CWP No.10830 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10830 of 1988 Date of decision : 29-07-2010 Om Parkash Malik and others .... Petitioners VERSUS The State of Haryana ....Respondent CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Balram K. Gupta, Sr. Advocate with Ms. Anamika Negi, Advocate, for the petitioners. Mr. Gaurav Mohunta, Advocate, for the respondent. KANWALJIT SINGH AHLUWALIA, J. (Oral) 317 employees of Haryana State Electricity Board (hereinafter referred to as 'the Board'), who at the relevant time, were working as Upper Division Clerks have approached this Court with a prayer that Order dated 19.08.1987 (Annexure P-1) issued by the respondent Board be quashed. A perusal of the said order reveals that on 19.08.1987, the Board issued a circular revising the pay scale of various categories of employees. The scale of Upper Division Clerks before 1.1.1986 was Rs.525-900/- which was revised w.e.f. 1.1.1986 to Rs.1200-2040/-. A grievance was made that other categories of employees i.e. Head Mistry, Machine Attendant, Kanungo, Operator Grade II and Analyst who were, before 1.1.1986, working in the similar pay scale of Rs.525-900/- have been given the revised pay scale of Rs.1350-2200/-. Similarly B.Ed. teachers, CWP No.10830 of 1988 -2- Dispensars and Pharmacists, who were working in the pay scale of Rs.525-1050/- have been given pay scale of Rs.1400-2600/-. It was pleaded that those employees, who, before 1.1.1986, were getting same pay scales after the report of Fourth Pay Commission, cannot be treated differently in grant of pay scales. Continuity of same treatment and same pay scales after the revision ought to flow is the thrust of argument which has been projected in this writ petition. To make the grievance of the petitioners explicit clear, it would be relevant to reproduce ground (i) of Para 12 of the writ petition, which reads as under:- "(i) Because the action is arbitrary. As stated above, the Government of Haryana has given the pay scale of Rs.1400- 2600 to all categories of employees who were working in the pay scale of Rs.525-900, 525-1050, 600-1100 but the respondent – Board has given this pay scale only to the B.Ed. Teachers and the Dispensers/Pharmacists who were working the same initial pay scale of Rs.525 like the petitioners. Even the categories like Assitant Fire Operators and Tractor Trailor Drivers who were working in a little higher pay scale of Rs.570-1020 have been given the pay scale of Rs.1400-2300, i.e. lower than the B.Ed. teacher and the Dispensers/Pharmacists. So far the petitioners are concerned, they have been put in a much disadvantageous pay scale of Rs.1200-2040 while their counter-parts working in the State Government have been given the pay scale of Rs.1400-2600. In the respectful submission of the petitioners, the respondent-Board has not treated the employees of all the categories by the same yardstick. As such, the action is hit by Articles 14 and 16 of the Constitution of India;" CWP No.10830 of 1988 -3- It is stated that the action of the respondents at later stage in treating the persons differently who, before 1.1.1986 were placed in the similar pay scale is discriminatory, arbitrary and is violative of Article 14 and 16 of the Constitution of India. The writ petition was allowed by a Single Judge of this Court on 8.06.1991 as entirely new argument was advanced. It was stated that after the revision of pay scale on 1.1.1986 State Government had constituted an Anomaly Committee who found certain defects and, therefore, decided to revise the pay scale of the employees w.e.f. 1.05.1990. It was urged that once Anomaly Committee found inherent defects and came to the conclusion that they are to be rectified then the scales must relate back to 1.1.1986 and not w.e.f. 1.05.1990. The following conclusion of the Single Bench is required to be noticed:- "Lastly, it was urged that the Pay Anomalies Committee constituted by the Board recommended the scale of Rs.1350-2200/- w.e.f. May 1, 1990 for the Upper Division Clerks and Typewriter Mechanics and the Board while accepting the recommendation started giving those grades to them only w.e.f. the date recommended by the Committee and not from the date when the Board decided to revise the grades of its employees. I find force in this contention. It is not in dispute that the Board decided to revise the grades of different categories of its employees w.e.f. 1.1.1986 including the grade of the petitioners. It was only when some anomalies came to surface in the implementation of those revised grades that a committee was constituted with a view to remove those anomalies. This committee after examining the various anomalies and obviously with a view to remove them recommended to the Board the higher pay scale of Rs.1350-2200/- for the class CWP No.10830 of 1988 -4- of employees like the petitioners. If anomalies existed in the implementation of the revised grades and the same had to be removed, they must necessarily be removed from the date when the grades were revised and there would be no meaning in removing an anomaly from a date subsequent to the date when the grades were revised. In other words, if new grades had to be given by way of removing an anomaly, such grades should take effect from the date when the grades were originally