Paramvir Singh vs State of Punjab

Rameshwar Singh Malik, J.—Feeling aggrieved against the order dated 4.1.2013 (Annexure P-4), passed by respondent No. 2, petitioners have approached this Court by way of instant writ petition under Article 226 of the Constitution of India, seeking a writ in the nature of Certiorari, for quashing the impugned order.

Notice of motion was issued and pursuant thereto, written statement was filed on behalf of the respondents.

Learned senior counsel for the petitioners, while relying upon averments taken in para 2 and 3 of the writ petition, submits that up to 15.2.1990, it where the petitioners who had been granted higher pay scales than the Assistant Mechanical Engineers of the respondent department, i.e. Department of Transport, Punjab. Qualifications required for the post on which the petitioners were working as well as for the post of Assistant Mechanical Engineers was graduation in Mechanical Engineering, under the same set of statutory rules namely, The Punjab Department of Transport Commercial Wing (State Service Class-II) Rules, 1984 (''Rules of 1984'' for short). He also places reliance on the communications dated 24.8.2011 (Annexure P-1) and dated 12.7.2012 (Annexure P-3) wherein a comparative study has been carried out and finally, it was found that petitioners were entitled to be treated at par with the Assistant Mechanical Engineers, in the matter of pay scales. He would next contend that respondent No. 2 miserably failed to consider the matter in the correct perspective, while passing the impugned order dated 4.1.2013 (Annexure P-4), which was cryptic in nature and liable to be set aside. He concluded by submitting that once the respondent administrative department itself has found the petitioners entitled to be treated at par with the Assistant Mechanical Engineers, in their qualifications, method of recruitment, nature of duties and responsibilities, there was no plausible reason with respondent No. 2 not to treat the petitioners at par with Assistant Mechanical Engineers, in the matter of pay scales. He prays for setting aside the impugned order, by allowing the present writ petition.

Per contra, learned counsel for the State submits that recommendations made by the Additional Secretary of the respondent administrative department vide Annexures P-1 and P-3 were not sufficient for the purpose of treating the petitioners at par with the Assistant Mechanical Engineers. While referring to the averments taken in preliminary submissions, learned counsel for the State submits that since qualifications of the petitioners as well as Assistant Mechanical Engineers were not exactly the same, petitioners were not entitled to claim parity, in the matter of pay scale. He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

Petitioners have taken specific averments in para 3 of the writ petition, giving their as well as that of Assistant Mechanical Engineers'' pay scales, right from 1984. Para 3 of the writ petition reads as under:-

That it is necessary to mention here that scale of Assistance Divisional Managers (Purchase)/Assistant Divisional Manager (Store)/Stock Verification Officer was higher is comparison to Assistant Mechanical Engineer prior to 15.2.1990. After 15.2.1990 the pay scales have been made equivalent of both the categories but vide letter dated 14.7.2011 the pas scales of Assistant Mechanical Engineers were revised w.e.f. 1.1.1996. The detail of the pay scales of both the above categories is given below for ready reference:-

The respondents have failed to deny the abovesaid material aspect of the matter in the corresponding para 3 of their written statement, which reads as under:-

That in reply to para No. 3, it is pertinent to mention here that the pay scales of Govt. Officers/Officials are revised after a lapse of every ten years on the recommendations of Pay Commission constituted by the Punjab Govt. An Anomaly Committee is also constituted if any discrepancy is found with regard to the pay scales. The petitioners should have been made a representation to the anomaly committee but they failed to do so. Hence no financial benefit can be allowed tot he petitioners at this stage.

A combined reading of the averments taken in para 3 of the writ petition as well as para 3 of the written statement makes it crystal clear that in the year 1984, Assistant Mechanical Engineers were in the pay scale of Rs. 800-1400, whereas the petitioners were in the pay scale of Rs. 825-1580. On the recommendations of 3rd Pay Commission, pay scale of Assistant Mechanical Engineers with whom the petitioners are claiming parity, was revised to Rs. 1800-3200 whereas the pay scale of the petitioners was revised to Rs. 2000 to 3500. It is also a matter of record that vide notification dated 15.2.1990, Assistant Mechanical Engineers were brought at par with the petitioners, while revising the pay scales of both these categories to Rs. 2200-4000.

