LPA Nos. 351 & 660 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH (1) LPA No. 351 of 2010 Date of Decision:- 23.02.2011 State of Punjab and others .....Appellants Versus Shil Kumar Mariya and others .....Respondents (2) LPA No.660 of 2010 Date of Decision:- 23.02.2011 State of Punjab and others .....Appellants Versus Lakhbir Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Suvir Sehgal, Addl. Advocate General, Punjab for the appellants. Mr. D.S. Patwalia, Advocate Mr. Ashok Sharma Nabhewala, Advocate for the respondents. LPA Nos. 351 & 660 of 2010 -2- ****** 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. These two appeals LPA Nos.351 and 660 of 2010 filed under Clause X of the Letters Patent by State of Punjab and its officers is directed against judgment dated 06.03.2009 rendered by the learned Single Judge holding that the writ petitioner-respondents are entitled to pay scale equivalent to the pay scales of Sanitary Inspectors working in the Local Self Government Department of the appellants-State. It is appropriate to mention that the writ petitioner-respondents have been working on the post of Sanitary Inspectors, Senior Sanitary Inspectors, Malaria Inspectors and Senior Malaria Inspectors. In the year 1978 they were re-designated as Multi Purpose Supervisor in the Health Department of the State of Punjab. They claimed before the learned Single Judge that they were qualified Sanitary Inspectors and were holding Sanitary Inspectors Certificate from the recognized University/Institute. They claimed parity with the Sanitary Inspectors working in the Municipal Committees under the control of Local Self Government, asserting that their qualifications, duties and functions are at par with Sanitary Inspectors working in the Local Self Government in the State of Punjab. They placed reliance on a chart (Annexure P-1) to indicate the nature of the duties being performed by the Sanitary Inspectors working under the Local Self Government Department and claimed that they perform same duties. Accordingly, they claimed that merely because they have been working on the post of Multi Purpose Supervisor in the LPA Nos. 351 & 660 of 2010 -3- Health Department, a lower pay scale cannot be given to them when compared with the pay scale of Sanitary Inspectors who have been working in the Local Self Government. They also invoked the doctrine of equal pay for equal work. They claimed that before 01.01.1968, there has always been parity between them and those who have been working on the post of Sanitary Inspectors in the Local Self Government Department. The aforesaid narration of facts has been highlighted with the help of following table:- Date Municipal Committee Health Department Before 1.1.1968 (1) Municipal Committee, Rajpura, Township Rs.55-65 (11) M.Cs, Amritsar, Ludhiana and Bhatinda Rs.80-150. 80-150 w.e.f. 1.1.1968 Rs. 120-250 Chief Sanitary Inspectors 120-250 Sr. Sanitary Inspectors/Sr. Malaria Inspectors 160-400 w.e.f. 1.1.1978 510-940 510-940 w.e.f. 24.3.1983 570-1080 w.e.f. 1.1.1978 510-940 w.e.f. 1.1.1986 1500-2640 1800-3200 1410-2460 do- Further revised in 1994 w.e.f. 1.1.1986 2. On the basis of the aforesaid table the learned Single Judge was persuaded that upto 1.1.1978, the pay scales of the Sanitary Inspectors working in the Local Self Government Department and those working in the Health Department of the State of Punjab were equal. It has been highlighted that on the basis of an order passed on 24.03.1983 (Annexure P-2) disparity in their pay scales commenced w.e.f. 1.1.1978. Despite, the fact that the Pay Commission had recommended Rs.510-940 for both the posts the matter was referred to the Pay Anomaly Committee LPA Nos. 351 & 660 of 2010 -4- and on its recommendation, the appellant-State revised the pay scale of Chief Sanitary Inspectors and Sanitary Inspectors to Rs.570-1080 with special pay of Rs.50 to the Chief Sanitary Inspectors w.e.f. 1.1.1978, whereas the payscale of Sanitary Inspectors working in the Health Department, like the writ petitioner-respondents continued to be Rs.510- 940. Accordingly, the disparity commenced and has been continuing as the Sanitary Inspectors working in the Local Self Government Department were placed in the scale of 1500-2640 and the writ petitioner-respondents working in the Health Department were placed in the pay scale of 1410- 2640 w.e.f 1.1.1986. The pay scale of Sanitary Inspectors working in the Local Self Government Department were again revised to Rs.1800-3200 w.e.f. 1.1986 but no corresponding revision in the pay scale of the writ petitioner-respondent was ordered. The writ petitioner-respondents filed a number of writ petitions in this High Court including CWP No.1920 of 1987 which was decided on 12.8.1992. This High Court issued directions to the appellant-State to decide the whole matter expeditiously by passing a speaking order. The Court also directed that unless there are valid