L.P.A. No.137 of 2005 1 IN THE HIGH COURT FOR THE STATES OF PUNJUAB AND HARYANA AT CHANDIGARH L.P.A. No.137 of 2005 DATE OF ORDER:28.4.2009 Punjab State Electricity Board ....Appellant Versus Kapur Singh ....Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE H.S. BHALLA Present: Mr. Brijeshwar Singh, Advocate for the appellant. Mr. H.P.S. Ishar, Advocate for the respondent. M.M. KUMAR,J. This is an appeal filed under Clause X of the Letters Patent of the High Court against the judgment and order dated 11.5.2005 passed by learned Single Judge in Civil Writ Petition No.5544 of 1988 vide which learned Single Judge has allowed the claim made by the writ petitioner- respondent holding that when he was regularized as T-Mate on 24.11.1972 in the basic pay of Rs.110/-, he was entitled to protect his pay as Work Charge Fitter, a higher post on which he was working. The learned Single Judge has placed reliance on the instructions dated 26.4.1982 (P-2) for granting the relief to the writ petitioner-respondent. The Electricity Board- appellant has challenged the view taken by the learned Single Judge in the instant appeal. Brief facts which are necessary for disposal of the instant appeal be first noticed and would be discernible from the following table: Work Charge T-Mate 2.11.1970 70-2-80-3-95 Work Charge Fitter 1.1.1972 105-5-180 Regularized as T-Mate 24.11.1972 Basic Pay Rs.110/- Revised Pay Scale 1.1.1978 325-600 It is thus evident that the writ petitioner-respondent joined as L.P.A. No.137 of 2005 2 work charge T-Mate on 2.11.1970 in the pay scale of Rs.70-2-80-3-95/-. Then he was promoted as work charge fitter in the pay scale of Rs.105-180 w.e.f. 1.1.1972. His services were regularized on the post of T-Mate w.e.f. 24.11.1972. It has not been disputed that on regularization, the petitioner became entitled to the post of T-Mate in the pay scale of Rs. 75-90/-. The Electricity Board-appellant fixed his pay scale in the regular category by granting the protection upto the maximum pay scales of the post of T-Mate i.e. Rs.90/- from the date of regularization i.e. on 24.11.1972. However, the writ petitioner-respondent felt aggrieved with the fixation of his pay as Rs.90/- which was the maximum pay scale of the post of T-Mate. For redressal of his grievance, he filed an application under Section 33-C (2) of the Industrial Disputes Act, 1947 (for brevity “ID Act”) and the application was dismissed by the Labour Court vide order dated 29.2.1988 on the ground that it was not maintainable because the writ petitioner-respondent had no pre-existing right enforceable in the proceedings under Section 33-C (2) of the ID Act. After the dismissal of application under Section 33-C (2) of the ID Act, the petitioner filed Civil Writ Petition No.5544 of 1988 which was decided in his favour and the present appeal has been filed to challenge that order. The basic reliance of the writ petitioner-respondent has been on the instructions issued by the Electricity Board on 19.10.1979 (P-1) and 26.4.1982 (P-2). He has also prayed in the petition for quashing the order of Labour Court dated 29.2.1988 (P-6). The claim made by the writ petitioner-respondent was contested by the Electricity Board-appellant by filing a detailed written statement. However, after considering rival arguments of the parties, the learned Single L.P.A. No.137 of 2005 3 Judge found the plea of discrimination as sustainable and was persuaded to take the view that in a number of other cases, the pay which was being drawn on a higher post while working as work charge was protected after the passing of order of regularization on a lower post, which was carrying lesser pay scale. The view of the learned Single Judge is discernible from the concluding para which reads thus: “--------- The respondents themselves have not cared to follow these instructions and have fixed the pay of other employees, who were similarly situated by following the correct procedure i.e. the pay actually drawn by the employees on the Work charge post has been protected when their services had been regularized on a lower post. Under some order passed in 1986-87, one Darshan Lal and Rajinder Singh, who were working as Linemen were given the protection on the actual pay, which was being drawn by them when their services were regularized on the post of Assistant Linemen, which was in a lower grade. Similarly one Lubhaya and Ram Sagar, who were working as Work Charge Fitter at the time when their services were regularised on the post of Assistant Linemen, were given pay protection on the pay, they were receiving on the post of work charge fitter. Therefore, it becomes apparent that the respondents have not followed the instructions dated 26.4.1982 and have actually given pay protection to the employees on the basis of the pay last drawn by them at the time of regularization of their