IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 340 of 2008 Date of decision : 28-04-2009 Poonam Khanna .....Petitioner Central Administrative Tribunal etc. .....Respondents CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MS. JUSTICE NIRMALJIT KAUR Present : Mr. Sumeet Mahajan, Sr. Advocate with Mr. Sham Lal Bhalla, Advocate for the petitioner. Mr. Sanjeev Sharma, Advocate for respondents No.3 and 4. ***** NIRMALJIT KAUR, J. The condition of service of Union Territory of Chandigarh Employees Rules, 1992 came into force w.e.f. 01-04-1991. These rules provided that the pay scales and conditions of service of U.T. Chandigarh employees shall be equivalent to those of the employees of the Punjab Government. The Punjab Government vide letter dated 24-06-1996, revised the pay scales of Assistants Curator from 2000-3500 to 2130-3700 and upgraded the post to that of Deputy Curator. The functions of the post of Deputy Curator remained the same as that of the earlier post of Assistant Curator. On 03-06-1998, the petitioner was promoted to the post C.W.P. No. 340 of 2008 -2- of Assistant Curator. He was given the revised pay scale of 6400-10640 (Equivalent to the old scale of 2000-3500). The applicant vide representation dated 09-09-2003, submitted that she be given the same pay scale of 7000-10980 (unrevised scale 2130-3700) as is being given to her counter parts in the Museums of the State of Punjab in view of the fact that the post of Assistant Curator (re-designated as Deputy Curator) in the Museums of the State of Punjab was equivalent to the post of Assistant Curator in Chandigarh. The respondents vide memo dated 14/17/03/2006, rejected the representation of the petitioner. The petitioner, accordingly, filed Original Application before the Central Administrative Tribunal, which was dismissed vide order dated 15-10-2007. The petitioner raised the plea of discrimination in his Original Application before the Central Administrative Tribunal that the same was not dealt with. It was stated that in many cases, the different posts have been ordered to be upgraded in Chandigarh solely because the said posts were upgraded in the State of Punjab whereas the request has been rejected in the case of the petitioner. Some of the posts are, namely, the post of Assistant District Attorney Grade-I, in Chandigarh Administration which was upgraded to the post of Deputy Director, post of Superintendent Grade II, Chandigarh Administration was attached to the Head of the Department and was given higher post as Superintendent Grade-I like its counterpart in the State of Punjab, Superintendent Grade IV and III were upgraded to the post of Superintendent Grade II in Chandigarh by following the Punjab pattern. Aggrieved, the petitioner has filed the present petition, challenging the order dated 14/17-03-2006 vide which the respondents have rejected the case of the petitioner as well as the order dated C.W.P. No. 340 of 2008 -3- 15-10-2007, passed by Central Administrative Tribunal dismissing the Original Application of the petitioner. Learned counsel for the petitioner raised two fold argument. Firstly, the Tribunal has said nothing regarding the plea of discrimination raised by the petitioner and the respondents were changing their stand frequently. Secondly, the post of Assistant Curator in the Museums of the State of Punjab was equated to the post of Assistant Curator in the Museum of Chandigarh. Both in the Museums of Punjab as as also in Chandigarh, the Assistant Curator were given the same pay scale of 2000- 3500 (now revised to 6400-10640). After 1996, Assistant Curators in the Museums of Punjab continue to do the same duties but are given the scale of 2130-3700 (later revised to 7000-10980) with the changed designation as Deputy Curator. In the instant case, as is clear from letter Annexure P-11, the Deputy Curators do exactly the same work as they were doing earlier to 1996 as Assistant Curator in Chandigarh. In view of the 1992 rules and keeping in view that those incumbents who were working as Assistant Curators prior to 1996 in the Museums of Punjab have been given the pay scale of 2130-3700 (now revised to 7000-10980) apart from being given the designation of the post of Deputy Curator, the Assistant Curators in Chandigarh automatically become entitled to the same benefits of pay scales of 2130-3700 (now revised to 7000-10980) with redesignation to the post of Deputy Curator as 1992 rules (Annexure P-5) provide that conditions of Service in Chandigarh Administration would be same as of their counter parts in Punjab. C.W.P. No. 340 of 2008 -4- Learned counsel for Union Territory, Chandigarh-Mr. Sanjeev Sharma, on the other hand, submitted that as per the clarification issued on 26-06-1992, Union Territory of Chandigarh Employees Rules, 1992 allowing equation of the two posts with respect to the condition of service, is applicable only for those posts which are also available with the Chandigarh Administration. Since the posts of Deputy Curator does not exist in Chandigarh, the conditions of service as applicable to the post of Deputy Curator in the Department of Cultural Affairs, Archaeology and Museums in Punjab will not be applicable to the petitioner who is a Assistant Curator with the Government Museum and Art Gallery, Chandigarh. We find force in the arguments raised by learned counsel for the petitioner. In order to appreciate the same, it is necessary to reproduce Rule 2 of the Conditions of Service of Union Territory of Chandigarh Employees Rules 1992. The same is reproduced as under :- “2. Conditions of service of persons appointed to the Central Civil Services and posts under the administrative control of Administrator :- The conditions of service of persons appointed to the Central Civil Services and posts in