reasons, the employees working in two Departments were to be accorded parity of treatment in the matter of pay scales. It was also noticed by this Court that the Cadre of employees working under the Local Self Government Department is a provinicialized Cadre and there was no basis in treating such employees differently from those working in other Departments (Annexure P-3). Consequent upon the directions issued by this Court in the aforesaid bunch of petition, the appellants-State passed an order dated 27.04.1993 (Annexure P-4). According to the view taken by the State of Punjab, the parity of pay scale between the Sanitary Inspectors working in the Local Self Government Department and the writ petitioner- LPA Nos. 351 & 660 of 2010 -5- respondents was rejected. It has also been concluded that there was no possibility of creating 20% of selection posts for the Sanitary Inspector working in the Health Department like writ petitioner-respondents. The aforesaid order was again challenged before this Court in CWP No.12254 of 1993, decided on 26.05.1995 (Annexure P-5). This High Court quashed the order dated 27.04.1993 (Annexure P-4) holding that it was based on wrong assumptions of facts and directed the appellants-State and its officers to decide the matter afresh in accordance with law. 3. In pursuance of directions issued by this Court, the Director Health Services Punjab made recommendation to the Secretary to Government of Punjab Department of Health and Family Welfare vide his letter dated 29.05.1996 (Annexure P-7). According to the recommendation, the scale of pay Rs.570-1080 w.e.f. 1.1.1978 is to be given without any arrears from 1.1.1978 to 31.12.1985. However, the recommendations was made for payment of arrears w.e.f. 1.1.1986 to 30.04.1996 by depositing the same in the GPF account of the employees. Those recommendations were considered by the appellant-State and rejected by passing a speaking order on 03.09.1996 (Annexure P-9), which was subject matter of challenge before the learned Single Judge. The ground of rejection disclosed in the order passed by the respondent-State (Annexure P-9) are as under:- "(a) The pay scale of Sanitary Inspector of Local Government Department was Rs.160-400 in the year 1977 as per draft rules amending Punjab Municipal Services (Recruitment and condition of services) Rules, 1975 issued vide Punjab government (local Govt. Department) Notification dated 24.5.1977, published on June 3, 1977 in Punjab government gazette and as per Punjab LPA Nos. 351 & 660 of 2010 -6- Municipal Services Recruitment and conditions of service (First Amendment) rules 1977 issued vide Notification dated 8.12.1977 published on 16.12.1977 in the Government Gazette, which further raises the promotion that between the period 1968-1977, that is before the effect of the recommendation of the 2nd Pay commission i.e. Before 1.1.1978 the pay scale of Sanitary Inspector of Local Government Department was Rs.160-400 and thus did not remain the same as that of Sanitary Inspectors of Health Department, whose pay scale w.e.f. 1.2.1963 was Rs.120- 250 and with effect from 1.1.78 was Rs.510-940 and w.e.f. 1.1.86 the pay scale of Sanitary Inspectors of Local govt. deptt was sanctioned as 1500-2640 as per conversion table, but on 7.3.1994 they have been sanctioned pay scale of Rs.1800-3200 w.e.f. 1.1.1996 on the recommendations of anomaly committee of local Government Department, whereas no such recommendations of pay commission or anomaly committee for enhanced pay scale to the petitioners is available and there pay scale of the Sanitary Inspectors of Health Department, with effect from 1.1.1986 was revised to Rs.1410 and w.e.f. 23.1.1989 they were re-designated as Multipurpose Supervisor and their 50% senior Cadre was placed in the pay scale of Rs.1640-2025. (b) Further, the Sanitary Inspector (now re-designated) as multipurpose supervisor have got avenue as promotion. Before 1.1.1978 they used to be promoted, firstly as Senior Sanitary Inspectors Senior Malaria Inspector and after that they were promoted to the post (s) of Health Supervisor Assistant units officers. With effect from 1.1.1978, Senior Sanitary Inspector LPA Nos. 351 & 660 of 2010 -7- Senior Malaria Inspector and Sanitary Inspectors (AII) was joined in one cadre and were entitled to promotion to the post of Health Supervisor Assistant Units officers and the next promotional post was Assistant Malaria officers. With effect from 1.1.1986 all posts of Senior Malaria Inspector Senior Sanitary Inspector Health Inspector Surveillance Inspector malaria inspectors were joined into one cadre and re-designated as multipurpose Supervisor and are entitled to promotion to the posts of Health Supervisor Assistant units officers and Assistant Welfare officer. On the other hand there is no avenue of promotion for the Sanitary Inspector of Local Govt. Deptt. The only promotional posts according to norms can be sanctioned against the strength of 10 Sanitary Inspector. As this strength of 10 Sanitary Inspectors is no where in any of the Municipal Committee, there is in fact, no post of Chief Sanitary Inspector and as such, the Sanitary Inspector of Local Government got no avenue of promotion and they retire as such. (c) The appellants-State also concluded that their duties and responsibilities were also dissimilar holding that the writ petitioner- respondents were not entitled to any pay parity with Sanitary Inspectors of Local Self Government Department." 