C.W.P. No. 13029 of 1997 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 13029 of 1997 (O&M) Date of Decision: November 4, 2009 G.L. Batra …Petitioner Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K. Malik, Senior Advocate, with Mr. Manish Jain, Advocate, (in CWP No. 13029 of 1997). Ms. Neelofer A. Perveen, Advocate, (in CWP No. 5684 of 2007) for the petitioner(s). Mr. Sanjeev Kaushik, Addl. AG, Haryana, for the respondents (in CWP No. 13029 of 1997) Mr. Piyush Kant Jain, Addl. AG, Punjab, for respondent Nos. 1 and 3 (in CWP No. 5684 of 2007) 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This order shall dispose of CWP Nos. 13029 of 1997 and 5684 of 2007 as common question of law and facts are involved. 2. The petitioner Shri G.L. Batra has approached this Court with a prayer for quashing order dated 15.4.1997/6.5.1997 (P-13) fixing his pay as Chairman, Haryana Public Service Commission (for brevity, ‘HPSC’) with 1 C.W.P. No. 13029 of 1997 effect from 6.7.1994, under Regulation 6 of the Haryana Public Service Commission (Conditions of Services) Regulations, 1972 (for brevity, ‘Haryana Regulations’). His grievance is that his basic pay has been reduced from Rs. 7,500/- per month to Rs. 4,135/- per month by deducting the retiral benefits being paid to him. FACTS RE: C.W.P. NO. 13029 OF 1997 – HARYANA MATTER 3. The petitioner was working as Additional Secretary, Lok Sabha Secretariat and drawing salary of Rs. 13,250/-. His basic pay at that time was Rs. 7,500/- per month. He was appointed as Chairman of the Haryana Public Service Commission, vide order dated 6.7.1994 (P-1). His service conditions as the Chairman of HPSC were to governed by the Haryana Regulations. Regulation 6(1) postulates that the Chairman would receive a remuneration of Rs. 7,000/- a month, which was enhanced to Rs. 7,500/- vide notification dated 3.10.1996. Besides this he was also entitled to such other allowances as may be admissible to a Government employee drawing the same pay. However, Regulation 6(2) prescribes the remuneration of a person who is appointed as Chairman after his retirement from Government service. In such an eventuality, the incumbent would be entitled to Rs. 7,500/- in addition to the pension sanctioned to him. The first proviso to sub-regulation (2) of Regulation 6 stipulates that the amount of remuneration plus the gross amount of pension or the pension equivalent to other forms of retiral benefits is not to exceed the pay last drawn by him before his retirement or the remuneration mentioned in sub- regulation (1) whichever is higher. The second proviso further provides that the total remuneration plus the gross amount of pension and the pension equivalent to other forms of retirement benefits, excluding the allowances, was not to 2 C.W.P. No. 13029 of 1997 exceed Rs. 8,000/- per month in any case. Regulation 6 of the Haryana Regulations further provides that a member who on the date of his appointment to the Commission was in the service of the Central or State Government would be deemed to have retired from such service with effect from the date of his appointment as member of the Commission. As per Regulation 2(d) of the Haryana Regulations, the expression ‘member’ also includes Chairman of the Commission. 4. The principal ground of challenge of the petitioner is that had he remained in his parent department i.e. Lok Sabha Secretariat as Additional Secretary, he would have earned increment w.e.f. 1.9.1994 and his basic pay would have been Rs. 7,600/- per month. He was senior most Additional Secretary and was likely to be promoted as Secretary General, Lok Sabha, which is a post equivalent to the status of Cabinet Secretary. It has, thus, been asserted by the petitioner that the last pay drawn by him was required to be protected upon his appointment as Chairman of the HPSC. In that regard he made a representation to the State Government as well as the HPSC (P-3 & P- 4). On 15/18.3.1996, in relaxation of the provisions contained in Regulation 6 of the Haryana Regulations, his pay was fixed at Rs. 7,500/- per month w.e.f. 6.7.1994 as a personal measure to him (P-5). The aforementioned order was silent about the date of admissibility of allowance. Therefore, the HPSC sent a reference to the Government on 20.6.1996 seeking clarification as to whether the allowances were to be given w.e.f. 1.1.1986 as given to other State Government employees or w.e.f. 1.1.1989 when Regulation 6 was amended to include ‘allowances’ in addition to the basic pay (P-6). The petitioner separately also represented to the Government through the Chief Secretary, 3 C.W.P. No. 13029 of 1997 Haryana (P-8). The aforementioned request was rejected vide order dated 23.10.1996 and the Government reiterated its earlier decision (P-9). Subsequently, order dated 18.3.1996 fixing the remuneration of the petitioner in relaxation of Regulation 6 was withdrawn and the excess payment made to him were ordered to be recovered, vide order dated 29.11.1996 (P-10). 