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Punjab High Court · body

2009 DIGILAW 53 (PNJ)

Kulwinder Singh v. Punjab State

2009-01-09

AUGUSTINE GEORGE MASIH

body2009
Judgment Augustine George Masih, J. 1. By this order, t propose to dispose of three writ petitions i.e. CWP No. 4723 of 1992 titled as Kulwinder Singh and others vs. State of Punjab and others, CWP No. 15424 of .1992 titled as Harish Kumar and others vs. State of Punjab and another and CWP No. 16256 of 1992 titled as Daljinder Singh and others vs. State of Punjab and another as common question of facts and law is involved in them. CWP No. 4723 of 1992 tilted as Kulwihder Singh vs. State of Punjab and others, came to be decided on 11.11.1992 bya Division Bench of this Court. Vide this order, the said writ petition was allowed. Following the judgment passed by the Division Bench of this Court, CWP No. 15424 of 1992 titled as Harish Kumar etc. vs. State of Punjab and another and CWP No. 16256 of 1992 titled as Daljinder Singh and others vs. State of Punjab and another were allowed vide order dated 29.04.1993. These Orders passed by the Division Bench of the High Court were challenged by the Punjab Mandi Board, Chandigarh (respondents in the writ petitions) in the Honble Supreme Court when the Honble Supreme Court was pleased to remand the case back to the High Court whiie setting aside the order dated 11.11.1992 and order dated 29.04.1993 for fresh decision. Alt the contentions sought to be canvassed by the writ petitioners were kept open for scrutiny of the High Court along with the new contentions, which were canvassed by the Punjab Mandi Board before the Honble Supreme Court for the first time, which had resulted in the remand of the cases to the High Court. It was kept open to the respective respondents before the High Court to raise new contentions by way of supplementary counter affidavit. It was equally left open to the writ petitioners to file rejoinders in connection with the said point. This order of the Honble Supreme Court is dated 01.04.1997. On the basis of the said remand order, supplementary affidavit has been filed on behalf of the Punjab Mandi Board-respondent No. 2 and a rejoinder to the said supplementary affidavit has been filed by the petitioners. It is on the basis of these pleadings that I proceed with the matter and decide the same. 2. On the basis of the said remand order, supplementary affidavit has been filed on behalf of the Punjab Mandi Board-respondent No. 2 and a rejoinder to the said supplementary affidavit has been filed by the petitioners. It is on the basis of these pleadings that I proceed with the matter and decide the same. 2. These petitions have been filed by the petitioners, who are working as Clerks, Kanda Moharrar, Restorer, Village Supervisor, Care Taker, Store Keeper, Rest House Attendant, Auction Recorders, Kandaman in various Market Committees of Punjab constituted under the Punjab State Agricultural Marketing Board, who are claiming the pay scale of Rs. 510-800 w.e.f. 01.01.1978 and Rs. 1200-2100 w.e.f. 01.01.1986 as given to the Clerks, Kandaman, Moharrar, Restorer, Care Taker, Village Supervisor, Rest House Attendant and other categories, who are performing same duties having same qualifications but were appointed before 03.07.1980 on the basis of equal pay fore qual work. A further prayer haS been made for release of all consequential benefits including arrears with interest. Prior to 13.11.1978, the grade of Auction Recorder was Rs. 110-200, whereas that of a Clerk was Rs. 110-250. On 13.11.1978, Punjab Mandi Board equated the pay scale of Auction Reorders with that of Clerks and they were given the same pay scale i.e. Rs. 110-250. On 08.05.1980, the Punjab Mandi Board equated all categories such as Clerks, Auction Recorders, Kanda Moharrar, Restorers, Care Taker and Village Supervisor granting them one pay scale of Rs. 400-600 w.e.f. 01.01.1978. However vide circular No. 457 dated 02.07.1980, the pay scale of the Auction Recorder was again revised and was given higher pay scale of Rs. 450-800 w.e.f. 01.01.1978. The other categories, who were earlier granted the equated pay scale of Rs. 400-600 w.e.f. 01.01.1978 along with Auction Recorders, submitted representations claiming the same pay scale and praying for the removal of the anomaly. A decision was taken vide circular No. 231 dated 11.11.1983 vide which again all the categories, as mentioned above, were given the same pay scale i.e. Rs. 450-800 w.e.f. 01.01.1978. However, a rider was imposed that the persons employed after 03.07.1980 will be given the pay scale of Rs. 400-600 and these employees shall get the promotion to the post of Auction Recorders i.e. the person recruited after 03.07.1980 will first get the promotion to the post of Auction Recorder before getting further promotion. 