IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1) CWP No.12750 of 2009 Date of Decision: 13.08.2010 Sarabjit Singh and others ........Petitioners Versus State of Punjab and another .......Respondents 2) CWP No.15623 of 2009 Ravinder Kumar and others ........Petitioners Versus State of Punjab and another .......Respondents CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. Amit Jhanji, Advocate. Mr. Karminder Singh, Advocate. Ms. Kavita Arora, Asstt. Advocate General, Punjab. Mr. Girish Agnihotri, Senior Advocate with Mr. Arvind Sethi, Advocate. ****** PERMOD KOHLI, J. Having common factual background and common questions of law, both these petitions are being disposed of by this common order. The facts have been taken from C.W.P. No.12750 of 2009. Petitioners involved in both these petitions are working as Clerks in District Courts in the State of Punjab. They are seeking removal of the discrimination against them in the matter of pay scales. All these petitioners are under-Graduates. They were recruited/promoted to the post CWP No.12750 of 2009 -2- of Clerks at the time when the qualification for the post of Clerk was Matriculation. They are governed by the statutory rules namely Punjab Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1997 (hereinafter referred to as “the Rules”). Under Rule 7 of the Rules, appointment to the post of Clerk is in the ratio of 90% by direct recruitment and 10% by promotion. When the Centre Government appointed Shetty Commission to recommend the pay scales for the judicial officers, the judicial staff also represented and Shetty Commission was also asked to examine the pay scales for the judicial staff on uniform basis. Shetty Commission accordingly made recommendations not only for the judicial officers but also for the judicial staff. Regarding the Clerks, the Shetty Commission noticed the existing position and made its recommendations. The relevant extract from the report of the Commission is as under:- “A. EXISTING POSITION: Most of the Common Category posts in the Subordinate Judiciary carry the pay scale of their counterparts in the departments of the State Government. There is, however, one exception. It is stated during the hearing that the entry level Clerical post which is styled as “Clerk” originally carried the pay scale of Rs.3120-5160 when the prescribed qualification was Matriculation. In 1999, the qualification has been raised to Graduation. But, the pay scale remains the same. It is, however, complained that similar posts in the Field Departments with the qualification of graduation have been given the pay scale of Rs.5000-8100. It is requested that similar pay scale be given to Court Clerks. That the Shetty Commission considered the request of Clerks to be reasonable and found that there is no justification for CWP No.12750 of 2009 -3- discrimination and recommended pay scale of 5000-8100 to the clerks but inadvertently this pay has been recommended to Graduate Clerks as it is apparent because this recommendation para comes under the para of Clerks. Para is reproduced herebelow:- “C. OUR RECOMMENDATIONS: 1. Clerks: We consider that the request of the Court Clerks is reasonable. We see no justification for discrimination. We, therefore, recommend the pay scale of Rs.5000-8100 to Graduate Clerks in the Courts.” It appears that on the basis of the recommendations of the Shetty Commission that the Clerks were placed in the pay scale of Rs.5000- 8100/-, however, the above scale was granted only to the Graduate Clerks whereas the under-Graduate Clerks were Matriculate were allowed the pay scale of Rs.3120-5160/-. Aggrieved of the grant of different pay scales to the under- Graduate Clerks, a writ petition in CWP No.20433 of 2008 titled as Sarabjit Singh and others Versus State of Punjab and others was filed in this Court. This writ petition was disposed of with the direction to the respondents to take final decision on the representation filed by the Clerks within a period of six months, vide order dated 04.12.2008 (Annnexure P-3). Some of the petitioners, who had filed the aforesaid writ petition, filed a representation (Annexure P-4) for consideration. This representation has been rejected, vide the impugned order dated 03.06.2009 (Annexure P-6). The petitioners have challenged the aforesaid order primarily on the following grounds:- (1) Discrimination between the members of the same cadre. (2) Compared for the equal person. CWP No.12750 of 2009 -4- It is admitted case of the parties that Graduates and under- Graduate Clerks constitute a single cadre. Even under-graduate Clerks ranks senior to the Graduate Clerks. It is equally admitted position that Clerks perform similar duties, their nature of job is similar wherever they may be posted. When the under-Graduate Clerks were appointed, qualification for the post of Clerk was matriculation and thus, they were eligible and fully qualified for said appointment. It was only in the year 1999 when the qualification for the post of Clerk was enhanced from Matriculation to Graduation, no separate cadre for Graduate Clerk was constituted. Only ground on which, the distinct pay scale is sought to be justified by the respondent is that the Shetty Commission recommended pay scale of Rs.5000-8100/- for Graduate Clerks. I have considered the recommendations of the Shetty Commission. There is nothing in the report/recommendations of the Shetty Commission, which may justify the different pay scales for Graduate and under-Graduate Clerks. Shetty Commission has only taken into consideration the enhancement of the qualification for Clerks after 1999 whereas their nature of job, duties and the fact that they constitute a common cadre, has not been discussed at all. The recommendations also do not contain any condition or suggestion for different pay scales in the same cadre. It appears that the State Government has totally misunderstood the recommendations of the Shetty Commission and consequential mis-applied the same to create discrimination between the employees, constituted in the same cadre. Admittedly, there is a discrimination between the Graduate and under-Graduate Clerks even though they constitute the same cadre and both categories were fully qualified and eligible at the time of their recruitment to the service. Such discrimination is impermissible in law. Hon'ble Supreme Court in case of CWP No.12750 of 2009 -5- Roshan Lal Tandon Vs.Union of India AIR 1967, Supreme Court, 1889, held as under:- “The recruits from both thesources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from onesource as against the recruits from the other source in the matter of promotion to Grade 'C'. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade 'C'.” Apart from the question of discrimination, the petitioners are also entitled to equal pay and wages as they are performing the duties of same nature being members of the same cadre. There is absolutely no distinction in the performance of their duties and the nature of job irrespective of their qualification. Doctrine of equal pay for equal work fully applicable in such situation. For the above reasons, these petitions are allowed. The impugned order dated 03.06.2009 (Annexure P-6) is hereby quashed. Consequently, respondents are directed to place the petitioners in the pay scale of Rs.5000-8100 with effect from the date, the pay scales were allowed to Graduate clerks. The arrears of differential amount of pay scales be calculated and paid to the petitioners within a period of four months, failing which, the petitioners shall be entitled to interest at the rate of 6% from the date, the amount became due till the amount is actually paid. A copy of this order be placed on each connected file. 13.08.2010 (PERMOD KOHLI) Gagan JUDGE