5. On 26.12.1996, the petitioner again represented to the Governor of Haryana (P-11) followed by another letter dated 3.2.1997 (P-12). However, vide order dated 15.4.1997/6.5.1997, the pay of the petitioner was re-fixed at Rs. 4,135/- as basic pay per month (P-13), which is subject matter of challenge in the instant petition. 6. In the written statement filed by respondent No. 1, the factual position as noticed above has not been controverted. Justifying fixation of pay of the petitioner it has been asserted that as per the provisions of Regulation 6 of the Haryana Regulations the pay of a retired Government employee on his appointment as Chairman of HPSC, has to be fixed in such a manner that by including the amount of pension and amount of pension equivalent to other forms of retirement benefits, it does not exceed the last pay drawn by him before his retirement or Rs. 7,500/- as provided in Regulation 6(1), whichever is higher and that if the pay last drawn before his retirement is admissible then it was subject to the ceiling of Rs. 8,000/- per month. 7. On 20.1.1998, when the writ petition came up for consideration, the Division Bench passed the following order:- “ Learned counsel for the petitioner submits that some writ petitions involving similar points as in the present writ petition stand admitted and in those writ petitions, interim directions were 4 C.W.P. No. 13029 of 1997 given as to how the emoluments are to be disbursed to those petitioners during the pendency of the writ petition. In para 18 of the reply filed on behalf of the respondents, it has been stated as under: “18. In reply to para 18 it is submitted that civil writ petition Nos. 1355/91, 4029/87, 11839 of 89, 2898 of 92 and 15159 of 1995, wherein the vires of the provisions of regulation 6 were challenged, have been admitted for regular hearing. As explained in the foregoing paras there is no force in the contention of the petitioner. The provisions of the regulations are valid and constitutional. It is, however, submitted that in the two civil writ petitions cited in this para by the petitioner, the Hon’ble High Court had directed not to deduct the amount of pension etc. from the emoluments. In CWP No. 15159 of 1995 the direction was, however, subject to the furnishing of adequate security and undertaking that the amount will be returned with 18% interest.” In view of the above, we admit this writ petition to regular hearing and order it to be heard with C.W.P. No. 15159 of 1995. As an interim measure it is ordered that during the pendency of the writ petition, respondents would not deduct the pension and gratuity from the pay of the petitioner subject to the petitioner furnishing adequate security and undertaking to the respondents that in case the writ petition is dismissed, the said amount would be returned with 18% interest. Let such security/undertaking be filed 5 C.W.P. No. 13029 of 1997 within a month.” 8. On 4.3.1998, the Division Bench modified the interim order to the following extent:- “ After hearing learned counsel for the parties, we modify interim order dated January 20, 1998, to the extent that in the last line of the order which read “subject to the furnishing of adequate security and undertaking that the amount will be returned with 18% interest” would now be read “subject to furnishing an undertaking that the amount would be refunded.” 9. In terms of the order dated 4.3.1998, the petitioner furnished his undertaking on 10.3.1998. According to the order dated 20.1.1998, the instant petition was required to be heard along with CWP No. 15159 of 1996 (Ram Phal Singh v. State of Haryana and others), which was disposed of by a learned Single Judge of this Court on 8.9.2004. Accordingly, the petitioner filed an application under Article 226 of the Constitution read with Section 151 CPC, bearing C.M. No. 1000 of 2005, for disposal of the writ petition in terms of the decision rendered in Ram Phal Singh’s case (supra). In reply to the aforementioned application the respondent State took the stand that against the judgment rendered in Ram Phal Singh’s case (supra) and other connected petitions, appeals bearing LPA Nos. 110 to 116 of 2005, were preferred by the respondent State of Haryana and the Letters Patent Bench admitted the same. However, the prayer for stay was declined. In view of the aforementioned stand, while disposing of CM No. 1000 of 2005 vide order dated 29.8.2005, learned Single Judge ordered that the instant petition be listed after the decision of LPA Nos. 110 to 116 of 2005. 