CWP No. 19092 of 2002 and other connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 10.05.2010 CWP No. 19092 of 2002 Bhakra Beas Management Board and another ...... PETITIONERS VERSUS Bhag Singh, Chargeman Special Grade-I and others ....... RESPONDENTS CWP No. 19119 of 2002 Bhakra Beas Management Board and another ...... PETITIONERS VERSUS Harbans Singh, Chargeman Special Grade-I and others ....... RESPONDENTS CWP No. 19093 of 2002 Bhakra Beas Management Board and another ...... PETITIONERS VERSUS Prem Sagar, Chargeman Special Grade-I and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. N.S.Bawa, Advocate, for the petitioners. Mr. Raman Sharma, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. By this order I propose to dispose of CWP No. 19092 of 2002 titled as Bhakra Beas Management Board and another vs. Bhag Singh, Chargeman Special Grade-I and others, CWP No. 19119 of 2002 titled CWP No. 19092 of 2002 and other connected cases 2 as Bhakra Beas Management Board and another vs. Harbans Singh, Chargeman Special Grade-I and others and CWP No. 19093 of 2002 titled as Bhakra Beas Management Board and another vs. Prem Sagar, Chargeman Special Grade-I and others, wherein Awards dated 01.05.2002 (Annexure P-9) passed by the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh are under challenge. Counsel for the parties agree that common question of law is involved in the above-mentioned three writ petitions and facts are also similar and the said writ petitions can be disposed of by a common order. For convenience sake, the facts are being taken from CWP No. 19092 of 2002 titled as Bhakra Beas Management Board and another vs. Bhag Singh, Chargeman Special Grade-I and others. In the claim statement, it was pleaded that Bhag Singh- respondent No. 1-workman was appointed on 22.07.1974 as Chargeman Miscellaneous. in the pay scale of Rs. 120-250. He was promoted as Chargeman Special Grade-I w.e.f. 01.10.1976 in the scale of Rs. 160-400. The pay scales were revised w.e.f. 01.01.1978 and Chargeman Special Grade-I started getting the pay scale of Rs. 510-940. Sh. Satyavir was appointed as Chargeman Special Grade-I on 21.06.1977 in work-charge capacity. It was, therefore, pleaded that Bhag Singh was senior to Sh. Satyavir as he had come in the cadre prior to the appointment of Sh. Satyavir. The pay scales were again revised w.e.f. 01.01.1986. Both the employees were fixed in the pay at Rs. 1410/- and continued to draw the same pay. The Bhakhra Beas Management Board (hereinafter referred to as 'BBMB') in its 143rd meeting held on 19.07.1991 sanctioned the revised BBMB pay scales w.e.f. 01.01.1986. The revised pay scales were devised CWP No. 19092 of 2002 and other connected cases 3 generally by adopting the pattern of the Punjab State Electricity Board (hereinafter referred to as 'PSEB') Revised Pay Regulations, 1988 notified vide PSEB office order dated 11.11.1988 as amended from time to time. The Punjab State Electricity Board, on the revision of pay scales along with pay-fixation Rules, granted the time bound promotional/devised pay scales after 9/16 years of service. Grant of these time bound promotional/devised scales was to be regulated in accordance with the instructions contained in PSEB office orders dated 30.04.1990 and 24.05.1990, as amended from time to time. As per the office order dated 23.04.1990 (Annexure P-2), the scheme was devised for grant of 9 and 16 years promotional/devised promotional pay scales. As per letter dated 02.08.1994 (Annexure P-3), anomalies by stepping up the pay of a senior employee drawing pay less than a junior employee with his junior could be removed in cases of hardship and in the cases where the said hardship could be removed were specified therein. It was provided in the letter mentioned above with reference to letter dated 01.06.1994 issued by the PSEB that the pay of the senior shall be stepped up equivalent to the junior w.e.f. 24.03.1994. Vide letter dated 19.07.1994 issued by the PSEB, the date was changed to 01.05.1990. The pay of the senior employee was thus to be stepped up to the level of junior employee w.e.f. 01.05.1990 in the cases pertaining to the period 01.05.1990 and thereafter from the date of occurrence of the anomaly. When the said time bound promotional scheme was made effective in the BBMB, the pay of Satyavir became higher to that of Sh. Bhag Singh-respondent No. 1-workman. Accordingly, it was claimed by respondent No. 1-workman that since Satyavir was junior to him, respondent No. 1-workman was entitled to stepping up of his pay equivalent to that of Sh. Satyavir. CWP No. 19092 of 2002 and other connected cases 4 In response to the claim statement, the petitioner-Management took a plea that Bhag Singh was initially appointed as Chargeman Miscellaneous on 