450-800 w.e.f. 01.01.1978. However, a rider was imposed that the persons employed after 03.07.1980 will be given the pay scale of Rs. 400-600 and these employees shall get the promotion to the post of Auction Recorders i.e. the person recruited after 03.07.1980 will first get the promotion to the post of Auction Recorder before getting further promotion. It would not be out of way to mentjon here that vide this circular No. 231 dated 11.11.1983, the Board admitted that in order to remove the anomalies, the Board has decided that Clerks, Village Supervisors, Moharrars, Care Taker, Rest House Attendants and other categories of employees, who were in the un-revised pay scale of Rs. 110-250 and were in the ernployment on 01.01.1978 and the persons recruited thereafter up to 03.07.1980 may be given the pay scale of Rs. 450-800, which was the pay- scale granted.tb the Auction Recorders vide circular No. 457 dated 02.07.1980. Thereafter, on 25.04.1.988, Mandi Board again revised the pay scale of Auction Recorders and they were given the higher pay scale of Rs. 510-800w,e.f. 01.01.1978. 3. On the recornmendation of the Third Pay Commission, the grades were further revised w.e.f. 01.01.1986. The Auction Recorders were given the grade of Rs. 1200-2100 and the Clerks were given the pay scale of Rs. 950-1800. This was done irrespective of the fact that they were appointed before or after 03.07.1980. What it meant was that from 01.01.1986, all the Clerks were in the same pay scale i.e. Rs. 950-1800. Since the Auction Recorders, who were given the higher pay scale as such the Clerks and other categories filed CWP No. 8181 of 1989 in the High Court. The High Court vide order dated 27.07.1990 directed Punjab Mandi Board to decide the representation of the petitioners. The Punjab Mandi Board considered the representation of the petitioners and conveyed its decision by issuing circular dated 13.08.1990 vide which the pay scale of all the employees of the categories mentioned above appointed before 03.07.1980 were granted the enhanced scale of Rs. 510-800 w.e.f. 01.01.1978 and Rs. 1200-2100 w.e.f. 01.01.1986. It would not be out of way to mention here that approval for issuance of this circular was received from the Punjab Government vide letter dated 25.07.1990. The Punjab Mandi Board further revised the pay scale of the Auction Recorders vide circular dated 27.08.1991 and granted them a higher pay scale-of Rs. 510-800 w.e.f. 01.01.1978 and Rs. 1200-2100 w.e.f. 01.01.1986. It would not be out of way to mention here that approval for issuance of this circular was received from the Punjab Government vide letter dated 25.07.1990. The Punjab Mandi Board further revised the pay scale of the Auction Recorders vide circular dated 27.08.1991 and granted them a higher pay scale-of Rs. 1500-2640 w.e.f. 01.01.1986. This grade was not released to the other categories appointed before 03.07.1980. 4. It is the contention of the petitioners that they have been discriminated against on the basis of the date of appointment. It is their Submission that they have been appointed after 03.07.1980 and there is no rational for fixing the cut off date as 03.07.1980 when the nature of duties and responsibilities, qualifications, appointing authority, seniority and service rules are the same for the employees appointed before or after 03.07.1980. There is absolutely no difference and, therefore, the cut off date for granting different pay scales within the category of employees, who have been appointed before 03.07.1980 and those appointed after this date is discriminatory. It is the Submission of the petitioners that at the time of appointment of the petitioners, there was only one pay scale i.e. Rs. 400-600 and, therefore, non-grant of the higher pay scale to the persons, who have been appointed after 03.07.1980 merely on the basis of the date of appointment cannot be sustained. The letter dated 13.08.1990 is against the principles of natural justice as the respondent- Punjab Mandi Board has no power to place the same categories of employees into two grades for the purpose of fixation of pay specially when they are performing same duties. On that basis, the petitioners contend that Articles 14 and 16 of the Constitution of India have been violated with impunity by the respondent Board and the cut off date of 03.07.1980 is totally arbitrary and without any basis. 