IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 12266 of 2008 alongwith CWP Nos. 2315, 2384, 2385, 4923, 4924, 4925, 4926, 4927, 4928 and 4929 of 2009. Reserved on: 19.5.2011. Date of Decision: 23.05.2011. CWP(T) No.12266 of 2008 Shubh Kanchan and others …Petitioners. Versus. State of H.P. and another … Respondents. CWP No.2315 of 2009 Archana Kapoor …Petitioner. Versus. State of H.P. and others … Respondents. CWP No.2384 of 2009 Kulwinder Kaur …Petitioner. Versus. State of H.P. and others … Respondents. CWP No.2385 of 2009 Purnima Sood …Petitioner. Versus. State of H.P. and others … Respondents. CWP No. 4923 of 2009 Kulvinder Kaur …Petitioner. Versus. State of H.P. and others … Respondents. CWP No. 4924 of 2009 Bhag Singh …Petitioner. 2 Versus. State of H.P. and others … Respondents. CWP No. 4925 of 2009 Bhupinder Kaur …Petitioner. Versus. State of H.P. and others … Respondents. CWP No. 4926 of 2009 Alka Nanda and others …Petitioners. Versus. State of H.P. and others … Respondents. CWP No. 4927 of 2009 Kamlesh Kumari and others …Petitioners. Versus. State of H.P. and another … Respondents. CWP No. 4928 of 2009 Sarita Sharma and others …Petitioners. Versus. State of H.P. and others … Respondents. CWP No. 4929 of 2009 Vandna Parmar and others …Petitioners. Versus. State of H.P. and others … Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. 3 For the Petitioners: M/s Dilip Sharma & Dalip K.Sharma, Advocates. For the Respondents: Mr. Vivek Singh Thakur, Addl. A.G. Deepak Gupta, J. 1. These petitions are being disposed of by a common judgement since similar questions of facts and law are involved in these cases. 2. Initially, there was one department of Health and Family Welfare in the State of Himachal Pradesh. The department of Ayurveda was part and parcel of this department. When the department of Ayurveda was a part of this department a notification was issued on 22nd November, 1983 whereby the existing scale of pay of Male Health Workers and Female Health Workers, which at the relevant time was of Rs.400-600 was revised to Rs.510- 940. Auxiliary Nursing Midwives were also getting the same scale of pay. It is not disputed that thereafter in the year 1985 the department of Health and Family Welfare was bifurcated and a new department of Ayurveda was created. 41 posts out of the common cadre of Multipurpose Health Workers/Auxiliary Nursing Midwives (M.P.Ws/A.N.Ms) were allocated to the department of Ayurveda. 4 3. Some of these posts were not filled up and resultantly fresh interviews were held and all the petitioners in CWP(T) No.12266 of 2008 except Smt. Krishana Sharma and Ms. Archana Kapoor petitioner in CWP No.2315 of 2009, were offered appointment as A.N.Ms in the department of Ayurveda during the year 1987 in the pay scale of Rs.400-600. Petitioner Krishana Sharma was appointed in the year 1988 but her case is also squarely covered by the same facts. It is also not disputed that in the department of Ayurveda no recruitment and promotion rules were framed and this situation continued till the year 1995. 4. In the meanwhile, the pay-scales were revised w.e.f. 1.1.1986 and the A.N.Ms in the department of Ayurveda were placed in the pay scale of Rs.950-1800 but the pay scale of Rs.1350-2400 was granted to those A.N.Ms who had been transferred from department of Health and Family Welfare since they were getting salary in a higher scale of pay before bifurcation. The recruitment and promotion rules for the post of A.N.Ms in the department of Ayurveda were notified for the first time on 2.2.1995. The posts are still 41 and the pay-scale reflected against these posts is Rs.950-1800. All the other petitioners are those who were appointed after promulgation of the Rules, 5 1995. Therefore, the present petitioners can be divided into two categories. CWP(T) 12266 of 2008 and CWP No.2315 of 2009 relate to those candidates who were appointed after the department of Ayurveda was created but before the rules were promulgated. All the other petitioners were appointed after promulgation of the rules. 5. Shri Dilip Sharma, learned counsel for the petitioners in CWP No.12266 of 2008 contends that the notification dated 22nd November, 1983 did not differentiate between Multi Purpose Health Works (Male Health Workers/Female Health Workers) and Auxiliary Nursing Midwives. All of them were placed in the pay scale of Rs.510-940. In fact, this pay scale of Rs.510-940 was given to those A.N.Ms who were allocated to the department of Ayurveda on bifurcation of the department in the year 1985. His submission is that the scale of Rs.400-600 was not in existence, as far as these categories are concerned, and therefore, when the petitioners were appointed in the year 1987-88 the only scale they could have been granted was the scale of Rs.510-940. It is also submitted that the qualifications and training prescribed for M.P.Ws/A.N.Ms are identical and the nature of work is also the same. Shri Dalip K.Sharma, counsel for the other petitioners contends that the case of the petitioners has been recommended 6 time and again by the department and that on the ground of equal pay for equal work the petitioners cannot be denied the benefit of the pay scale of Rs.510-940 later revised to Rs.1350-2400 and the corresponding pay scale after revision of the pay scales in the year 2006. 