services. Under these circumstances, I am of the opinion that the petitioner would also be entitled to the protection of pay at the rate of Rs.110/- which he was enjoying on 24.11.1972. The petitioner, however, cannot be granted the entire monetary relief on the basis of protection of pay at the rate of Rs.110/- as in my opinion, the petition is barred by laches. However, since receipt of the wages is a recurring cause of action, Mr. Sihota has rightly limited the claim to a period of three years and two months prior L.P.A. No.137 of 2005 4 to the filing of the writ petition--------” The learned single Judge also rejected the plea that no writ was maintainable because the writ petitioner- respondent had earlier filed an application under Section 33-C (2) of the ID Act which was dismissed. The rationale adopted by the learned Single Judge that the application was not decided on merits of the controversy and therefore, would not create a bar for invoking the remedy like the writ petition under Article 226 of the Constitution. Mr. Brijeshwar Singh, learned counsel for the Electricity Board-appellant has argued that a perusal of instructions dated 19.10.1979 (P-1) and 26.4.1982 (P-2) would categorically show that the protection of pay being drawn by an employee in the work charge establishment prior to regularization has been made subject to one condition namely if a work charge employee was drawing higher scale in the work charge category which was more than maximum scale of the post on which he is regularized then his pay would be fixed at the maximum of the pay scale of the post on which such work charge employee has been regularized. According to the learned counsel, the learned Single Judge himself has interpreted those instructions and has concluded in the aforesaid manner but yet has refused to apply those instructions on the facts of the present case by adopting the reasoning that instructions have not been made applicable to the cases of other employees. He has also submitted that once a matter has travelled to the Court then there is no escape from the conclusion that it has to be decided in accordance with the principle of law and any illegal benefit granting to any other employee would not constitute a basis for allowing the same benefit to other employees, who has approached the Court. In support L.P.A. No.137 of 2005 5 of his argument, learned counsel has placed reliance on the judgement of Hon'ble the Supreme Court rendered in the Case of The State of Haryana and others v.. Ram Kumar Mann JT 1997 (3) S.C. 450 and argued that wrong order passed by the Government does not give right to claim equality. He has emphasized Article 14 of the Constitution applied only when invidious discrimination has been meted out to equals without rational basis. He has also placed reliance on an other judgment of Hon'ble the Supreme Court rendered in the case of State of Bihar and others v. Kameshwar Prasad Singh and another, AIR 2000 SC 2306 and argued that even in cases where the High Court had issued directions no benefit of such direction to another person could be granted if the direction issued by the High Court was found to be unsustainable in the eyes of law. He has then placed reliance on para 14 of the judgment of Hon'ble the Supreme Court rendered in the case of State of U.P. v. Raj Kumar Sharma 2006 (2) RSJ 284. Learned counsel has also made submission that no application under Section 33-C (2) of the ID Act was maintainable on account of the fact that there was no pre-existing right which could be enforced through the remedy provided by Section 33-C (2) of the ID Act. In that regard he has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Central Inland Water Transport Corporation Ltd. v. Workmen and another, AIR 1974 SC1604 and U.P State Road Transport Corporation v. Birendra Bhandari, 2007(1) RSJ 1. Mr. H.P.S. Ishar, learned counsel for the writ petitioner- respondent has submitted that there is a categoric finding recorded by the learned Single Judge to the effect that one Darshan Lal and Rajinder Singh, who were working as Linemen given the protection on the actual pay, which L.P.A. No.137 of 2005 6 was being drawn by them when their services were regularized on a lower post of Assistant Linemen which carried lower grade. He has also indicated that Lubhaya and Ram Sagar, who were working as Work Charge Fitter at the time when their services were regularized on the post of Assistant Linemen, were given pay protection on the pay, there were receiving on the post of work charge fitter. Learned counsel has emphasized that the learned Single Judge has recorded a conclusion that the instructions dated 19.10.1979 and 26.4.1982 (P-1 and P-2) have not been followed by the Electricity Board-appellant themselves and therefore there was no reason to deny the pay protection by treating the writ petitioner-respondent equal to those who have been given the same benefit. Having heard learned counsel for the parties and after perusing the record with their able assistance, we are of the view that the fate of the case rests on the answer to the question 'whether the instructions dated 19.10.1979 and 26.4.1982 (P-1 and P-2) would apply or such instructions are deemed to have been abandoned in its application to the case of the writ petitioner- respondent'. We have framed the aforesaid question because the learned Single Judge has himself recorded a finding that if the instructions were to be applicable then the fixation of the pay scale of the writ petitioner-respondent does not suffer from any legal infirmity. In the concluding para of his order, the learned Single Judge has observed as under: “------ It is undoubtedly true that under instructions dated 26.4.1982, the petitioner would be entitled to fixation of pay on the maximum of the pay scale of the regular post, therefore, the petitioner would be entitled under these instructions to fixation of his pay at Rs. 90/-. The petitioner has not challenged the aforesaid instructions on L.P.A. No.137 of 2005 7 the ground that they are either arbitrary or unreasonable. ---------” (emphasis added) It would, therefore, be necessary to consider whether the pay scale of work charged employees who have been brought on regular establishment are regulated by instructions dated 26.4.1982(P.2). Subject of the instructions is work charged establishment brought on to regular establishment-fixation of pay. Clarifying the earlier instructions, the Board has issued instructions dated 26.4.1982 which reads thus: “ In continuation to this office circular Memo No.28763/29133-ENG-29 (II) dated 25.2.82 on the subject above, it is hereby clarified that pay of the work charged employees on their regularization is to be protected. This is irrespective of the date on which they are regularised and irrespective of the number of years of service put in by a work charged employee before regularisation. This is however, subject to the condition that if a work charged employee was working in a higher scale and was already drawing pay which was more than the maximum scale of post on which he is regularised, his pay would be fixed at the maximum of the pay scale of the regular post. All cases of this nature may also be reviewed and regulated accordingly. Appointing authorities may kindly take action at her own level accordingly”. A perusal of the aforesaid instructions show that pay of the work charged employees on regularisation is protected irrespective of the date on which they are regularised and also irrespective of the number of years put in by a work charged employee before regularisation. An L.P.A. No.137 of 2005 8 important condition has been imposed namely if a work charged employee was working in a higher scale and was already drawing pay which was more than the maximum of pay scale of the post on which he has been regularised then his pay was to be fixed at the maximum of the scale of the regular post. Therefore, it is evident that those employees who are working on higher post than the one on which they have been regularised and are drawing more salary than the maximum of the scale on which they are regularized then their pay cannot be protected. According to the instructions, their pay has to be fixed at the maximum of the scale of the post on which such employees have been regularised. The instructions fully apply to the facts of the present case because the writ petitioner-respondent was working on the post of work charge Fitter on 1.1.1972 in the pay scale of 105-5-180 whereas he was regularised on a lower post of T.Mate on 24.11.1972. Therefore, his pay has been rightly fixed in accordance with instructions dated 26.4.1982 (P-2). In order to succeed the writ petitioner-respondent has to show that these instructions are not applicable which apparently would not be possible. Therefore, we hold that the instructions apply to the case of the writ petitioner-respondent and once the instructions apply then the writ petition filed by the writ petitioner-respondent is liable to be dismissed. However, the learned Single Judge proceeded to grant the relief to the writ petitioner-respondent for protection of pay to the extent of Rs.110/- w.e.f. 24.11.1972 by accepting the plea that some other employees were given protection on the basis of actual pay which was being drawn by them on the higher post held by them on work charged basis when their services were regularized in the lower grade. Even the aforesaid conclusion L.P.A. No.137 of 2005 9 recorded by the learned Single Judge does not accord with the record. In para 7 of the writ petition, it has been averred that some employees namely Darshan Lal, Lubhaya, Ram Sagar and Rajinder Singh who were similar situated and