LPA No.376 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.376 of 2003 in CWP No.14174 of 1995. Date of decision:- 17.10.2008. (1) State of Punjab and others ...Appellants Versus Harbhajan Singh Bajwa and others ...Respondents Present:- Mr. Manohar Lal, Addl. A.G. Punjab for the appellant State. Mr. A.K. Chopra, Sr. Advocate with Mr. N.D. Kalra, Advocate for the respondents. (2) CWP No.16919 of 2006 Punjab State Co-operative Inspectors Association and others ....Petitioners Versus State of Punjab and others ...Respondents Present:- Mr. D.S. Patwalia, Advocate for the petitioners. Mr. Manohar Lal, Addl.A.G. Punjab for the respondents. (3) CWP No.17261 of 2006 Kuldeep Singh and others ....Petitioners Versus State of Punjab and others ...Respondents LPA No.376 of 2003 -2- Present:- Mr. A.K. Chopra, Sr. Advocate with Mr. N.D. Kalra, Advocate for the petitioners. Mr. Manohar Lal, Addl.A.G. Punjab for the respondents. (4) CWP No.2178 of 2007 Som Pal and others ....Petitioners Versus State of Punjab and others ...Respondents Present:- Mr. Dharamvir Sharma, Senior Advocate with Mr. Harit Sharma, Advocate for the petitioners. Mr. Manohar Lal, Addl.A.G. Punjab for the respondents. (5) CWP No.3537 of 2007 Bachan Singh and others ....Petitioners Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. R.K. Girdhar, Advocate for the petitioners. Mr. Manohar Lal, Addl.A.G. Punjab for the respondents. JASWANT SINGH, J. This judgment shall dispose of LPA No.376 of 2003 and four other writ petitions bearing CWP No. 16919 of 2006, CWP No.17261 of 2006, CWP No.2178 of LPA No.376 of 2003 -3- 2007 and CWP No.3537 of 2007 as the similar facts and common questions of law are involved. LPA No.376 of 2003 has been filed by the State of Punjab against the judgment dated 26.2.2003 passed by learned Single Judge whereby Inspectors Audit Grade-I in the Audit Wing of the Punjab Co-operative Department have been granted the pay scale of Rs.1800-3200 w.e.f. 01.01.1986 with all consequential benefits. The aforesaid four writ petitions have been filed by the Inspectors Grade-I of the General Wing of the Punjab Co-operative Department claiming the similar relief on the basis of the aforesaid impugned judgment dated 26.2.2003 passed by Learned Single Judge. Therefore, the facts from LPA No.376 of 2003 have been taken and dealt with, with the consent of learned counsel for the parties. State of Punjab has filed the present L.P.A. against the judgment dated 26.2.2003 passed by the learned Single Judge vide which C.W.P. No.14174 of 1995 filed by the present respondents (Writ Petitioners) was allowed and order dated March 16, 1995 (Annexure P-10), passed by the Government of Punjab rejecting their claim, was set aside and the present appellants were directed to grant parity of pay scale to the Writ Petitioners/Inspectors Audit Grade-I at par with Junior Auditors/Assistants/ Accountants in the pay scale of Rs.1800-3200 with all consequential benefits w.e.f. 01.01.1986. The facts giving rise to the matter in controversy are as under:- 54 petitioners (respondents herein) filed C.W.P. No.14174 of 1995 titled 'Harbhajan Singh Bajwa and others vs. State of Punjab and others' by alleging that petitioner Nos.1 to 53 are working as Inspectors Audit Grade-1 in the Audit Wing of the Co-operative Department of the State of Punjab and the petitioner No.54 is a registered Association of the audit staff of Co-operative Department. It was averred that the post of Inspector Audit was a higher post than the post of Junior Auditors, in the Co- operative Department and the post of Inspector Audit was filled by way of promotion from Junior Auditors Co-operative on 100% basis as per Govt. Administrative Instructions dated 20.07.1960 (Annexure P-1). That w.e.f. 28.9.1971 vide letter dated LPA No.376 of 2003 -4- 28.09.1971 it was decided that 40% of the posts of Inspectors Audit Grade-1 are to be filled up by way of direct recruitment and 60% by promotion from Junior Auditors. The minimum qualification prescribed for the post is B.Com. from a recognized University with advance Accountancy and Auditing as one of the subjects. Selected candidates have to