Regular Second Appeal No. 2391 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2391 of 2009 Date of decision: 24.09.2009 1. State of Haryana through Collector, Hisar(Haryana). 2. Executive Engineer,PWD, Public Health Division No.3, Hisar, District Hisar,(Haryana). 3. Superintending Engineer, PWD, Public Health Circle, Model Town, Hisar, District Hisar (Haryana). 4. Chief Engineer, PWD(Public Health), Panchkula, District Panchkula, Haryana ..... Appellants. Versus Wazir Chand son of Shri Sube Singh working as Fitter Grade-II, in the office of Superintending Engineer, PWD, Public Health Circle, Hisar, District Hisar,(Haryana). ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Ms. Rajat Goyal, AAG, Haryana for the appellants. Mr. Amit Paul, Advocate for the respondent. --- Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 13.03.2009, rendered by the Court of District Judge, Hisar, vide which it accepted the appeal against the judgment and decree dated 25.07.2007, Regular Second Appeal No. 2391 of 2009 -2- rendered by the Court of Additional Civil Judge (Senior Division), Hisar, and decreed the suit of the plaintiff/respondent. 2. The brief facts of the case, are that the plaintiff/respondent initially joined as Fitter Quelli on work charge basis, through employment exchange, as Class IV employee on 01.11.1997. Thereafter, he was given the post of Fitter Grade-II, on work charge basis w.e.f. 09.03.1981. His services were regularized w.e.f. 15.11.1983 as Fitter Grade-II, in the pay scale of Rs.400-600. It was stated that Telu Ram son of Amar Lal joined the department on 11.01.1980 on work charge basis. He was given the post of Fitter Grade-II on 22.5.1982. His services were regularized in the pay scale of Rs.400-600. It was further stated that the posts of Fitter Quelli, Beldar, P/helper etc. are common cadre posts. The services of the officials of these categories were regularized by the defendants as Fitter Grade-II, as per the dates and year given in the tentative seniority list maintained by them. It was further stated that as per the seniority list, the plaintiff figured at Sr. No.17, whereas Telu Ram son of Amar Singh, figured at Sr. No.26. It was further stated that Telu Ram was much junior to the plaintiff, in all respects. It was further stated that after the revision of pay Regular Second Appeal No. 2391 of 2009 -3- scales, Telu Ram was placed in the pay scale of Rs.950/- w.e.f. 1.1.1986 and was granted the pay scale of Rs.1200-2040 w.e.f. 1.5.1990, whereas, the plaintiff was ignored. It was further stated that since the plaintiff had completed ten years of regular service on 1.1.1994, he was placed in the pay scale of Rs.1200-2040 w.e.f. 1.1.1994, as per the Haryana Government Notification and as per the recommendations of the 5th Pay Commission. Subsequently, the plaintiff was placed in the pay scale of Rs.4000-6000 w.e.f. 1.6.1996, whereas, Telu Ram aforesaid was placed in the pay scale of Rs.5000-7850. It was further stated that since the plaintiff was senior to Telu Ram and was having similar qualification as on 1.5.1990, but his name was ignored, while granting the benefit of pay scale of Rs.1200-2040 to Telu Ram. It was further stated that the plaintiff had not passed the matriculation examination on 1.5.1990, and subsequently, he had passed the same from the National Open School, New Delhi, which was subsequently recognized by the Haryana Government in the year 1995. It was further stated that the defendants ought to have considered the name of the plaintiff, for the grant of requisite pay scale w.e.f. 31.3.1998. It was further stated that Ram Bilas, Plumber of the defendants had passed his matriculation examination from Regular Second Appeal No. 2391 of 2009 -4- National Open School, New Delhi, in the year 1994 and they granted him the benefit of pay scale of Rs.5000-7850 w.e.f. 31.3.1998. Under these circumstances, there was no bar to consider the name of the plaintiff also w.e.f. 31.03.1998 when he had already passed the matriculation examination from National Open School, New Delhi. It was further stated that the defendants neither granted the pay scale in the sum of Rs.5000- 7850 to the plaintiff w.e.f. 1.1.1998 nor w.e.f. 31.3.1998, at par with his