefit on the same corollary. As no response was received to the representation, the petitioner served a demand notice dated 04.10.2002 and thereafter, one more request was made on 07.01.2003, Annexures P-3 to P-5 respectively. The representation of the petitioner was rejected vide Memo dated 12.05.2003 (Annexure P-6). The petitioner made a request for withdrawal of the stepping up given to respondents No. 2 to 5, who were similarly situated as the petitioner. When no response was received from respondent No. 1, the petitioner preferred the present writ petition before this Court. Order dated 01.10.2004 was passed by this Court directing respondent No. 1 to consider and dispose of the representation within two months. In compliance with the said order, the representation was decided vide report dated 27.11.2004 (Annexure P-9) rejecting the same leading to the allowing the amendment of the writ petition, whereby the challenge has been posed to the order dated 31.10.2000 (Anneuxre P-2), order/memo dated 12.05.2003 (Annexure P-6) and the report dated 27.11.2004 (Annexure P-9). CWP NO. 19385 OF 2003 15 The basic ground for challenge to the report dated 27.11.2004 (Annexure P-9) is that the petitioner is similarly situated as respondents No. 2 to 5, who have been given the stepping up of pay equal to that of Sh. Ram Chand, junior to the petitioner as well as to respondents No. 2 to 5 whereas the petitioner has been deprived of the same. The petitioner has claimed that in the impugned report, the instructions dated 21.06.2000 issued by the Government of Punjab have been misconstrued and the petitioner has been deprived of the benefit of the said instructions because of the proviso which is not applicable to the case of the petitioner. While challenging the order dated 31.10.2000 (Annexure P-2), vide which respondents No. 2 to 5 have been granted the step up of pay at par with that of Sh. Ram Chand, the petitioner has pleaded that since he was similarly placed and is being deprived of the same benefit as has been granted to respondents No. 2 to 5, the same cannot be sustained qua respondents No. 2 to 5 and that benefit deserves to be withdrawn qua respondents No. 2 to 5 as well as the petitioner cannot be singled out for non-grant of step up of his pay. Respondent No. 1, in its written statement, has supported the order dated 27.11.2004 (Annexure P-9) and memo dated 12.05.2003 (Annexure P-6) on the ground that the petitioner is not entitled to the benefit claimed by him in the present writ petition as his case is not covered by the instructions dated 21.06.2000 (Annexure R/5) issued by the Punjab Government as his claim is hit by the proviso attached to the four conditions which have to be fulfilled for stepping up of the pay of the senior employee to that of the junior employee. As regards the challenge of the petitioner to the order dated 31.10.2000 (Annexure P-2), respondent No. 1 has taken a stand that the petitioner has got no locus standi to get his pay stepped up vis-a-vis respondents No. 2 to 5 as they are senior to the CWP NO. 19385 OF 2003 15 petitioner and the pay drawn by them does not give any cause of action to the petitioner to file the present writ petition. Earlier the case had come up for hearing before this Court on 31.03.2010 when following order was passed:- “Counsel for the petitioner has referred to para 6 of the writ petition to contend that respondents No. 2, 3 and 5 are similarly placed as the petitioner with regard to the claim of step up of pay with that of Sh. Ram Chand and all these three respondents have been granted the benefit of step up on the ground that Sh. Ram Chand being junior to them cannot draw higher pay than his seniors. This fact has been admitted by the respondents in their reply filed in the Court to the writ petition. He, on this basis, contends that the petitioner is also senior to Sh. Ram Chand and, therefore, his pay also needs to be stepped up at the same level as Sh. Ram Chand was drawing. When confronted with this situation, counsel for respondent No. 1 is unable to explain the distinction between the case of the petitioner and that of respondents No. 2, 3 and 5 and, therefore, prays for an adjournment to file an affidavit explaining the correct position in this regard. A direction is also issued to explain as to how and under what circumstances, the representation of respondents No. 2, 3, 4 and 5 for stepping up of their pay equivalent to that of Sh. Ram Chand was considered and decided granting them the benefit of step up. Adjourned to 05.04.2010.” CWP NO. 19385 OF 2003 15 Thereafter, the case was taken up for hearing on 05.04.2010, 23.04.2010, 29.04.2010 when time was sought by the counsel for respondent No. 1 to file an affidavit in compliance with the order aforesaid. Affidavit dated 18.05.2010 of Sh. Virinder