undergo a further specialized regular training for a period of nine months before joining the service as Inspector Audit and that training is pre-requisite for the grant of regular pay scale of Inspector Audit Grade-I. They are also required to pass Higher Diploma Course Examination in Co-operation after the training for proper performance of duties as Audit Inspectors Grade-I. Recommendations of the First Pay Commission were implemented w.e.f. 01.01.1968 and at that time pay scale of Inspector Audit Grade-I (earlier known as Inspector Audit) in Co-operative Department was Rs.200-400 and the pay scale of 10% selection grade posts was Rs.350-500. At that time Assistants/Accountants in other departments were drawing the pay scale of Rs.160-400 and this position continued upto 31.12.1977. After Second Pay Commission, the pay scales were revised and Inspector Audit Grade-I were given the pay scale of Rs.570-1080 with a further pay scale of Rs.700-1200 for 20% selection grade posts w.e.f. 01.01.1978. On the other hand Assistants/Accountants in other departments and Junior Auditors in the Finance Department were also given the pay scale of Rs.570-1080. The Second Pay Commission also recommended the merger of the posts of Junior Auditors in the Co-operative Department with the post of Inspector Audit Grade-I. The Third Pay Commission recommended the pay scale of Rs.1500-2640 for the post of Inspector Audit Grade-I in Co-operative Department and Junior Auditors of various departments such as Food Supplies, Finance, Animal Husbandry etc. However, Government revised the pay scale w.e.f. 01.01.1986 and the Inspectors Audit Grade-I were placed in the pay scale of Rs.1640-2925 without any selection grade whereas the Assistants/Accountants in other departments were given the pay scale of Rs.1800-3200 and the Junior Auditors in the Finance Department were put in the pay LPA No.376 of 2003 -5- scale of Rs.1500-2640 and after 5 years of service, they were put in the pay scale of Rs.1800-3200. The pay scale granted to Inspector Audit Grade-I, Assistants/Accountants in other departments and Junior Audits of Finance Department in Finance with the implementation of 1st, 2nd and 3rd Pay Commissions are given below:- Name of Post Pay Scale granted with effect from 01.01.1968 01.01.1978 01.01.1986 Inspector Audit Grade-I (earlier designated Inspector Audit) 200-400 350-500 Selection Grade Posts of 10% 570-1080 700-1200 Selection Grade Posts of 20% 1640-2925 No Selection Grade was given. Assistants/Acc ountants (other departments) 160-400 570-1080 1800-3200 Junior Auditors in Finance Department 160-400 570-1080 1500-2640 (1800-3200 after 5 years of service) In the written statement filed by the State of Punjab, it is not disputed that prior to 28.09.1971, the post of Inspector Audit was 100% promotional post and promotions were made from Junior Auditors to the post of Inspectors Audit and after 28.09.1971, 40% recruitment were made to the post of Inspectors Audit through direct recruitment and 60% through promotion from Junior Auditors. Till the recommendations of Second Pay Commission were made applicable w.e.f. 01.01.1978, the Junior Auditors in the Co-operative Department were drawing the pay scale of Rs.160-400. The post of Inspector was higher than the Junior Auditor. The Junior Auditors in other departments than the Co-operative Department were also drawing the pay scale of Rs.160-400. It is not disputed that with the implementation of Second Pay Commission w.e.f. 01.01.1978, the post of Junior Auditors in the Co-operative Department was LPA No.376 of 2003 -6- merged with Inspector Audit in the pay scale of Rs.570-1080 and the Junior Auditors in other departments were also given the pay scale of Rs.570-1080 and thus the pay scale of Inspector Audit and Junior Auditors in other departments was brought at par. This position continued till 31.12.1985 and with the implementation of recommendations of Third Pay Commission w.e.f. 01.01.1986 the Inspector Grade-I – respondents (Writ Petitioners) were granted the pay scale of Rs.1640-2925 without any selection grade but the Assistants/Accountants in other departments