IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH 1. LPA No.176 of 2005 (O&M) Date of Decision: March 10, 2011 Prem Chand Garg and Ors. …Appellants Versus The State of Punjab and Ors. …Respondents 2. LPA No.211 of 2005 (O&M) Subhash Chander and Ors. …Appellants Versus The State of Punjab and Ors. …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. N.D. Kalra, Advocate, for the appellants. Mr. Suvir Sehgal, Addl. AG, Punjab. ***** 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. These two appeals filed under Clause X of the Letters Patent are directed against a common judgment dated 11.05.2005 rendered by the learned Single Judge repelling the challenge of the appellants to the grant of selection grade. The appellants had claimed that under the Punjab Civil Services (Revised Scales of Pay) Rules, 1969 (for brevity, 'the 1969 Rules'), they were granted the time-scale of Rs.200-450 and selection grade to the extent of 10% was given in the scale of Rs.450-500. They felt aggrieved by the revision of pay scale and selection grade w.e.f. 01.01.1978 when the revision of pay scale had taken place. Under the new pay scale, 20% of the total cadre posts were given selection grade and another condition was imposed that all those who LPA Nos.176 & 211 of 2005 (O&M) were to be given selection grade could not have less than 15 years of service. The learned Single Judge repelled the arguments holding that the selection grade cannot be claimed as a matter of right nor it can constitute a condition of service as is apparent from the following para: “The question as to whether the selection grade is a condition of service or not, depends upon either the service rules governing the service conditions and/or the terms and conditions of employment on a particular post which are laid down by the competent authority and accepted by the employee. There is nothing on record to suggest that selection grade was ever prescribed as a condition of service for Sectional Officers/Junior Engineers. On the other hand, the petitioners themselves have admitted that selection grade was granted to them to compensate due to stagnation in their career as every one of them could not expect further promotion to the post of Sub Divisional Engineer. Thus, it is the pleaded case of the petitioners themselves that selection grade came to be granted to them as a substitute for promotion. It is well settled that promotion is not a condition of service and cannot be claimed as a matter of right except that if promotional avenue is provided, the concerned employee has a right ot be considered for promotion subject to his eligibility and suitably. In view of this, it is difficult to accept that by laying down certain eligibility conditions for the grant of selection grade, service conditions of the petitioners have been adversely altered.” 2. The learned Single Judge also found that the time scale granted to the appellants was much more than what the Pay Commission has recommended. It has been noticed that the Pay Commission has recommended the pay scale of Rs.570-1000 w.e.f. 01.01.1978, whereas the State Government increased the same to Rs.570-1080. That the matter not ended there because 2 LPA Nos.176 & 211 of 2005 (O&M) the Senior Officers' Committee constituted by the State Government “for removal of anomalies” recommended a higher time scale of Rs.700-1200 with two advance increments for those who were AMIE or possessed degree in Engineering in addition to selection grade of Rs.800-1400 for 20% of the total posts. The recommendations made by the Senior Officers' Committee were accepted by the State Government in toto. It was not disputed before the learned Single Judge that had the recommendations of the Pay Commission been implemented, then the appellants would have got selection grade of Rs.700-1200 only to the extent of 20% of the posts. Accordingly, learned Single Judge concluded that the appellants have been granted higher time scale than what was recommended by the expert body and proportionately selection grade has also been granted at a higher rate. 3. The challenge to the imposition of condition of 15 years service for earning selection grade has also been repelled as the aforesaid condition has been applied uniformly without any pick and choose policy. The mere fact was that no such condition was held to be approved subsequently because prior to 1978, selection grade was admissible to the extent of 10% of the posts whereas it was increased to 20% of the total posts in the revised pay scales granted w.e.f. 01.01.1978. 4. When the matter came up for consideration, this Court framed two questions for determination, which have emerged for deciding the instant appeals and the same are as under: - i) Whether the condition of 15 years service to be entitled to the selection grade is sustainable in law? ii) Whether the selection grade in the revised pay scale of Rs.800-1400 w.e.f. 01.01.1978 is superfluous 3 LPA Nos.176 & 211 of 2005 (O&M) inasmuch as it did not result in any tangible benefit.? 5. Mr. N.D. Kalra, learned counsel for the appellants has argued that the imposition of condition of 15 years service to make the appellants eligible for earning selection grade, is apparently arbitrary. According to learned counsel, there is no such provision in the 1969 Rules for imposing the requirement of 15 years service to earn the selection grade nor any condition has been incorporated in the subsequent Rules known as Punjab Civil Service (Revised Scale of Pay) Rules, 1979 (for brevity, 'the 1979 Rules'). 6. According to Mr. Kalra, the condition has been imposed by issuing executive order on 3rd March, 1980 (P-2). The submission made is that the imposition of condition of 15 years service is contrary to the 1969 Rules and, therefore, no such condition could be imposed in violation of the Rules. However, the matter is no longer res integra and the issue stands settled by the judgment of Hon'ble the Supreme Court rendered in case of State of Punjab and another v. Kuldip Singh and another, (2002) 5 SCC 756 deciding the controversy arising from the same circular dated 03.03.1980 (P-2). In para 5, a reference has been made to the circular dated 03.03.1980 and also circular dated 18.05.1987 reversing the view taken by this Court. Hon'ble the Supreme Court has held in para 9 and 10 as under: “9. From the contents of the two circulars, it is manifest that an employee in order to be eligible to get the selection grade pay has to complete 15 years of service and he is not to be given such scale of pay before he fulfils the said eligibility criteria. It follows as a consequence that no employee can claim selection grade pay before completing 15 years of service on any ground including the ground that an employee junior to him has already been given such grade of pay. The position is further clarified in the circular issued in May 1987 wherein it is provided that in 4 LPA Nos.176 & 211 of 2005 (O&M) the event of a junior employee getting the selection grade pay earlier, the post in the said grade may be kept vacant for the senior employee who may be given the benefit of the pay prescribed for the selection grade pay only after he complete 15 years of service. The interest of the senior employee in such cases is safeguarded by making the provision that the inter se seniority between the two employees will remain undisturbed despite the junior employee getting the selection grade pay earlier than the senior employee. 