6. The stand of the State on the other hand is that the petitioners are not entitled to any such benefit. Shri Vivek Thakur, learned Additional Advocate General appearing on behalf of the State submits that the case of the petitioners is not at all similar to the persons who were appointed prior to the bifurcation of the department of Health and Family Welfare. His submission is that as far as the employees who were members of the department of the Health and Family Welfare and were transferred to the department of Ayurveda are concerned, the pay scale of Rs.510-940 was granted to them but it was made clear that this pay scale is personal to them. According to him, once the department was bifurcated the department of Ayurveda could lay down its own terms and conditions of employment with regard to its employees. He submits that the rules relating to pay scales prevalent in the department of Health and Family Welfare did not become automatically applicable to the employees of the department of Ayurveda. He further contends that all the petitioners 7 submitted applications in response to advertisement in which it was clearly mentioned that the pay scale of the A.N.Ms in the department of Ayurveda was of Rs.400-600. According to him they cannot now turn around and claim a higher scale that too after almost two decades. Furthermore, he submits that the claim is highly belated. As far as the employees appointed after 1995 are concerned they are governed by the rules and the rules clearly lay-down the pay scales. It is further submitted that there is no similarity in the nature of work of multipurpose health workers and auxiliary nursing midwives. As per the stand of the State the multipurpose health workers go into the fields and at such time work independently as para medical staff. On the other hand auxiliary nursing midwives work in hospital/dispensary under the direct supervision of nursing staff. The nature of duties of both cannot be compared and they are not identical and thus the petitioners are not entitled to any relief. 7. At the outset, I may mention that it is not disputed that the petitioners joined the posts pursuant to advertisement and appointment letters in which the pay scale to be given to them was specifically mentioned. There is no dispute with regard to this fact. However, 8 according to the petitioners since the pay scale was not in existence in the department of Health and Family Welfare, therefore, they could not have been placed in the pay scale of Rs.400-600. 8. In my view this argument is totally fallacious. The department of Health and Family Welfare was bifurcated and a separate department of Ayurveda was created in the year 1985. Admittedly, there were no rules in the department of Ayurveda but nothing has been placed on record to show that the rules prevalent in the health and family welfare department were made applicable to the department of Ayurveda. The advertisement inviting applications in the pay scale of Rs.400-600 was notified. The applicants applied for the said post and in the appointment letters their pay was fixed at Rs.400/- in the pay scale of Rs.400-600. As far as the first batch of the petitioners is concerned they were appointed in the year 1987-88. For seven years they kept silent and did not claim that they were entitled to the higher pay scale. Some time in the year 1995 they for the first time raised a plea that they should have been placed in the scale of Rs.510-940 which was rejected by the Government on 31.8.1995. Their claim that they should be given the same pay scale as that of multi purpose health workers was 9 rejected. Thereafter, the department of Ayurveda recommended the case of the petitioner for grant of the higher pay scale but this plea was never accepted. The petitioners even got a notice issued in the year 2000 but the first petition was filed only in the year 2005. Other petitioners filed their petitions much later and some of the petitions were filed in the year 2009. It is contended that limitation cannot come in the way because this is a continuing cause of action and causes a recurrent loss to the employees. At best payment of arrears can be restricted but the matter on merits must be decided. 9. There is a great difference between a continuing wrong and a wrong which may have a continuing effect. The Apex Court in Balakrishna Savalram Pujari Waghmare & Ors vs. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, had explained this in the following terms:- “31. It is then contended by Mr. Rege that the suits cannot be held to be barred under Article 120 because Section 23 of the Limitation Act applies; and since, in the words of the said section, the conduct of the trustees amounted to a continuing wrong, a fresh period of limitation began to run at every moment of time during which the said wrong continued. Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our 10 decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongly act causes an injury which is complete there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly charactersied as continuing wrongs that Section 23 can be invoked. Thus considered it is difficult to hold that the trustees’ act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants’ right though the damage caused by the said decree subsequently continued. Can it be said that after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort 11 committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in executing proceedings, their rights had been completely injured and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it.” A bare perusal of the aforesaid observations of the Apex Court makes it clear that merely because the wrongful act results in damage, which may continue for all times, does not mean that the act is a continuing wrong. However, if the act is of such a character that the injury caused by it itself continues then the act can be deemed to be a continuing wrong. 