were given the pay scale of Rs.1800- 3200 and the Junior Auditors Rs.1500-2640 (Rs.1800-3200 after 5 years of service). It is relevant to mention here that one Hardaljit Singh, Junior Auditor of the Animal Husbandry Department of the State of Punjab, who was given the pay-scale of Rs.1500-2640 filed CWP No.7807 of 1991 titled as 'Hardaljit Singh vs. State of Punjab and another' claiming grant of pay scale of 1800-3200 w.e.f. 1.1.1986 instead of after 5 years of service. A Division Bench of this Court vide order dated 31.10.1991 held that the condition of five years service for the grant of pay-scale of Rs.1800-3200 was arbitrary and thus liable to be modified. Accordingly, it was directed that Junior Auditors would be given the pay-scale of Rs.1800-3200 w.e.f. 01.01.1986 as had been granted to the Assistant-cum-Accountants/Accountants and further ordered that the notification dated 09.5.1991 vide which the Punjab Civil Services (Revised Pay) (Second Amendment) Rules, 1991 were notified, is modified to the said extent. It is not disputed that the State of Punjab filed LPA in Hardaljit Singh's case before this Court, which was dismissed and then the SLP filed by the State was also dismissed by the Hon'ble Supreme Court and the order dated 31.10.1991 passed by this Court in Hardaljit Singh's case was implemented by the Government vide order dated 10th November, 1994. It is also relevant to mention that w.e.f. July 9, 1992, the posts of Inspectors Audit Grade-II were merged into those of Inspectors Audit Grade-I and thereafter only one cadre of Inspectors Audit remained/continued in the Co-operative Department. LPA No.376 of 2003 -7- Aggrieved by the action of the State Government in granting lower pay- scale of Rs.1640-2925 and denying the grade of Rs.1800-3200 to the Inspectors Audit Grade-I w.e.f. 01.01.1986, as has been granted to the Assistants/Accountants, some of the Inspectors Audit Grade-I of the Audit Wing of the Co-operative Department of the State of Punjab (26 of the respondents herein in the present LPA like Harbhajan Singh Bajwa, Karora Singh Dhaliwal, Avtar Singh Gandhi, Prem Kumar, Joginder Pal Jain, Jagjit Singh, Devender Singh, Gian Chand Jain, Suresh Kumar, Major Singh etc.) had filed CWP No.2216 of 1992 titled Karora Singh Dhaliwal and others vs. State of Punjab, inter alia, praying that they be placed in the higher pay-scale than the Head Clerks (Superintendent Grade-II)/Assistants/Accountants of other Departments, who were earlier in the lower pay-scales than the petitioners. It was also alleged that the post of Inspector Audit Grade-I required higher qualification and responsibilities than that of Assistant Accountants and Junior Auditors. The said writ petition was disposed of by this Court vide order dated 6th December, 1993 alongwith CWP No.14667 of 1991 titled as R.S. Bhullar and another vs. State of Punjab and another and three other similar writ petitions bearing Nos.16082, 8307, 10658 of 1991 filed by the employees of other Departments of the Punjab Government. A copy of the orders passed by this Court in Karora Singh Dhaliwal's case and R.S. Bhullar's case are appended as Annexures P-4 and P-5 with the writ petition respectively. A perusal of the orders passed by this Court at Annexure P-4 and P-5 reveals that Karora Singh Dhaliwal's case was disposed of in terms of the decision in R.S. Bhullar's case and in R.S. Bhullar's case the Auditors/Junior Auditors of the Food and Supplies Department were held to be entitled to the pay scale of Assistants/Accountants i.e. Rs.1800-3200 w.e.f. 01.01.1986 on the basis of the decision in Hardaljit Singh's case, which had attained finality upto the Hon'ble Supreme Court and wherein the notification dated 9th of May, 1991 had been ordered to be modified to the extent that the condition of 5 years service was deleted and the Junior Auditors were held to be entitled to the same pay-scale as was given to the Assistant-cum- LPA No.376 of 2003 -8- Accountants/Accountants i.e. Rs.1800-3200 w.e.f. 01.01.1986. It is further not in dispute that State of Punjab filed L.P.A. No.418 of 1994 titled State of Punjab v. Karora Singh Dhaliwal