6 C.W.P. No. 13029 of 1997 10. Another application under Section 151 CPC, bearing CM No. 7372 of 2007, was filed by the petitioner pointing out that LPA Nos. 110 to 116 of 2005, which were filed against the judgment dated 8.9.2004 rendered in CWP No. 15159 of 1995 (supra), were dismissed by the Letters Patent Bench vide order dated 19.3.2007, upholding the judgment of learned Single Judge (P-21). The Letters Patent Bench also noticed the fact that the judgment of learned Single Judge in CWP No. 15159 of 1995 (supra) was relied upon by a Division Bench of this Court in the case of M.P. Pandove v. State of Punjab and others (CWP No. 85 of 2005, decided on 26.2.2005) and the Special Leave Petition against the said order was dismissed by Hon’ble the Supreme Court. 11. In para 3 of the reply to C.M. No. 7372 of 2007, respondent No. 1 asserted as under:- “3. That in reply to para 3, it is submitted that this writ petition is covered by the judgment of Hon’ble Single Judge which has also been upheld by the Division Bench except the point raised by the petitioner in his writ petition regarding fixation of pay as a special case. However, in CWP No. 15159 of 1996- Ram Phal Singh Vs. State of Haryana, the petitioner has agreed the proviso of Regulation 6(2) of the Haryana Public Service Commission (Conditions of Service) Regulation, 1972. The petitioner has also prayed in that writ petition that the reduction of pension and pension equivalent to gratuity should not be deducted from the pay of the petitioner. It is, therefore, stated that the controversy involved in the writ petition is not squarely covered as has been stated by the petitioner.” (emphasis added) 7 C.W.P. No. 13029 of 1997 12. On 4.5.2009, learned Single Judge noticed that the petitioner has challenged certain statutory provisions in this writ petition. Accordingly, after appropriate orders having been passed by Hon’ble the Chief Justice, the matter has been placed before us. FACTS RE: C.W.P. NO. 5684 OF 2007 – PUNJAB MATTER 13. The petitioner in this petition has challenged the constitutional validity of proviso (i) to Regulation 5(1) of the Punjab State Public Service (Condition of Service) Regulations, 1958 (for brevity, ‘the Punjab Regulations’) being ultra vires of Articles 14 and 16 of the Constituion. He has also sought quashing of order dated 7.9.2006 (P-2) vide which his basic pay has been fixed at Rs. 12,425/- per month instead of basic pay of Rs. 27,600/- per month. He has further sought a direction to the respondents to fix his basic pay at Rs. 27,600/- from the date of his appointment as Member of the Punjab Public Service Commission (for brevity, ‘PPSC’) and to pay arrears along with interest. 14. The petitioner-Shri D.S. Grewal stood retired from Indian Army as Brigadier on attaining the age of superannuation on 31.12.2005. Thereafter, he was appointed as a Member of PPSC vide notification dated 9.5.2006. The conditions of service of the petitioner as Member of PPSC are governed by the Punjab Regulations. Regulation 5(1) proviso (i) appended thereto of the Punjab Regulations relates to emoluments of the Chairman or a Member of the PPSC. 15. On 7.9.2006, an order was passed by respondent No. 2 fixing the pay of the petitioner at Rs. 12,425/- (P-2). The petitioner has claimed that his basic pay ought to have been fixed at Rs. 27,600/-. The petitioner has prayed 8 C.W.P. No. 13029 of 1997 for allowing the instant petition by placing reliance on the judgment of learned Single Judge rendered in Ram Phal Singh’s case (supra), Division Bench judgment rendered in M.P. Pandove’s case (supra) and orders passed by Hon’ble the Supreme Court dismissing the special leave petitions. 16. While admitting the factual position, the stand taken by respondent Nos. 1 and 3 is that the pay of the petitioner has been rightly fixed under the provisions of Regulation 5 of the Punjab Regulations. It has been submitted that the judgments relied upon by the petitioner are not applicable in the instant petition because the respondent State of Punjab has never given any concession, as has been given by the learned State counsel in Haryana matters. In that regard reliance has been placed on the judgment of Hon’ble the Supreme Court rendered in the cases of Uptron India Ltd. v. State Shammi Bhan, (1998) 6 SCC 538 and Central Council for Research in Ayurveda v. Dr. K. Santha Kumari, (2001) 5 SCC 60. RIVAL CONTENTIONS: 17. Mr. R.K. Malik, learned senior counsel and Ms. Neelofer