22.07.1974 and thereafter, promoted as Chargeman Special Grade-I w.e.f. 01.10.1976. In the light of the promotion granted to Bhag Singh-respondent No. 1-workman, he was not entitled to time bound promotional scale as per the letter dated 26.06.1992. Sh. Satyavir, although junior to Sh. Bhag Singh, was directly appointed as Chargeman Special Grade-I on 21.06.1977 and as he had not got any promotion during his service period as such, he was entitled to and had been granted 1st and 2nd time bound promotional scale w.e.f. 01.01.1988 and 21.06.1993 respectively. Thus, the workman-Bhag Singh is not entitled to stepping up of pay equivalent to that of his junior as he had already availed of one promotion and has been granted the benefit of 16 years time bound promotional scale and thus the reference deserves to be rejected. On the basis of the pleadings and the evidence led by the parties, the Labour Court proceeded to decide the reference in favour of respondent No. 1-workman holding him entitled to stepping up of his pay equivalent to that of Satyavir as Satyavir was junior to Bhag Singh- respondent No. 1-workman. This finding was given by the Labour Court relying upon the letter dated 19.07.1994 holding herein that the Management has removed the anomaly of direct recruit and promotee by this letter. The Award thus passed by the Labour Court dated 01.05.2002 came into existence, which is under challenge in the present writ petitions. Counsel for the petitioners contends that the scheme of time bound promotional scale dated 23.04.1990 clearly spells out the conditions, under which the said benefit has to be granted. According to the said CWP No. 19092 of 2002 and other connected cases 5 scheme, time bound promotional/devised promotional scale becomes available to an employee on completion of 9 years of regular service provided he is not promoted during the said period. Similarly, in case he is not promoted for 16 years, he would be entitled to the 2nd time bound promotional/devised promotional scale. He thus contends that the basic requirement for being entitled to the 1st and 2nd time bound promotional/devised promotional scale would be non-promotion to the next higher post within the time specified therein. Respondent No. 1-workman Bhag singh stood promoted as Chargeman Special Grade-I w.e.f. 01.10.1976 and, therefore, was not entitled to the 1st promotional/devised promotional scale, whereas Satyavir was directly inducted into service as Chargeman Special Grade-I on 21.06.1977. He did not get any normal promotion till the scheme came into effect and, therefore, was entitled to the 1st time bound promotional/devised promotional scale on completion of 9 years and thereafter, 2nd time bound promotional/devised promotional scale on completion of 16 years of service, whereas respondent No. 1- workman-Bhag Singh was only entitled to 2nd time bound promotional/devised promotional scale on completion of 16 years of service. He submits that as per the requirement of the scheme, for granting of time bound promotional/devised promotional scale to each employee in any cadre, the prescribed period will be counted from the date of commencement of service on the lowest post on which regular appointment has been made through direct recruitment in the concerned cadre. Referring to the removal of anomalies, he submits that it has been clarified that anomaly of senior employee directly recruited will be removed only with directly recruited junior employee and not with promotee CWP No. 19092 of 2002 and other connected cases 6 employee on the same post/cadre/scale. He, on this basis, contends that the Labour Court has misread the scheme and the relief, which has been granted to respondent No. 1-workman, is contrary to the scheme itself. It has totally misread the instructions dated 19.07.1994 (Annexure P-4) completely ignoring para-3 of the said letter, wherein it has been mentioned that the terms and conditions of removal of anomaly between senior and junior employee, as contained in letter dated 02.08.1994, shall remain intact. He, on this basis, prays that the Award passed by the Labour Court cannot be sustained and deserves to be set aside. On the other hand, counsel for respondent No. 1-workman has vehemently argued that the basic principle of service law is that a senior cannot draw a less pay than his junior counterpart. The said principle has been accepted by the Management, as is apparent from the letter dated 19.07.1994, wherein it has been mentioned that the Board has decided that the pay of the senior employee would be fixed notionally from the date of arising of anomaly and the pay of the senior employee shall be stepped up to the level of the junior w.e.f. 01.05.1990 in the cases pertaining to the period prior to 01.05.1990 and