10. The Apex Court in M.R.Gupta vs. Union of India and others, (1995) 5 SCC 628 was dealing with a case which is very similar to the present case. In that case the appellant had joined service in the State of Punjab in the year 1967. He thereafter joined service in the Railway in 12 the year 1978. In the year 1989 he filed an application before the Central Administrative Tribunal claiming that his pay had not been properly fixed on his joining the Railways and that he was entitled to benefit of one increment. This claim was rejected by the Tribunal as being time barred. The Apex Court, however, held that if the appellant’s case was found correct on merits he would be entitled to have his pay properly fixed in future and the question of limitation would arise only in respect of the arrears for the prior period. It was held that this would be treated to be a continuing wrong. 11. In Union of India and Others vs. Tarsem Singh (2008) 8 SCC 648, the Apex Court in the case of grant of disability pension held that the High Court was not justified in granting arrears for the entire period but should have restricted the reliefs of arrears for three years only. It held as under :- “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong 13 commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale or doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” Keeping in view the aforesaid position, the petitions have to be heard and decided on merits. 12. Coming to the merits of the case, I am of the considered opinion that the petitioners are not entitled to any benefit. They joined service knowing fully well what is the scale which was to be given to them. When there were no separate rules in the department of Ayurveda the parties would be governed by the contractual obligations. The department offered salary to the petitioners in a given 14 pay scale. The petitioners accepted this scale. Since there were no statutory rules for the department of Ayurveda these instructions/advertisements will have the force of law and the petitioners cannot now turn around and claim that they should have been placed in the pay scale which was granted to the multipurpose health workers in the department of Health and Family Welfare and those A.N.Ms who were in job prior to its bifurcation. Once the department was bifurcated the person joining the department of Ayurveda would be governed by the rules and regulations issued by the department of Ayurveda and in the absence of the statutory rules the executive instructions issued would have the force of law. 13. It would also be pertinent to point out that sufficient material has not been placed on record to show that job work of multipurpose health workers is so similar to that of auxiliary nursing midwives and they should be placed in the identical scales of pay. True it may be, that the basic qualifications for both the posts are the same but as pointed out above the nature of duties cannot be said to be identical. It has been pointed out by the department that the multipurpose health workers work in the field and are engaged in programmes such as, polio and smallpox eradication, which the A.N.Ms are not doing. When any 15 party pleads that he should be given equal pay for equal work it is the responsibility of that party to place material on record to show that the nature and duties of both the posts are identical. This has not been done in the present case and therefore, the petitioners cannot claim equal pay for equal work. This is a matter for experts to decide and this matter has been considered at various level by the State. As already observed above there is no material to show that the work being done by A.N.Ms is exactly similar to that of multipurpose health workers. 14. Another problem in the way of the petitioners recruited after 1985 but before 1995 is that even as per the judgement in Tarsem Singh’s case (supra) the arrears have to be restricted for three years prior to the filing of the writ petition. After 1995 Rules were promulgated and a specific scale was awarded to the A.N.Ms in the Ayurveda department. When revision of pay scales takes place the scales are not automatically revised into another scale. The pay commission looks into the nature of duties and rationalizes the pay scales and there can be instances when people who are in the same scale of pay earlier after revision are put in different pay scale. Pay scales after 1995 were given in the Rules and even if the case of the petitioners was to be accepted that scale of 16 Rs.400-600 come to an end then also they would only be entitled to the pay scale as per the Rules, which pay has been paid to them and therefore, they would not be entitled to any benefit. 15. The case of the petitioners, who were appointed after promulgation of the rules by the department of Ayurveda is concerned, is even on a less sure footing. The basis of their case is even worse because they were appointed after the rules were framed and a specific pay scale was fixed for the A.N.Ms. Having been appointed against that pay scale they cannot now claim a higher pay scale by comparing their services with the multipurpose health workers in another department. 16. Therefore, I find no merit in the petitions, which are accordingly rejected. No costs. 23rd May, 2011. ( Deepak Gupta ) ™ Judge.