junior Telu Ram son of Amar Lal, Fitter Grade-II and Ram Bilas, Plumber, whereas, he was granted the pay scale w.e.f. 1.1.2004, which was violative of the principles of natural justice. The defendants were asked many a time, to accede to the request of the plaintiff, but to no avail. On their final refusal, left with no alternative, a suit for declaration was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing a joint written statement, wherein, it was admitted that in the seniority list, the name of the plaintiff, figured at Sr. No.17, whereas, the name of Telu Ram, figured at Sr.No.26. It was stated that the seniority list was not valid in all respects since Telu Ram was possessing the qualification of matriculation with ITI, whereas, the plaintiff was non-matric with ITI. It was further stated that Telu Ram Regular Second Appeal No. 2391 of 2009 -5- was rightly granted the pay scale of Rs.1200-2040 w.e.f. 1.5.1990 because of his qualification, as matric, with ITI, required for the post of Fitter Grade-II, in view of the notification dated 23.08.1990 issued by the Commissioner & Secretary to Haryana Government. At that time, the plaintiff was ignored, because he was holding only ITI certificate, but not qualified as matric, which was prescribed for the post of Fitter Grade-II. It was further stated that subsequently , the plaintiff was placed in the pay scale of Rs.1200-2040 w.e.f. 1.1.1994, for which he was entitled and after the revision of pay scale w.e.f. 1.1.1996, he was rightly placed in the Ist ACP scale of Rs.4000-6000 and on completion of 20 years regular satisfactory service, the second ACP scale of Rs.5000-7850 was given to him w.e.f. 1.1.1997. On the other hand, Telu Ram was drawing the pay scale of Rs.1200-2040 w.e.f. 1.5.1990 as he was holding the prescribed qualifications for the post and he was only placed in the pay scale of Rs.4000-6000 parallel to his earlier scale, and after the completion of 10 years service by him, he was granted the 1st ACP scale of Rs.5000-7850 w.e.f. 1.1.1997. In such circumstances, Telu Ram was placed in higher scale than that of the scale given to the plaintiff, on account of his eligibility. Regular Second Appeal No. 2391 of 2009 -6- It was further stated that the plaintiff was not entitled to the pay scale of Rs.5000-7850 w.e.f. 31.3.1998. However, his pay was rightly fixed in 1st ACP scale of Rs.4000-6000 w.e.f. 1.1.1996 on completion of 10 years service. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff is entitled to get the pay scale of Rs.5000-7850 w.e.f. 1.1.1996 at par with his junior Sh. Telu Ram son of Sh. Amar Lal, Fitter-II and also entitled to get interest at the rate of 12% per annum on the arrears of the difference of pay w.e.f. 1.1.1996 to 1.1.1994, as alleged ?OPP 2- Whether the plaintiff is entitled to the relief of mandatory injunction directing the defendants to grant the pay scale of Rs.5000-7850 w.e.f. 1.1.1996 at par with junior Telu Ram son of Amar Lal, Fitter- II and also grant the interest at the rate of 12% per annum on the entire arrears of difference of pay w.e.f. 1.1.1996 till 1.1.1994 as alleged in the plaint ?OPP 3- Whether the suit of the plaintiff is not maintainable in the present form? OPD Regular Second Appeal No. 2391 of 2009 -7- 4- Whether the plaintiff has no locus standi to file the present suit?OPD 5- Whether the suit of the plaintiff is not maintainable for want of impleading necessary parties ?OPD 6- Whether the suit of the plaintiff is time barred as it has not been filed under limitation period ?OPD 7- Relief.” 5. The parties led evidence, in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, dismissed the suit, vide judgment and decree dated 25.07.2007. 6. Feeling aggrieved, an appeal was preferred by the appellant/ plaintiff, which was accepted, by the Court of District Judge, Hisar, vide its judgment and decree dated 13.03.2009. 7. Feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellants/ defendants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. Regular Second Appeal No. 2391 of 2009 -8- 9. The following substantial question of law, arises, in this appeal, for the determination of this Court:- “Whether the first Appellate Court recorded perverse findings on account of mis-reading and mis- appreciation of evidence that the plaintiff/respondent was similarly situated to Telu Ram though he did not have the requisite qualification of matric at the time the case of his junior Telu Ram was considered for the post of Fitter Grade-II and, as such, he was entitled to the same pay and allowance at par with him?” 10. The Counsel for the appellants, submitted that the trial Court was right, in holding that since the plaintiff/respondent, did not have the requisite qualification of matriculation, his case on 01.05.1990 for the post of Fitter Grade-II, though he was senior to Telu Ram, in the seniority list, was considered and rejected, whereas Telu Ram having the matriculation qualification with ITI diploma, being eligible,was considered for the post and he was rightly placed in the pay scale of Fitter Grade-II. She further submitted that the case of the plaintiff was not identical to the case of Telu Ram. She further submitted that as and when the plaintiff acquired the requisite qualification of matriculation from the institute and the said institute was duly recognized by the Government of Haryana, he was granted the pay scale of the post. She further Regular Second Appeal No. 2391 of 2009 -9- submitted that the pay of the plaintiff was rightly fixed and there was no anomaly therein. She further submitted that the first Appellate Court, on account of mis-reading and mis- appreciation of evidence, wrongly accepted the appeal. She further submitted that the judgment and decree of the first Appellate Court, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that the first Appellate Court was right in holding that the qualification of matric as prescribed by the instructions, could not be insisted for the purpose of consideration of an employee, for the post of Fitter Grade-II. He further submitted that the case of the plaintiff was identical to the case of Telu Ram, who was junior to him and, as such, his pay was required to be fixed at least equivalent to the pay of Telu Ram. He further submitted that the judgment and decree of the first Appellate Court, being legal, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be accepted,for the reasons to be recorded hereinafter. It is settled principle of law, that this Court, in Regular Second Appeal cannot interfere with the findings of fact, recorded by the first Appellate Court, Regular Second Appeal No. 2391 of 2009 -10- even if, the same are grossly erroneous, until and unless it comes to the conclusion, that the same are the result of mis-reading, mis-appreciation or non-consideration of material pieces of evidence. In the instant case, it was on account of mis-reading and mis-appreciation of evidence that the first Appellate Court came to the wrong conclusion, in decreeing the suit of the plaintiff. No doubt, in the seniority list, the name of the plaintiff figured at Sr. No.17, whereas, the name of Telu Ram, figured at Sr. No.26. Under these circumstances, the plaintiff was senior to Telu Ram. The defendants, in the written statement, in clear-cut terms, stated that this seniority list was not correct in all respects. It is to be seen, as to what was the qualification for the post of Fitter Grade-II as on 01.05.1990 when the case of the plaintiff and Telu Ram was considered. Ex.D-3, photocopy of the letter received from the Commissioner & Principal Secretary to Govt. Haryana, Finance Department reads as under:- “I am directed to invite your kind attention to the subject noted above and to say that the pay scales of some of the technical posts were revised as under vide Government instruction No.6/23/3PR (FD)-88 dated 23.7.1990 with effect from 1.5.90:- Regular Second Appeal No. 2391 of 2009 -11- Name of the Department/ post Existing Pay scale as on 1.1.86 Modified scale of pay w.e.f. 1.5.90 General recommendations regarding technical posts in various departments for which minimum educational qualification prescribed is matric with ITI certificate/Polytechnic. 750-940 775-1025 800-1150 950-1400 950-1500 1200-2040 (It has been decided that further recruitment of non matric be stopped) The above mentioned scales were further modified as under vide No.6/23/3PR(FD)-88, dated 26.7.1991:- General recommendations regarding technical posts in various departments for which minimum educational qualification prescribed is matric with ITI certificate/Polytechnic. 