IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7727/2008 Decided on: 16.6. 2010 _____________________________________________ Roop Ram. …Petitioner. Versus Himachal Pradesh Development corporation and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Jeevesh Sharma, Advocate. For the Respondents: Mr. Rajesh Verma, Advocate vice Mr. Rajinder Dogra, Advocate for respondent No.1. Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No.2 and 3. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was appointed Guide-cum-Clerk in respondent No.1-Corporation on daily wage basis in the year 1976. He was regularized in the year 1980. He was promoted to the post of Traffic Assistant, which was subsequently re-designated as Assistant Manager (Transport) on 3.9.1987. Petitioner was granted pay scale of Rs. 1500-2640 with effect from 1.1.1986. The corporation decided to pay higher pay scale of Rs. 1800-3200 to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 certain categories such as Deputy TDO / Senior Assistants, who were earlier in the pay scale of Rs. 1500-2640. Petitioner and similarly situate persons made several representations to the respondent-corporation to grant them pay scale of Rs. 1800-3200. Respondent-corporation took a conscious decision vide Annexure A-3 to grant pay scale of Rs. 1800-3200 to the category of the petitioner, i.e. Traffic Assistant with effect from 1.1.1994. Petitioner and similarly situate persons made representation to the respondent-corporation to remove the anomaly and give the higher pay scale to the petitioner and other similarly situate persons with effect 1.1.1986. Petitioner and similarly situate persons were informed vide Annexure A-4 dated 22.4.1995 that their prayer for the grant of pay scale of Rs. 1800-3200 has been rejected by the State Government. The Managing Director of the respondent- corporation sent a copy of memorandum for removal of anomalies prevailing in the pay scale of the employees of the respondent- corporation for consideration and approval of service on 3.12.1996. The Service Committee deferred the decision in its meeting held on 5.4.1997. The matter was also taken up by the employees’ Union with the Management, as is evident from Annexures A-8 and A-9, respectively. 2. Mr. Jeevesh Sharma has strenuously argued that the action of the respondents of non-granting pay scale of Rs. 1800- 3200 with effect from 1.1.1986 to the petitioner is arbitrary, unfair, unjust and thus, violative of Articles 14 and 16 of the Constitution of India. 3 3. Mr. Rajesh Verma, Advocate and Mr. Vikas Rathore, learned Deputy Advocate General appearing on behalf of respondents No.1, 2 and 3, respectively, have supported the decision of the State and Management. They have further contended that the matter was also taken by the Service Committee on 9.7.2009, but the prayer of the petitioner was not acceded to. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. What emerges from the above enumerated facts is that petitioner and similarly situate persons were working in the pay scale of Rs. 570-1080. The pay scale of Rs. 570-1080 was revised to Rs. 1500-2640 with effect from 1.1.1986. This pay scale of Rs. 1500-2640 was paid to Deputy TDO/Senior Assistant. However, State Government vide letter dated 18.8.1990 and 31.10.1992 decided to revise the pay scale from Rs. 1500-2640 to Rs. 1800- 3200. The category of the petitioner was left out and the pay scale of the category of the petitioner was subsequently revised from Rs. 1500-2640 to 1800-3200 but with effect from 1.1.1994. The decision of the respondents not to revise the pay scale of the petitioner from Rs. 1500-2640 to Rs. 1800-3200 with effect from 1.1.1986 is arbitrary. Respondent-corporation could not pick up different dates for releasing revised pay scale arbitrarily. There has to be nexus with the object sought to be achieved while fixing the date. Petitioners were drawing the same pay scale as discussed hereinabove, i.e. Rs. 570-1080, which was revised to Rs. 1500- 4 2640. However, respondents have decided to revise the pay scale of few categories, who were placed in the pay scale of Rs. 1500- 2640 to Rs. 1800-3200 with effect from 1.1.1986. Petitioner and similarly situate persons have been discriminated against. It is settled principles under the service jurisprudence that it is for the employer to decide which category has to be paid which pay scale. However, while granting the benefits at the time of revision of pay scale, the employer cannot discriminate in granting the pay scale to similarly situate employees. Petitioner was similarly situate since he was in the pay scale of Rs. 1500-2640 vis-à-vis the category of Deputy TDO/Senior Assistant. However, without there being any plausible justification, his prayer for revision of pay scale of Rs.1800-3200 with effect from 1.1.1986 has been rejected arbitrarily as per Annexure A-4. It is not that the Management was not aware of the pay anomaly. It is for this reason that the Managing Director of the corporation had taken up the matter with the Director, Institutional Finance and Public Enterprises, Government of Himachal Pradesh vide Annexure A-5 dated 3.12.1996. The Managing Director had favourably recommended the case of the petitioner. The Service Committee should have taken the decision instead of deferring the matter in its meeting held on 5.4.1997. The Court had directed the Service Committee to reconsider the matter vide order dated 6.5.2009. The Service Committee met on 9.7.2009, however, it has again rejected the prayer of the petitioner. The primary reason while rejecting the prayer of the petitioner is financial difficulties faced by the 5 Corporation. There may be financial difficulties faced by the respondent-corporation, however, it was not open to respondent- corporation to give particular pay scale with effect from 1.1.1986 by denying the same to similarly situate category from the due date. Respondent-corporation has taken a decision to increase the pay scale of the petitioner from Rs. 1500-2640 to Rs. 1800-3200. However, it has decided to release this pay scale with effect from 1.1.1994. 6. Respondents have indulged in the practice of pick and choose. There has to be uniformity and consistency in the public enterprise like respondent-corporation. The justification given by the respondents for not releasing the pay scale to the petitioner with effect from 1.1.1986 is not legally tenable. It is a case of invidious discrimination. 7. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to release pay scale of Rs. 1800-3200 to the petitioner with effect from 1.1.1986 instead of 1.1.1994. This amount will carry interest @ 9% per annum. Need be done within a period of eight weeks from today. No costs. (Rajiv Sharma), Judge 16.6. 2010 *awasthi*