A. Perveen, learned counsel for the petitioner(s) have argued that Regulation 6 (1) & (2) of the Haryana Regulations have already been declared as ultra vires of Articles 14, 16(1) and 318(2) of the Constitution. In that regard he has placed reliance on the Single Bench judgment of this Court rendered in Ram Phal Singh’s case (supra) and argued that once two persons coming from different sources are put to work on the same post and they are to discharge the same functions which are inter-changeable then in the matter of pay there could not be any discrimination. According to the learned senior counsel, the petitioner was working as Joint Secretary, Lok Sabha in the year 1994 when he was 9 C.W.P. No. 13029 of 1997 appointed as a Chairman of HPSC. Mr. Malik contended that proviso to Regulation 6 of the Haryana Regulations contemplates an anomalous situation, inasmuch as, a person like the petitioner with 10 years or more service would be entitled to a maximum of the pay drawn by him and the salary is not to exceed the last pay drawn. If the aforesaid principle is worked out, learned counsel has submitted then the petitioner would be entitled to a sum of Rs. 7,500/- with further condition that the pension or other retiral benefits representing pension have to be deducted. As compared to the aforesaid in case of a person, who has not earned any pension being ex-employee and who is appointed as the Chairman/Member of the Commission then he would continue to get full pay which would be much more because there would be no cut applied in his case. Illustrating his argument Mr. Malik has submitted that a lawyer after thriving practice would earn full pay whereas an ex-employee has to suffer cut from the salary by deduction pension amount. Therefore, he has maintained that for the same duty, the petitioner would get the pay which is reduced by the amount of pension whereas the person who has come from the open field would get full pay. Therefore, there is hostile discrimination in the matter of pay although both are the incumbent to the same office albeit from a different source. 18. Ms. Neelofer A. Perveen, learned counsel in Punjab matter has adopted the aforesaid argument by submitting that Regulation 5(i) of the Punjab Regulations in sum and substance is the same. 19. Mr. P.K. Jain, learned Additional Advocate General, Punjab and Mr. Sanjeev Kaushik, learned Additional Advocate General, Haryana, have submitted that Regulation 5 of the Punjab Regulations and Regulation 6 of the Haryana Regulations respectively do not suffer from any constitutional 10 C.W.P. No. 13029 of 1997 invalidity and are liable to be upheld. They have argued that in the matters of pay an employee who has not yet earned pension, can lawfully be treated differently than the one who has started to earn pension. They have maintained that the distinction between the two classes of employees is explicit because in the first case a person continues to be an employee whereas in the second case he becomes an ex-employee earning pension. Both the categories constitute two different distinct classes and un-equals cannot be treated equally. Both the learned State counsel have challenged the view taken by a learned Single Judge in Ram Phal Singh’s case (supra) and have argued that the learned Single Judge has committed a serious error of law by treating un-equals equally. The theory of persons coming from different sources forming one cadre and then becoming entitled to same salary is wholly in-applicable to the facts of the instant petitions because both the Punjab Regulations and Haryana Regulations make a rationale classification. They have further submitted that the reliance of the learned Single Judge in Ram Phal Singh’s case (supra) on the judgments of Hon’ble the Supreme Court rendered in the cases of Mervyn Continho v. Collector of Customs, Bombay, 1967 S.L.R. 1; Roshan Tandon v. Union of India, 1967 S.L.R. 12; S.M. Pandit v. State of Gujarat, 1972, S.L.R. 79; and Ramchandra Shanker Deodhar v. State of Maharashtra, 1974 (1) S.L.R. 470, is wholly misplaced because no such principle of law has been laid down in those cases, which may lead to a conclusion that a retiree with pension would be entitled to the same pay scale without deducting pension, which are given to a regular employee who is yet to retire. 