Baldev Kumar vs State of Haryana

M.L. Singhal, J.—Through this C.W.P. No. 12834 of 1993 filed by one Baldev Kumar under Articles 226/227 of the Constitution of India he had prayed for the issuance of writ, order or direction especially in the nature of mandamus directing the State of Haryana and other respondents to grant him the pay scale of Rs. 950-1500 which is admissible to the holders of the posts of Tube-well Drivers/Operators.

Facts:

He was appoinlcd assistant Tube-well driver/operator in Municipal Committee, Hissar on 21.11.19890 vide appointment letter Annexure P1. Since April 1993, on the transfer of water wells, the petitioner has been under the Secretary, Government of Haryana, Department of PWD (Public Health), Haryana, Chandigarh (respondent No. 4). Haryana Municipal Services Integration Recruitment (Conditions of Service) Rules came into force w.e.f. 5.2.1982. They were made applicable to all the Municipal Committees in the State of Haryana. In the said Rules, the pay scales of various categories of employees were also fixed. They pay scales of tube-well operators have been given at item No. 48 in Appendix A which is 400-10-490/540-15-600-EB-20-660. Pay Scales of the employees of the Municipal Committees were further revised in the year 1986 and the pay scales admissible to the tube-well operators were fixed as Rs. 950-1500 w.e.f. January 1, 1986. With effect from 5.2.1982, the petitioner was entitled to get the pay scales of tube-well operators in the pay scale of 400-660 and w.e.f. 1.1.1986 he was entitled to get the pay scale of 950-1500 of tube-well operators. He was not, however, given the said pay scales. He was given the pay scale of Assistant Pump Operator i.e. 350-500 w.e.f. 1982 from 1.1.1986. He made several representations to the authorities for the grant of the pay scale of tube-well operators to him in accordance with the 1982 rules and the amended Rules 1986. This matter was also dis- cussed in a meeting held under the Chairmanship of Deputy Commissioner. Hissar which was attended by the representatives of the workers unions and the representatives of the municipal committees. On 11.5.1989 decision was taken regarding the pay scales of tube-well operators which is that those employed who were appointed as tube-well operators or pump operators shall be given the pay scale of tube-well operators and Assistant Pump Operators (APO) w.e.f. 1.1.1986 as sanctioned by the State Govt. He was not given the pay scale of tube-well operator despite the said decision. He made several representations to Municipal Committee, Hissar. Municipal Committee, Hissar wrote to the State of Haryana (Director, Local Bodies, Haryana) for the grant of necessary sanction so that pay scale of tube-well operators could be granted to him. There is letter Annexure P2 to this effect addressed by Municipal Committee, Hissar respondent No. 3 to the State of Haryana through Director, Local Bodies, Haryana respondent No. 1. As per Baldev Kumar, he was discriminated vis-a-vis similarly situated employees (as he was), namely Shri Nafe Singh and Shri Rajender Kumar, the Municipal Committee, Hissar sought advice of respondent No. 1 State of Haryana for the grant of pay scale of the driver/operator from the date of enforcement of Haryana Municipal Services integration, Recruitment and Conditions of Service Rules which came into force w.e.f. 5.2.1982. Annexure P3 is the letter to that effect addressed by Municipal Committee, Hissar to the Slate of Haryana. Since the petitioner and the other similarly situated employees were not granted the pay scale admissible to the post, they submitted joint representation in the year 1991 to the respondents. Matter was taken up by the Municipal Committee, Hissar with respondent No. 1 for the upgradation of the post of APO to the post of Pump Operator in the pay scale of Rs. 950-1500 and consequently 3 posts of APOs were upgraded in the Municipal Committee, Hissar vide letter dated 11.9.1992 which was endorsed by respondent No. 1 on 3.11.1992. Said letter is Annexure P4. Despite the upgradation of the posts, the petitioner was not granted the required pay scale. Respondent No. 2 Deputy Commissioner, Hissar vide letter No. 2217 dated 31.3.1993 addressed to Municipal Committee, Hissar justified the grant of pay scale as admissible to the employees working as pump operators including the petitioner. Still the said pay scale was not granted.

In C.W.P. No. 14073 of 1992 filed by Nafe Singh who was similarly situated, Municipal Committee filed affidavit saying that the Municipal Committee was ready to give the pay scale of pump operator to Nafe Singh w.e.f. 27.3.1986 the date from which the post of APO was upgraded. Similarly, one Tulsi Ram, who tiled C.W.P. No. 2322 of 1992, was also allowed this benefit. Tulsi Ram was junior to the petitioner as tube-well driver. Tulsi Ram was granted the pay scale of Rs. 400-660 w.e.f. 5.2.1982 and Rs. 950-1500 w.e.f. 1.1.1986. It has been alleged in the instant writ petition by Baldev Kumar that when similarly situated employees have been granted the reviewed pay scales, there was no reason not to grant him the same revised pay scale.