750-940 775-1025 800-1150 950-1400 950-1500 1200-2040 General recommendations regarding technical posts in various departments for which minimum educational qualification prescribed is only ITI certificate/ diploma from Polytechnic without insistence on matric. 750-940 775-1025 800-1150 950-1400 950-1400 Regular Second Appeal No. 2391 of 2009 -12- From the above, it is evident that for the technical posts, for which the prescribed minimum qualification was matriculation with diploma in ITI, the modified scale w.e.f. From 1.5.90 was 1200-2040, whereas for the technical posts for which the minimum qualification was prescribed as ITI diploma without insistence on matric the modified scale of 950-1400 w.e.f. 1.5.1990 was given. The plaintiff had not passed the matriculate exam, even in the year 1991, when Telu Ram, aforesaid had passed the same. Since matriculation qualification was a condition precedent, for the grant of higher pay scale and the plaintiff had not passed the same in the year 1990-91 when Telu Ram was granted the higher pay scale, he could not claim parity with him. In the year 1995, the plaintiff had passed his matriculation examination, from National Open School, which was recognized by the Haryana Government, in the year 1998, as is evident from the statement of DW1. At the time, when the Haryana Government had recognized certificate of matriculation from National Open School, the plaintiff had already been granted the pay scale of Rs.1200-2040 on completion of ten years regular service. This fact was also admitted by the plaintiff in his statement. In these circumstances, there was no occasion, for the defendants, to grant the benefit of higher pay Regular Second Appeal No. 2391 of 2009 -13- scale on 31.01.1993, to the plaintiff. Since Telu Ram possessed the requisite qualification of matric with ITI diploma, he was granted the higher pay scale on the completion of 10 years regular service. Under these circumstances, there was no anomaly in fixing the pay of the plaintiff by the defendants, nor he was similarly situated with Telu Ram. Only a similarly situated person, having the same qualification, could claim similarity with another person. The trial Court was, thus, right in holding that the plaintiff was not entitled to the grant of same pay scale as was granted to Telu Ram, on account of disparity between the two. No doubt, reliance was placed by the first Appellate Court on State of Haryana & others v. Jagdish Chander, RSA No.4584 of 2002, decided on 28.11.2002. In that case, the respondent was a Plumber. He did not possess the matriculation certificate and was only having ITI diploma. The trial Court held that he was entitled to the scale of 1200-2040 w.e.f. 1.5.1990. The first Appellate Court held that since he did not possess the requisite qualification of matric, he was entitled to the pay scale of 950-1400 w.e.f. 1.5.90 and, thus, the judgment of the trial Court was modified. The Regular Second Appeal, aforesaid was dismissed. The judgment, in the Regular Second Appeal, goes in favour of the appellants rather than in Regular Second Appeal No. 2391 of 2009 -14- favour of the respondent. The first Appellate Court misread, this judgment and came to a wrong conclusion that the defendant was entitled to the modified scale of 1200-2040 as on 1.5.1990. The judgment and decree of the first Appellate Court, being based on the mis-reading and mis-appreciation of evidence as also the law on the point, suffer from illegality, perversity, and, as such, warrant interference of this Court, and are liable to be set aside. The submission of the Counsel for the appellants, carries substance and the same is accepted. The substantial question, of law, depicted above, is answered, in favour of the appellants. 13. For the reasons recorded above, the appeal is accepted with costs. The judgment and decree of the first Appellate Court, are set aside, whereas, the judgment and decree dated 25.07.2007, rendered by the Court of Additional Civil Judge (Senior Division), Hisar, are restored. (Sham Sunder) Judge 24.09.2009 dinesh