1 S.B. CIVIL WRIT PETITION NO.4348/1997 Chand Mohd. vs The Chief Enigneer, GWD, Jodhpur & Anr. AND S.B. CIVIL WRIT PETITION NO.94/1997 K.B. Nair vs The Chief Enigneer, GWD, Jodhpur & Ors. DATE OF ORDER : 7.1.2010 HON'BLE MR. PRAKASH TATIA,J. Mr.DK Parihar, for the petitioners. Mr.GR Punia, Addl. Advocate General. <><><> Heard learned counsel for the parties. Since these two writ petitions have identical facts and common question of law, therefore, are being decided by this common judgment. The petitioners-employees of the respondents straight way submitted an application under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947) and prayed that they are being paid salary in the scale of Rs.130-8-170-10-210-15-300 whereas they are entitled to pay scale of Rs.180-10-220-15-385-20-425. The learned labour court vide impugned award dated 21st Nov., 1996 rejected the petitioners' petitions on the ground that 2 the petition under Section 33C(2) of the Act of 1947 is nothing but execution petition where the disputed claims cannot be decided and there is no settlement or award passed in favour of the petitioners which can be executed under Section 33C(2) of the Act of 1947. Learned counsel for the petitioner vehemently submitted that facts are not in dispute. The issue has already been decided in decisions of this Court against the respondent-department itself wherein it has been held that if persons are appointed in one cadre and discharging the same duties then subsequent to their appointment their pay scale cannot be given different on the basis of their educational qualification or for other reasons. Learned counsel for the State submitted that so far as impugned orders of the labour court are concerned, they are in accordance with law as laid down by the Hon'ble Supreme Court relied upon by the learned labour court and there is no merit in this writ petition. I considered the submissions of learned counsel for the parties and perused the facts of the case. In this case, the petitioners were appointed alongwith other persons on the post of Mechanic in the same pay scale and they continued to draw the same pay scale for a long period and by Rajasthan Civil Services (New Pay Scale) 3 Rules, 1969 (hereinafter referred to as the Rules of 1969), the similarly situated persons were bifurcated in two categories for giving different pay scales w.e.f. 1st Sept., 1968. In the case of Mani Ram, the employees holding the post of Blaster and who were getting the same pay scale were bifurcated in two categories in the Rules of 1969 providing one pay scale of Rs.130-300 for ITI certificate holders and Rs.180-420 was prescribed for the diploma holders or equivalent qualification. The same is the position here except the post. In the Mani Ram's case the employees were bifurcated who were in the same pay scale, who were bifurcated in the pay scale of Rs.130-300 and Rs.180-425 is the fact situation in the present case. This court after considering the law in detail in Mani Ram's case held that prior to the framing of the Rules of 1969 all persons employed as Blasters were treated as one class for the purpose of fixation of pay and it was only for the first time by the 1969 rules that blasters have been divided into to classes for the purpose of fixation of their pay. This court held that there does not appear to be any rational basis for dividing into two separate classes, for the purpose of fixation of pay, persons who earlier constituted one class and were enjoying the same scale of pay. In Mani Ram's case,this court took help of earlier judgment delivered in 4 the case of F.C. Puri Vs. State of Rajasthan reported in 1975 WLN (UC) 22 wherein also there was similar controversy wherein also the relief was granted to the petitioner and in Mani Ram's case this court held that petitioner is entitled to pay scale of Rs.180-425. The Mani Ram's case is reported in 1980(1) SLR 230. The Mani Ram's case came up for consideration before the Division Bench of this Court in D.B. Civil Special Appeal No.157/1979 – State of Rajasthan & Ors. Vs. Mani Ram and Division Bench of this Court in judgment dated 31.3.1980 considered the facts in detail as well as the law on the point and clearly held that once the Government appointed the respondent and other persons having different academic qualifications in the same cadre of blaster with the same pay scale it cannot be permitted to differentiate subsequently between them, on the basis of their academic qualification in the matter of their giving pay. It is true that petition under Section 33C(2) of the Act of 1947 is virtually an execution petition only wherein the disputed claims cannot be adjudicated, declared and awarded but under Section 33C(2), the labour court can only interpret the award or settlement and can execute it. But facts of the present case are quite distinct because of the reason that the facts are not in dispute as the 5 respondents have not disputed petitioners' appointment or their date of appointment and further that the petitioners were getting the same salary in one pay scale as the other persons who now are getting the pay scale of Rs.180-425. So far as bifurcation of pay scale on the basis of qualifications subsequently made by the respondents were found to be discriminatory in exactly identical facts and circumstances by this court and upheld by the Division Bench of this Court. The labour court did not proceed to quantify the claim of the claimant on the basis of the law laid down by this court. As is in the present cases, there was no dispute except the dispute because of subsequent bifurcation of pay scales, petitioners are denied the relief. Otherwise also, this court can very well examine the issue whether there is discrimination by virtue of prescribing different pay scales for the employees who were appointed by one selection process knowing well that their educational and other qualifications and given appointment in one cadre then whether subsequently they can be bifurcated in two categories for the purpose of grant of different pay scales. This issue in the present case is being decided in favour of the petitioners under Article 226 of the Constitution of India and it is held that the discrepancy made by the Rules of 1969 providing different pay scales for the persons holding 6 the same post of mechanic because of their original qualification is discriminatory and the petitioners are entitled to pay scale of Rs.180-425 from the day when other persons have been given the said pay scale of Rs.180- 425. In view of the above finding now only question remains is execution of the order which can be done by the labour court but since the matter is old one and nothing remains to be decided, therefore,this court deem it proper to direct the respondents to pay the petitioners pay scale of Rs.180-425 from the date when the persons similarly to the petitioners have been awarded the said pay scale under Rules 1969. The exercise in this respect may be made within a period of 3 months from the date of receipt of the the copy of this order, which may be supplied by petitioner to the concerned authorities. In view of the above,the writ petitions of the petitioners are allowed accordingly. (PRAKASH TATIA),J. cpgoyal/-