Puran Singh vs Punjab State Electricity Board, Patiala

Bakhshish Kaur, J.—Invoking the extra ordinary writ jurisdiction of this court under Articles 226 and 227 of the Constitution of India, the petitioner prays for issuance of an appropriate writ quashing the orders dated 16.3.1982 (Annexure P-6) and 22.3.1984 (Annexure P-13) and also for issuing a direction to the respondent to allow the petitioner, pay scale of Rs. 700-1200, as has been given to other members of service working in petitioner''s cadre.

The petitioner had passed Matriculation Examination and has also completed I.T.I. Course of Mechanic from the recognised Institute of Punjab State. He was appointed on 5th May, 1971 as an employee of the Punjab State Electricity Board (in short ''the Board''). He is working as a Diesel Engine Mechanic in the pay scale of Rs. 140-305, which was subsequently revised to Rs. 200-450 w.e.f. 20.2.1973.

On June 18, 1947, 12 posts of Diesel Engine Drivers and 12 posts of Diesel Engine Mechanics were advertised. The scale of these posts was Rs. 200-10-250/270-15-450. But there are no separate Rules/Regulations governing the service conditions of Diesel Engine Drivers/Mechanics. The qualifications for these posts as given in the advertisement were as under :-

1). Diploma Holders in Mechanical Engineering with at least 3 years experience;

2). Matriculates with I.T.I. qualification in the trade and a minimum experience of 5 years;

OR

3) 10 years experience in running and maintenance of Diesal Engines of 250 BHP and above."

On appointment of Diesel Engine Mechanics/Drivers with various qualifications, they formed one cadre in service; they are assigned similar duties and allowed same pay and the posts occupied by them have been made inter-changeable between them besides they formed common seniority on the basis of continuous length of service.

On 12th August, 1980, the Board classified its employees into various categories for the purpose of revised pay scale which was made effective from 1.1.1978. It has allowed two different cadres of pay to the category of Diesel Engine Drivers/Mechanics viz Rs. 700-1200 to those who possess three years Diploma Course in Electrical/Mechanical Engineering-and were recruited direct and Rs. 620-1200 to those Non-Diploma Holders who were appointed in the un-revised scale of Rs. 200-450, as per Annexure P-6 and the letter Annexure P-13 which relates to the matter of absorbing the surplus Diesal Engine Drivers/Mechanics in other cadres, is illegal, arbitrary and discriminatory.

The respondent in its written statement justifying the action taken by it as per Annexures P6 and P-l 3 has averred that giving different scales of pay even within the cadre, on the basis of qualifications etc, is permissible on the basis of educational qualification and such qualification is not per se violative of Articles 14 and 16 of the Constitution. The order Annexure P-6 whereby higher time scale has been given to Diesel Engine Mechanics possessing higher educational qualifications (Diploma Holders) as compared to those not possessing these qualifications (Non Diploma Holders) to which category the petitioner belongs, is, therefore, fully sustamable under law. The Board had appointed the Diesel Engine Mechanics and has given the different time scales on the basis of their qualifications with a view to ensuring (maintenance) of the Diesal Power Houses for the generation of electricity. The classification is, therefore, quite rational, sustainable. It is also pleaded, inter alia, that consequent upon the closure and selling of the Diesal Power House, the Board has constituted a Committee for the permanent absorption of the Diesel Engine Mechanics/Diesel Engine Drivers, who have thus, become surplus depending upon the educational qualifications and experience and after interviewing them. As soon as the Committee gives the recommendations in the course of time, the petitioner will be absorbed in the category to which he will be found suitable and he will be granted the existing time scale of that post. If he does not accept the same, there will be no alternative left with the Board but to terminate his services in accordance with the conditions of his service. Till the recommendations of the Committee are finalised and implemented, the petitioner is not entitled to any relief. It is further averred that revised time scale has been given only to those incumbents possessing higher qualifications as mentioned in Annexure

I have heard Mr. V.K. Jindal, learned counsel for the petitioner and Mr. N.S. Boparai, learned counsel for the respondent and have perused the record carefully.

The facts which are not in dispute are that originally the category of Diesel Engine Mechanics/Drivers was in the scale of Rs. 140-305 and this scale was revised to Rs. 200-450 and further, it was revised to Rs. 510-1089. These revised scales were allowed to the category of Diesel Engine Mechanics/Drivers without any classification on the basis of qualifications, but now, by passing order Annexure P-6, classification on the basis of qualification has been made. Whether it can be termed as just and proper, or, viofative of the principles of natural justice or violative of the provisions enshrined as Articles 14 and 16 of the Constitution?

The petitioner was appointed Diesel Engine Mechanic on 5.5.1971 in the pay scale of Rs. 140-305 which was later revised from time to time. He fulfilled the qualification mentioned in the advertisement at the time of his appointment as he was Matriculate with I.T.I. Certificate in the trade having minimum experience of 5 years. Annexures P-6 and P-13 are reproduced below :-

"Annexure P-6

Scale ofpay immediatelybefore 1.1.78

Revised scale of pay already notified wef 1.1.78

Enhanced scale of pay now sanctioned wef 1.1.78

Remarks

Diesel Engine

200-450

570-1080

i)700-1200

To those possess 3 years Diploma in Electrical/ Mechanical Engg.& were recruited direct."

"Annexure P-13.

Unrevised Scale before 1.1.1978.

Revised Scale w.e.f. 1.1.1978.

