Narinder Kumar vs State of Haryana and Others

Rakesh Kumar Jain, J.—By way of this order, we shall dispose of 16 appeals bearing LPA Nos. 1847 of 2011, 15, 365, 378, 1135 to

1137, 1139, 1151, 1213, 1218, 1246, 1247, 1316, 1347 and 1362 of 2012 as the questions of law and facts involved in these appeals are

similar. Out of these appeals, LPA No. 1847 of 2011 is filed by the employee, whereas all other appeals have been filed by the State of Haryana

against the order of the learned Single Judge.

We would first deal with the LPA No. 1847 of 2011 titled as ""Narinder Kumar v. State of Haryana and others "".

The facts in brief are that the appellant in this case was appointed as Electrician on 01.10.1990 on daily wage basis. However his services were

inadvertently regularized to the post of Mali-cum-Chowkidar w.e.f. 01.02.1996 instead of Electrician. It is further alleged that the appellant made a

representation in this behalf to respondent No. 4 who, vide his letter No. 9313 dated 27.09.1996, apprised respondent No. 3 that the services of

the appellant and some other employees have wrongly been regularized to the post of Mali-cum-Chowkidar, whereas they were working as

Electrician Helper etc. The said request was duly considered and accepted and vide order dated 11.10.1996, that inadvertent mistake was

rectified by modifying the designation of the appellant as Electrician Helper. The appellant made a representation for grant of pay scale as per

notification dated 26.07.1991, which was rejected on 12.12.2008. Then he filed CWP No. 807 of 2010 for quashing the said order and for grant

of pay of Rs. 4000-6000 from the date he acquired the qualification of Matric with TTI. The writ petition was allowed on 19.01.2010 by the

learned Single Judge with a direction that he be released the revised pay scale of Rs. 1200-2040 from the date of revision in the pay scale i.e.

01.05.1990. The respondent-State filed LPA No. 1021 of 2010 against the order dated 19.01.2010 which was disposed of on 13.10.2010

relegating them to avail the remedy of filing review application before the learned Single Judge. Accordingly, Review Application No. 385 of 2010

was preferred by the respondent before the leaned Single Judge wherein the appellant conceded that he is entitled to the pay scale of Rs. 4000-

6000 w.e.f. July 1998 when he acquired the qualification of ITI in addition to Matric and not from 01.05.1990 i.e. the date of the relevant

instructions. Accordingly, the review application was allowed and the writ petition was ordered to be listed for hearing as per the Roster. It is

further alleged that the learned Single Judge, before whom the writ petition was re-listed for hearing on merits, dismissed the writ petition vide

impugned order dated 23.08.2011 observing that he was appointed as Mali-cum-Chowkidar and now working as Assistant Electrician. He may

be I.T.I. qualified but the post of Assistant Electrician is not a technical post for which I.T.I. is the requisite qualification and hence, he was not held

entitled to technical pay.

Learned counsel for the appellant has submitted that the appellant was initially appointed as Electrician on daily wage basis w.e.f. 01.10.1990

which is apparent from the letter bearing Memo No. 1130 dated 03.11.2008 (Annexure P-8 with the writ petition). Due to inadvertence on the

part of the Department, he was regularized on the post of Mali-cum-Chowkidar instead of Electrician Helper but the said mistake was rectified on

11.10.1996 and his designation was changed to the Electrician Helper.

During the course of hearing, learned counsel for the appellant has shown to us information sought under the Right to Information Act, 2005

from the office of Engineer in Chief, Public Health Department, Panchkula about the list of technical posts (Class-IV) in which Electrician Helper

finds mention. It is, thus, submitted that the learned Single Judge has erred while dismissing the writ petition on the ground that the Assistant

Electrician is not a technical post, whereas even the post of Electrician Helper is considered to be a technical post by the Department concerned.

Moreover, it has been wrongly observed that the appellant was appointed as Mali-cum-Chowkidar rather he was initially appointed as Electrician

on 01.10.1990 and the order of his regularization to the post of Mali-cum-Chowkidar was accordingly rectified later on.

On the other hand, learned counsel for the respondent-State has submitted that the benefit of revised pay scales is meant for technical posts but

since the appellant did not work on the technical post having been appointed as Mali-cum-Chowkidar, he is not entitled to the said benefit.

We have heard learned counsel for the parties and perused the record from which we have found that while allowing the writ petition on

19.01.2010, the learned Single Judge has noticed that the appellant was initially engaged as Electrician on daily wage basis w.e.f. 01.10.1990. His

services were regularized w.e.f. 01.02.1996. The appellant was Matriculate at the time of his appointment, but later on he passed the I.T.I. course

with the permission of the Department and sought the benefit of revised pay scale of technical post, as notified by the State of Haryana. The

learned Single Judge, while relying upon a decision of this Court in the case of Gurdev Singh and others v. State of Haryana and others, 2012 (2)

S.C.T. 125 : CWP No. 18754 of 1991 decided on 18.01.2010, allowed the writ petition granting the benefit of revised pay scale to the appellant

w.e.f. 01.05.1990. It is not in dispute that the State of Haryana could not succeed in appeal in which it was relegated to the remedy of review and

in review, the order was re-called and the writ petition was put up for hearing on merits afresh.