Groups A, B, C and D under the administrative control of the Administrator of Union Territory of Chandigarh, shall subject to any other provision made by the President in this behalf, be the same as the conditions of service of persons appointed to corresponding posts in Punjab Civil Service and shall be governed by the same rules and orders as are for the time being applicable to the latter category of persons. C.W.P. No. 340 of 2008 -5- Provided that in the case of persons appointed to the services and posts under the administrative control of the Administrator, Chandigarh, so long as they are drawing pay on the rates admissible to the corresponding categories of employees of the Government of Punjab, it shall be competent for the Administrator to revise their scales of any time to time so as to bring them at par with the scales of pay which may be sanctioned by the Government of Punjab from time to time the corresponding categories of employees.” A perusal of the same leaves no doubt that the scale of the persons appointed to the services and posts under the administrative control of the Administrator, Chandigarh, are to be revised from time to time to bring them at par with the scale of pay sanctioned by the Government of Punjab for the corresponding category of employees. In fact, even a perusal of P-6 which is a clarification of the above rules on which the respondents have heavily relied upon reads thus :- “ It is, therefore, clarified that w.e.f. 01-04-1991, all the Rules and Orders so far as the same relate to the conditions of service referred to above as are for the time being applicable to Punjab Government employees shall continue to be applicable to the Union Territory Chandigarh. 2. It is further clarified that the Recruitment Rules made in exercise of the powers conferred upon the Administrator in terms of Articles 309 of the Constitution of India, in so far as they do not relate to the conditions of service referred to above, however, shall continue to be in force as the Government of India have only changed the conditions of service of Union Territory Employees on Punjab pattern. However, with a view to streamline the whole C.W.P. No. 340 of 2008 -6- procedure, the following decisions already taken are reiterated : i) Cases in which the process of framing of Recruitment Rules has not been started. For Group C and D posts, the rules as are in force in respect of the corresponding categories of employees in the State of Punjab shll straight way be adopted for Union Territory employees. 2. For posts like peons, Clerks, Assistants, Office Superintendents etc. which are common to various department a set of Model Rules will be provided by Home Department which will be processed by the Department concerned. 3. For Group A and B employees, Rules of corresponding categories in Punjab may be sent to Union Public Service Commission for obtaining their concurrence. There is no need to obtain the concurrence of Government of India afresh as it has already been obtained by virtue of their letter authorising adoption of Punjab Rules. 4. In case, any post is not available in Punjab, Recruitment Rules for the said post may be framed and put up for approval to the Administrative Department within a month's time : (ii) Cases where recruitment Rule or Amendments have been sent for approval of Government of India/UPSC. In cases where corresponding categories exist in Punjab, the proposals already sent to the Government of India/Union Public Service Commission, may be dropped and rules as in force in the State of Punjab Rules be sent to UPSC for concurrence. If corresponding categories are not available in Punjab, then the existing proposals may be pursued vigourously.” C.W.P. No. 340 of 2008 -7- It is obvious from the reading of the above clarification that the condition of service applicable to Punjab Government Employees shall continue to be applicable to the Union Territory Employees. No rules or regulations, governing the condition of service to the post of Assistant Curator, in case the post is not available in Punjab, have been brought to our notice nor any rules have been framed and put up for approval of Administrative Department which is required to be done as per clause 4 of the clarification reproduced above, in case, such post is not available in the Punjab Government. The argument that the post of Assistant Curator does not exist in Punjab and, therefore, Chandigarh will follow its own rules, is to be rejected on yet another account. On 22-04-1987, the petitioner who was promoted to the post of curatorial Assistant was given the pay scale of 600- 1120 on the basis of the Punjab Government letter dated 07-03-1984 which was adopted by the Chandigarh Administration letter No.2040/PO (7)/87/4420 dated 02-04-1987 and a copy of this letter is placed on record as P-4. The Chandigarh Administration also adopted the Punjab Government Circular regarding the classification of posts in Group A, B, C and D. Copy of the circular is placed as P-8 and P-9. Meanwhile, w.e.f. 24-06-1996, vide letter P-10, the Government of Punjab upgraded the post of Assistant Curator to that of Deputy Curator in the revised pay scales of 2130-3700. Thus, to deny the revised pay scale on the ground that the post of Assistant Curator is now not available to the Punjab Recruitment Rules, is discriminatory, unfair and arbitrary, especially when it is obvious from Annexure P-11 which is a letter addressed by the Director, Cultural Affairs, Archaeology and Museums, Punjab, Chandigarh, intimating that “ no change has been made in the charter of the duties after the C.W.P. No. 340 of 2008 -8- up-gradation/redesignation of the post of Assistant Curator to that of the Deputy Curator in the Department of Cultural Affairs, Archaeology and Museums in