thereafter from the date of occurrence of anomaly. He contends that the finding recorded by the Labour Court is in accordance with the subject and spirit of the scheme and the decision of the petitioner-Management with regard to removal of anomaly by stepping up the pay scale of the senior to the level of his junior. In this regard, he refers to the letter dated 02.08.1994, wherein BBMB adopted the PSEB Memo dated 01.06.1994, which provided for the cases in which anomaly in this regard was to be removed. He contends that the pay of the senior has to be if not higher at least equal to that of his junior. In support of this CWP No. 19092 of 2002 and other connected cases 7 contention, he relies upon the judgment of the Hon'ble Supreme Court in the case of Union of India and others vs. P. Jagdish and others, AIR 1997 Supreme Court 1783 and the judgment of the Hon'ble Supreme Court dated 09.01.2009 passed in Civil Appeal Nos. 65-67 of 2009 titled as Er. Gurcharan Singh Grewal and another vs. Punjab State Electricity Board and others. He, on this basis, prays for dismissal of the present writ petitions as the same are devoid of any merit. I have heard the counsel for the parties and have gone through the records of the case. To claim benefit under a scheme, the conditions envisaged thereunder cannot be violated as no claim can be granted beyond the scheme itself. While giving effect to the scheme if some anomaly comes to light, the Scheme Framing Authority can remove the same. A person claiming benefit of removal of the anomaly cannot claim beyond the said clarification. To understand the scheme, the anomaly, and the removal of anomalies in the said scheme, reference need to be made to the features of the scheme. It would not be out of way to mention here that the BBMB (petitioner herein) had while revising the pay scales basically adopted the pattern of PSEB and accordingly, made applicable the provisions of the Punjab State Electricity Board employees (Revised pay scales) Regulation- 1988 notified vide PSEB office order dated 11.11.1988, as amended from time to time. The said regulations provided for grant of time bound promotional/devised promotional scales after 9/16 years of service. The office order dated 23.04.1990 (Annexure P-2) issued by the PSEB provided for the said scheme. According to the scheme, time bound benefit of promotional scales after the completion of 9/16 years of regular service in CWP No. 19092 of 2002 and other connected cases 8 the Board provided the maximum benefit on being placed in the time bound promotional scale does not exceed five years including promotional increment (s) to the subordinate employee, was to be given. The basic features of the scheme were enumerated therein. Clauses 1, 2, 6 and 8 would be relevant for the present case, which read as follows:- “ 1. The benefit of first time bound placement into promotional/devised promotional scale, as determined and notified on the basis of principles enunciated above, would become available to an employee on completion of 9 (Nine) years of regular service on a post and the second time bound promotional/devised promotional scale would become available after completion of 16 (Sixteen) years of service. If an employee gets normal promotion to the next higher post before completion of 9 years service from the date of direct recuitment then he will not be given first time bound promotional/devised promotional scale. He will be eligible to get second time bound promotional/devised promotional scale after the completion of 16 years of service counted from the date of direct recruitment provided he does not earn second normal promotion before the completion of the above-said 16 years of service. Further an employee placed into the first promotional/devised promotional scale on account of his length of service will not be placed into the second promotional/devised promotional scale before completion of at least three years from the date of his placement into the first promotional/devised promotional scale. For example an employee who has completed 17 years CWP No. 19092 of 2002 and other connected cases 9 of service in an induction post and was not promoted up to 01.01.1986, will be allowed 1st time bound promotional/devised promotional scale on 01.01.1986 and the 2nd time bound promotional/devised promotional scale will be admissible on 01.01.1989 i.e. after completion of three years service in the first time bound promotional/devised promotional scale. 2. For granting the time bound promotional/devised promotional scale to each employee in any cadre, the prescribed period will be counted from the date of commencement of service on the lowest post on which regular appointment has been made through direct recruitment in the concerned cadre. 