Regular Second Appeal No.2029 of 1986. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.2029 of 1986. Date of decision:30-5-2008 Punjab State Electricity Board. ...Appellant. Versus Rajiv Ohri and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. G.S.Sandhawalia and Mr. S.K.Paruthi Advocates for the appellant. Dr.Balram Gupta, Senior Advocate with Mr. Vikrant Hooda, Advocate for the respondents. ... K. C. Puri, J. Judgment. Under challenge, in this appeal, is the judgment and decree dated 23.4.1986 passed by Shri M.S.Luna, the then Additional District Judge, Patiala vide which he accepted the appeal preferred by the plaintiffs/respondents against the judgment and decree dated 2.9.1985 passed by Shri H.P.Handa, the then Sub Judge Ist Class, Patiala. Shorn of unnecessary details, the case of the plaintiffs, now Regular Second Appeal No.2029 of 1986. -2- respondents, as set up in the plaint, was that they were entitled to the pay scale of Rs.800-1400 plus special pay of Rs.50/- with effect from their respective dates of appointments. They pleaded that the Punjab State Electricity Board created cadre of Law Officers with effect from 7.11.1982 separating the same from the general cadre, with pay scale of Rs.700-1200. They along with Swaraj Singh, Roshan Lal, Gulzar Singh and P.S.Bajaj were working as Law Officers in Legal Section of PSEB and, thus, all of them constituted one cadre and performed same duties and functions. They were given the pay scale of Rs.700-1200 while Swaraj Singh and others were given the pay scale of Rs.800-1400 plus special pay of Rs.50/-. They, feeling aggrieved against the discrimination, made representations to the Board that all of them should be treated alike and given same pay scale but their representations were rejected by the Board on 6.8.1984. The suit was contested by the defendant, now appellant, on the ground that Swaraj Singh etc. belonging to the general cadre of Assistants were in the pay scale of Rs.600-1120 with a senior scale of Rs.800-1400 for 50% of the posts, with effect from 1.1.1978. The said officers being seniors in the general cadre of Assistants had already earned senior scale of Rs.800-1400 with effect from 1.1.1978 while working as Law Officers Grade II and Prosecuting Inspectors before the formation of the separate cadre of Law Officers. The plaintiffs other Regular Second Appeal No.2029 of 1986. -3- than Rajiv Ohri were appointed as Law Officers Grade II, after the formation of separate cadre of Law Officers, offering them the pay scale of Rs.700-1200 which they accepted. Selection grade of Rs.800- 1400 for 20% of the posts of Law Officers was provided. On compassionate grounds, Rajiv Ohri was appointed as Law Officer Grade II on 18.3.1981 in the scale of Rs.600-1200 plus special pay of Rs.50/- which was also revised later on to Rs.700-1200 from the date of his appointment on his request. Swaraj Singh, Roshan Lal, Gulzar Singh and P.S.Bajaj had already earned senior scale of Rs.800-1400 on the basis of seniority-cum-merit and were also given special allowance of Rs.50/- in lieu of special higher responsibilities while working in the general grade and the same grade cannot be given to the plaintiffs who were selected in the pay scale of Rs.700-1200. From the pleadings of the parties, the following issues were framed by the trial Court:- 1.Whether the plaintiffs are entitled to the declaration as prayed for?OPP. 2.Whether the action of the Board by giving grades of Rs.700-1200 to the plaintiffs is illegal, ultra vires as alleged?OPP. 3.Whether the representations of the plaintiffs have been illegally rejected on 6.8.1984?OPP. 4.Whether the plaintiffs are entitled to the scale of Rs.800- Regular Second Appeal No.2029 of 1986. -4- 1400 as alleged?OPP. 5.Whether the suit is bad for mis-joinder of necessary parties?OPD. 6.Whether the suit is not maintainable?OPD. 7.Relief. Issue Nos.1 to 4 were decided against the plaintiffs and in favour of the defendant. Issue Nos.5 and 6 were not pressed. Consequently, the suit of the plaintiffs was dismissed, vide judgment and decree dated 2.9.1985. Feeling aggrieved against the said judgment and decree, the plaintiffs preferred an appeal which was accepted by the then Additional District Judge, Patiala vide impugned judment and decree dated 23.4.1986. Feeling dis-satisfied, the Board has preferred this appeal. I have heard arguments addressed by the counsel for the parties and have carefully gone through the record of the case. From the submissions made by both sides, the following substantial questions of law arise:- 1. Whether the first Appellate Court has mis-interpreted and mis-understood the documents on the file for acceptance of appeal? 