4. The learned Single Judge was persuaded to accept the argument of the writ petitioner-respondents and proceeded to hold that there are findings recorded by this Court in its order dated 12.08.1992 passed in a bunch of petition including CWP No.1920 of 1987, opining that the qualifications, job requirements and nature of duties of the writ LPA Nos. 351 & 660 of 2010 -8- petitioner working in Health Department and those working in Local Self Government were identical and different treatment in the matter of pay scale was not justified, which appears to be apparently arbitrary. Likewise, the learned Single Judge also placed reliance on the direction issued by this Court on 26.05.1995 in CWP No.12254 of 1993. The learned Single Judge has placed reliance on a judgment of the Supreme Court in Randhir Singh vs. Union of India and other (1982) 1 SCC, 618 and proceeded to hold as under:- "In the present case, there is findings by this Court in two different writ petitions about 'the similar nature of duties. Disparity is apparent. The ratio of the judgment in Randhir Singh's case (supra) is fully applicable to the facts and circumstances of the present case." In view of the above, this petition is allowed. Impugned orders Annexure P-9 and P-10 are hereby quashed. The respondents are directed to grant the same pay scale to the petitioner as was granted to the Sanitary Inspectors in the Local Self Government Department with effect from 01.01.1978 with all consequential pay revisions. I am informed that the petitioners have retired from service. The respondents will pay the arrears after re-fixing the pay scales of the petitioners within a period of four months from today and will-also fix the consequential retiral benefits including the pensionary benefits accordingly and release the arrears within a period of two months thereafter. No costs." LPA Nos. 351 & 660 of 2010 -9- 5. Mr. Survir Sehgal, learned counsel for the appellant-State has vehemently argued that the reliance of the learned Single Judge on the directions issued by this Court on 12.08.1992 in CWP No.1920 of 1987 and the direction issued on 26.05.1995 in CWP No.12254 of 1993 (Annexure P-5) is wholly unsustainable in law because the learned Single Judge has ignored the fact that despite recording findings on prima facie satisfaction of this Court in its directions dated 12.08.1992 (Annexure P-3), this Court had directed that the matter be decided expeditiously by the appellants- State. Similar is the position in respect of order dated 26.05.1995 (Annexure P-5) rendered by this Court. Mr. Survir Sehgal, learned Additional Advocate General has argued that there were apparent lurking doubts in the mind of this Court with regard to nature of duties, parity in employment and structure of the department and therefore, directions were issued for a decision by the State Government. Thus, the argument is that the view taken by this Court on earlier two occasions cannot be treated as firm finding with regard to nature of duties and other factors. 6. Mr. Survir Sehgal has further submitted by reference to the table in para 3 of the memorandum of appeal that the nature of duties of the writ petitioner-respondents working in Health Department were entirely different than the one performed by the Sanitary Inspectors working in the Local Self Government and therefore, their pay scale have to be different. 7. Mr. Survir Sehgal, has also pointed out that the structure of both the department is entirely different inasmuch as in the Health Department the post of Multi Purpose Supervisor (Male) is filled up 100% by promotion from the Cadre of Multi Purpose Health Worker (Male) whereas in the Local Self Department 50% posts are filled up by the promotion from those municipal employees who have passed Sanitary LPA Nos. 351 & 660 of 2010 -10- Inspector Certificate and the rest of the 50% posts are filled up by direct recruitment by appointing those who have qualified the Sanitary Inspector Examination. In the Health Department, there are avenues of promotion and w.e.f. 1.1.1978 the Cadre of Senior Sanitary Inspector, Senior Malaria Inspector and Sanitary Inspector was merged into one Cadre, who have been made eligible for promotion to the Post of Health Supervisor Assistant Unit Officer. Moreover, w.e.f. 1.1.1986, the post of Senior Malaria Inspector, Senior Sanitary Inspector, Health