The question is very short and simple as to whether the appellant was initially appointed as Mali-cum-Chowkidar or Electrician. As per letter

dated 03.11.2008 (Annexure P-8), it is clear that the appellant was initially engaged as Electrician w.e.f. 01.10.1990 at Sub Division No. 1,

Ambala on which he continued to work from 01.10.1990 till his services were regularized on 01.02.1996 as Electrician Helper. As a matter of

fact, the error was committed by the respondents in regularizing services of the appellant to the post of Mali-cum-Chowkidar instead of Assistant

Electrician, which mistake was later on rectified. Since the post of Electrician Helper is a technical post and the appellant has acquired the requisite

qualification of Matric with ITI, he was entitled to the revised pay scale with effect from the date he acquired the aforesaid qualification of Matric

with ITI.

In view of the aforesaid discussion, we find merit in the present appeal and hence the same is hereby allowed and the impugned order passed by

the learned Single Judge is set aside.

Insofar as all other appeals filed the State of Haryana are concerned, the respondents in these appeals were working as T-Mates in the

Department of Irrigation and Public Health Department.

Learned State Counsel has argued that the learned Single Judge has erred in allowing the writ petitions on the basis of the decision of this

Court in the case of Ved Parkash and others v. State of Haryana and others, CWP No. 5665 of 1991 decided on 11.05.2010 as it is related to

the employees working on technical post, whereas respondents herein were not working on the technical posts. It is also submitted that the

judgment relied upon by the learned Single Judge in the case of Raj Karan v. State of Haryana and others, 2002 (4) S.C.T. 499 : 2003 (1) RSJ

119 is also not applicable as the petitioner therein was working as Technical Mate in the J.L.N. Canal, Water Services, Mechanical Division,

Rewari. It is also submitted that the Technical Mates are only helping hand to the persons working on the technical posts and as such, they were

not entitled to the revised pay scales meant for the technical posts.

On the other hand, leaned counsel for the respondents has submitted that there is no error in the order of the learned Single Judge in allowing

the writ petitions because the respondents were working on the post of Trademan Mate prior to 01.05.1990 when there was no qualification for

appointment to the said post. The respondents being non-matric without ITI diplomas were eligible and appointed on the said posts. It is also

submitted that after the revision of pay scale vide instructions dated 02.07.1991, the similarly situated T-Mates, who were denied the said benefit,

approached this Court in Raj Karan''s case (supra) which has been allowed besides the order passed in Ved Parkash and others'' case (supra).

We have heard learned counsel for the parties and perused the record.

The learned Single Judge, while allowing the writ petitions, has observed as under:-

The fact that the petitioners were working on the post of Trade-man Male prior to 01.05.1990 is not in dispute. Prior to the said date, there was

no qualification, as such, prescribed for appointment to the said post. Petitioners being non-matric without ITI diplomas were, therefore, eligible

and appointed on the said posts. Thereafter, vide instructions dated 2.7.1991, pay-scales were revised and modified. T. Mates were denied this

benefit. Similarly placed T. Mates claimed the pay scale of Rs. 1200-2040 w.e.f. 1.5.1990. The aspect with regard to the grant of technical grade

to the employees who were working as T-Mates was considered by a Division Bench of this Court in Raj Karan v. State of Haryana and others,

2003 (1) RSJ 119 against which an SLP preferred by the State was dismissed vide order dated 31.07.2007 and this Court relying on the

judgment of this Court in Raj Karan''s case (supra) and the judgment of the Supreme Court in the case of B.N. Saxena Vs. New Delhi Municipal

Committee and others, proceeded to hold in Ved Parkash''s case (supra) (Annexure P-2) that employees appointed to the post prior to

amendment/prescription of a qualification as per the rules, if any, cannot be denied the benefit of pay fixation and pay revision of the said post on

the basis of such amendment of the Rules or prescription of rules after their appointment to the said post. The claim of the petitioners is covered by

the ratio in Ved Parkash''s case (supra) and, thus, the petitioners are entitled to the technical pay scale.

The judgments which have been relied upon by the counsel for the respondents do not pertain to the same issue. The claim of the petitioners being

covered by the ratio of the judgment of this Court in Ved Parkash''s case (supra) against which the SLP preferred by the State has been dismissed

as also by the Division Bench of this Court in Raj Karan''s case (supra), which dealt with T-Mates, the petitioners are entitled to the same benefit

as has been granted in the said case.

While allowing the writ petitions, the respondents have been held entitled for grant of revised pay scales meant for technical posts w.e.f.

01.05.1990. However, payments of arrears were restricted to 38 months prior to date of filing of the writ petitions.

In our considered opinion, there is no error in the order of the learned Single Judge as the matter is covered by the decision of this Court in Raj

Karan''s case (supra) and in Ved Parkash and others'' case (supra) and the principle of law enunciated by the Supreme Court that ""employees

appointed to the post prior to amendment/prescription of a qualification as per the rules, if any, cannot be denied the benefit of pay fixation and pay

revision of the said post on the basis of such amendment of the Rules or prescription of rules after their appointment to the said post"". In view of

the above discussion, all the appeals filed by the State of Haryana are found to be without any merit and are accordingly dismissed, trough without

any order as to costs.