2. Whether there can be two scales for the same post? So far as the facts of the case are concerned, the same are Regular Second Appeal No.2029 of 1986. -5- not in dispute. Swaraj Singh, Roshan Lal, Gulzar Singh and P.S.Bajaj were working as Law Officers in Legal Section of PSEB. The original cadre of these officers was that of Assistants at head office. Initially they were in the pay scale of Rs.600-1120 but on account of selection grade, they were placed in the pay scale of Rs.800-1400 plus Rs.50/- as special pay. One cadre of law officers was created vide office order No.4895/Cadre dated 17.11.1982. The pay scale of Law Officer, Grade II was fixed at Rs.700-1200. Selection grade of Rs.800-1400 was to be granted to 20% of the posts of Law Officers .Swaraj Singh etc. and the plaintiffs joined the separate cadre of Law Officers vide order dated 17.11.1982. Rajiv Ohri was appointed as Law Officer on compassionate grounds on 18.3.1981 in the pay scale of Rs.600-1120 plus Rs.50/- as special pay which was, later on, revised to Rs.700-1200 from the date of his appointment. The necessary details of the appointments of Swaraj Singh, Roshan Lal, Gulzar Singh and Prithi Pal Singh Bajaj and the plaintiffs except Rajiv Ohri are given as under:- Serial No. Name of the official. Date of appointment as Law Officer Grade-II 1. Shri Swaraj Singh. 8.7.75 FN 2. Shri Roshan Lal 1.3.1977 FN 3. Shri Gulzar Singh 28.12.1979. 4. Shri Prithi Pal Singh Bajaj 8.8.1980 AN. Plaintiffs. 5. Shri Balwinder Kumar 28.7.1983. Regular Second Appeal No.2029 of 1986. -6- 6. Shri Shamsher Singh 30.7.1983. 7. Shri Patal Raj. 30.11.1983 AN. 8. Shri Gurinder Singh Sarkaria. 27.9.1983 AN. 9. Shri Daya Ram. 13.9.1984. The learned trial Court has dismissed the suit of the plaintiffs on the ground that due to past service, Swaraj Singh, Roshan Lal, Gulzar Singh and P.S.Bajaj, were placed in the higher scale of Rs.800-1400.. The first Appellate Court, however, reversed the judgment of the trial Court on the ground that there cannot be two scales within the same cadre and consequently the plaintiffs were allowed the pay of Rs.800-1400 plus Rs.50/- as special pay. The Punjab State Electricity Board moved an application under Order 41 Rule 27 CPC before the first Appellate Court, which was opposed by the plaintiffs, now respondents. The learned first Appellate Court has taken into account the documents produced by the Punjab State Electricity Board. Although, no specific order accepting the application has been passed but since the documents have been taken into consideration by the first Appellate Court, as such the said application shall be deemed to have been accepted. However, Punjab State Electricity Board has taken a stand that the scale of Rs.800-1400 given to Swaraj Singh and Roshan Lal has been withdrawn through the documents placed on the file. The learned first Appellate Court has Regular Second Appeal No.2029 of 1986. -7- taken into account those documents and has observed that although the pay scale given to Swaraj Singh and Roshan Lal has been withdrawn yet since the other two employees are still getting the scale of Rs.800- 1400, as such the plaintiffs were also entitled to get the same pay scale. Consequently, the appeal was accepted. However, the first Appellate Court has not scrutinized the documents placed on its file. The Punjab State Electricity Board has placed on the file the seniority list of Law Officers as on 31.10.1985. From the perusal of the same, it is revealed that P.S.Bajaj and Gulzar Singh are not shown in the seniority list. So, the contention raised by Mr. Sandhawalia