On the recommendation of 4th Pay Commission, pay scales of the petitioners as well as that of Assistant Mechanical Engineers, were revised to Rs. 7220-11660 w.e.f. 1.1.1996. Further, on the recommendation of 5th Pay Commission, pay scale of Assistant Mechanical Engineers as well as that of the petitioners were revised to the same pay scale of Rs. 10,300-34,800 + Grade Pay of Rs. 5000/-. Thus, 4th and 5th Pay Commissions as well as the respondent State treated the petitioners at par with the Assistant Mechanical Engineers.

As noticed earlier, up to 15.2.1990, petitioners were getting higher pay scales than the Assistant Mechanical Engineers. Thereafter, the Assistant Mechanical Engineers of the respondent administrative department filed CWP No. 10823 of 2003 and the writ petition was allowed, vide order dated 4.8.2010. It was at this stage, respondent administrative department considered and decided that Assistant Mechanical Engineers as well as present petitioners should be given necessary benefits, as per order passed by this Court in CWP No. 10823 of 2003. Relevant extract of communication dated 24.8.2011 (Annexure P-1), reads as under:-

It is for your attention that as per the Govt. order No. 9/227/2003-5T3/3228-3231 dated 14.7.2011 and under reference letter, it has been decided that petitioners Assistance Mechanical Engineers maybe given necessary benefits as per orders of Hon''ble Punjab and Haryana High Court and the categories, similar to petitioners, Asstt. Mechanical Engineers, the clear proposal may be sent certifying their educational qualification. In this regard, it is stated that Asstt. Mechanical Engineers, Asstt. Divisional Manager (Purchase), Asstt. Divisional Manager (Store) and Stock Verification Officers are also included in the cadre of petitioner-Assistant Mechanical Engineers. In relation to their qualifications it is certified as under:-

As per Punjab Department of Transport, Commercial Wing (State Service Class-II) Rules, 1984 it is certified that the directly recruited Asstt. Mechanical Engineers cadre also consists of Asstt. Divisional Manager (Purchase), Astt. Divisional Manager (Store) and Stock Verification Officers. The Asstt. Mechanical Engineers, Asstt. Divisional Manager (Store & Purchase) and Stock Verification Officers, those who were not petitioners in civil writ petition No. 10823 of 2003, their educational qualifications, Recruitment Agency and Pay Scales are equivalent to that of Petitioner-Assistant Mechanical Engineers.

The Finance Department also gave its consent for putting forward the case of the petitioners to the Committee constituted in this regard for giving due benefit, as per the abovesaid orders passed by this Court. The relevant extract of communication dated 9.9.2011 (Annexure P-2) is as under:-

Punjab Government (Finance Department) (Finance Personal-1 Branch)

Regarding Administrative Department IDL No. 9/227/2003-5 T3 dated 9.9.2011

Finance Department gives its consent for putting forward the case to the committee constituted vide Personnel Department Instructions No. 12/39/2002-5 PP-2/9406 dated 17.7.2002 and No. 12/39/2002-5PP/10961-63 dated 12.6.2003 for giving due benefit to the similar nature in the judgment given in court cases.

Sd/- Under Secretary Finance (J)

Thereafter, the matter was again considered by the Committee constituted under the Chairmanship of Personnel Department. A comparative study of duties and responsibilities was carried out as well as all other relevant factors were taken into consideration and finally, recommendations were made vide communication dated 12.7.2012 (Annexure P-3) and relevant part thereof, reads as under:-

Punjab Government Transport Department (Transport-1 Branch)

Sub: Regarding giving pay scales (Equivalent to petitioner AME''s) Assistant Mechanical Engineers (now General Manager)/Asstt. Mechanical Engineers in addition to petitioners vide judgment in civil writ petition No. 10823 of 2003-Sarabjit Singh Khokher and others Vs. Punjab Govt.

The Personnel Department (Personnel-2 Branch) in continuation to the note from Secretary (Transport) dated 18.5.2012 and this department IDLO No. 9/227/03-5T3/3T/Spl. Dated 24.5.2012.

