CWP No.17154 of 2008.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.17154 of 2008 (O&M) Date of Decision: 07.07.2010 **** Kulwant Singh and another . . . . Petitioners VS. Punjab Mandi Board and others . . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. DS Kohli, Advocate for the petitioners Mr. H.S. Brar, Addl. AG Punjab Mr. H.S. Riar, Senior Advocate with Mr. G.S. Harika, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWPs No.17154 & 21273 of 2008; 829, 1030, 1131, 1138, 1418, 1447, 1456, 1636, 1783, 2317, 2947, 2953, 3275, 3442, 4983, 4991, 4992, 5010 of 2009 as common questions of law and facts are involved in these cases. The petitioners in these cases are working as Pump Operator(s), Plumber(s), Electrician(s) and Mechanic (s) etc. in the Punjab Mandi Board and/or in various Market Committees constituted thereunder. All of them possess the minimum academic qualifications CWP No.17154 of 2008.doc - 2 – of matriculation with two years’ ITI Certificate in their respective Trades. (2). The issue involve in these cases is as to whether the petitioners are entitled to and were rightly granted the pre-revised pay scale of Rs.1350-2400 and whether the respondents are entitled to effect recovery on withdrawal of the above-stated pay scale (s) vide the impugned orders? For better appreciation of the controversy and for brevity, the facts are being extracted from CWP No.17154 of 2008. (3). Both the petitioners are working as Pump Operators and they were appointed on the basis of the qualification of Matriculation with ITI Diploma in the relevant trade. (4). The Punjab Mandi Board (in short, ‘the Board’) has been constituted under Section 3 of the Punjab Agricultural Produce Market Act, 1961 (in short, ‘the 1961 Act’) whereas the Market Committees have been established under Section 11 and 12 of the said Act. These statutory authorities perform various duties and functions entrusted under the 1961 Act. CWP No.17154 of 2008.doc - 3 – (5). The service conditions of these employees who are directly under the control of the Board, are governed under the Punjab State Agricultural Marketing Board (Class III Service) Rules, 1989 (in short, ‘the Board Rules’), whereas of those who are serving in the Market Committees are governed under the Punjab Market Committees (Class III) Rules, 1989 (in short, ‘the Committee Rules’). These Rules have been framed and notified by the State Government in exercise of its powers under Section 43 of the 1961 Act. In the context of the issue invovled, namely, the pay scale to which the petitioners are entitled to, Rule 14 of the Board Rules and Rule 13 of the Committee Rules which are otherwise pari materia are reproduced below:- Punjab State Agricultural Marketing Board (Class III Service) Rules, 1989 “14. Pay of members of Service. – The members of the Service shall be entitled to such scales of pay as may be authorized by the Board with the prior approval of the Government from time to time. The Scales of pay, at present, in force in respect of members of the Service are given in Appendix ‘A’ to these Rules.” Punjab Market Committees (Class III) Rules, 1989 “13. Pay of members of Service. – The members of the Service shall be entitled to such scales of pay as may be authorized by the Board with the prior approval of the Government from time to time. The scales of pay at present in force in respect of members of the Service are given in Appendix ‘A’ to these Rules.” CWP No.17154 of 2008.doc - 4 – (6). It is indeed beyond any pale of doubt that the employees of the Board/Marketing Committees, as the case may be, are entitled to such scales of pay as are authorized by the Board with the prior approval of the State Government. (7). It is also not in dispute that upon revision of the pay scales of the employees of the State of Punjab w.e.f. 01.01.1986, Class III employees were granted the pay scale of Rs.950-1800. The petitioners in the Board/Marketing Committees were also placed in the said pay scale w.e.f. 01.01.1986. (8). Subsequently, the State Government (Finance Department) issued a Notification dated 03rd May, 1991 (Annexure P3), amending its previous notification and granting the higher pay scale of Rs.1350-2400 retrospectively w.e.f. 3rd November, 1989 to the skilled and semi-skilled staff like Electricians, Radiators, Repairers, Blacksmith, Tyreman, Painter, Carpenter, Upholsterer etc. of the Transport Department. The relevant part of the Notification dated 3rd May, 1991 Rules reads as follows:- CWP No.17154 of 2008.doc - 5 – S.No . Post Existing scale in rupees Revised scale in rupees Remarks 7 xx xx xx xx 8(I) xx xx xx Xx (II) Electrician - 60, Radiator Repairer - 6, Blacksmith - 18, Welder - 13, Tyreman -18, Painter - 18, Carpenter - 18, Upholster – 12 Rs.400-600 Rs. 950-1800 (with an initial start of Rs.1000) Rs.1350 - 2400 w.e.f. 3rd day of November, 1989 To be upgraded as Technical Grade II 9-11 xx xx xx xx (9). The petitioners who also fall in the category of skilled and semi-skilled staff and were possessing the qualification of Matriculation with two years’ ITI Diploma, appears to have raised their claim for the grant of above-mentioned higher pay scale(s). The Chairman of the Board vide his order dated 18.08.2006 (Annexure P5) accepted their representation/claim