Aggarwal, Registrar (Rules), Punjab and Haryana High Court on behalf of respondent No. 1 along with Annexures R-6 and R-7 were filed on 18.05.2010 and the case was adjourned to today for arguments. A perusal of the affidavit shows that the explanation, as sought by this Court vide order dated 31.03.2010, has not been addressed. Counsel for respondent No. 1 has submitted that no further explanation can be submitted. He has only referred to the affidavit with regard to the explanation. Para-1 of the affidavit reads as follows:- “1. That firstly Shri Bharat Bhushan (Respondent No. 4) had submitted an application dated 19.10.2000 for stepping up of his pay as Judgment Writer with his junior namely Sh. Ram Chand, Judgment Writer. While processing the aforesaid request, Rule 5 of Punjab Civil Services (Revised Pay) Rules, 1998 was discussed, which provides for drawl of pay in the revised scales by exercising an option in the prescribed proforma individually by every employee to elect the existing or revised scale of pay to his convenience. It was also discussed that one Shri Gulshan Khurana, Judgment Writer whose pay was also stepped up with his junior Shri Ram Chand in the light of judgment dated 31.3.94 passed by Hon'ble Mr. Justice M.S.Liberhan in CWP No. 9394 of 1992 wherein inter-alia it was observed that a junior employee cannot draw a higher pay than his senior. Accordingly, the request of Sh. Bharat Bhushan (respondent No. 4) had attained finality under the order dated 31.10.2000 passed by Hon'ble Mr. Justice H.S.Bedi (Annexure R-6 from pages 17 to 23).” CWP NO. 19385 OF 2003 15 A perusal of Annexure R-6 (pages 19 to 23) leaves no manner of doubt that the claim of the petitioner is similar to that of Sh. Bharat Bhushan and the basis for granting the benefit to Sh. Bharat Bhushan- respondent No. 4 is applicable on all fours to the case of the petitioner. No distinction can be drawn between the case of the petitioner and that of Sh. Bharat Bhushan. Thereafter, from page 24 to page 26, claim of respondents No. 2, 3 and 5 Sarv Shri Jagjit Singh, Nirmal Kant and G.S.Kang respectively for stepping up of pay at par with that of Sh.Ram Chand has been dealt with. There again, no distinction has been drawn between the claim of the petitioner and those of respondents No. 2, 3 and 5. It is not in dispute that the petitioner as well as respondents No. 2, 3, 4 and 5 as also Sh. Ram Chand were working as Senior Scale Stenographers when they were promoted as Judgment Writers. Their source of promotion as Judgment Writers is the same and the petitioner as well as respondents No. 2 to 5 are admittedly senior to Sh. Ram Chand. The case of the petitioner is identical to that of respondents No. 2 to 5 and, therefore, he cannot be denied the benefit, as has been granted to respondents No. 2 to 5 i.e. stepping up of pay equal to that of admittedly his junior Sh. Ram Chand. At this stage, reference to para-9 of the affidavit dated 18.05.2010 would be relevant which reads as follows:- “9. That thereafter, the matter was examined by OSD (Rules) at length and the report dated 5.5.2004 (Annexure R-6 from pages 27 to 30) had concluded with the following observations:- “Shri Rajan Nanda, Reader has filed Civil Writ Petition No. 19385 of 2003 expressing his grievance CWP NO. 19385 OF 2003 15 that he is being deprived from stepping up of his pay scale and other side the same has been granted to the similar situated employees like the petitioner. He has sought the quashing of the action of respondent No. 1 (Punjab and Haryana High Court, Chandigarh through its Registrar) in not granting the step up of the pay to the petitioner, quashing the memo dated 12.5.2003 vide which his request for giving step up of the pay was rejected; quashing the action of respondent No. 1 granting the step up of the pay to respondents No. 2 to 5 with a prayer for certain directions to respondent No. 1to grant the step up of the pay of the petitioner from the date respondents No. 2 to 5 are given the same or to withdraw the step up scale from respondents No. 2 to 5. This writ petition is pending before the Hon'ble High Court on its judicial side and this Court is being represented by Sh. Rajiv Atma Ram, Senior Advocate. Sh. Rajiv Atma Ram, Senior Advocate has posed the following questions with a request to give instructions on the said issues; i) Why the petitioner, Shri Rajan Nanda, is being denied benefit of step up of pay at par with Shri Ram Chand, his junior? ii) Why Shri Rajan Nanda, the petitioner, is not entitled to “next below” rule being senior to Shri Ram Chand? Iii) Why the case of petitioner, Shri Rajan Nanda is not covered on the ground of parity viz-a-viz respondents No. 2 to 5? CWP NO. 19385 OF 2003 15 iv) How there is no anomaly in the pay scale of the petitioner, Shri Rajan Nanda viz-a-viz Shri