IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3864 of 2006 Date of Decision: 20.4.2009 Arvind Singla ....... Appellant through Shri D.C.Dhaula, Advocate. Versus The Managing Committee, Vaish Technical Institute, Rohtak and others. ....... Respondent nos. 1 & 2 through Shri Parveen Gupta,Advocate. Respondent nos. 3 & 4 through Shri O.P.Sharma, Addl.Advocate General, Haryana. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgment and decree dated 9.9.2006 passed by the Additional District Judge, Rohtak (hereinafter described as `the First Appellate Court') vide which judgment & decree dated 30.9.2005 of the Civil Judge (Junior Division), Rohtak (referred to hereinafter as `the trial Court') were set aside resulting in the dismissal of the suit filed by the plaintiff-appellant. R.S.A.No.3864 of 2006 -2- .... A suit for mandatory injunction was preferred by the appellant by pleading that he was appointed as Lecturer in Electronics and Computer Engineering in Vaish Technical Institute, Rohtak (for short, `VTI') by defendant-respondent nos. 1 & 2 in the pay scale of Rs.2000-4000 and was continuing as such; that he was being given full pay scale and allowances as prescribed by the State Government; that the pay scale prescribed for the post held by him was revised from time to time; that as per letter dated 5.3.1993, the pay scales of employees of the Government of Haryana were revised and respondent nos. 1 & 2 gave an undertaking to the government that the management of the VTI would comply with the instructions issued by it from time to time; that the management had also undertaken to pay the pay scales of teaching and other staff as fixed by the State from time to time; that after accepting the Fifth Pay Commission Report, the State Government revised the pay scales of its employees w.e.f. 1.1.1996; that respondent nos. 1 & 2 had also complied with the directions of the government and granted the revised pay scales with effect from that date to their employees; and that he was not paid arrears of the revised pay scale from 11.1.1996 to 31.3.1999 despite the undertaking given by respondent nos. 1 & 2 which had resulted in discrimination between the employees of the same category. On the basis of these pleadings, appellant had prayed that respondent nos. 1 & 2 be directed to release the arrears as aforesaid to him. Upon notice, the respondents put in appearance. In their joint R.S.A.No.3864 of 2006 -3- .... written statement, respondent nos. 1 & 2 raised preliminary objections regarding concealing of material facts, cause of action, jurisdiction, suit being bad for non-joinder and mis-joinder of necessary parties, maintainability and want of notice under Section 80 of the C.P.C. On merits, the claim of the appellant was resisted. It was pleaded that he could not take any help from the alleged undertaking given by respondent nos. 1 & 2 because that related to the recognition of the computer course between them and the State Government. It was further pleaded that the appellant was given revised pay scale despite the fact that the computer course was unaided one at the time of granting revised pay scale on his undertaking to the effect that he would not claim any other amount or press any other scale and would not claim retrospective revision of pay scale. The allegation of discrimination was refuted and it was pleaded that due to unaided course, the appellant was not entitled to claim arrears as a matter of right. In their separate written statement, respondent nos. 3 & 4 pleaded that the VTI was an aided institution which was running aided as well as unaided diploma level course and that the appellant was working as Lecturer in an unaided course and that they had no concern with his arrears. They averred that in case of aided course, 95% Grant-in-Aid was being given by them, whereas for unaided-courses, no grant was being given and 100% expenditure was being borne by the management of the VTI. It was further averred that the appellant was working as Lecturer in an unaided course and was demanding arrears of pay to be paid by the Management of R.S.A.No.3864 of 2006 -4- .... the VTI with which respondent nos. 3 & 4 had no concern. It was pleaded that the appellant had filed C.W.P.No.4167 of 2002 regarding the same cause of action, which was dismissed on 3.4.2003 and that his suit was hit by the principle of res judicata. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the arrears of revised pay scale from 1.1.96 to 31.3.99?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to the injunction prayed for?OPP 3. Whether the Civil Court has no jurisdiction to entertain and try the present suit?OPD 4. Whether the suit is bad for want of notice u/s 80 CPC?OPD 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 7. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit with costs and directed the arrears to be to the appellant as claimed by him within a period of two months from the passing of the judgment. In appeal, the findings were upset by the First Appellate Court, which has resulted in the filing of the instant appeal by the appellant. R.S.A.No.3864 of 2006 -5- .... Learned counsel for the appellant contended that the findings recorded by the First Appellate Court are erroneous as it has failed to take into consideration the undertaking given by the management of the VTI to the State Government. He further contended that the reasoning adopted by the First Appellate Court is perverse as it has held that the appellant was working against an unaided course for which the VTI had to make payment and since the State Government was not granting any aid, he was not entitled to any arrears. It was argued that it is totally in contradiction of the undertaking given by respondent nos. 1 & 2 to the State Government. It was further argued that the First Appellate Court has gone wrong in holding that appointment letter, Exhibit P2, was in the nature of a contract and, therefore, a suit for mandatory injunction was not maintainable. On the other hand, learned counsel for respondent nos. 1 & 2 contended that the appellant was working against a programme which was unaided and respondent nos. 1 & 2 were not getting any aid from the State Government for the same and, therefor,e he could not make a claim regarding the arrears of salary on account of revision of pay scales. The reasoning adopted by the First Appellate Court was sought to be defended. I have thoughtfully considered the rival contentions and have perused the record. Respondent nos. 1 & 2 have categorically given an undertaking dated 23.5.1989 (Exhibit P3), clause 5 of which reads as under:- “5. The pay scales of teaching & other staff shall be in as fixed R.S.A.No.3864 of 2006 -6- .... bay the State Government from time to time.” A perusal of the above extracted clause shows that it nowhere makes a distinction between an unaided and aided programmes. Neither any distinction between these two types of programmes has been made nor has it been established by any evidence on record that the course against which the appellant was working was actually an unaided programme. There is no material on record worth the name from which it can be inferred that the plea which has been raised by respondent nos. 1 & 2 is correct. In this view of the matter when there is no evidence to suggest that the appellant was working against a programme which was unaided and also for the reason that a categoric undertaking had been given by respondent nos. 1 & 2 themselves to the State Government that all the teachers will be given the same scales as was being done by it without there being any distinction between the aided and unaided schemes within the VTI and also for the reason that concededly the appellant is getting the benefit of the revised pay scale, but he is being denied only the arrears, I am of the opinion that the denial of arrears from 1.1.1996 to 31.3.1999 is totally arbitrary and does not stand to reason at all. If respondent nos. 1 & 2 are to adopt the pay scales, then they are conforming and adhering to the undertaking given by them to the State Government and if that be so, then they cannot make distinction that they will not pay arrears unless they establish by material on record that their decision was based on some rationality. In this view of the matter, the question of law that arises for determination is as under:- R.S.A.No.3864 of 2006 -7- .... “Whether the benefit of pay can be withheld from an employee arbitrarily or contrary to the relevant rules? In the considered opinion of this Court, since respondent nos. 1 & 2 have failed to establish by cogent reasons the withholding of the benefit of arrears of pay to the appellant, the question of law has to be answered to say that the benefit of pay scale and arrears cannot be withheld from him without there being any rational decision to that effect. Accordingly, this appeal is accepted, the impugned judgment & decree are set aside and those passed by the trial Court are restored and respondent nos. 1 & 2 shall pay the arrears to the appellant within a period of two months from today as directed by the trial Court. April 20,2009 ( Mahesh Grover ) “SCM” Judge