10. In view of the position communicated in the circulars the claim of an employee for a selection grade post was to be dealt with only in accordance with the provisions in the circular. The reasons stated in the judgment/order of the High Court that the respondents were entitled tot he higher grade pay with effect from 1-1-1978 as employees junior to them were granted such pay by that date is extraneous and irrelevant for the purpose. The High Court overlooked the provisions in the circulars while directing the appellants herein to grant selection grade pay to the respondents before they completed 15 years of service. The High Court was clearly in error in issuing a writ of mandamus apparently against the government circulars which were binding on the parties.” 7. In view of the aforesaid settled position in law, it is no longer open to the appellants to raise any such arguments. Moreover, some what similar view had been taken by a Division Bench of this Court in case of State of Punjab and others v. Iqbal Singh Brar, 1999(2) RSJ 759 and by Hon'ble the Supreme Court in Chief Enginer-cum-Secretary v. Jagdish Mittar and others, 1991 Supp (2) SCC 1. 8. The second argument raised by Mr. Kalra is that the grant of selection grade in the scale of Rs.800-1400 after granting time scale of 5 LPA Nos.176 & 211 of 2005 (O&M) Rs.700-1200, does not result into any tangible benefits. He has placed reliance on various guidelines framed by the Pay Commission, which should be followed in granting the selection grade. According to Mr. Kalra, the whole idea of grant of selection grade is to remove stagnation on reaching the maximum of time scale. The person who has already reached the maximum of time scale of Rs.700-1200 gets no tangible benefit in the selection grade which starts from Rs.800 and ends at Rs.1400. The selection grade should be the mean of the time scale which would come to Rs.950 and that should be the starting point in the selection grade. 9. The aforesaid submission made by Mr. Kalra has been vehemently opposed by Mr. Sehgal, Additional Advocate General on facts pointing out the case of appellant No.1 – Prem Chand Garg and has produced his service book. According to learned State counsel, a perusal of the service book would show that before 23.11.1985, Sh. Prem Chand Garg used to draw the salary of Rs.940/- and on the grant of selection grade w.e.f. 23.11.1985, he started drawing the salary of Rs.970/-. There was increase of Rs.30/- i.e. one increment by virtue of grant of selection grade. The position would not be different in any of those cases where the appellants have entered into service in the year 1970 because they would become entitle to the grant of selection grade on completion of 15 years service in 1985. 10. Even on the second issue, we are unable to persuade ourselves to accept the contention raised by the appellants. A perusal of the service book of appellant No.1- Prem Chand Garg would show that firstly he has earned one more increment in the year 1985 by virtue of grant of benefit of selection grade. Before the grant of selection grade, he used to draw the salary of Rs.940/- which was increased to Rs.970/- after the grant of selection grade. 6 LPA Nos.176 & 211 of 2005 (O&M) Therefore, it cannot be argued that there are no tangible benefits. Moreov , the appellants had gained by virtue of the recommendations made by the enior Officers' Committee and instead of time scale of Rs.570 w.e.f. 01.01.1 78, it was eventually increased to Rs.700-1200 by the Senior Officers' Committ e which was appointed by the State Government to remove anomali s. Apart from the higher time scale of Rs.700-1200, the Senior Officer ' Committee also granted two advance increments to all those who were AM E or possessed degree of Engineering. It was in these circumstances, the sel ction grade of Rs.800-1400 for 20% of the total posts was also given by impo ing the condition of 15 years service. 11. We are further of the view that tinkering with the recommendations either of the Pay Commission or of the Senior Officers' Committee constituted for removal of anomaly would be wholly unwarranted because they have been dealt with by expert body like Pay Commission or the Senior Officers' Committee after hearing all sides and taking into consideration the various aspects concerning finance etc. In State of U.P. v. J.P. Chaurasia, AIR 1989 SC 19, Hon'ble the Supreme Court has held that the question with regard to the recommendations of pay scale has to be left with the expert body like Pay Commission because the Courts are not armed with any expertise. There is no doubt that the Courts can even interfere in the matter of fixation of pay scale, however, if, it is shown that the provisions of Articles 14 and 16(1) of the Constitution have been violated, then such an interference is not prohibited. In the present case, however, there is no such feature which may persuade us to conclude that the respondents have acted arbitrarily. 12. We are further informed by Mr. Sehgal, learned Additional 7 LPA Nos.176 & 211 of 2005 (O&M) Advocate General that the pay scale of appellants have further been revised w.e.f. 01.01.1986 and pay scale of Rs.2200-4000 has been given to him along with the grant of first ACP on completion of 8 years and second ACP on completion of 18 years. Therefore, we find no merit in the appeals. The views taken by the learned Single Judge deserves to be approved. 13. Accordingly, the appeals are without merit and the same are hereby dismissed. 14. A photocopy of this order be placed on the file of connected appeal. (M.M. KUMAR) JUDGE (T.P.S. MANN) March 10, 2011 JUDGE Rajan 8