As per the discussion held under the Chairmanship of Secretary Personnel Department on 5.7.2012, the information is given as under:-

(a) The Comparative Statement of duties of AME/ADM''s/SVO, is given under:-

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It is clear from above that the duties of ADM''s/SVO are not less than AME''s in any manner but are of equal responsibility.

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In the light of A in comparative statement, it is stated before the notification of 15.. 1990, Asstt. Divisional Manager (Purchase & Store)/Stock Verification Officer were getting higher pay scales than AME''s with this notification both the categories got same pay scales. After that, both categories got similar pay scales as per 4th and 5th Pay Commission. But after the judgment delivered regarding Civil Writ Petition, the disparity has arisen regarding pay scales of AME''s (petitioner) & ADM (Purchase & Store)/Stock Verification Officer The similarly is required to be maintained regarding disparity in pay scales.

After detailed discussions on the subject at more than one occasions, the respondent administrative department in consultation with the Committee constituted under the Chairmanship of Secretary, Department of Personnel, came to a definite conclusion that the petitioners were entitled for the same pay scales as that of Assistant Mechanical Engineers and the matter was again referred to the Finance Department-respondent No. 2.

It is pertinent to note here that Finance Department has already given its consent vide abovesaid communication dated 3.10.2011 (Annexure P-2), for forwarding the matter to the committee constituted under the Chairmanship of Secretary, Department of Personnel, so as to consider the issue for giving same benefits to the petitioners, by treating them at par with the Assistant Mechanical Engineers. However, respondent No. 2, while passing the impugned order dated 4.1.2013 (Annexure P-4), altogether ignored the comparative study on nature of duties performed by the petitioners and that of Assistant Mechanical Engineers, as well as other relevant factors, which were made basis of the recommendations contained Annexure P-3.

It has not been pointed out by respondent No. 2 in the impugned order that comparative study carried out by the Committee constituted under the Chairmanship of Secretary, Department of Personnel, in consultation with the respondent administrative department, was not based on correct appreciation of the facts. In the absence of any such reasons recorded by respondent No. 2, impugned order is, on the face of it, without jurisdiction. The relevant part of the impugned order Annexure P-4, issued by respondent No. 2, reads as under:-

The Finance Department gives its advice/observation on the recommendations of Administrative Department as under:-

7 AMEs of the Department of Transport may be given pay scales as given in the SDEs of the Department of Rural Development and Panchayats with immediate effect subject to the condition that no arrears shall be admissible and only benefit of notional pay fixation may be given. In the case of other categories like Assistant Divisional Manager (Purchase), Assistant Divisional Manager (store) and Stock Verification Officer, it was found that these categories of posts do not fulfill the requisite criteria for qualification as similarly placed categories and, therefore, their case was not approved.

-Sd- Under Secretary Finance

During the course of hearing, when a pointed question was put to the learned counsel for the State as to why the recommendations Annexures P-3, which were based on official record and comparative study carried out by an expert committee, were ignored by the Finance Department, while passing the impugned order, he had no answer and rightly so, because it was a matter of record. Further, respondents have not placed on record any other material, so as to make out a case that recommendations made by respondent administrative department, on the basis of comparative study of nature of duties and other relevant factors by an expert committee under the Chairmanship of Secretary, Department of Personnel, were either contrary to the official record or were factually incorrect or legally misconceived.

Nothing, whatsoever, has been pointed in this regard. In the absence of any contrary record, it can be safely concluded that recommendations made by an expert committee constituted for the said purpose would be binding on the respondent-State. It is so said, because the respondent administrative department as well as Finance Department are the departments of the same respondent State. The respondent Finance Department has not made even a passing reference, while passing the impugned order, pointing out any deficiency of any kind whatsoever, in the recommendations Annexure P-3, which were based on the comparative study carried out by the expert committee. Having said that, this Court feels no hesitation to conclude that impugned order passed by respondent No. 2 is patently illegal and the same cannot be sustained.

The stands taken by respondent No. 2 are contradicting each other. Such a contradictory stand taken by the respondent State cannot be reconciled. The material aspects of the matter are that the petitioners were drawing higher pay scales than the Assistant Mechanical Engineers of their department right from 1984 up to 15.2.1990. Thereafter, vide notification dated 15.2.1990, Assistant Mechanical Engineers were brought at par with the petitioners by treating both the categories in the same pay scale of Rs. 2200-4,000.