Respondents contested the writ petition urging that this writ petition is barred as he had filed suit on the same cause of action which was dismissed and his appeal was also dismissed. He was appointed against the sanctioned post of APO in Municipal Committee, Hissar vide order dated 21.11.1980. He was also given the pay scale of APO from the date of his appointment. He worked as APO but due to some inadvertence, he was described as pump operator in the appointment letter, it was admitted that the pay scale of tube-well operators was 400-660 w.e.f. 5.2.1982 and w.e.f. 1.1.1986 this pay scale was Rs. 950- 1500. After the Haryana Municipal Services Integration, Recruitment and Condition of Services Rules had come into force w.e.f. 5.2.1982 in Appendix at item No. 68, however, the pay scale of APO was given as Rs. 300-5-400/10-430 but he was given the pay scale of Rs. 350-5-400/10/500 w.e.f. the date of appointment i.e. 21.11.1980. Excess salary paid to him before the enforcement of the Municipality Rules, 1982 was protected vide Rule 8.2. of the said Rule and the pay scale of APO was revised w.e.f. 1.1.1986 i.e. Rs. 750-940. He was claiming old pay scale of Rs. 350-500 because he did not opt for the revised scale that came into force w.e.f. 1.1.1986. Commissioner and Secretary, Local Self Govt., Haryana upgraded only 3 posts of APO to the post of pump operator as per Annexure P4. Petitioner could not be fitted against one of the posts of pump operators created after upgradation. He could be given the pay scale of pump operator w.e.f. 1.1.1994. The pay scale of pump operator to Tulsi Ram was sanctioned by the Director, Local Bodies, Haryana vide Annexure P7. It was not sanctioned by the Municipal Committee, Hissar.

In appointment letter Annexure P1 the petitioner is shown to have been appointed as tube-well driver in the pay scale of Rs. 90-3-120/4-140 plus other allowances by Municipal Committee, Hissar. The petitioners, Shri Nafe Singh and Rajender Kumar represented that they were appointed to the post of tube-well operator but they were given the pay scale of APO. Chief Executive Officer. Municipal Committee, Hissar wrote letter Annexure P2 to Director. Local Bodies, Haryana. Chandigarh that from the perusal of the service records of these officials, it was appearing that they had been appointed as tube-well operator instead of APOs and, therefore, they deserved to be given the pay scale of tube-well operators with effect from the date the Municipal Service Rules came into force. It was also made clear that Municipal Committee was capable of meeting this small excess amount within the budgetary allotment made for the year. Sanction of the Govt. of Haryana was accorded under Rule 3 of the Haryana Municipal Service Rules, 1982 to the upgradation of the post of APO in the Municipal Committees of Haryana to pump operator in the pay scale of Rs, 950-I500/- w.e.f. 27.3.1986. Municipal Commit-tee, Hissar was allowed to upgrade 3 posts of APOs to the posts of pump operators out of these 32 upgraded posts, Deputy Commissioner, Hissar vide letter Annexure P5 addressed to Administrator, Municipal Committee, Hissar sated that the grant of revised pay scales of Baldev Singh, Nafc Singh and Rajender Kumar was justified in view of the upgradation of the posts of APO into the post of pump operator. Nafe Singh was allowed the pay scale of pump operator w.e.f. 27.3.1986. Letter Annexure P7 shows that the pay sale of pump operators was fixed in the Municipal Service Rules, 1982 by designation. Qualification was not the criteria. It some one was more qualified, he was not entitled to extra pay. Similarly, if some one was not that qualified, he could not be barred from getting the pay scale of pump operator. It was mentioned in Annexure P7 that Tulsi Ram pump operator will get the pay in the pay scale of Rs. 950-1500 only.

When the petitioner was tube-well driver/tube-well operator, there was no reason not to allow him the pay scale of tube-well driver/pump operator and give him the same treatment as was given to Nafe Singh and Tulsi Ram who were similarly situated as tube-well operators/pump operators. This writ petition is, therefore, allowed. Writ in the nature of mandamus is issued directing the respondent Municipal Committee, Hissar to grant the pay scale of pump operator to the petitioner w.e.f. 27.3.1986 i.e. when the post of Assistant Pump Operator was upgraded to the post of pump operator. No pay scale of the post of pump operator can be allowed to the petitioner w.e.f. 5.2.1982 when there was no post of pump operator in existence with Municipal Committee, Hissar. Even in appointment letter Annexure P1, although he was described to be appointed as tube-well operator but the pay scale mentioned was 90-3-120/4-140 plus other allowances which was admissible to APOs. Dismissal of the suit/appeal filed by Baldev Kumar earlier can be said to be of no consequence as here he is claiming the enforcement of constitutional right, namely "Equal pay for equal work". Even otherwise suit/appeal was dismissed as not maintainable since the Municipal Committee had already written to the Government to release the pay scale admissible to him.

Appeal dismissed.