IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 3181 of 2008 Date of Decision: 21.4.2009. Dr. Jaspal Singh and others --Petitioners Versus State of Punjab & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Gagandeep Singh, Advocate for the petitioners. Mr. B.S. Chahal, DAG, Punjab. *** PERMOD KOHLI.J (ORAL) Petitioners in the present case joined the Health Department of Punjab Govt. Service as PCMS Doctors on the dates indicated in Annexure P-2 on being selected by the Punjab Public Service Commission. On the recommendations of the 4th Punjab Pay Commission the Punjab Govt. notified the pay scales of different categories of its employees vide Notification No. 7/1/97-FPI/7370 dated 19.5.1998. This notification provides that where the directly recruited employees are in receipt of three grade pay structure in the un-revised pay scale of Rs.2200-4000/- they are entitled to four tier pay scales on completion of 4,9 and 14 years of regular service. The State Govt. also laid down the guidelines for implementation of the recommendations which inter alia relate to the Assured Career Progression Scheme vide its Circular dated 17.4.2000 (Annexure P-3). Besides laying down the parameters and eligibility for grant of benefit under the ACP Scheme, the State Govt. also stipulated the date for placement in the higher pay scale to the eligible employees. Clause 7 of the aforesaid circular reads as under:- CWP. No. 3181 of 2008 -2- “ 7. All placements in higher scales shall be given effect to from the first day of January of the next year in which an employee completes the span of service required for placement in the higher scale. All cases maturing up to the last day of the year shall be taken up for consideration before the end of the month of October. The annual Confidential Reports upto the 31st March of the relevant year may be taken as the base. Record of work/conduct/other events like starting of an inquiry etc. upto the date when actual placement is made should also be kept in view.” The petitioners have challenged the validity of aforesaid Clause 7 to the extent it provides for grant of benefit of the placement in higher pay scale w.e.f. the 1st day of January next year. It is argued on behalf of the petitioner that in view of the Clause 7 a person rendering lesser service reaches higher pay scale earlier in time than a person rendering more service and thus it violates the right of equality granted under the Constitution. It is further argued that it deprives the petitioners of benefit of the higher pay scale for number of months on account of postponement of the higher pay scale to the 1st January next year on the date it became due to an employee. The benefit of Assured Career Progression Scheme has been conferred under the policy of the State Govt. Admittedly, the benefit is to remove the stagnation in service, where the employees have fewer chances of promotion in the service career. The policy formulated by the State has been uniformly applied to all the employees. There is absolutely no discrimination on any ground. The plea of violation of equality clause is totally misconceived and illusory. The scope of interference in the matter of CWP. No. 3181 of 2008 -3- policy has been considered by the Hon'ble Apex Court in a number of judgements. 1. The Hon'ble Supreme Court of India in case of State of Punjab Vs. R.L. Bagga, JT 1998 (2) SC 136 has held as under:- “ So far so questioning the validity of Govt. Policy is concerned, in our view, it is not normally within domain of any Court to weight and pros and cons of policy or scrutinize it and test the degree of its beneficial or suitable disposition for the purpose of varying, modifying or annulling it based on, however, sound and good reasoning except where it is arbitrary or violating of any constitutional, statutory or any others provision of law. When Govt. forms any policy it is based on number of circumstances, facts, law including constraints based on availability of its resources. It is also based on expect opinion , it would be dangerous, if Court is asked to test the utility, beneficial effect of the policy or its appraised based on facts set out in affidavits. The Court would dismiss itself from entering into this realm which belongs to the executive.” Similar view has been expressed in Balco Employees Union v. Union of India and Ors. (2002 (2) SCC 333): “ Applying the analogy, just as the court does not sit over the policy of Parliament in enacting the law, similarly, it is not for this Court to examine whether the policy of this disinvestment is desirable or not. Dealing with the powers of the Court while considering the validity of the decision taken int the sale of certain plants and equipment of the Sindri Fertilizer Factory, which was owned by a public sector undertaking, to the highest tenderer, this Court in Fertilizer Corpn. Kamgar Union (Regd.) vs. Union of India, SCC 568 at P. 584 while upholding the decision to sell, CWP. No. 3181 of 2008 -4- observed as follows:- “ We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquient system of separation of powers. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a superauditor, take the board of directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of publicadminstration. In State of M.P. v. Nandlal Jaiswal, the change of the policy decision taken by the State of Madhya Pradesh to grant licence for construction of distilleries for manufacture and supply of country liquor to existing contractors was challenged. Dealing with the power of the Court in considering the validity of policy decision relating to economic matters, it was observed as follows:- “ 34. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Govt. for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State govt. in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would esentially be a matter of economic policy where the Court would hesitate to CWP. No. 3181 of 2008 -5- intervene and strike down what the State Govt. has done, unless it appears to be plaintly arbitrary, irrational or mala fide. We had occasion to consider the scope of interference by the Court under Article 14 while dealing with laws relating to economic activities in R.K. Garg v. Union of India. We pointed out in that case that laws relating to economic activities should be viewed with greater latitude than laws touching civil rihts such as freedom of speech, religion, etc. We observed that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter J. in Morey v. Doud: ' In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events-self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.' What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial CWP. No. 3181 of 2008 -6- deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on expermimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait-jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play in the joints' to the executive. 'The problem of Government' as pointed out by the Supreme Court of the United States in Metropolis Theatre Co. v. State of Chicago: 'are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Govt. are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.” In case of G.B. Mahajan v. Jalgaon Municipal Council reported as AIR 1991 SC 1153 at P. 1160, it was observed as under:- “ The criticism of the project being 'unconventional' does not add to or advance the legal contention any further . The question is not whether it is unconventional by the standard of the extant practises, but whether there was something in the law rendering it impermissible. There is, no doubt, a degree of public accountability in all governmental enterprises. But, the present question is one of the extent and scope of judicial review over such matters. With the expansion of the State's presence in the field of trade and commerce and of the range of economic and commercial enterprises of Govt. and its instrumentalities there is an CWP. No. 3181 of 2008 -7- increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost overruns in projects, balancing of costs against timescales, quality control, cost-benefit ratios etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies. These are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator's right to trial and error, as long as both trial and error are bona fide and within the limits of authority.” In case of Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, 1992 AIR SCW 854, it has been observed as under:- “ The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care no to exceed or abuse its power. It must keep within the limts of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgement over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.” 7. In Premium Granites v. State of T.N. While considering the Court's powers in interfering with the policy decision, it was observed as under:- CWP. No. 3181 of 2008 -8- “ It is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be.” The policy under challenge does not suffer from vice of arbitrariness nor does it in any manner infringe the equality clause enshrined under Article 14 of the Constitution of India particularly when it is uniformly applied to all. Challenge is un-sustainable. Petition dismissed. (PERMOD KOHLI) JUDGE 21.4.2009 lucky Whether to be reported to the Reporters? Yes.