and placed the employees of the Board/Marketing Committees in the higher pay scale of Rs.1350-2400 on the strength of Government Notification dated 3rd May, 1991, referred to above. The operative part of the aforesaid order dated 18th August, 2006 reads as follows:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx CWP No.17154 of 2008.doc - 6 – “On the basis of the legal notice served by the employees of market committees and the demand of Punjab Market Committee Union for grant of pay scale of Rs.1350-2400, the case was thoroughly perused and for this purpose, on the basis of notification issued by Govt. it was considered to give the scale of Rs.1350- 2400 to the employees of concerned categories. Regarding this, the opinion was sought for giving the pay scale to Skilled/Semi-skilled staff on the basis of the Govt. Notification i.e. as per the recommendations of the IIIrd Pay Commission. The Punjab Govt. gave its opinion vide memo No.5244, dated 11.08.04 to the effect that for the posts where the condition of Diploma of ITI is there in the Appendix ‘B’ of Punjab Market Committee, Class III Service Rules, 1989, in those cases, that condition cannot be removed. Therefore, in view of the above, and on the basis of the Notification No.2/27/91-FPI/3700 dated 3.5.1991, the approval has been given for the grant of scale of Rs.13500-2400 as per the provisions of Punjab Market Committee Class III Service Rules to the Electricians/Plumbers working in different market Committees.” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (10). In deference thereto, the consequential orders dated 29th November, 2007 was passed granting the petitioners the higher pay scale of Rs.1350-2400 w.e.f. 3.11.1989. CWP No.17154 of 2008.doc - 7 – (11). The petitioners were thereafter served with a Memo dated 28.07.2008 (Annexure P9), whereby the orders granting them pay scale of Rs.1350-2400 were withheld. Thereafter, a general order dated 14.11.2008 (issued on 3rd December, 2008) (Annexure P11) was passed by the Board withdrawing the pay scale(s) of Rs.1350-2400. As a result thereto, consequential recovery has also been ordered against the petitioners prompting them to approach this Court. (12). The respondent-Board has filed its reply/affidavit maintaining that in view of Section 42 of the 1961 Act, the State Government is competent to vary any order passed by the Board or its Officers. It is explained that since the higher pay scale was granted to the petitioners by the Chairman at his own without any Resolution by the Board or approval of the State Government, the action of the Chairman was per se illegal and void, which has been rightly rectified by the State Government. (13). To be precise, the stand taken by the Board is that no conscious decision to grant the pay scale of Rs.1350-2400 to the petitioners was ever taken by the Board with the prior approval of the State CWP No.17154 of 2008.doc - 8 – Government in terms of Rule 14 and Rule 13 of the Board and Committee Rules, respectively. (14). The petitioners, on the other hand, rely upon an order dated 24.10.2001 passed by the Additional Secretary, Agriculture Department, in purported exercise of the revisional jurisdiction of the Government of Punjab, whereby, two Plumbers working with the Board, were ordered to be granted the pay scales of Rs.1350-2400 w.e.f. 3rd November, 1989. It is urged that the said order having been passed by the State Government tantamount to its prior approval for the grant of the aforestated higher pay scale. It is argued that the petitioners are entitled to maintain pay parity with their counter- parts in the State Government as they perform identical duties and also possess the same qualifications. The action of the respondents in not granting the pay scale of Rs.1350-2400 to them is stated to be violative of Articles 14 and 16 of the Constitution of India. (15). As regards the orders of recovery, learned counsel for the petitioners urge that neither the petitioners misrepresented the facts nor they had played any fraud or deceived the authority to secure any CWP No.17154 of 2008.doc - 9 – monetary gains and, therefore, no recovery can be effected from them as ruled by a Full Bench of this Court in Budh Ram & Others vs. State of Haryana & Others, 2009(3) PLR 511. They rely upon a recent decision of the Hon’ble Supreme Court in Registrar, Cooperative Societies Haryana and others v. Israil Khan and others, (2010) 1 SCC 440 which in a way approves the principles laid down by the Full Bench in Budh Ram’s case (supra). (16). Contrary to it, Sh. Riar, learned senior counsel representing the Board argues that the petitioners wrongly relied upon the Govt. Notification dated 3rd November, 1991 which was actually meant for the employees of the Transport Department only and it amounts to misrepresentation on their part. It is contended that the Chairman of the Board had no authority and the order passed by him being void, the respondents are well within their right to effect recovery from the petitioners. (17). It needs no elaborate discussion that in view of the express provisions contained in the statutory Service Rules, the pay scale(s) to be granted to the employees of the Board/Marketing Committees CWP No.17154 of 2008.doc - 10 – must be authorized by the “Board” with the ‘approval’ of the State Government. The expression “Board” as defined in Section 2(b) of the 1961 Act reads as follows:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx [(b) “Board” means the Punjab State Agricultural Marketing Board established under the Act for the State of Punjab…….” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (18). Suffice it to say that the Chairman alone does not constitute the “Board” which is a multi-member legal entity. Admittedly, no conscious decision was ever taken by the Board to grant the pay scale of Rs.1350-2400 to the petitioners or other skilled and/or semi-skilled staff nor such a decision was ever sent for or accorded approval by the State Government. The order dated 18th August, 2006 (Annexure P5) passed by the Chairman at his own, thus, cannot be given effect in derogation of the provisions of the statutory Rules. CWP No.17154 of 2008.doc - 11 – (19). The claim of the petitioner(s) for the grant of higher pay scale based upon the order passed by the Chairman cannot be accepted and is rejected. (20). At the same time, it does not obviate the respondents from their obligation to consider the claim of the petitioner(s) to treat them at par with skilled/semi-skilled staff of the State Government, especially when there is stated to be a long history of granting pay scale(s) to the Board/Market Committee employees at par with their counterparts in the State Government Departments. If there was ever a conscious decision to bring parity between the pay scale(s) of the Board/Committee’s employees and similar-situated Government employees, the subsequent differentiation may cause anomaly unless the distinction is justified on the strength of some valid and just reasons. (21). The issue regarding admissibility of pay scale(s), however, falls exclusively within the domain of the experts who can foresee the implications likely to fall upon in the event of grant of a particular pay scale to a set of employees. Since no such exercise has been undertaken by the Competent Authority, this could need not pre-empt and make any CWP No.17154 of 2008.doc - 12 – premature observations with regard to the petitioners’ claim for the higher pay scale(s). (22). For the reasons afore-stated, the nodal Department of the State Government, namely, the Agriculture Department is directed to constitute a Committee to be headed by the Chairman/Administrator of the Board along with at least two members – including the nominee of the Finance Department and the other preferably from the Personnel Department, to consider the claim of the petitioner(s) for the grant of the pay scale(s) as is admissible to the skilled/semi- skilled staff of the State Government in Transport Department. The Committee shall take appropriate decision in the matter within a period of three months from the date of receipt of a certified copy of this order. (23). The petitioners shall be at liberty to supplement their claim before the Committee by way of representation(s) along with supporting documents, if any. The recommendations to be made by the Committee shall be considered by the Board who shall take an appropriate decision in the matter, within a period of two months from the date of receipt of the recommendations. The State CWP No.17154 of 2008.doc - 13 – Government, on its turn, if the matter is referred to it, shall decide/accord its necessary approval within a period of three months thereafter. Till then, the petitioner(s) shall continue to draw the original pay scales as granted to them w.e.f. 01.01.1986 and/or the consequential revised pay scales, however, without prejudice to their claim to be determined in the manner as directed above. (24). Adverting to the respondent’s plea that the erroneously paid monetary benefits can be recovered, I am of the considered view that the petitioners are lower rung Class-III employees who were in no position to influence the then Chairman of the Board to show favours to them. The fact that the petitioners relied upon a Government notification dated 03.11.1991 (Annexure P3) to stake their claim for higher pay scale cannot be termed as a ‘misrepresentation of facts’ by them It is not the case of the respondents that the petitioners played any fraud or deceived the authorities. That being so, the principles laid down by a Full Bench in Budh Ram’s case (supra) would come to the rescue of the petitioners to protect them from the recovery sought to be effected. The eventualities illustrated in CWP No.17154 of 2008.doc - 14 – Budh Ram’s case (supra) also find approval from the Hon’ble Supreme Court in a recent decision in Registrar, Cooperative Societies Haryana and others v. Israil Khan and others, (2010) 1 SCC 440. (25). For the reasons afore-stated, the writ petition is allowed in part; the impugned recovery orders are hereby quashed. The respondents are directed to refund the amount, if any, recovered from the petitioner(s) within a period of three months from the date of receipt of a certified copy of this order. As regards the petitioners’ claim for higher pay scales, the same shall be considered and disposed of in the light of the directions given above. (26). Ordered accordingly. (27). Dasti . (SURYA KANT) JUDGE 07.07.2010 vishal shonkar