1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4711/2002. : : Subhash Chandra Soni & Ors. Vs. Jaipur Vidhyut Vitran Nigam Ltd. & Anr. : : Date of Order 2.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Manoj Pareek for the petitioner. Mr.Sandeep Saxena with Ankur Srivastava for the respondents. Heard learned counsel for the parties. 2. This writ petition has been filed by as many as eleven employees working with respondent-Jaipur Vidhyut Vitran Nigam Ltd., who were originally appointed with the Rajasthan State Electricity Board, Jaipur, consequent upon their regular selection by the order of Chief Engineer (M&P) dated 2.3.1995. Initially, they were appointed on consolidated salary of Rs.1000/- for the first year and Rs.1250/- for the second year and Rs.1500/- for the third year. However, they were granted regular pay scale vide order dated 29.4.1998. Petitioners are aggrieved by non- 2 grant of Scale No.3 and it is contended that petitioners are yet being paid Scale No.2 whereas respondents have granted Scale No.3 to large number of Helpers, who hold lower post then post held by the petitioners. 3. Shri Manoj Pareek, learned counsel for the petitioners has invited attention of the Court towards the judgment of Supreme Court dated 23.10.1989, which is reproduced in para 4 of the writ petition and submitted that Supreme Court in the aforesaid judgment directed respondents to grant scale No.3 to all such similarly situated persons who holds qualification of ITI/NAC and it was directed that benefits of the judgment be made available to others who are not before the Court if they have same qualification. Learned counsel also cited the order dated 17.10.1997 issued by the respondents by which it was directed that on recommendation of Committee 78 persons enumerated therein, who were holding the post of Helper Grade-II and completed more than three years of satisfactory service would be paid salary in pay scale No.3 with immediate effect. It was, therefore, submitted that the respondents have discriminated against the petitioners by paying them lessor salary than the salary, which was being 3 paid to the persons holding lower post. Learned counsel relied on judgment of this Court in Sohan Singh Vs. Judge, Industrial Tribunal cum Labour Court & Ors. : 2007 (1) CDR, 813 and argued that contention of the respondents that Helpers possessing the qualification of ITI certificate would be paid Scale No.2 was based on Clause 22 of Singh Sancheti Award. 4. Shri Sandeep Saxena, learned counsel for the respondents opposed the writ petition and submitted that since the appointment of the petitioner was made on 2.3.1995, judgment of Supreme Court delivered on 23.10.1989 could not be applied to their case. The respondents directed only for such Helpers for grant of Scale No.3, who possess the qualification of ITI, obviously for those who were in service with the respondents on the date of passing of the said order dated 23.10.1989. Learned counsel submitted that claim of petitioners to demand Scale No.3 on the strength of qualification of ITI/NAC certificate upon completion of two years of service is founded on Clause 22 of Singh Sancheti Award, whereas the fact is that by mistake and misinterpretation of the award some of the persons falling under second category i.e. non ITI certificate 4 holders doing NAC were allowed pay scale No.3. During apprenticeship and that too without passing of prescribed test such benefits could not be granted. In any case Singh Sancheti Award stands terminated vide notice dated 29.6.1985 and it cannot, therefore, be made basis for granting desire relief to the petitioner. It was argued that there was no case for discrimination because the petitioners were initially paid consolidated salary for a period of three years and subsequently by order dated 29.4.1998 they were fixed in Scale No.2 i.e. Rs.2950-4475/-. Learned counsel for the respondents has cited judgment of this Court in Devendra Vijay Vs. Secretary, RRVUP Nigam Ltd., Jaipur : SB Civil Writ Petition No.5491/1998 decided on 8.9.2006 and argued that similar controversy has been decided and identical writ petition was dismissed by the said judgment. 5. Learned counsel for the petitioner has rejoined and submitted that this Court in Sohan Singh (supra) with respect to Singh Sancheti Award while relying on judgment of Supreme Court in Life Insurance Corporation Vs. D.J.Bahadu : 1981 (1) SCC, 315 held that the settlement even after its termination by notice under Section 19 (2) of the Industrial Disputes Act remained in force till it is replaced 5 by another settlement. Learned counsel argued that when the respondents on their own admission have granted Scale No.2 to not only the persons holding the lower post of Helper Grade-II, but also to such of them who do not possess the qualification of ITI/NAC, the petitioners cannot be discriminated. 6. Having heard learned counsel for the parties and perused the material on record, I find substance in what has been contended on behalf of the petitioners. Even the Supreme Court in order dated 23.10.1989 directed that Scale No.3 would be allowed to similarly situated persons working on the post of Helper and possessing qualification of ITI/NAC. Even after judgment of Supreme Court which was passed on 23.10.1989, the fact remains that the respondents by virtue of implementation of that judgment or otherwise on their own have granted Scale No.3 to many of them who do not even possess the qualification of ITI/NAC. This case was categorically asserted by the petitioners in para No.6 of the writ petition while raising the argument of discrimination and the respondents have not categorically denied the same. On the contrary, they have sought to justify their action on the above referred to premises. The Supreme Court in 6 D.J.Bahadu (supra) clearly held that settlement under the Industrial Disputes Act does not suffer death merely because of the notice issued under Section 19 (2). Therefore, if the Industrial Disputes Act regulates the jural relations between the employer and its employee, then the rights under the settlement would remain intact until replaced by a later award or settlement. So far as the judgment of this Court in Devendra Vijay (supra), a perusal of that judgment reveals that the petitioners were selected for appointment as Operators-III in Kota Termal Power Station of RSEB and were granted Scale No.2. Not only this, they were promoted in scale No.3 w.e.f. 12.4.1996, but they claimed Scale No.3 w.e.f 1.11.1989 in terms of judgment of Supreme Court. The Coordinate Bench of this Court rejected the writ petition holding that direction of Supreme Court was applicable to only those apprentices, who were engaged under the Apprentices Act, 1961 and that the petitioners were subsequently promoted on the post of Operator-II in the year 1996. The distinguishable feature of the present case is that the petitioners are raising the arguments that while they are working as Helper Grade-I and yet they are being paid in Scale No.3. The petitioner substantiated this fact by order dated 17.10.1997. Besides this, the argument that Singh 7 Sancheti Award would be binding even after its termination by notice under Section 19 (2) of the Industrial Disputes Act till it is replaced by another settlement, in view of law laid down by Supreme Court, was not raised and, therefore, was not considered by this Court in Devendra Vijay (supra). Moreover, the petitioners in that case, were already promoted to the post for which they were claiming Scale No.3 thus indicating that their grievances were substantially remedied. In the present case however arguments raised by the petitioners have not been pointedly rebutted by the respondents. In view of above, this writ petition is allowed. Respondents are directed to grant Pay Scale No.3 to the petitioners w.e.f. 29.4.1998. However, the petitioners shall be entitled to only notional benefits for the intervening period and actual benefits shall be paid to them only prospectively in compliance of this order. Compliance of the judgment be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.41.