LPA No. 1254 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1254 of 2009 Date of Decision 02.08.2010 Balwant Singh -----Appellant Versus State of Haryana and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Deepak Sonak, Advocate for the appellant. Ms. Mamta Singhal Talwar, AAG, Haryana 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The appellant has filed the instant appeal under Clause X of the Letters Patent challenging the judgment dated 08.07.2009 rendered by the learned Single Judge holding that the appellant was not entitled to the pay scale of Rs. 950-1400, which were given to the Store Keeper a post held by the appellant. The learned Single Judge has upheld the grant pay scale of Rs. 750-950 at the time of his regularization in 1994. The appellant has been non-suited on the ground that the cause of action if any, arose to him in the year 1994 and for the first time, he approached this Court in the year 2001 by filing C.W.P. No. 18730 of 2001. In that petition respondent had LPA No. 1254 of 2009 -2- filed a written statement conceding that the appellant has been engaged on muster rolls/ daily wages w.e.f. 01.01.1976 and his services were regularized as per Government instructions w.e.f. 01.04.1993 in Category 'D'. His writ petition was disposed of being pre-mature because his representation was pending before the competent authority and the same had not been decided at that stage. Accordingly, the appellant did not press his writ petition in view of the assertion made in the written statement and it was disposed of vide order dated 17.09.2002 (Annexure P9). The order dated 17.09.2002 reads as under: “In view of the written statement filed, the counsel for the petitioner prays that the writ petition be disposed of as not pressed at this stage, since the respondents are yet to take a decision on the representation of the petitioner. Disposed of as not pressed at this stage. The petitioner shall be at liberty to challenge the final decision taken on the representation.” The representation of the appellant, thereafter has been rejected on 22.02.2008 (Annexure R2) and the learned Single Judge has non-suited the appellant on the ground that the writ petition having been filed in 2007 suffers from delay and laches. The order 22.02.2008 makes an interesting reading and the ground for rejection is intriguing, which reads thus: “In this connection, it is LPA No. 1254 of 2009 -3- intimated that the representation made by Sh. Balwant Singh, Store-Keeper regarding conversion of post from Group D to Group C is hereby rejected due to the reasons that the Store Keeper Sh. Balwant Singh, Store- Keeper does not fulfill the conditions of Group C as store Keeper worked on Muster Roll basis and was brought on regular cadre from daily wages w.e.f. 01.04.1993 as per Government instructions/ rules. This is for information and further necessary action please.” Mr. Deepak Sonak, learned counsel for the appellant has argued that the learned Single Judge could not have non-suited the appellant on the ground that there was delay, especially when the appellant had approached the Court earlier and he cannot be said to have select over his rights. According to the learned counsel, at the best, the relief could have moulded by confining it to a limited period after allow him the relief of fixation. Learned counsel for the appellant has also placed reliance on the draft concerning the post of a Store Keeper. There it has been shown in Appendix-A(3) in the pay scale of Rs. 5200-20200 plus G.P. 1900. Another argument advanced by the learned counsel for the appellant is that some employees working as Painter Grade-II have filed C.W.P. No. 8514 of 1995 who were also regularized along with the appellant w.e.f. LPA No. 1254 of 2009 -4- 01.04.1993 in the pay scale of Rs. 750-940 and they had claimed the pay scale of Rs. 950-1400 like the appellant. The writ petition was allowed on 14.03.1996 (Annexuer P5) and SLP filed by the respondent-State of Haryana was dismissed. Ms. Mamta Singhal Talwar, learned State counsel has, however, argued that cause of action, if any, had arisen to the appellant in the year 1993 and he should have approached the Court maximum within a period of three years from the date of cause of action. She has further submitted that filing of a writ petition after such a huge delay is bound to attract in the bar of limitation. Having heard learned counsel for the parties and perusing the record, we find that undisputed factual position is that the pay scale of the post of Store Keeper on which the appellant has been working, carries the pay scale of Rs. 950-1400. However, for the reasons best known to the respondents, the appellant has admittedly been given pay scale of Rs. 750-950 admitted in the year 1993. He filed a representation in 1994, which was kept pending. Then he filed C.W.P. No. 18730 of 2001. It has already been noticed that the writ petition was not pressed because the respondents were yet to decide the representation made by the appellant. The aforesaid plea was specifically pleaded in the written statement filed by Shri S.C. Singla, Executive Engineer, Provincial Division No. 1, PWD B&R Branch, Sonipat on behalf of respondent Nos. 1 to 3. It was on the basis of the aforesaid stand of the respondents that the writ petition was not pressed. To that effect an order was passed by LPA No. 1254 of 2009 -5- the Division Bench, which is already extracted in the preceding para. However, it took the respondents six years to decide his representation and that too during the pendency of C.W.P. No. 15761 of 2007. In the order dated 22.02.2008 passed by the respondent-State the claim of the appellant has been rejected for the reason that the appellant was working on muster roll basis and was brought on regular cadre from daily wages w.e.f. 01.04.1993. Therefore he did not fulfill the condition of 'Group-C' service. There was no other plea taken as to how the appellant was not fulfilling the condition of Group-C post. On the contrary in para 6 of the written statement, it has been conceded that all the authorities had recommended for converting his services from category 'D' to category 'C'. Once the appellant has been working on the post of Store Keeper which carries the pay scale of Rs. 950-1400, there is no reasons for the respondent to pay him the pay scale of Rs. 750- 940. He has already been subjected to injustice for the last over two decades when all the Store Keepers working in his cadre have been drawing the pay scale of Rs. 950-1400 then it is not understood how a lower pay scale has been given to him. It was in the similar facts and situation that the Division Bench of this Court while disposing of C.W.P. No. 8514 of 1995 (Babu Ram v. State of Haryana), where the lower pay scale of Rs. 750-940 were given to the Painter Grade- II, this Court held that they would be entitled to pay scale of Rs. 950-1400. There is patent discrimination violating the Article 14 and 16(1) of the Constitution. The claim made by the appellant deserves LPA No. 1254 of 2009 -6- to be accepted. The learned Single Judge did not appreciate that the matter concerning pay scales effect an employee every month. Infact it provides a continuous cause of action because the loss is suffered by him at the time of disbursement of his pay. Therefore, in such like matters the relief could always be moulded and confined to three years and two months preceding the date of filing of the writ petition . Moreover, in the present case the appellant had earlier approached this Court in the year 2001 and the respondents had contested his plea by stating that his representation was pending final disposal at their hands. The appellant has to approach the Court once again in the year 2007 and it was during the pendency of the later petition that his claim was decided by the respondent-state. Therefore, we are of the view that it was a case where the claim of the appellant could have been declined on the ground that it suffered from delay and laches. As a sequel to the above discussion, this writ petition succeeds and the order of the learned Single Judge is set aside. The appellant is held entitled to the pay scale of Rs. 950-1400. Let his pay be fixed in the aforesaid pay scale w.e.f. 01.04.1993 and the benefit of re-fixation be worked out till date keeping in view the revision of pay scale w.e.f. 01.01.1996 and 01.01.2006 or any subsequent revision or D.A. etc. However, the appellant shall be entitled to grant of arrears in respect of the period of three years, two months preceding the date of filing of the C.W.P. No. 15761 of LPA No. 1254 of 2009 -7- 2007 which was filed on 04.10.2007. Accordingly, the appellant would be entitled to grant of arrears from 04.08.2004. The needful shall be done within a period of two months from the date of receipt of copy of this order. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE August 2, 2010 Atul