Thereafter, the recommendations of 4th and 5th Pay Commissions also kept both the categories at par, while recommending the revision of their pay scales. Thus, it becomes clear that right from 1984 till passing of the impugned order dated 4.1.2013, petitioners and the Assistant Mechanical Engineers were being treated at par by respondent State itself. It is neither pleaded nor argued case on behalf of the respondents that in the interregnum, there was any material change in the fact situation, so as deny parity in treatment to the petitioners with Assistant Mechanical Engineering, in the matter of pay scales. It is also not the case of the respondents that they have not accepted the recommendations of 4th and 5th Pay Commissions to put both the categories in the same pay scales.

In view of the foregoing discussion, it is unhesitatingly held that impugned order dated 4.1.2014 (Annexure P-4) issued by respondent No. 2 is arbitrary and discriminatory, being violative of Articles 14 and 16 of the Constitution of India and the same cannot be sustained.

The above said view taken by this Court also finds support from the judgments rendered by the Hon''ble Supreme Court and this Court in Purshottam Lal and Others Vs. Union of India (UOI) and Another, Haryana State Minor Irrigation Tubewells Corporation and Others Vs. G.S. Uppal and Others, G.K. Nagpal and Others Vs. The Punjab State Electricity Board, Dhiraj Goel and others v. State of Punjab and others passed in CWP No. 17715 of 2007 decided on 11.5.2009; Darshan Singh etc v. The State of Punjab etc. (CWP No. 13330 of 1994) decided on 15.5.2009 and R.K. Aggarwal and others Vs. State of Punjab (CWP No. 2605 of 1998) decided on 2.7.2014.

The relevant observations made by the Hon''ble Supreme Court in paras 9, 10 and 17 of the judgment in Purshottam Lal''s case (supra), read as under:-

The Research staff protested by letter dated October 18, 1962. They stated therein that "the revised pay scales of similar posts in other similar sister institutions (except F.R.I.) of this Institute under this very Ministry as well as other ministries have been implemented from 1st July 1959 according to the 2nd Pay Commission recommendations accepted by the Government of India." They requested that the benefit of the retrospective date i.e. July 1, 1959 be given to them in accordance with the recommendations of the Pay Commission.

The Government replied on January 30, 1963 that "the revision of pay scales in respect of Research Assistants and Computers at this Institute has been done on the basis of the duties attached to these posts and not on the basis of the recommendations of the Pay Commission. In view of this the pay scale of Rs. 150-300 now given would have effect from the date of issue of the orders and pay fixation in this case has to be done under F.R. Only�.

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In the result the petition is allowed and it is directed that the revised pay-scales of the petitioners will have effect from July 1, 1959, in accordance with the recommendations of the Pay Commission. We further direct that the petitioners should be paid the amount payable to them as a consequence of the revision of the pay-scales with effect from July 1959. The petitioners will have the costs of this petition.

Similar issue fell for consideration before the Division Bench of this Court in G.K. Nagpal''s case (supra) and it was held, as under:-

It is undoubtedly true that the posts of Laboratory Assistants are different from those of Line Superintendents etc. It is also correct that they carry different qualifications as well as different duties. However, the fact remains that all these posts had been treated as ''equal'' initially. They were even treated as ''equal'' even at the time of the revision of the pay scales. If at a subsequent stage they were to be treated differently, some reason should have been disclosed. The respondent-Board has not disclosed any reason in the written statement. This is in spite of the fact that various officers of the Board have repeatedly opined that the duties of the posts are analogous, the qualifications are similar and as such the plea for parity of treatment in the pay-scales should have been granted. Why the respondent-Board treated the appellants differently? Neither in the written statement nor by any other document the reason has been disclosed in the Court. Even at the hearing, no one has appeared on behalf of the respondent-Board to justify this action.