against the judgment dated 06.12.1993 passed in CWP No.2216 of 1992 and the same was also dismissed by this High Court vide order dated 25.07.1994 (Annexure P-6). That against the order dated 25.07.1994 in L.P.A. No.418 of 1994, the State Government filed Special Leave Petition No.19184 of 1994 before the Hon'ble Supreme Court and which was also dismissed vide order dated 21.11.1994 (Annexure P-7). Thereafter, the Inspectors Grade-I-successful petitioners in Karora Singh Dhaliwal's case i.e. some of the present respondents represented to the State of Punjab to grant them the pay scale of Rs.1800-3200 w.e.f. 01.01.1986 and the Secretary to Government of Punjab, Department of Co-operation vide letter dated 05.01.1995 (Annexure P-8) directed the Chief Auditor, Co-operative Societies, Punjab to implement the judgment by granting the pay scale of Rs.1800-3200 to the Inspectors Grade-I w.e.f. 01.01.1986. Relevant paras 2 to 4 of Annexure P-8 are reproduced below for ready reference:- “ 2. The petitioners claimed the pay scale of Rs.1800-3200 w.e.f. 01.01.1986 in the writ petition No.2216/92. The writ petition has been allowed with the other writ petition No.14667/91 following the judgment of Civil Writ Petition No.7807/91 and allowed the pay scale of Rs.1800-3200 to the petitioners w.e.f. 01.01.1986. 3. After considering your proposal, the Govt. has decided that as in the case of Sh. Hardaljit Singh and others, the Director, Department of Animal Husbandry, Punjab has allowed the pay scale of Rs.1800-3200 as per decision of the Court, the petitioners in this case are also entitled the pay scale of LPA No.376 of 2003 -9- Rs.1800-3200 w.e.f. 01.01.1986. 4. As per the above decision, you are advised that you may implement in his respect within a week and intimate the Govt. to avoid any other legal complication.” (emphasis supplied) However, no positive steps were taken by the Government of Punjab (appellants herein) to implement the judgment in CWP No.2216 of 1992 titled Karora Singh Dhaliwal and others vs. State of Punjab, which has become final upto the Supreme Court. Thereafter some of respondents herein (writ petitioners) got served notice dated 10.03.1995 upon respondent Nos.1 to 3 and also filed a contempt petition before this Court and ultimately State of Punjab passed the impugned order dated 16.03.1995 (Annexure P-10) and intimated that there is no ground to grant the pay scale of Rs.1800- 3200 to the Inspector Audit Grade-I of the Co-operation Department. In these circumstances, respondents herein (26 of them who were successful petitioners in Karora Singh Dhaliwal's case) filed CWP No.14174 of 1995 titled Harbhagwan Singh Bajwa and others vs. State of Punjab and others challenging the order dated 16.03.1995 (Annexure P-10) and claimed other reliefs also. Government of Punjab-Respondent Nos.1 to 4 in their reply to the writ petition besides admitting the aforesaid admitted facts raised the preliminary objection that courts should not interfere with the matter of equation of posts and pay as these matters are primarily concerning the government. It was further asserted that there is no case for parity or comparison with the posts which have altogether different duties, responsibilities and qualifications/experience. The petitioners were not Junior Auditors on or after 01.01.1978 and the cadre of Junior Auditors had been merged with the Inspectors Audit w.e.f. 01.01.1978 and thus claim of the petitioners for the grant of pay scale of Rs.1800-3200 w.e.f. 01.01.1986 was without any basis. It is denied that w.e.f. 01.01.1978 selection grade of Rs.700-1200 was granted to the Inspector Audit upto the LPA No.376 of 2003 -10- extent of 20% posts. In fact the selection grade was allowed w.e.f. 10.10.1983 vide order dated 10.10.1984 (Annexure R-1). It is further submitted that First Pay Commission also recommended merger of the post of Junior Auditors with the post of Inspector Audit and recommended the pay scale of Rs.160-400 and 50% Junior Auditors to the designated as Inspector Audit Grade-II in the pay scale of Rs.200-400. The cadre of Junior Auditors in the Co-operative Department ceased to exist