20. The controversy raised in these petitions is dependent on the interpretation of Regulation 5 of the Punjab Regulations and Regulation 6 of the 11 C.W.P. No. 13029 of 1997 Haryana Regulations. Both the regulations are reproduced as under:- Regulation 5 of the Punjab Regulations “5(1) “The Chairman shall receive pay in the scale of Rs. 22,400- 525-24,500 and other Members in the pay scale of Rs. 18,400-500- 22,400 and in addition thereto they shall also be entitled to get such other allowances as may be admissible from time to time to Government employees getting similar pay.” “Provided that:- (i) If the Chairman or a Member at the time of appointment as such is a person who has retired from service under the Central Government, a State Government, a local authority, a university, a privately managed recognised school or an affiliated college or any other body wholly or substantially owned or controlled by the Punjab Government, and who is in receipt of or has received or has become entitled to receive and retirement benefit by way of pension, gratuity, contributory provident fund or otherwise, the pay specified in this regulation shall be reduced by the gross amount of any kind of pension including any portion of the pensions which may have been commuted. Provided that the amount of pension not exceeding five hundred rupees per mensem, shall not be taken into consideration for fixing the pay.” Regulation 6 of the Haryana Regulations 12 C.W.P. No. 13029 of 1997 “6 (1) The Chairman shall receive a remuneration of seven thousand rupees a month. They shall also be entitled to such other allowances as may be admissible in future from time to time, to Government employees drawing the same pay in addition to four hundred rupees a month as car allowance provided a car is maintained. (2) Chairman or the member, if, at the time of his appointment as such, is a retired Government employee he will be entitled to the remuneration mentioned in sub regulation (1) in addition to the pension sanctioned to him. Provided that the amount of remuneration plus the gross amount of pension or the pension equivalent to other forms of retirement benefits does not exceed the pay last drawn by him before his retirement or the remuneration mentioned in sub- regulation (1) whichever is higher: Provided further that the total remuneration plus the gross of pension and the pension equivalent to other forms of retirement benefits, excluding the allowances, shall in no case exceed eight thousand rupees per month. (3) The Chairman or the Member who at the time of his appointment as such, is in the service of the Central or State Government and does not exercise option under sub-regulation (1) of regulation 9 shall be paid the remuneration drawn by him immediately before his appointment as Chairman or Member, as the case may be or the remuneration mentioned in sub-regulations (1) 13 C.W.P. No. 13029 of 1997 whichever is higher, till the date of his retirement from Government Service in the normal course and thereafter his remuneration shall be regulated as provided in sub regulation (2). (4) A Member who, in the absence of the Chairman on leave or otherwise, is asked to perform the additional duties of the Chairman, shall be entitled to an additional remuneration at the rate of two hundred rupees a month: Provided that such additional duties are performed for a period of not less than fourteen days.” 21. A bare perusal of Regulation 5 of the Punjab Regulations would show that the Chairman of PPSC is to receive pay in the scale of Rs. 22,400- 525-24,500. The member of the PPSC is to get salary in the pay scale of Rs. 18,400-500-22,400. They are also entitled to get such other allowances as may be admissible to the government employees getting similar pay scale in addition. It is, thus, clear that this is the pay scale given to the Chairman and the Members of the PPSC, if incumbents of those posts do not enjoy any retiral benefits. 22. The proviso underneath Regulation 5(1) clarifies that if the Chairman or a Member at the time of appointment as such is a pensioner having retired from service either of the Central Government, State Government, a local authority, a university, a privately managed recognised school or an affiliated college or any other body wholly or substantially owned or controlled by the Punjab Government and who is in receipt of or has received or has become entitled to receive retirement benefits by way of pension, gratuity, contributory provident fund or otherwise, then the pay specified in Regulation 5 14 C.W.P. No. 13029 of 1997 (1) has to be reduced by the gross amount of any kind of pension including any portion of pension which may have been commuted. It is further qualified with another proviso that the amount of pension not exceeding Rs. 500/- per month is not to be taken into account for fixing the pay. In other words, the pay of a re- employed pensioner or a person who has been appointed as Chairman or Member of PPSC has to be reduced by the gross amount of any kind