Drivers/Mechanics (Diploma holders)

Rs. 200-450

Rs. 700-1200

Diesel Engine Drivers/Mechanics (Diploma Holders)

Rs. 200-450

Rs. 620-1200".

At the time when the petitioner was appointed in response to the advertisement for the post of Diesel Engine Driver/Mechanic, the qualifications which were required to be filled were; firstly (i) Diploma Holder in Mechanical Engineering for at least 3 years (ii) Matriculate with I.T.I. Certificate in the trade and minimum experience of 5 years, or (iii) 10 years experience in running and maintenance of Diesel Engine of 250 BHP and above. It is, therefore, abundantly clear that the candidates possessing any of the three qualifications were eligible to apply for the post of Diesel Engine Driver/Mechanic in the scale of Rs. 200-10-250/270-15-450. No preferential treatment was required to be given to the persons who were Diploma Holder in Mechanical Engineering or who possess higher qualifications than the one prescribed in the advertisement. Again, revised grades were allowed to the category of Diesel Engine Mechanics/Drivers without any classification on the basis of qualification. As per the impugned orders Annexure P-6 and P-13, all the persons having Diplomas in Mechanics/Electrical Engineering have been given the grade of Rs. 700-1200, while the petitioner has been placed in the lower grade of Rs. 620-1200 by classifying the cadre into two categories. Since Non-Diploma Holders and the Diploma Holders were placed in the same scale of pay, therefore action on the part of the respondent in not allowing the petitioner''s category (Non Diploma Holders), the scale of Rs. 700-1200 cannot be termed as le-gal because the petitioner as well as the Diploma Holders form one cadre of Diesal Engine Mechanic/Drivers having identical duties and the posts were made interchangeable.

The respondent in its written statement has not been able to establish or make out a case that the duties required to be performed by the two categories are distinct or that any classification in cadre on the basis of qualification is legal and just. On appointment of the petitioner on the basis of the aforesaid qualification mentioned in the advertisement, the incumbents form one cadre. They have common duties to perform. Posts are inter-changeable. No preferential treatment was required to be given nor it was mentioned in the advertisement. It is not made out that the petitioner, who is not Diploma Holder is not discharging the same duties or that the Diploma Holder discharging the duty carries higher responsibility. Under these circumstances, provisions of Article 14 of the Constitution would be attracted as it provides equality of treatment to the similarly situated persons. Similarly Article 16 of the Constitution provides for equality in the public appointments. In J.L. Bhutani v. State of Haryana, 1997(3) SCT 408 (P&H) (DB), it was held that persons discharging the duties on inter transferable posts carrying equal responsibilities cannot be prescribed different pay scales.

In "Kerala State Govt. Ayurveda Medical Officers Association, Emakulam and another v. State of Kerala 1997(3) SCT 649, Classification sought on the ground of qualifications i.e. Degree-holder Medical Officer will render better quality of service than those holding Diploma is no ground to classify them for higher scale of pay. In para 13, it was observed as under :-

"It is not pleaded nor any material produced before this Court to show that the special feature namely, the common selection from among degree holders and diploma holders to the post of Medical Officers (Ayurveda) has been taken into consideration either by the Fifth Pay Commission or by the Government while granting two different scales of pay for the decree holders and diploma holders. Taking into consideration the nature of selection, manner of appointment, nature of the duties and responsibilities attached to the post and further chances of promotion, I find that there is no justification in treating the degree holders and diploma holders differently for the purpose of scale of pay at the entry level alone."

In Union of India & Others v. Bhagwati Achari & Others, (Calcutta) 2001 S.L.R. 51, the Tribunal had granted equal pay to the petitioners which was paid to the Delhi Police Drivers. The order was challenged by the Union of India on the ground that method of recruitment of both the classes are different, Article was not held proper and it was observed that Articles 39(d) of the Constitution of India postulates equal pay for those who are equally placed. It was also held that the doctrine of equal pay for equal work as adumbrated under Article 39 of the Constitution of India read with Article 14 thereof can be applied when a Court of law comes to a clear finding that the duties and responsibilities performed by their counter parts must be at par with all respects including educational qualifications, experience etc. so as to enable them to get the said benefits. In this authority, the decision rendered by the Apex Court Randhir Singh v. Union of India, 1982(1) SLR 756 (SC), Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India 1988(2) SLR 721 (SC) have been referred.

No doubt, in Randhir Singh Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court held as under :-

"It is true that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Court but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay because they belong to different departments."

In the given facts of the case, at the time of appointment on the basis of advertisement and the qualification mentioned therein, the petitioner cannot be treated differently because it is a well settled that equality before law, and equal protection of law as adumbrated under Article 14 of the Constitution of India, is a positive concept. Article 39(d) read with Article 14 of the Constitution postulates equal work for those who are equally placed.

The learned counsel for the respondent has not been able to explain as to why and in what respect, the petitioner is to be treated differently from those who had been placed at higher pay scale.

The classification on the basis of qualifications as mentioned in Annexure P-13 is, therefore, violative of Article 14 of the Constitution and it being discriminatory to the extent so far as it relates to the Diesel Engine Drivers/Mechanics (Non-Diploma Holders). The petitioners are, therefore, entitled to pay scale of Rs. 700-1200 as has been given to other members of the service working in the petitioner''s cadre. The respondent is, therefore, directed to refix the pay of the petitioner according to the revised pay scale w.e.f. 1.1.1978. However, the petitioner shall be entitled to differences in arrears of pay for 38 months preceding the date of filing of the writ petition.

Petition allowed.