Inspector, Surveillance Inspector and Malaria Inspector were merged into one Cadre and re- designated as Multi Purpose Supervisor. The Cadre of Multi Purpose Supervisor is further entitled to promotion to the Post of Health Supervisor, Assistant Unit Officer and Assistant Welfare Officer. Therefore, they have avenues of promotion and to advance in their career, whereas Sanitary Inspector working in the Local Government Department has no avenues of promotion as only one promotional post of Chief Sanitary Inspector could be sanctioned against the strength of 10 Sanitary Inspector and there is hardly any Municipal Committee which have strength of 10 Sanitary Inspector. Therefore, the different pay scale are wholly justified. In order to support his view learned counsel has placed reliance on the observation made in paras 18, 19, 23 to 25 by the Hon'ble Supreme Court in the case of State of West Bengal and another v. West Bengal Minimum Wages Inspectors Association and others (2010) 5 SCC 225 and argued that one post carrying the same pay scale at one point of time, would be no ground to grant them the equivalent pay scale even later on, particularly when there are changes in the structure of the department for the proposition. In that regard reliance has been placed on the observations made in para 14 and 15 of another judgment of the Hon'ble Supreme Court LPA Nos. 351 & 660 of 2010 -11- rendered in the case of State of Madhya Pradesh and others v. Ramesh Chandra Bajpai (2009) 13 SCC 635. The learned counsel has also cited another judgment of the Supreme Court rendered in the case of Union Territory Administration, Chandigarh and others v. Manju Mathur and another in Civil Appeal No.2823 of 2009 , decided on 14.01.2011. 8. Mr. Sehgal has also pointed out that there could be some justification, if the structural organization has continued to be similar as it was before 1.1.1978 for grant of parity in the matter of pay scale. However, once there are changes in the organization of the department, then the changes in the pay scale are not unexpected. Therefore, he has prayed for dismissal of the writ petition and reversal of the judgment rendered by a learned Single Judge. 9. Mr. D.S. Patwalia and Mr. Ashok Sharma Nabhewala, learned counsel for the writ petitioner-respondents have argued that there are categorical findings recorded by this Court on two occasions that the duties and responsibilities of the writ petitioner-respondents are identical to the one being performed by the Sanitary Inspector working in the Municipal Committees under the Local Self Department. They have drawn out attention to the findings recorded by this Court in its order dated 12.08.1992 (Annexure P-3) noticing and administering that there was no dispute with regard to the qualification, job requirements and nature of duties being performed by the Sanitary Inspectors working in the Health Department like the writ petitioner-respondents viz-a-viz those who are working with the department of Local Self Government. Likewise, our attention has been drawn to the findings recorded by the Director Family Health and Welfare (Annexure P-4) which was set aside again on LPA Nos. 351 & 660 of 2010 -12- 26.05.1995 in CWP No.12254 of 1993 (Annexure P-5). Similarly, our attention has been drawn to the proceedings dated 03.05.1996 (Annexure P-6), where recommendations have been made by the Director Health Services and Family Welfare for restoring parity in pay scale which were eventually not accepted by the appeallants-State (Annexure P-8) by citing various reasons in the order dated 03.09.1996 (Annexure P-9). According to the learned counsel, once a judgment has been delivered, recording some findings of fact, then the fact determined in that judgment is binding as has been held by the Hon'ble Supreme Court in para 26 of the judgment rendered in the case of Amarendra Komalam and another v. Usha Sinha and another (2005) 11 SCC 251. Another submission made by the learned counsel is that the order dated 3.09.1996 (Annexure P-9) cannot be regarded as a speaking order. He has mentioned that corrected order is thus liable to be set aside on that ground alone. Placing reliance on the averments made in the para 8 of the written statement filed by the appellants-State learned counsel have submitted that there are unionized Cadre in both the department, as there have always been post of Sanitary Inspectors. In order to butterance their stand, learned counsel have placed reliance on the observation made by the Hon'ble Supreme Court in the case of Union of India versus Dineshan K.K. (2008) 1 SCC 586. They have claimed that there is express admission by the appellant-State about the identity of the pay scale and equivalence of duties. A reference has been made to the affidavit dated 21.09.2006 filed by Dr. Sikander Singh in that regard. Accordingly, it has been submitted that anomaly was pleaded w.e.f. 1.1.1986, which have been rightly corrected by the learned Single Judge holding that different treatment to the similar situated employees in the matter of pay scale was violative of Article 14 of the Constitution. LPA Nos. 351 & 660 of 2010 -13- 10. In the end, learned counsel have requested that in case this Court records a finding against the writ petitioner-respondents, then the matter be remanded back to the learned Single Judge for considering the issue afresh in the light of the stand taken by the appellant-State. 