is to the effect that Gulzar Singh and P.S.Bajaj have not opted for the Law Officers and as such there is no discrimination regarding the grant of pay scale. He has further submitted that all the Law Officers including Swaraj Singh, Roshan Lal and the plaintiffs have been placed in the same scale of pay of Rs.700-1200. The said contention raised by the counsel for the appellant carries weight and has to be accepted. No doubt, Swaraj Singh and Roshan Lal were getting pay scale of Rs.800-1400 prior to their induction as Law Officers but vide letter No.480/ELG/A-1698 dated 19.3.1986, Roshan Lal had been placed in the pay scale of Rs.700-1200 and Swaraj Singh had been placed in that scale vide office order No.481/ELG/A-1598 dated 19.3.1986. As such, no grievance of the plaintiffs regarding discrimination remains there. The first Appellate Court has not taken Regular Second Appeal No.2029 of 1986. -8- into account these documents while accepting the appeal. However, from the evidence on the file, it is revealed that the scale of Rs.800-1400 given to Assistants Swaraj Singh and Roshan Lal was withdrawn vide order dated 19.3.1986, referred to above. From the seniority list dated 31.10.1985, it is revealed that Gulzar Singh and P.S.Bajaj are not shown there and as such on that day they were not in the cadre of Law Officers. So, no case for grant of scale of Rs.800- 1400 to the plaintiffs is made out after 19.3.1986. Similarly, special pay of Rs.50/- has been shown to be personal pay of Swaraj Singh and Roshan Lal and as such no personal pay to the plaintiffs can be allowed. However, it is made clear that Swaraj Singh and Roshan Lal received the scale of Rs.800-1400 only upto 19.3.1986. After 19.3.1986, the discrimination which was the sole ground of the plaintiffs for grant of scale of Rs.800-1400 stands removed. Therefore, the plaintiffs are not entitled to claim pay scale of Rs.800-1400 with special pay of Rs.50/-. Hence, the first substantial of law stands determined in favour of the appellant to the extent indicated above. In authority Md. Abdul Azeez Asad and others Versus State of Andhra Pradesh rep.by its Principal Secertary to Govt. Health Medical and Family Welfare Department and others,2005 (3) Recent Services Judgments 472, it has been held that there cannot be waiver of fundamental rights. In authority State of Andhra Pradesh & others Versus Regular Second Appeal No.2029 of 1986. -9- G.Sreenivasa Rao & others, 1989 (1) Recent Services Judgments 519, it has been held as under:- “15. “Equal pay for equal work does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay-scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex-facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate,when pay-fixation is done under valid statutory Rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar,when advance increments are given for experience/passing a test/acquiring higher qualifications or as incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these groups would be based on intelligible criteria which has rational nexus with the Regular Second Appeal No.2029 of 1986. -10- object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal” So, from the perusal of above said judgment, it is revealed that the officer from different cadre may draw different pay but the cadre for the same post should be the same. So far as substantial question No.2 is concerned, that stands answered in favour of the plaintiffs, now respondents, and it is held that there cannot be two scales within the same cadre. Consequently, the appeal stands partly accepted. The judgment and decree of learned first Appellate Court stand set aside and it is held that the plaintiffs are entitled to claim pay scale of Rs.800-1400 when the other officers of the same cadre were getting that scale along with special pay of Rs.50/-i.e upto 19.3.1986. However, the suit for grant of pay scale of Rs.800-1400 with special pay of Rs.50/- after 19.3.1986 stands dismissed. In view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared. The files of the Courts below be returned after due compliance. May 30 ,2008 ( K. C. Puri ) Jaggi Judge