CWP No.12383 of 1999 and CWP No.14844 of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CWP No.12383 of 1999 Ripudaman Sachdeva and another .... Petitioners VERSUS State of Punjab and others ....Respondents 2. CWP No.14844 of 2000 Ripudaman Sachdeva and another .... Petitioners VERSUS State of Punjab and others ....Respondents Date of decision : 15-09-2010 CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Alka Chatrath, Advocate, for the petitioners. Mr. J.S. Puri, Addl. AG, Punjab. Mr. Anupinder Singh Grewal, Advocate, for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. (Oral) By this common order, CWP No.12383 of 1999 titled as Ripudaman Sachdeva and another versus State of Punjab and others and CWP No.14844 of 2000 titled as Ripudaman Sachdeva and another versus State of Punjab and others, shall be decided CWP No.12383 of 1999 and CWP No.14844 of 2000 -2- together. Petitioners joined as Nursery Teachers on 01.09.1988. On 1.01.1990 they were granted pay scale of Rs.1640-2925. Later this scale was withdrawn vide order dated 26.07.1993 (Annexure P-6) to CWP No.12383 of 1999 due to objections raised by Director, Local Government Punjab. Aggrieved against the same, petitioners filed CWP No.15467 of 1993 in this Court and prayed that respondent – Authorities be directed to restore pay scale of Rs.1640-2925 to the petitioners. The writ petition was allowed on the ground that before withdrawing the pay scale, no opportunity of hearing was afforded to the petitioners. However, it was left open for the authorities to consider the matter afresh and pass a speaking order after affording opportunity of hearing to the petitioners. Case of the petitioners is that opportunity of hearing was indeed afforded but order was only communicated in the year 2005. Petitioners have also filed another writ petition viz. CWP No.14844 of 2000 with a prayer that petitioners be promoted against the post of trained graduate teachers with effect from the date persons junior to them i.e. respondent Nos.5 to 7 namely Vanita Gambhir, Sunita Jain and Neelam Diwan were promoted to the scale of trained graduate teacher. On 12.08.2010 this Court had passed the following order:- “Counsel for respondent No.3 is directed to file an additional affidavit depicting the date of appointment of the petitioners and that of respondent Nos.5 to 7. The affidavit shall also state that on which date petitioners acquired CWP No.12383 of 1999 and CWP No.14844 of 2000 -3- qualification of Bachelor in Education. The inter-se seniority list of the Nursery Teachers working in the School shall also be annexed with the additional affidavit along with Rules pertaining to the promotion to the cadre of Masters. List on 27.08.2010.” In pursuance thereof, Municipal Council, Nangal through its Executive Officer, who manages and runs the school has, placed on record the affidavit dated 6.09.2010. This Court need not to give the facts and details as same are evident from the comparative chart dated 6.08.2010 made part of the petition which is reproduced below:- S. No.Name Date of joining and pay scale Date of promotion (T.G.T.) and pay scale Date of passing B.Ed 1 Smt. Vanita Gambhir (J.B.T. Teacher) 11.01.1991 1200-2130 17.04.1997 1640-2130 May 1985 2 Smt. Sunita Jain (Primary Teacher) 10.09.1992 1200-2130 17.04.1997 1640-2925 April 1985 3 Smt. Neelam Dewan (Nursery Teacher) 09.09.1992 1200-2130 17.04.1997 1640-2925 May 1989 4 Smt. Ripu Daman Sachdeva (Nursery Teacher) 01.09.1988 (Appointed on fix pay Rs.900/-) Later pay scale of Rs.1200-2100 given from 01.09.88 with mutual consent given by the applicant 01.01.1996 Given pay scale 1640- 2925. However audit objection raised and hence are drawing old scale 1200-2100 May 1993 5 Smt. Poonam Bhudhiraja (Nursery Teacher) 01.09.1988 (Appointed on fix pay Rs.900/-) Later pay scale of Rs.1200-2100 given from 01.09.88 with mutual consent given by the applicant 01.01.1996 Given pay scale 1640- 2925 However audit objection raised and hence are drawing old scale 1200-2100 May 1992 Admittedly petitioner No.1 Ripu Daman Sachdeva and CWP No.12383 of 1999 and CWP No.14844 of 2000 -4- petitioner No.2 Poonam Bhudhiraja were appointed as nursery trained teachers on 01.09.1988. They were granted scale of Rs.1200-2130 on 01.09.1988 whereas this scale was granted to Vanita Gambhir on her joining as teacher on 11.01.1991, Sunita Jain on 10.09.1992 and Neelam Dewan on 9.09.1992. Petitioners had joined the school prior to the joining of respondent Nos.5 to 7. They are senior to them by period of three years. However, on 17.04.1997 these respondents were granted pay-scale of Rs.1640-2925 as they all were possessing qualification of B.Ed. It is the case of the respondents that when they initially joined the school they were having qualification of B.Ed. to their credit whereas petitioners acquired qualification of B.Ed. during course of employment. It is stated that petitioner No.1 acquired degree of B.Ed. in May 1993 whereas petitioner No.2 acquired the same in the year 1992. Petitioners, at the time of promotion were also possessing qualification of B.Ed. Therefore they, being seniors and fully eligible were to be considered for promotion to the post of trained graduate teacher. No such consideration was afforded to the petitioners. Mr. Anupinder Singh Grewal, Advocate appearing for the respondent – School has submitted that when promotion as trained graduate teacher was to be granted, at that time even though respondent Nos.5 to 7 were junior to the petitioners, they were granted promotion because at the time of joining the school, they possessed B.Ed. qualification. However, it is not disputed that at the time when the consideration for promotion was granted, petitioners, CWP No.12383 of 1999 and CWP No.14844 of 2000 -5- who were seniors, were also possessing degree of B.Ed. The rationale that the seniors ought not to be considered, even though they possessed the essential qualification, because their juniors assessed that qualification at the time of joining with no stretch of imagination, can be accepted to be a valid reason. Mr. Grewal has relied upon State of Haryana and another versus Haryana Civil Secretariat Personal Staff Association, 2002(6) SCC 72 to contend that it is to be kept in mind that claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Counsel has laid much stress on Para 10 of the judgment which reads as under:- "10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far- reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to CWP No.12383 of 1999 and CWP