RSA No.134 of 2009 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.134 of 2009 (O&M). Decided on: January 19, 2011. Mahabir Singh. .. Appellant VERSUS State of Haryana and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Vivek Singla, Advocate, for the appellant. Mr.P.S.Sullar, DAG., Haryana. M.M.S. BEDI, J. This is plaintiff's second appeal against the judgments and decrees passed by the Courts below dismissing the suit of the plaintiff for declaration with consequential relief of mandatory injunction claiming that he is entitled to the pay scale of . . . 1 RSA No.134 of 2009 (O&M) Rs.1200-2040 w.e.f., 02.02.1991and revised pay scale of Rs.4000- 6000 w.e.f., 01.01.1996, along with interest till realization of the amount as he was appointed as Helper (Diesel/Automobile) Technical in Transport Department by defendant-respondent in pay scale of Rs.750-940, vide appointment letter dated 14.09.1990. State of Haryana revised pay scales of employees on technical posts in various Departments vide letter dated 23.08.1990 and as per that the plaintiff was entitled to the pay scale of Rs.1200-2040 as he has got qualification of Matric and Diploma in Trade of Motor Mechanic to his credit. He claimed revision of pay scale in the pay scale of Rs.4000- 6000 w.e.f., 01.01.1996. The defendant-respondent State had taken up the stand that the plaintiff-appellant had been appointed as Helper in unskilled category in the pay scale of Rs.750-940 w.e.f., 14.09.1990 vide instructions dated 23.08.1990 issued by the Finance Department but the said instructions and regulations are not applicable on the unskilled staff of Haryana Roadways Transport Department. It was claimed that as the post of Helper is Class-IV post and the plaintiff is unskilled employee, he cannot be regarded as posted on technical post. The plaintiff was not held entitled to the pay scale of Rs.1200-2040 and Rs.4000-6000 as claimed by him. The defendant-respondent raised the plea that Government had issued instructions vide memo dated 20.08.1992 and the plaintiff is not entitled to the relief under the said instructions. It was further pleaded that the prescribed qualification for the post of Helper is not Matric with ITI Certificate, therefore, the plaintiff is not entitled to the . . . 2 RSA No.134 of 2009 (O&M) pay scale of Rs.1200-2040 as the same applies to the post of mechanic which is a promotional post for the post of Fitter semi- skilled and then to the skilled employees. It was specifically pleaded by the defendant-respondent in the written statement that the vires of letter dated 20.08.1992, was challenged by Shamsher Singh and others in CWP No.9510 of 1994 in the High Court and as the said writ petition was still pending, the plaintiff was not entitled to any relief. The trial Court had framed an issue whether the plaintiff was entitled to the pay scale of Rs.1200-2040 w.e.f., 02.02.1991 and revise pay scale of Rs.4000-6000 w.e.f., 01.01.1996. The trial Court dismissed the suit of the plaintiff on the following grounds:- (i) Though the plaintiff is a Matriculate with ITI Diploma and fulfills all the conditions as per letter dated 23.08.1990 but the prescribed qualification for the post of Helper not being Matric with ITI Diploma and post of Helper being non-technical post, the letter dated 23.08.1990, is not applicable to the employees but the workers of non-technical posts; (ii) During pendency of the Civil Writ Petition No.9510 wherein the vires of letter dated 20.08.1992, stands challenged , no relief can be given to the plaintiff; (iii) Pay scale of Rs.1200-2040 is not to be given to non-technical category employees; and . . . 3 RSA No.134 of 2009 (O&M) (iv) that as per letter dated 23.08.1990, scale of Rs.1200-2040 was to be given to the technical posts only for which minimum qualification prescribed was Matric with ITI Certificate and the plaintiff having not proved, he being Matriculate possessing ITI Certificate, he is not covered under letter dated 23.08.1990. The lower appellate Court affirmed the finding recorded by the trial Court dismissing the suit of the plaintiff observing that the Grade of Rs.1200-2040 had been given to the employees working on technical posts only for which the minimum qualification provided was Matriculate with ITI Certificate. The plaintiff-appellant having failed to produce any document on file suggested that the post of Helper was technical one and that the plaintiff had not proved that he had he requisite qualification. Moreover, the plaintiff has failed to summon the official of the Transport Department to prove that the required qualification for the post of Helper was technical one. The oral testimony of plaintiff was discarded. The lower appellate Court also held that as per letter dated 25.11.2004, only those posts would be considered as technical posts for granting pay scale of Rs.1200-2040, where the educational qualification prescribed was Matriculate with two years ITI Certificate but the plaintiff has failed to prove that he was having two years diploma course in ITI. Counsel for the plaintiff-appellant has contended that the plaintiff-appellant is admittedly a Matriculate having a . . . 4 RSA No.134 of 2009 (O&M) diploma from ITI Rohtak. The said fact has not been specifically denied by the State in the written statement. Pendency of Writ Petition No.9510 of 1994 challenging the vires of letter dated 20.08.1992, has already been decided on 22.12.2008 in case Shamsher Singh Vs. State of Haryana. A copy of the judgment has been placed on record. In the said judgment Shamsher Singh who was appointed as Helper in Haryana Roadways had sought pay scale of Rs.1200-2040 w.e.f., 15.01.1990 on the ground that he was Matriculate with ITI Diploma appointed as Helper having working on technical posts was entitled to pay scale of Rs.1200-2040 w.e.f., 15.01.1990 and the order dated 20.08.1992 issued by the State directing all the General Managers not to release the said benefit to the Helpers has been quashed in the said writ petition. The said order is based upon another judgment passed in Attar Singh and others Vs. State of Haryana and others. , decided on 17.09.2002 in CWP No.2032 of 2000. The facts of CWP No.2032 of 2000 were same as that of plaintiff-appellant. The petitioners in the said case had filed a writ petition in the High Court seeking a writ in the nature of mandamus directing the State to release the pay scale of Rs.1200-2040 w.e.f., 01.05.1990 on the ground that they were Matriculate having ITI Diploma appointed as Helper with Haryana Roadways and performing duties in the workshop working against technical posts. Letter dated 23.08.1990, issued by the State of Haryana prescribing the release of pay scales to the Helper similarly circumstanced like the plaintiff was also challenged. The Writ . . . 