revised. In this view of the matter, the petitioners are justified in claiming the higher grade of Rs.1350-2200/- w.e.f. 1.1.1986." The order of the Single Bench was assailed by the respondent – Board in Letters Patent Appeal viz. LPA No.771 of 1991. Petitioners had also filed Letters Patent Appeal viz. LPA No.77 of 1992. The Letters Patent Appeal Bench of this Court remanded the matter back to the Single Bench with an observation that an opportunity should be afforded to the Board to place on record two reports of the Committee and other related documents so that claim of the writ petitioners can be examined or decided afresh. The LPA Bench disposed of the appeals on 31.08.2001. Since then writ petitions are pending and are being taken up today for hearing. From what has been noticed above, following two issues arise for consideration of this Court:- a) Whether those different cadres of employees who were drawing scale of Rs.525-900/- before 1.1.1986, after report of the Fourth Pay Commission could be placed in different pay scales. To illustrate Upper Division Clerk before 1.1.1986 was palced in the pay scale of Rs.525- CWP No.10830 of 1988 -5- 900/- whereas Head Mistry also before 1.1.1986 was drawing scale of Rs.525-900/-. Pay Commission after going into the duties discharged and functions of the employees recommended scale of Rs.1200-2040/- for the Upper Division Clerk whereas Head Mistry was placed in the pay scale of Rs.1400-2600/-. This question has been formulated strictly in consonance with the pleadings in the writ petition. b) Once the State Government found defects or anomalies in certain pay scales, it is incumbent upon the State to remove the anomaly w.e.f. 1.1.1986 or from the day same was acknowledged. To illustrate Upper Division Clerk w.e.f. 1.05.1990 were also given the scale of Rs.1400- 2600/- and they were brought at par with Head Mistry who was given scale of Rs.1400-2600/- w.e.f. 1.1.1986. It is not disputed that Upper Division Clerk in the State of Haryana and in the Board on various stages when the scales have been revised have been treated equally. Employees of the State Government who were similarly situated with the Upper Division Clerk of the Electricity Board filed a writ petition in this Court titled as S.K. Bishnoi and others versus State of Haryana, 1993(3) Recent Service Judgments, 444. It was grievance of the employees that the respondent – State of Haryana removed the anomalies in the pay scales of various employees w.e.f. 01.05.1989 and in some cases, it accepted the recommendation of the Anomaly Pay Commission but implemented w.e.f. 1.05.1990. The petitioners in that writ petition made a grouse that they should CWP No.10830 of 1988 -6- be given pay scale w.e.f. 01.01.1986 and not from 01.05.1990 and action of the respondents in not modifying their pay scales w.e.f. 1.1.1986 suffers from the vice of arbitrariness. The following portion of the judgment will amplify the grievance of the petitioners in this writ petition:- "The respondent removed the anomalies in the pay scales of H.C.M.S. (Doctors), Deputy Superintendents of Police and Engineers 2nd and 3rd time vide letters dated June 2, 1989 and May 16, 1990, respectively. The anomalies in the pay scales were removed with effect from May 1, 1989, while in some cases the Government accepted the recommendations of the Pay Anomalies Commission and the Officers' Committee with effect from May 1, 1990. While accepting the recommendations of the Officers' Committee, the pay scale of petitioners No.1, 2 and 4 had been modified by the respondent from Rs.1640-2900 to Rs.2000- 3500 with effect from May 1, 1990, vide Memo No. 6/23/3PR(FD)-88, dated August 23, 1990. The petitioners' grouse is that the modification of the pay scale in their case ought to have been allowed with effect from January 1, 1986, and not from May 1, 1990, and action of the respondent in not modifying their pay scale with effect from January 1, 1986, suffers from the vice of arbitrariness." In S.K. Bishnoi's case (supra) both the questions which have been formulated in the present writ petition were considered by a Division Bench of this Court. A perusal of judgment of S.K. Bishnoi's case (supra) reveals that for all intent and purposes, it deals with the facts, questions and the arguments advanced in the present writ petition. Paras 7 and 8 of the judgment which exactly deal with the rival submissions made in the present case are CWP No.10830 of 1988 -7- reproduced below:- 7. "From the factual background given above, it is apparent that the respondent granted revised pay scales to its employees on the pattern of the Fourth Pay Commission of the Central Government with effect from January 1, 1986. It granted the same pay scales to such categories of employees whose posts could be identified with the corresponding posts in the Central Government and where corresponding posts in the Haryana Government could not be exactly identified with comparable posts in the Central Government, about 58 existing pre-revised pay scales were clubbed into about 25 revised pay scales. The petitioners, who were in the pre-revised pay scale of Rs.700-1250 (T.S.) and Rs.800-1600 (S.G.) were placed in the revised pay scale of Rs.1640-2900. The Officers' Committee recommended higher pay scales in the case of certain