regularized on a lower post, have been paid arrears of pay and their salary has been protected on last drawn basic pay in terms of the instructions dated 19.10.1979 (P-1). There is no plea set up by the writ petitioner-respondent that the aforesaid employees like Darshan Lal, Lubhaya, Ram Sagar and Rajinder Singh, who were regularized as Assistant Linemen (ALM) in the pay scale of Rs.90-140/- were drawing basic pay in excess of the maximum of the pay scale of the post of Assistant Linemen (ALM). The written statement filed by the Electricity Board-appellant categorically suggested that there was no question of giving basic pay beyond the maximum in the scale of pay on which a person is regularized, therefore, the view taken by the learned Single Judge was not justified in presuming that the basic pay of the aforesaid employees at the time of regularization was in excess of the maximum of the pay scale of the post of Assistant Linemen (ALM) against which they were regularized and the same has been protected in defiance of the instructions dated 26.4.1982 ( P-2 ). We are further of the view that question of any invidious discrimination would not arise because the question of parity would arise only if the petitioner is able to establish his right in accordance with the rules, regulation or instructions. It is obvious that the learned Single Judge has reached the conclusion that as per the instructions dated 19.10.1979 and 26.4.1982 (P-1 and P-2), the writ petitioner- respondent was entitled to protection of his pay to the extent of Rs.90/- only then the question of L.P.A. No.137 of 2005 10 drawing any comparison with the case of some other employees would not arise. The writ petitioner-respondent had failed to set up his case for protection of his pay at Rs.110/- as per rule, regulation or instructions. In such a situation if an error is committed by the officers of the Electricity Board-appellant and relief beyond the permissible limits of law has been granted to some other employees then the writ petitioner-respondent could not claim, such benefits by citing their examples. For the aforesaid proposition, reliance has rightly been placed on the judgment of Hon'ble the Supreme Court in the case of Ram Kumar Mann's (supra). The observation of Hon'ble the Supreme Court in the aforesaid judgment which are applicable to the facts of the present case, reads thus: “ The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rationale basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similar circumstanced person claim equality under Article 14 for re-instatement? Answer is obviously 'No'. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle lion to the equality treatment for enforcement thereof. A wrong L.P.A. No.137 of 2005 11 decision by the government does not give a right to enforce the wrong order and claim parity or equality”. (emphasis added) The aforesaid principles has also been reiterated in Kameshwar Prasad Singh's (supra) explaining the concept of equality in para 30 of the judgment, their Lordships of Hon'ble the Supreme Court have observed as under: “ The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. NDMC, (1996) 2 SCC 459 : (1996 AIR SCW 749: AIR 1996 SC 1175) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court”. When the principles laid down in the aforesaid judgments are applied to the facts of the present case then no doubt is left that the appeal of the Electricity Board-appellant deserved to be accepted because L.P.A. No.137 of 2005 12 according to the instructions applicable to the case of the writ petitioner- respondent, his claim for fixation of pay at the highest of the pay scale of the post of T-Mate has been granted after his regularisation on that post. The instructions do not extend protection of pay of the higher post on which the writ petitioner-respondent was working which carries higher pay. Accordingly, we find that the order passed by the Electricity Board- appellant did not suffer from any illegal infirmity. The other question 'Whether the writ petition filed by the writ- petitioner-respondent was maintainable' has to be answered in the favour of the writ-petitioner-respondent. The mere fact that an employee has chosen a forum which had no jurisdiction would not debar the remedy of filing a petition provided by Article 226 of the Constitution. On the application filed by writ-petitioner-respondent under Section 33-C(2) of the ID Act the labour court has disposed of the same by observing that the same was not maintainable. The view of the learned Single Judge deserves to be upheld on that issue. As a sequel to the above discussion, this appeal succeeds. The judgment of the learned Single Judge is set aside and the writ petition filed by the writ petitioner- respondent is dismissed. No cosots. (M.M. KUMAR ) JUDGE (H.S. BHALLA) JUDGE 28.4.2009 rajeev