6. In cases, an employee has already availed of the benefit of placement to the time bound promotional/devised promotional scale (s) and is promoted to the next higher post, his pay would be fixed at the next stage in the same scale. In case he is promoted to a post which is lower than the scale in which he has already been placed on time bound promotional/devised promotional scale he will not be entitled to any increment and continue to draw the pay of scale in which he has already been placed. 8. No anomaly of pay would be claimed by any senior employee viz-a-viz an other employee merely on the strength of latter getting his placement into the time bound promotional/devised promotional scale." CWP No. 19092 of 2002 and other connected cases 10 During the working of the scheme, certain anomalies were pointed out specially with regard to the senior employees drawing pay less than the junior employees. For removal of anomaly by stepping up pay of the senior employee drawing less pay than his junior, a letter dated 01.06.1994 (Annexure P-3) was issued by the Punjab State Electricity Board. Para 4 of the said letter would be relevant, which reads as follows:- “4. On the persistent demand of the employee the case has too been considered by the Board and decided to avoid hardship in the individual cases, such like cases may be examined on its merits. The anomaly of senior employee with junior employee would be removed by stepping up the pay w.e.f. 24.3.94 in individual cases where the senior started/starts drawing less pay than the junior employees strictly due to grant of promotional/devised promotional time bound scales on the following terms and conditions: a) Anomaly of a senior employee directly recruited will be removed only with the directly recruited junior employee and not with the promotee employee on the same post/cadre/scale. b) both the Board employees should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre. c) The Board employer who is senior is promoted to the higher post without availing the benefit of time bound promotion/devised promotional scales and had been drawing CWP No. 19092 of 2002 and other connected cases 11 equal or more pay than that of the Board employee who is junior. d) a senior Board employee is granted time bound promotional/devised promotional scale prior to 12.11.88 and junior is granted the benefit of time bound promotional/devised promotional scale on or after 12.11.88 and is benefited with two increments under Reg. 8 of PSEB employees (Revised pay scales) Regulation-1988 and starts drawing more pay than the senior. e) both the Board employees should be in the same scale of pay in the lower as well as in the higher posts in which they are entitled to draw pay but the pay of the junior increased on the lower post on grant of time bound scale of higher post. f) the promotion of both the board employees are regulated by the provisions of the same rules, and, g) the anomaly should be directly as a result of grant of one or two promotional/devised promotional scales increment (s) on account of completion of 9/16 years service in the same cadre. If in the lower post, the Board employee who is junior, draws from time to time higher rate of pay than the Board employee who is senior by virtue of fixation of pay under the normal rules or if any advance increment is granted to him, the provisions contained in these instructions shall not be involved to step-up the pay of the Board employee.” Para 5 provided for the date, from which the anomaly/hardship cases would be considered and given benefit from, according to which, the CWP No. 19092 of 2002 and other connected cases 12 stepping up in the case of anomaly shall be done w.e.f. 24.03.1994 for cases pertaining to the period prior to the said date and in respect of cases falling on or after 23.03.1994, it shall be done with effect from the date of occurrence of the anomaly by virtue of grant of promotional/devised promotional time scales to the employee, who is junior. Vide memo dated 19.07.1994 (Annexure P-4), the said date was preponed to 01.05.1990. It would not be out of way to mention here that in para-3 thereof, it was specifically provided that the other terms and conditions contained in the circular letter dated 01.06.1994 would remain intact. The above reproduced relevant features of the scheme for the removal of the anomaly shows that the benefit of 1st time bound promotional/devised promotional scale would become available to an employee on completion of 9 years of regular service on a post. The 2nd time bound promotional/devised promotional scale scheme would become available after completion of 16 years of regular service on a post. The prescribed period under the scheme was to be counted from the date of commencement of service on the lowest