categories of posts and its recommendations were accepted by the Council of Ministers in the Government of Haryana and were made applicable with effect from May 1, 1990. The principal grouse of the petitioners is that the cause of action for removing disparity in their pay scale arose when the Government allowed revision of pay scales in case of certain categories of employees with effect from January 1, 1986, whereas they were not granted the revised pay scale according to the pay scale of the comparable posts with effect from that date. The respondent, on appreciating that the petitioners could not be allowed the benefit of revised pay scale with effect from January 1, 1986, for want of identification of comparable posts occupied by similar types of incumbents in the Central Government, allowed them the higher pay scale of Rs.2000-3500 with effect from May 1, 1990. The learned counsel for the petitioners submitted that the respondent should have allowed to the petitioners the higher revised pay scale from the date it allowed revision of CWP No.10830 of 1988 -8- pay scales to other categories of employees, viz. January 1, 1986, and not May 1, 1990. 8. On the other hand, it was submitted by the learned Advocate-General appearing for the State of Haryana that it had accepted the recommendations of the Fourth Pay Commission of the Central Government and according to the terms thereof, it involved exercise of creation of posts after identification with comparable posts, which would naturally take some time. The respondent, in order to obviate hardship to the employees, decided to club 58 existing pre-revised pay scales into 25 revised pay scales and the petitioners were allowed the benefit accordingly. Keeping in view the nature of duties performed by them which involved extra labour and skill, the Officers' Committee recommended higher revised pay scale for officers of various Departments. Its recomendations were accepted by the Council of Ministers on May 14, 1990, and were made effective from May 1, 1990. Allowing them the benefit of higher revised pay scale with effect from May 1, 1990, does not suggest that any anomaly in the pay scale of the petitioners was detected, but the higher revised pay scale was allowed to them keeping in view the nature of duties performed by them." It will be pertinent to mention here that State of Haryana vide letter No.6/23/3PR(FD)-88 issued on 23.08.1990 acknowledged the certain discrepancies pointed out by employees' association and modified the pay scales of some of the posts w.e.f. 1.05.1990. Respondent - Board whose report has been placed before this Court in pursuance of the orders dated 31.08.2001 passed in LPAs also followed State Government regarding release of modified pay scales to the same categories of employees from the same date. The CWP No.10830 of 1988 -9- answer to the questions formulated and the controversy raised is found in Para 9 and concluding portion of Para 21 in S.K. Bishnoi's case (supra). It will be apposite here to reproduce Para 9 and concluding portion of Para 21 as under:- "9. The petitioners are not correct in saying that the PAC or the officers' Committee had detected any anomaly in their pay scale. Even at the time of hearing, none was printed out. The official record produced at the time of hearing does not pointed out that either the PAC or the Officers' Committee found any anomaly in the pay scale of the petitioners or other similarly situated employees. To us, it appears that the respondent allowed them the higher pay scale of Rs.2000- 3500 keeping in view the nature of duties performed by them. It is for the Administrative Department to identify the comparable posts occupied by the petitioners in the Central Government. For allowing the revised pay scales as suggested by the Fourth Pay Commission of the Central Government, identification or creation of posts has to be made by the respondent. The Administrative Department may take time to identify the posts or to create new posts and it may decide to allow the benefit of revised pay scales only after identification of comparable posts or creation of comparable posts. An employee cannot urge that since the State has failed to identify the comparable post or create a new post for implementing the Pay Commission's recommendations forthwith, he should be allowed the benefit of revised pay scale with retrospective effect, viz., from the date the Pay Commission's report was made applicable. This conclusion of ours finds support from the judgment of the apex Court rendered in Union of India and others vs. The Secretary, Madras Civil Audit and Accounts Associatioin and another, etc., 1992(1) S.L.R. 667 (SC). 21. .... The Court could not take upon itself the responsibility CWP No.10830 of 1988 -10- of equating these two posts, which was the exclusive prerogative of the executing wing of the Government, which too has to be assisted by expert bodies before it comes to the conclusion of equating various posts for the purpose of fixation of pay scales." This Court being bound by a ratio of law propounded in S.K. Bishnoi's case (supra) cannot record discordant note as on facts and issues this case is covered by S.K. Bishnoi's case. Hence the present petition is disposed of as such. (KANWALJIT SINGH AHLUWALIA) 29-07-2010 JUDGE manju