11. After hearing learned counsel for the parties, perusing the judgment of the learned Single Judge and minutely examining the record we find that the following two questions of law would arise for determination of this Court: 1. Whether duties of the post of Multipurpose Supervisor working in the department of Health & Family Welfare are identical to that of the Sanitary Inspector working in Local Government Department ? 2. Whether parity in the pay scale of a similar post in two different departments of the Government is required to be maintained all the times despite the restructuring and reorganization of one of the department ? Re : Question A 12. It is well settled principle of law that equality before law could be extended only to those who are equal to one and others. Equality amongst unequal would be antithetical to equality itself and would violate Articles 14 and 16 (1) of the Constitution. Therefore, it would be necessary to first examine whether the duties of the post held by the writ petitioner- respondent are identical to that of those which are sought to be made the basis for the purposes of grant of higher pay scale. The duties of both the posts are juxtapose to present bird's eye view which are as under : LPA Nos. 351 & 660 of 2010 -14- D U T I E S Sr. No. Health Department (Multipurpose Supervisors- writ petitioner-respondent Local Self Government (Sanitary Inspectors) 1) To supervise the Multipurpose Health Worker (Male) in the block. 2) To provide assistance to the Doctors, for checking the students of the Schools falling under his jurisdiction. 3) To participate in the other national Programme like Eradication of Malaria, Control of Blindness, Leprosy and Tuberculosis etc. and to educate the people for controlling them, afterwards. 4) Providing assistance in controlling the communicable disease. 5) Educating the people and maintain Environmental sanitation for good health. 1) Primarily Sanitary Inspector is responsible to carry out and to supervise the sanitation work of the city for example to clean streets and roads of the city through sweepers is the responsibility of the Sanitary Inspectors. 2) The open nullas and the drains of the dirty water in the city as well as to remove the silt from drains nullas is also being done, under the supervision of the Sanitary Inspector. 3) To supervise collections of garbage of the residence/ shops/ Hotels from the city as well as and to carry the same towards dumping grounds. Solid waste management is done. 4) Besides this, the natural calamities like the Cyclone, Floods as well as arising of any emergency in the city Sanitary Inspector supervise all these tasks. 5) In case of any disease in the city like cholera, dengue, diarhhoea and Malaria, the Sanitary Inspector pays special special attention. 6) During this period to prevent the Malaria and Dengue in the city, Sanitary Inspector has to supervise to sprinkle/spray Mosquito (repellant). 7) Disposal of the unclaimed dead bodies of the Human being and Animals. LPA Nos. 351 & 660 of 2010 -15- 13. A perusal of the aforesaid table would show that the duties of a Sanitary Inspector are entirely different when compared to the duties of a Multipurpose Supervisor. The duties as listed in the aforesaid table have not been seriously disputed by the counsel for the writ petitioner- respondent. It has however been suggested that earlier to the merger of the post of Sanitary Inspector working in the health department with the common cadre of Multipurpose Supervisor, their duties were similar. However, fact remains that the restructuring of the cadre has taken place as different stages in 1978 and 1987 and as a result the pay scale has also been readjusted accordingly. The crisis which confronts the Courts in these types of matters is that the doctrine of equality is invoked for its application to different classes of persons who might seem to perform same duties. Such a claim sometimes is erroneously made on the basis that at one stage the pay scale of two classes of persons were identical and therefore, the parity needs to be maintained for all times to come. Such a proposition as a concept of law cannot be accepted. There is ample support for the view that merely because the nature of work is the same, the principle of equal pay for equal work cannot be applied without considering the educational qualification, mode of appointment, expenses and