Ram Chand. Before discussing the issues involved in the present case, it is necessary to dwell on the facts of the case in brief. Sh. Rajan Nanda was appointed as a Clerk in the Punjab and Haryana High Court on 21.03.1989. He was promoted as Senior Scale Stenographer (Ad hoc) w.e.f. 28.08.1990. Later on, he was promoted as Judgment Writer (Ad hoc) w.e.f. 9.10.1995, Shri Ram Chand with whom he is seeking parity for stepping up of his pay was appointed as Senior Scale Stenographer vide order dated 16.04.1991 against a vacant post. The perusal of the entries in the service book reveals that prior thereto he was working as Stenographer in Labour Court, U.T. Chandigarh. Shri Ram Chand was drawing salary in the scale of Rs. 1800-3200 with the stage of Rs. 1840/- w.e.f. 1.2.1991. Accordingly, his pay was fixed in this High Court at Rs. 1840/- w.e.f. 16.4.1991 with next date of increment w.e.f. 1.12.1992. Sh. Ram Chand was also promoted as Judgment Writer on ad hoc basis w.e.f. 9.10.1995. The salary allowed to both these officials as Senior Scale Stenographers as well as Judgment Writers or on revision of pay w.e.f. 1.1.1996 has been depicted in chart available at Flag “A”. The perusal of the entries in the service book of both these officials would make it apparently clear that the source of their entering into service as Senior Scale Stenographer is different. Shri Rajan Nanda was made CWP NO. 19385 OF 2003 15 Senior Scale Stenographer by way of promotion from a Clerk. On the other hand, Shri Ram Chand was appointed as officiating Senior Scale Stenographer w.e.f. 16.4.1991 who was earlier working with the Labour Court, U.T. Chandigarh. On 16.4.1991, the pay of Shri Ram Chand was fixed at Rs. 1840/- keeping in view his salary when he was working in the Labour Court, Chandigarh. In April, 1991, Shri Rajan Nanda was getting his salary at the rate of Rs. 1800/-. The date of next increment in the case of Sh. Ram Chand is February of each year, whereas it was August in the case of Sh. Rajan Nanda prior to his promotion as Judgment Writer and then it is October after his promotion as Judgment Writer. Prior to their promotion as Judgment Writers w.e.f. 9.10.1995, Sh. Ram Chand was getting higher salary than Sh. Rajan Nanda keeping in view the service benefit given to Sh. Ram Chand at the time of initial appointment as officiating Senior Scale Stenographer. Shri Rajan Nanda has sought the stepping up of his pay at par with Ram Chand on the plea of Sh. Ram Chand being junior to him and, therefore, he being entitled to get the benefit of the instructions issued by the Government of Punjab, Department of Finance vide its letter No. 6/138/98/1FP-II/6763 dated 21st June, 2000. The said letter is available on record at Flag “B”. The Deputy Registrar (Genl.) in his note dated 21.4.2004 has mentioned that since Rajan Nanda and Sh. Ram CWP NO. 19385 OF 2003 15 Chand had been drawing equal pay at the time of their promotion at higher level i.e. Judgment Writer w.e.f. 9.10.1995, therefore, Sh. Rajan Nanda is entitled to step up of his pay at par with Sh. Ram Chand. However, the Government has allowed the benefit of stepping up of pay of the senior in view of the aforesaid instructions dated 21.6.2000 subject to a proviso attached to the four conditions under which the said step up is allowed. The proviso provided in this letter is very relevant for the purpose of the present case and the same is reproduced for ready reference:”Provided that the benefit of stepping up under this scheme shall not be admissible to the senior employee if the junior employee was drawing more pay in the pre- revised/revised scale than the senior by virtue of any advance increments granted to him or any inflation in pay other than by way of normal pay fixation.” Keeping in view this proviso, it appears that since Sh. Ram Chand was drawing more pay in the pre-revised scale than Sh. Rajan Nanda because of the service benefit granted to him at the time of initial appointment as Senior Scale Stenographer, Sh. Rajan Nanda does not become entitled to the benefit of stepping up under this scheme flouted by the Government vide instructions dated 21.6.2000. So far as the claim of Sh. Rajan Nanda to bring him at par with Sh. Ram Chand because of the grant of a similar benefit to respondents No. 2 to 5 of the writ petition is concerned, the said CWP NO. 19385 OF 2003 15 respondents are also the employees of this High Court and they are Sh. Jagjit Singh, Sh. Nirmal Kant, Sh. Bharat Bhushan and Sh. G.S.Kang all Judgment Writers. It is apparent from the record that these persons Jagjit Singh and others were allowed step up to bring them at par with Sh. Ram Chand on the basis of the facts and circumstances contained in the representations made by them to this Court. However, their cases have not been examined at this stage