5 RSA No.134 of 2009 (O&M) Petition was allowed and the State was directed to fix pay scale of Helper and others in the Pay scale of Rs.1200-2040 w.e.f., 01.05.1990. The judgment in case Attar Singh's (supra) was challenged before Hon'ble the Supreme Court in Civil Appeal No.7154 of 2005, which was dismissed on 25.03.2008. Learned Mr.P.S.Sullar, Deputy Advocate General, Haryana, for the State has relied upon the judgment of Division Bench in Ram Karan and others Vs.State of Haryana and others decided on 13.05.2008, in which the petitioner Ram Karan has sought a writ of mandamus against the State seeking pay scale of Rs.1200-2040 w.e.f., 01.05.1990, but the said relief was declined to the said petitioners as the said petitioners, when entered in service as Helper were middle pass knowing Hindi and not having the qualification of Matric with ITI Certificate. The judgment of Ram Karan's case is not helpful to the State. The next contention of counsel for the State is that the rules of 1998 are not applicable to the State of Haryana. I have heard the counsel for the appellant as well as the counsel for the respondent and carefully gone through the facts and circumstances of this case. The following substantial question of law, warranting interference in the judgments and decrees passed by the Courts below, is involved in the present appeal: - Whether the plaintiff-appellant, who is similarly circumstanced as his co-employee . . . 6 RSA No.134 of 2009 (O&M) Shamsher Singh, can be denied the same relief which has been granted to Shamsher Singh in Writ Petition No.9510 of 1994, ignoring the principles of judicial propriety and the principles and rules of precedence. A perusal of the pleadings indicate that the defendants-respondents in their written statement had specifically taken up a plea that the letter dated 20.08.1992, stood challenged by Shamsher Singh and others in CWP No.9510 of 1999. The said plea indicates that the case of the plaintiff has been considered to be at par by the defendants-respondents by their conduct. The writ petition of Shamsher Singh who is already Matriculate with ITI Certificate had sought the similar relief by filing a writ petition. The writ petition of Shamsher Singh had already been decided by this Court on 22.12.2008, by observing as follows: - “After hearing the learned counsel for the parties, I find that the present petition deserves to succeed. It is apparent that the petitioners possess the qualification of Matriculation with ITI Certificates and it was only on the basis of the aforesaid qualifications that they were actually appointed in the Haryana Roadways. The judgment of a Division Bench in case Attar Singh and others Vs. The State of Haryana and another, CWP N0.2032 of 2000, decided on 17.09.2002, wherein a direction had been issued to the State of Haryana to refix the pay of the petitioners as per their qualifications, has to be followed in the . . . 7 RSA No.134 of 2009 (O&M) present case.” I have also considered the contention of Mr.P.S.Sullar, Deputy Advocate General, Haryana, and gone through the judgment in case Ram Karan and others Vs.State of Haryana and others, CWP No.10131 of 2007, decided on 13.05.2008. In that case, the relief for seeking relief of Pay Scale of Rs.1200-2040, was declined to the petitioner in the writ petition relying upon a judgment in case Jagdish Vs. State of Haryana and others, CWP No.241 of 2007, decided on 20.03.2008, in which it has been observed as follows: - “The primary reliance of counsel for the petitioner, to claim above said relief is on instructions dated July 26, 1991. Reading of extract, as reproduced above, clearly indicates that the revised grade was made available to those technical posts, for which, at the time of entry in service minimum educational qualification prescribed was Matric with ITI. Petitioner was taken in service as a Technical Mate. For that post, qualification prescribed is only Middle pass. As such, the petitioner is not entitled to get benefit of above said instructions, vide which benefit of higher pay scale was given only to those technical posts, where, as per rules, for entry in service, minimum qualifications of Matric with ITI is prescribed.” . . . 8 RSA No.134 of 2009 (O&M) In Jagdish's case (supra) he was Matriculate and was middle pass whereas in case Ram Karan's case (supra), he had joined service with the respondents as Helper only on the ground that he could read and write language but the case of the appellant is not at par with that of Jagdish's case or Ram Karan's case and is thus distinguishable. The merits of the case of appellant are at par with Shamsher Singh's case (supra), as discussed above. The appeal deserves to be allowed on the basis of judicial precedent. The relief which has been granted to Shamsher Singh similarly circumstanced employee cannot be denied to the appellant especially when his educational qualification being Matriculate with ITI Certificate is an admitted fact in the written statement. The documents placed on the record also reflect that he is a Matriculate with ITI Certificate. The appeal is allowed. The suit of the plaintiff- appellant Mahabir Singh is decreed setting aside the judgments and decrees of the Courts below to the effect that he is entitled to pay scale of Rs.1200-2040 w.e.f., three years prior to the date of filing of the suit with all consequential benefits. (M.M.S.BEDI) JUDGE January 19, 2011. rka . . . 9