w.e.f. 01.01.1978. It is further submitted that the duties and responsibilities of the Junior Auditors working in the Co-operative Audit Department and the Junior Auditors working in other departments namely Animal Husbandry etc. cannot be considered to the identical in the absence of any documentary evidence. The pay scales are allowed for different posts with some nomenclature in different departments keeping in view various facts such as academic qualifications, nature of duties and responsibilities etc. The writ petition was allowed by the learned Single Judge mainly by relying upon the judgment dated December 6, 1993 in Karora Singh Dhaliwal's case (Annexure P-4) and R.S. Bhullar's case (Annexure P-5) and order dated 25th July, 1994 passed by LPA Bench (Annexure P-8) in LPA No.418 of 1994 titled State of Punjab and others vs. Karora Singh Dhaliwal and others and dismissal of SLP their against by Hon'ble Supreme Court. We have heard learned counsel for the parties at length and perused the paper book with their assistance. In our considered opinion, we find no merit in the contention raised by the State of Punjab in the present LPA and the appeal is thus devoid of any merit. Perusal of the order dated 6th December, 1993 (Annexure P-4) reveals that CWP No.2216 of 1992 Karora Singh Dhaliwal and others v. State of Punjab was filed by 26Inspectors Audit Grade-I of the Co-operative Department (some of the respondents herein), inter alia, praying the pay scale of Rs.2000-3500 w.e.f. 01.01.1986, the date from which it was granted to Inspectors Agriculture and it was further prayed to place the petitioners in the pay scale which has been granted to Head Clerks (Superintendent LPA No.376 of 2003 -11- Grade-II) Assistants/Accountants of other departments. Civil Writ Petition No.2216 of 1992 (Karora Singh Dhaliwal and others v. State of Punjab) was disposed of vide order dated 06.12.1993 (Annexure P-4) in terms of decision in CWP No.14667 of 1991 (R.S. Bhullar etc. v. State of Punjab etc.). CWP No.14667 of 1991 (R.S. Bhullar etc. v. State of Punjab etc.) was filed by 217 Junior Auditors/petitioners of Food & Supply Department, Punjab, inter alia, praying for quashing of notification/order dated 09.05.1991 (Annexure P-8) to the extent it denied revised pay scale of Rs.1800-3200 to these petitioners w.e.f. 01.01.1986 by imposing a condition of five years service. It was further prayed to direct the respondents to grant the pay scale to the petitioners without taking into consideration the condition imposed in notification dated 09.05.1991, as earlier to this also they have been enjoying the same pay scale as that of Assistants. R.S. Bhullar's case was allowed by the learned Single Judge of this Court vide order dated December 6, 1993 (Annexure P-5). Perusal of the order dated December 6, 1993 shows that CWP Nos.14667, 16082, 8307, 10658 of 1991 and 2216 of 1992 were disposed of by common judgment and the facts were taken from CWP No.14667 of 1991 titled R.S. Bhullar etc. v. State of Punjab etc. This further reveals that in this case petitioners were working as Junior Auditors in the Food and Supplies Department and Assistants/Accountants were given the pay scale of Rs.1800-3200, whereas the same has been denied to them (petitioners, in CWP No.14667 of 1991, R.S. Bhullar's case) and petitioners further alleged that the post of Junior Auditor has been considered equivalent to that of Assistant/Accountant for grant of pay scale right from the year 1969. Therefore, petitioners prayed that action of the respondents in denying the same pay scale is arbitrary and violative of Article 14 and 16 of the Constitution of India. Perusal of order dated 06.12.1993 (Annexure P-5) further reveals that Junior Auditors were granted the pay scale of Rs.1500-2640 with subsequent pay scale of Rs.1800-3200 after five years of service vide Punjab Government Notification dated 09.05.1991 notifying Punjab Civil Services (Revised Pay) (Second Amendment) Rules, LPA No.376 of 2003 -12- 1991 (at page 73 of the paper book), but the said notification was challenged by way of CWP No.7807 of 1991 titled Hardaljit Singh v. State of