for the reasons that they have attained the finality under the orders of the authorities. However, the perusal of the record reveals that all these four officials were promoted as Judgment Writers much prior to the promotion of Sh. Rajan Nanda and Ram Chand in October, 1995. To be more specific, Sh. Jagjit Singh was promoted as Judgment Writer on 13.01.1994, Sh. Bharat Bhushan on 30.11.1994 and Sh. Nirmal Kant and Sh. G.S.Kang on 1.12.1994. On their promotions as Judgment Writers, they were given the benefit of increments as well. The perusal of the chart available at Flag 'A' would show that besides becoming senior to Sh. Rajan Nanda and Ram Chand as Judgment Writers, these officials were drawing higher pay than Sh. Ram Chand and Rajan Nanda as on 1.2.1995. Therefore, Sh. Rajan Nanda cannot claim any parity with Sh. Ram Chand on account of the benefit of step up being allowed to respondents No. 2 to 5 of the writ petition. CWP NO. 19385 OF 2003 15 As the pay stepping up matter of Sh. Rajan Nanda (Petitioner) was received from the District and Sessions Judge (Vigilance), Punjab without any report keeping in view the writ petition filed by the petitioner, therefore, the matter was again sent to the District and Sessions Judge (Vigilance), Punjab, who after examining the matter submitted his report dated 27.11.2004, concluding part of which runs as under:- “As regards the fixation of pay of Sarv Shri Sunil Verma, Jagjit Singh, Nirmal Kant, Bharat Bhushan and G.S.Kang, all Judgment Writers, the record reveals that these persons were allowed stepping up to bring them at par with Sh. Ram Chand on the facts and circumstances contained in the representations made by them to the Hon'ble High Court. Sh. Jagjit Singh was promoted as Judgment Writer on 13.1.1994, whereas Sarv Shri Nirmal Kant, Bharat Bhushan and G.S.Kang were promoted as Judgment Writer on 30.11.1994. On their promotion as Judgment Writ, these officials were given the benefit of increment as well. The chart aforesaid also reflects that besides becoming senior to Sh. Rajan Nanda and Sh. Ram Chand as Judgment Writers, the aforesaid officials were drawing higher pay than Sh. Ram Chand and Sh. Rajan Nanda as on 1.2.1995. Sh. Rajan Nanda is concerned only with the rights which he claims and he can well agitate that he has not been given the benefit at the time of fixation of his pay but it does not lie in his mouth that the salary of Sarv CWP NO. 19385 OF 2003 15 Shri Sunil Verma, Jagjit Singh, Nirmal Kant, Bharat Bhushan and G.S.Kang, all Judgment Writers, had not been rightly fixed and the rights given to them be withdrawn. However, the record reveals that all these aforesaid officials were promoted as Judgment Writers much prior to the promotion of Sh. Rajan Nanda and Sh. Ram Chand in the month of October, 1995, therefore, their pay appears to have been rightly fixed. As such, the request of Sh. Rajan Nanda to withdraw the benefits to the aforesaid officials also does not appear to be genuine. At the same time, he also cannot claim any parity in pay with Sh. Ram Chand on account of the benefit of step-up being allowed to respondents No. 2 to 5 of the writ petition. As such, the representation dated 27.3.2003 filed by Sh. Rajan Nanda having no merit, is hereby declined.” A copy of the same is annexed as Annexure R-7 from pages 31 to 37.” A perusal of the above would only show that the reason, which has been taken into consideration for distinguishing the case of the petitioner with that of respondents No. 2 to 5, is that they have been promoted as Judgment Writers prior to the petitioner. Nothing is culled out which would distinguish the claim of the petitioner from that of respondents No. 2 to 5. This distinction, which has been sought to be drawn by respondent No. 1, is neither sustainable nor acceptable to be said the least. As observed above, no distinction despite specific order passed by this Court on 31.03.2010 has been spelt out by respondent No. 1 in the affidavit despite availing various opportunities in this regard. Since the CWP NO. 19385 OF 2003 15 claim of the petitioner is identical to that of respondents No. 2 to 5 i.e. Claim of step up of pay equivalent to that of Sh. Ram Chand junior to him, the depriving of the same to the petitioner amounts to clear discrimination on the part of respondent No. 1, which is not permissible under the law. In view of the above, the present writ petition is allowed. The report dated 27.11.2004 (Annexure P-9), Memo dated 12.05.2003 (Annexure P-6) are hereby set aside. A direction is issued to respondent No. 1 to step up the pay of the petitioner at par with his junior Sh. Ram Chand, as has been done in the case of respondents No. 2 to 5 within a period of one month from the date of receipt of copy of this order and arrears be paid within a period the three