Civil Writ Petition No.11201 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Civil Writ Petition No.11201 of 1991 Date of decision: 5.9.2011 Sukhram Singh Virk and others ..Petitioners Versus The Chief Secretary, Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Ravi Sharma and Mr. Sunil Bhardwaj, Advocates for petitioners no. 1,2,3 and 5. Mr. Vivek Sethi, Advocate for petitioner no.4. Mr. S.S.Sahu, AAG, Punjab for the respondents. RAJIVE BHALLA, J. (ORAL) The petitioners pray for issuance of a writ in the nature of mandamus directing the respondents to remove the anomaly in the pay scale of Analysts and grant them pay scale at par with the pay scale of Assistants Grade `A'. Counsel for the petitioners submits that the petitioners, are Analysts working in different laboratories under the Director, Health Services and Family Welfare, Punjab. The petitioners were placed in a pay scale of Rs.200-450/-, Chemists were placed in the pay scale of Rs.200- 300/- whereas Assistants Grade `A', working in the Civil Secretariat, Punjab were placed in the pay scale of Rs.150-300/-. The pay scale of Analyst was revised, by the Ist Pay Commission, to Rs.300-600/-, of Chemists to Rs.200-450/- and of Assistants Grade `A', to Rs. 200-450/-. The pay scale of Chemists was equated with the pay scale of Assistant Grade `A', working in the Civil Secretariat, Punjab, vide Punjab Civil Writ Petition No.11201 of 1991 2 Government notification dated 21.1.1969, but Analysts continued in a higher pay scale. The pay scale for the post of Assistant Grade `A', working in the Civil Secretariat, Punjab, was revised to Rs.225-500/- (Times Scale) and Rs. 300-600/- (20% Selection Grade) by the Pay Anomalies Committee constituted by the Punjab Government vide notification dated 15.2.1971. Similarly, pay scales of Analysts and Chemists were revised to Rs.225-500/- (Time Scale) and Rs.300-600/- (20% Selection Grade), thereby clearly establishing that the posts of Analysts and Assistants Grade `A', were treated at par in the matter of pay scales. The 2nd Pay Commission revised the pay scale of Assistant Grade `A', on 18.10.1979 to Rs.570-1080/- (Time Scale) and Rs.700- 1200/- with effect from 1.1.1978, but the pay scale of Analysts and Chemists was revised to Rs.570-1080/- and Rs.700-1200/- (20% Selection Grade). Counsel for the petitioners further submits that as posts of Assistants Grade `A', Analysts and Chemists were equated vide notification dated 21.1.1969 (Annexure P-2), the respondents have no jurisdiction to grant Selection Grade to 50% of the cadre in case of Assistant Grade `A', and 20% of the cadre in case of Analysts and Chemists. It is further argued that by providing Selection Grade to 20% of the cadre strength of Analysts and Chemists, the respondents have, in essence, violated the parity granted vide notification dated 21.1.1969. It is further submitted that pay scales of Assistants Grade `A' were further revised to Rs.600-1120/- (Time Scale) and Rs.800-1400/- (50% Selection Grade) vide notification dated 2.6.1981 but the Selection Grade granted to the posts of Analysts and Chemists remained at Rs.700-1200/-. It is also pointed out that the recommendations of the 3rd Pay Commission have compounded this error by revising pay scale of Assistant Grade `A' to Rs.1500-2640/- ( Time Scale) and thereafter to Rs.1800-3200/-(Time Scale), whereas the pay Civil Writ Petition No.11201 of 1991 3 scale of Analyst stood revised to Rs.1500-2640/- (Time Scale) and 20% of the posts to the extent of Rs. 1640-2925/- (Selection Grade). It is further submitted that when a post is equated with another or other posts, in the matter of pay scale, the State Government cannot notify different pay scales or selection grades, except if the notification equating posts is withdrawn or modified. It is prayed that as notification, equating the posts of Chemists with Assistants Grade `A', has not been withdrawn or modified, the State cannot hide behind the argument that the question of parity of pay scale lies within its policy making domain. Reliance in this regard is placed on “The State of Punjab Versus Dr. Gautam Mahajan, Senior Hydrogeologist Water Resources Directorate,” reported as 1994(1) SCT 778 and Guru Kalyan Kendra Workers Union v. Union of India, reported as JT 1991(1) S.C. 60. Counsel for the State of Punjab, on the other hand, submits that matters relating to equation of posts and equation of pay scales, fall within the exclusive domain of the Executive. It is further submitted that there is a difference between duties, qualifications, responsibilities and functions of Analysts and Assistants working in the Civil Secretariat, Punjab. The grant of higher pay scales and