We are conscious of the fact that a differential treatment in the matter of pay scales on the basis of educational qualifications and the nature of duties is permissible. However, it is equally clear to us that if two categories of employees are treated as equal initially, they should continue to be so treated unless a differential treatment is justified by some cogent reason. In a case where the nature of duties is drastically altered, a differential scale of pay may be justified. Similarly, if a higher qualification is prescribed for a particular post, a higher scale of pay may be granted. However, if the basic qualifications and the job requirements continue to be identical or as they were initially laid down, then the Court shall be slow to accept the action of the authority in according a differential treatment unless some good reason is disclosed. In the present case, the only reason pointed out in the written statement is based on the qualifications and the job requirements. There has been admittedly no change in either of the two parameters. That being so, no new ground for creating a classification was made out.

Although, the financial burden has not been taken as a ground by the respondent-State in the written statement filed on its behalf, yet the said plea would not be available to the respondent-State in view of the law laid down by the Hon''ble Supreme Court in G.S. Uppal''s case (supra). Further, the above-said report of Fourth Punjab Pay Commission came up for consideration of this Court in Dhiraj Goel''s case (supra). It was also a case based on similar set of facts. After referring to recommendations made by the Fourth Punjab Pay Commission in para 39.1. and 39.40 of its report, this Court observed as under:-

From the aforesaid recommendations, it is abundantly clear that the Fourth Pay Commission identified various common categories, which are said to be identical and based upon the mode of their recruitment, qualifications and other related factors. These categories are identified in para 39.2. Professional categories have also been incorporated, which include Sub Divisional Engineers irrespective of the department. Further in para 39.40 it is specifically mentioned that though the revised pay scales have been allocated to the PWD (B & R), however, the same pay scales have been recommended for other similar categories/departments.

These recommendations were admittedly accepted by the State Govt. and consequently the statutory rules under Article 309 were notified namely the Punjab Civil Services (Revised Pay) Rules, 1998 issued vide notification No. 7/1/97-FP1/7370 dated 19.5.1998.

Again, in Darshan Singh''s case (supra), identical issue was considered by this Court. Writ petition was filed by the Surveyors of Irrigation Department. The writ petition was allowed vide order dated 15.5.2009. It was challenged by the respondent-State before a Division Bench of this Court vide LPA No. 380 of 2010. The surveyors of Irrigation Department were claiming parity with the Surveyors of Soil Conservation Department, as in the present case, the petitioners are claiming parity with the Junior Engineers of Soil Conservation Department. While dismissing the LPAs filed by the respondent-State vide its order dated 18.3.2010, the Division Bench of this Court, held as under:-

Learned Single Judge having observed that initially pay scale of the surveyors of both the departments was the same and even the 1st Pay Commission of Punjab Government recommended the same pay scale to the surveyors of both the Department and the Punjab Government granted same pay scale to the surveyors of both the departments as per the recommendations of the 1st Pay commission. Learned Single Judge further observed that surveyors in the Irrigation Department as well as in the Soil Conservation Department, Punjab are performing similar kind of duties and thus, they cannot be discriminated in the matter of pay scale and other allied benefits like Local Traveling Allowance. Learned Single Judge placed reliance on the judgment of the Apex Court in the Employees of Tannery and Footwear Corporation of India Ltd. and another Vs. Union of India and others, and also on the judgment of a Division Bench of this Court in Haryana State Biologists Association Vs. State of Haryana, 1994(4) TSJ 44.

The above-said order passed by the Division Bench in Darshan Singh''s case (supra) was challenged by the respondent-State before the Hon''ble Supreme Court but SLP No. 1648 of 2010 came to be dismissed vide order dated 8.7.2010.

Reverting back to the fact situation of the present case and respectfully following the law laid down by the Hon''ble Supreme Court as well as Division Bench of this Court, it is held that the impugned order is patently illegal and the same cannot be sustained.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that present writ petition deserves to be allowed and the same is hereby allowed. The impugned action taken by respondent No. 2, while passing the impugned order dated 4.1.2013 (Annexure P-4), is hereby declared illegal and the same is set aside. Petitioners are held entitled for parity with Assistant Mechanical Engineers in the matter of pay scales. Respondents are directed to grant same pay scales to the petitioners, which have been granted to the Assistant Mechanical Engineers, with all consequential benefits, including re-fixation of their pay and arrears of salary. The respondent administrative department is directed to complete this exercise within a period of three months from the date of receipt of certified copy of this order.

Resultantly, instant writ petition stands allowed, however, with no order as to costs.