post, on which regular appointment has been made through direct recruitment in the concerned cadre. The benefit of the said scheme would be available to an employee who does not get normal promotion to the next higher post during his tenure and is on the lowest post, on which he was appointed as a direct recruit. If an employee gets normal promotion to the next higher post before completion of 9 years of service from the date of direct recruitment, then he would not be entitled to 1st time bound promotional/devised promotional scale. He would be eligible to get 2nd time bound promotional/devised promotional scale after completion of 16 years of CWP No. 19092 of 2002 and other connected cases 13 service to be counted from the date of direct recruitment, provided he does not earn 2nd normal promotion before completion of the above-said 16 years of service. This is the scheme. Now coming to the removal of anomaly, it was observed that a senior employee was drawing less pay than a junior employee. For removal of this anomaly, letter dated 01.06.1994 was issued which envisaged the type of anomalies which could be removed. Para-4 (a) provided that the case of the senior for removal of anomaly could be compared with the other junior employee, who was belonging to the same category i.e. a directly recruited senior employee would be compared with a directly recruited junior employee and not with the promotee employee on the same post/cadre/scale. A perusal of Clauses (b), (c) , (e) and (g) further clarifies the position in this regard, which clearly spells out that the case of a direct recruit employee shall only be compared with any direct recruit employee of the same post/cadre/scale and similarly a promotee employee with another promotee employee. A directly recruited employee's case cannot be considered and equated with other promotee employee. Now applying the above principles to the cases in hand, respondent No. 1-workman-Bhag Singh has sought stepping up of his pay equivalent to that of Satyavir. Bhag Singh was initially appointed as a Chargeman Miscellaneous on 22.07.1974. He was promoted as Chargeman Special Grade-I on 01.10.1976. As his promotion came into effect before his completion of 9 years of regular service on the lowest post on which his regular appointment was made through direct recruitment, he was not entitled to the 1st promotional/devised promotional scale on CWP No. 19092 of 2002 and other connected cases 14 completion of 9 years of regular service. He was thus only entitled to the 2nd time bound promotional/devised promotional scale on completion of 16 years of service to be counted from 22.07.1974 i.e. the date of his direct recruitment on the lowest post. Although Satyavir was junior to Bhag Singh as Chargeman Special Grade-I as he was directly appointed on 21.06.1977 but still as Satyavir did not get any promotion till completion of 9 years of regular post on which he was directly appointed, he was entitled to the 1st time bound promotional/devised promotional scale. He was also entitled to the 2nd time bound promotional/devised promotional scale after completion of 16 years of service as he did not earn normal promotion during this period as well. Obviously, he would get a higher pay than that of Bhag Singh. The scheme provides for granting of time bound promotional/devised promotional scale to each employee in any cadre by counting the prescribed period from the date of commencement of service on the lowest post on which regular appointment has been made through direct recruitment in the concerned cadre. As per the case, where the removal of anomaly could be given effect to, Bhag Singh's case falls in the category of promotional employees, which cannot be compared with that of directly recruited employees although he may be junior to him in the cadre, as provided in para 4 (a) of the letter dated 01.06.1994. The Labour Court has thus erred in granting the benefit as has been claimed by respondent No. 1-workman by misinterpreting the letter dated 19.07.1994 (Annexure P-4). The said letter reads as follows:- “1. The Board vide its circular memo No. 116493/117293/Vol-II dated 1.6.94 have issued instructions for the removal of anomalies arisen due to grant of CWP No. 19092 of 2002 and other connected cases 15 compensatory increment as well as 9/16 years time bound promotional/devised promotional scales. In both the cases the pay of the senior employee would be fixed/stepped-up to the level of his junior w.e.f. 24.03.1994. 2. The matter has been reconsidered by the board and it has been decided that the pay of the senior employee would be fixed notionally from the date of arising of anomaly. The pay of the senior employee shall be stepped to the level of the Junior w.e.f. 1.5.90 for the cases pertaining to the