Punjab, which was decided on 31.10.1991 and a Division Bench modified the said notification to the extent that Junior Auditors would be given the pay scale, which had been given to the Assistants/Accountants i.e. Rs.1800-3200 w.e.f. 01.01.1986, meaning thereby that effectively the condition of five years service was/is deemed to be deleted. In view of this background, learned Single Judge, vide order dated 06.12.1993 (Annexure P-5) has held that since the notification has been amended by the learned Division Bench in Hardaljit Singh's case therefore, Junior Auditors of Food and Supplies Department (petitioners in R.S. Bhullar's case) cannot be denied the same pay scale, as the same would be violative of Article 14 and 16 of the Constitution of India. In these circumstances writ petition was allowed vide order dated 06.12.1993. The perusal of order dated December 6, 1993 (Annexure P-5) also reveals that the writ petition No.14667 of 1991 was not filed by Inspectors Audit Grade-I, rather the same was filed by Junior Auditors working in the Food & Supplied Department. CWP No.2216 of 1992 Karora Singh Dhaliwal and others v. State of Punjab was filed by the Inspectors Audit Grade-I of Co-operative Department and they were demanding the pay scale of Rs.2000-3200 but the same has not been granted in the judgment dated December 6, 1993 rather it simply says that Division Bench of this Court had modified notification dated 09.05.1991 to the extent that Junior Auditors would be given pay scale which had been given to Assistant-cum-Accounts. Admittedly in the Co-operative Department, cadre of Junior Auditors has been merged with Inspector Audit Grade-I. Although, this order is not that much helpful to the petitioners due to the reason that learned Single Judge vide his order dated December 6, 1993 has not granted the relief claimed by the petitioners in CWP No.2216 of 1992 in explicit terms. The order is silent so far as the relief claimed in CWP No.2216 of 1992 by Inspector Audit Grade-I is concerned. But the perusal of order dated July 25, 1994 passed in LPA makes it LPA No.376 of 2003 -13- abundantly clear that the pay scale of the Junior Auditors has been equated to that of Assistants/Accountants and that have been merged with Inspector Audit Grade-I. It is not disputed that prior to passing of the order dated 9th of May, 1980 (Annexure P-2 with the writ petition) the post of Junior Auditor was a feeder post for appointment by promotion to the post of Inspector Audits in the Co-operative Department of State of Punjab, when the cadre of Junior Auditors was ordered to be merged with Inspector Audits w.e.f. 01.01.1978. It is also not disputed that the Government of Punjab vide its instructions dated 14.09.1995 has recognized the fact that the decision of the Courts have become final and all the posts of Junior Auditors in all the Departments are entitled to pay-scale of Rs.1800-3200 w.e.f. 01.01.1986. Reference is made to para 7 of the judgment of the Division Bench titled as State of Punjab and others vs. Rajinder Singh and others reported as 2008 Volume 3 R.S.J. 370. Therefore, in the facts of the present case the denial of atleast similar pay-scales to the Inspectors Audit Grade-I of the Co-operative Department on the ground that in the year 1986 there was no cadre of the Junior Auditors in the Co-operative Department, in our considered view cannot be accepted. In the matter of pay-scales, no doubt the law is well settled that it is the function of the executive or the legislature to recommend the pay-scales for different categories of staff keeping in view the nature of their duties, qualifications and various other factors and for that purpose the Expert Bodies like Pay Commissions give their recommendations and the Court in writ jurisdiction under Article 226 of the Constitution of India ordinarily refrain from interfering, as that would amount to re-writing the recommendations made by the Pay Commissions, except where there are wholesale similarities between two posts and a clear cut case of discrimination/anomalies is made out. The judgments cited by the appellants reported as : Vice Chancellor, G.B.