No.14844 of 2000 -6- pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational, unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case 'the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre." This Court fails to comprehend as to how the argument of equal pay for equal work will arise in this case. Consideration for petitioners who possessed equal qualification on the day when promotion was to be granted especially when they were seniors to respondent Nos.5 to 7 cannot be denied. Therefore, this judgment is not attracted on the facts of the case and has no relevance. To similar effect, another judgment cited as "State of Punjab and another versus Surjit Singh and others", 2009(9) Supreme Court CWP No.12383 of 1999 and CWP No.14844 of 2000 -7- Cases 514 which also states that equal pay for equal work is dependent upon various factors to be considered by the Courts. Another judgment relied is Sohan Singh Sodhi versus Punjab State Electricity Board, Patiala, 2007(5) SCC 528 to say that fixation of different scale of pay for employees on the basis of qualification per se is not discriminatory. In the present case as stated earlier, on the day when promotion to the post of trained graduate teacher was granted, both the petitioners and three respondents were having qualification of B.Ed. Admittedly, petitioners are senior to respondent Nos.3 to 5. They have only acquired qualification of B.Ed. later than the said respondents' but matter of the fact is that on the day when promotion was granted all the five were having qualification of B.Ed. Therefore, to say that the persons who joined the school and at the time of joining they were having qualification of B.Ed. are to be preferred ignoring the principle of seniority is not tenable as this Court in Jaswant Singh versus State of Haryana and others, 2006(1) RSJ 698 relying upon the judgment of another Division Bench in Sakur Khan versus State of Haryana has held as under:- "6. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties. It is appropriate to note that in Ram Avtar's case (supra), a similar request made by the petitioner therein for promotion to the post of Lab Attendant having been declined was assailed by the said petitioner in this Court. The claim of the petitioner therein was declined on the ground that he had not acquired the essential eligible qualification of matric CWP No.12383 of 1999 and CWP No.14844 of 2000 -8- as prescribed by the rules, and as the private respondent therein acquired the said qualification prior to the petitioner in the said petition, he was promoted earlier to the petitioner. A Division Bench of this Court in Ram Autar's case (supra) relying on an earlier judgment in the case of Sakur Khan vs. State of Haryana and others, C.W.P. No.14693 of 1995, disposed of the writ petition with the direction to the respondents to consider the case of the petitioner in the light of the judgment passed in Sakur Khan's case (supra) and pass appropriate orders granting consequential benefits, notional or otherwise, to the petitioner from the date his junior was promoted within a perioid of four months from the date the certified copy of the order is brought to their notice. In Sakur Khan's case (supra), a Division Bench of this Court had held as follows: "As observed above, the petitioner was senior to Shri Idrish in the feeder cadre but Shri Idrish was promoted as Laboratory Attendant simply on the ground that he had obtained eligibility qualifications prior to the petitioner. We are of the view that the stand of the respondents is not well based. The petitioner had a right to be considered for promotion when Shri Idrish was promoted as he was senior to Shri Idrish and was duly qualified for the post of Laboratory Attendant. Consequently, we allow this writ petition and direct the respondents to consider the case of the petitioner for promotion to Laboratory Attendant with effect from the date Shri Idrish was promoted as such. Let these directions be carried out within a period of three months of the receipt of a copy of this order from this Court or a certified copy thereof from the petitioner. Needless to mention that if the petitioner is promoted from the date with effect CWP No.12383 of 1999 and CWP No.14844 of 2000 -9- from when Shri Idrish was promoted as Laboratory Attendant, he would be entitled to all consequential benefits." This Court is of the view that ratio of judgment in Ram Autar versus State of Haryana, 2003(1) RSJ 150 and Jaswant Singh's case (supra) apply to facts of this case wherein it was held that merely because promoted persons have obtained eligibility qualification prior to the one who was not promoted is not a criteria which is acceptable. It is also admitted by both the parties that no rules regarding promotion are prevailing in the school Therefore, the breach of seniority is not justifiable on the ground that the private respondents were having qualification of B.Ed. at the time of joining. Since the petitioners having not been considered for promotion at the time when their juniors, were promoted this Court has no other option except to accept the writ petition viz. CWP No.14844/2000. Accordingly, respondent – School is directed to consider the case of the petitioners for promotion to the post of trained graduate teacher with effect from the date their juniors were so promoted. The needful shall be done by the respondents within a period of three months from the date of receipt of a certified copy of this order. It is stated that the scale of trained graduate teacher was granted to the petitioners, but the same was withdrawn and as a consequence thereof, recovery was effected from them. For granting scale of trained graduate teacher to the petitioners, there was no misrepresentation, fraud or deception on their part. Therefore, in view of the ratio of law laid in this Court in Budh Ram and others versus CWP No.12383 of 1999 and CWP No.14844 of 2000 -10- State of Haryana and others, 2009(3) SCT 333, no recovery can be effected from the petitioners and in case, it is recovered, the same shall be refunded. The Full Bench in Budh Ram's case (supra) has held as under:- “10. ........ Having induced that belief in the employee and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inequitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct interpretation of the rules, such a benefit was not due .........” Thus, the other writ petition viz. CWP No.12383/1999 is disposed of in the above terms. No costs. (KANWALJIT SINGH AHLUWALIA) 15-09-2010 JUDGE manju