Punjab.” Thus the stand of the Administration is contrary to their own rules and the above clarification P-6. Even otherwise, it is not a case where the said post of Assistant Curator was never available with the Punjab Government. The post of Assistant Curator, to which post the petitioner was equated always existed till it was only re-named as `Deputy Curator' by the Punjab Government. The plea of the respondents that the post of Assistant Curator was not simultaneously upgraded/redesignated in Chandigarh along with its counterpart in Punjab will have to be rejected and the writ petition accordingly allowed on account of discrimination. The petitioner specifically took the plea that the Chandigarh Administration had followed a policy of pick and choose, in as much as in a number of instances, posts in Union Territory, Chandigarh have been upgraded with consequential relief of revised pay scale solely because their equivalent posts have been upgraded in the State of Punjab whereas the post of the petitioner has not been re-designated. The petitioner quoted the following instances : (i) On 03-01-1992, the post of Assistant District Attorney was upgraded to the post of Deputy Distt. Attorney on Punjab Pattern. (ii)On 03-11-1979, it was ordered that the posts of Superintendents attached to Head of the Departments will be upgraded to Superintendents Grade I. (iii)The posts of Superintendents Grade III and Grade IV were upgraded to the posts of Superintendent Grade II in Chandigarh by following the Punjab Pattern. C.W.P. No. 340 of 2008 -9- The respondents have not even replied to these averments and neither denied the specific averments made by the petitioner before the Central Administrative Tribunal as well as this Court. The averments therefore stand admitted. The failure of the Administration to redesignate the post of Assistant Curator as Deputy Curator therefore amounts to discrimination qua the petitioner. The Chandigarh Administration cannot apply a different yardstick. The plea therefore deserves to be accepted even on this account. The findings by the Central Administrative Tribunal that the applicant was working under the respondent U.T. Administration and is claiming parity with a category whose nature of duties have been assessed to be on the higher side as compared to the category of applicant, is contrary to the document P-11 which clarifies that no change has been made in the charter of duties after the upgradation of the post. There is no large scale financial implication. There is only one post of Assistant Curator in the Chandigarh Administration. We also find that the judgments relied on by the Central Administrative Tribunal, in fact, do not apply in the facts of the present case, in view of the Union Territory of Chandigarh Employees Rules, 1992, which was not a subject matter in those cases. Learned counsel for the petitioner, on the other hand, has further relied on the judgment of Hon'ble the Supreme Court in Union Territory of Chandigarh vs. Rajesh Kumar Basandhi 2003(4) R.S.J. 571, to contend that the petitioner is liable to be placed at par with persons appointed to corresponding course in Punjab Civil Services. It would be unfair not to consider the judgment relied on by the learned counsel for the respondent rendered by Hon'ble the Apex Court in Union Territory, Chandigarh vs. Krishan Bhandari, 1996(11) Supreme C.W.P. No. 340 of 2008 -10- Court Cases 348. In that case, the same pay scale as paid to a District Science Supervisor in the State of Punjab was prayed for. However, the said prayer was rejected by holding that neither the first nor the second proviso to Rule 2 of the Rules is applicable because it dealt with the persons appointed to services and posts under the Administrative control of the Administrator, Chandigarh, who are drawing pay at the rates admissible to corresponding categories of employees of the Government of Punjab and the employee in that case was not such a person because the post of Science Supervisor in the Union Territory of Chandigarh was not having the same pay scale as that of District Science Supervisor in the State of Punjab prior to the notification dated 22-02-1980 and also on account of the fact that he was not able to produce any material to show that two posts were at par and the qualifications prescribed were also same, whereas, in the case, in hand, there is no such dispute. The respondents did not reject the case on anyone of these grounds i.e. either on the ground of work or qualification. In fact, enough material has been placed on record to show that the two posts relate to corresponding categories of employees of the two State. Hence, the judgment is not applicable in the facts of the present case. Learned counsel for the respondents has yet placed reliance on another case, titled as State of Haryana vs. Haryana Civil Secretariat Personal Staff Assoc. 2002(2) SCC 72. The facts of this case are also not applicable in as much as it is the Union Territory of Chandigarh Employees Rules, 1992 which are applicable in the present case. In view of the above discussion, the writ petition is allowed and the order dated 14/17-03-2006 as well as the order dated 15-10-2007 C.W.P. No. 340 of 2008 -11- passed by the Central Administrative Tribunal are set aside and the respondents are directed to refix the pay scale and make good the arrears after such refixation, in terms of Annexure P-10, by treating the post of the petitioner as Assistant Curator equivalent to the post of Assistant Curator in the Museum at Punjab designated as Deputy Curator in the Museum of the State of Punjab, within three months from the receipt of a copy of this order. (NIRMALJIT KAUR) JUDGE (ASHUTOSH MOHUNTA) JUDGE 28-04-2009 gurpreet Whether to be referred to the Reporter : Yes / No