selection grade to Assistants is, therefore, justified and does not perpetuate any discrimination as pleaded by the petitioners. I have heard counsel for the parties and perused the paper book. As is apparent from Annexure P-2, dated 21.1.1969, the post of Chemist was equated with the post of an Assistant Grade `A' and subsequently, the posts of Analysts and Chemists were merged into the post of Analyst with a common pay scale. Prior to this merger, Analysts were drawing a higher pay scale than Chemists or Assistants Grade `A'. However, over a period of time and by way of various reports prepared by anomaly removal committees, the pay scales of Assistants Grade `A' were Civil Writ Petition No.11201 of 1991 4 enhanced and selection grade granted to 50% of the cadre whereas this benefit was not extended to Analysts and Chemists, apparently on the premise that Analysts and Assistants Grade `A' perform different duties. The arguments advanced in support of this difference in pay scales could well have been accepted, if the Government had withdrawn or modified notification dated 21.1.1969 (Annexure P-2) whereby posts of Chemists with Assistants Grade `A' were equated for the purpose of pay scales etc. Counsel for the respondents has not been able to refer to any notification or order revoking or modifying notification dated 21.1.1969. The argument that if this court equates pay scales of Analysts/Chemists with pay scales of Assistants Grade `A' , it would tread upon an area reserved for the executive merits summary rejection. A court cannot be said to trespass into an area reserved for the executive, if the executive, in this case, the State of Punjab, issues a notification equating posts of Chemists/Analysts with those of Assistants Grade `A' and thereafter proceeds to ignore the notification. A reference in this regard may be made to para 6 of a Division Bench judgment of this court in The State of Punjab Versus Dr. Gautam Mahajan, Senior Hydrogeologist Water Resources Directorate case (supra). “ 6. We have heard the learned counsel for the parties and find no merit in the appeals. Undoubtedly, it is for the specialised agencies and the Executive Authorities to determine the equation of posts and the parity of pay scales, but as held by this court in the three cases cited before the learned Single Judge and now by the Hon'ble Supreme Court in Employees of T & F Corporation of India's case (supra) that once the posts have been equated and that equation still existed, then such posts must continue to have a parity of pay scales. The judgments of Civil Writ Petition No.11201 of 1991 5 this Court have already been referred to by the learned Single Judge and need not be discussed by us but the judgment of the Hon'ble Supreme Court being later in point of time needs to be referred to in some detail. Their Lordships of the Supreme Court while distinguishing the judgment in Employees of T. & F. Corporation of India's case held as under: Here we are not concerned with equation of posts because the posts falling in the above mentioned four categories of employees in the respondent-Corporation as well as the Cotton Corporation of India are of the same level and employees working on these posts were having the same pay scales in 1970. There is nothing on the record to show that after 1970 there has been any change in the duties and functions of the persons holding these posts in the two Corporations which may justify fixation of different pay scales for these posts in the two Corporation.” It will, thus, be apparent that the Supreme Court itself indicated that equation could end if there was a change in the duties or functions of the equated posts, and we further add that if any equation is to discontinue, it must be after due application of mind and after according plausible reasons. No reason, whatsoever, has been pointed out by the counsel for the State-appellant. For the reasons recorded above, the challenge in this appeal to the first point decided in favour of the respondents, is without force.” It is, therefore, apparent that as the State has equated the posts of Chemists/Analysts with the post of Assistants Grade `A' by way of notification dated 21.1.1969 (Annexure P-2) and has chosen Civil Writ Petition No.11201 of 1991 6 not to withdraw or amend this notification, the petitioners have to be granted parity of pay at par with the pay granted to Assistants Grade `A'. In this view of the matter, the writ petition is allowed and the respondents are directed to grant parity of pay scale to Chemists/Analysts, in accordance with pay scale of Assistants Grade `A' from the date of their entitlement. No order as to costs. 5.9.2011 ( RAJIVE BHALLA ) VK JUDGE