5. On the other hand, stand of respondent No. 2-Punjab Mandi Board is that the posts of Auction Recorders, Clerks, Care Taker, Village Supervisor, Kandaman, formed the entry level posts as on 01.01.1978 in the 143 Market Committees, which are autonomous statutory bodies but are under the overall supervision and control of the Punjab Mandi Board. The minimum qualification for appointment to each of these posts is matriculation. The minimum qualification for appointment to each of these posts is matriculation. The nature of duties performed by the employees appointed on all these posts is more or less clerical in nature and as on 31st December, 1977 they were all in the pay scale of Rs. 110-250 per month. It is also admitted that after the revision of pay in 1980 w.e.f. 01.01.1978, the pay scale in all these categories were revised to Rs. 400-600 on the basis of the recommendation of the Pay Committee constituted in the year 1980. 6. Thereafter, the pay scale as admissible to Auction Recorders was further revised to Rs. 450-800 on 03.07.1980. The other categories of employees, on the basis of this enhancement in the pay scale, submitted representations claiming further revised grade of Rs.450-800. In the meantime, the pay scales of Auction Recorders were further enhanced to Rs. 510-800 w.e.f. 01.01.1978 vide order dated 19.05.1982. Vide circular dated 11.11.1983, the Board decided that the post of the Auction Recorder would be a promotional post while all other posts continued to be entry level posts and formed the feeder cadre for promotion to the post of Auction Recorder w.e.f. 03,07.1980. However, on the representation, which was submitted for a higher grade, through this very letter dated 11.11.1993 the other categories, who were appointed prior to 03.07.1980, were granted the same pay scale as Auction Recorders on the ground that subsequent to 03.07.1980, the post of Auction Recorder was upgraded and it had become a promotional post with other categories becoming the feeder cadre posts. It has further been contended by the respondents that the Government of Punjab vide its order dated 25.07.1990 granted sanction for placing of Clerks, Kandamen, Village Supervisors and Care Takers in the pay scale of Rs. 510-800 w.e.f. 01.01.1978 and later to that of Rs. 1200-2100 w.e.f. 0101.1986 as purely a personal grade to these employees. This was primarily done since there were about 70-80 employees in the categories. It is further the contention of the respondents that those who were recruited as Clerks, Kandamen, Village Supervisors and Care Takers after 03.07.1980 were issued letters of appointment informing them that they were appointed in the pay scale of Rs. 400-600 and they will be governed by the rules in promotional matters. It is further the contention of the respondents that those who were recruited as Clerks, Kandamen, Village Supervisors and Care Takers after 03.07.1980 were issued letters of appointment informing them that they were appointed in the pay scale of Rs. 400-600 and they will be governed by the rules in promotional matters. It is the Submission of the respondents that the post of Auction Recorder till 03.07.1980 was an entry level post along with other categories and after the said date the post of Auction Recorder was upgraded as a promotional post and carried with it higher pay scale. It was only to remove the gross anomalies in pay which had crept in as a consequence of that post being upgraded that employees recruited along with Auction Recorders to the posts of Clerks/Care Takers etc. on or before 03.07.1980, that a limited benefit of higher pay scales as admissible was given to them and the same was made personal to that grade. Thus those who were recruited before 03.07.1980 and those after the said date formed two separate categories and could not, therefore, be treated as equals. These two categories, are.distinct and separate and based on a reasonable and intelligible differentia and, therefore, cannot be treated alike. It has further been pleaded that the Claim, which has been put forth by the petitioners, has vast financial implications and apart from the financial drain, even Clerks etc. working in equivalent posts in the respondent Board would be claiming the same pay scale on account of parity thus disturbing the pay structure not only in the Mar-ket Committees but also in the Punjab Mandi Board. 7. I have heard the counsel for the parties and with their able assistance have gone through the records of the case. It is the contention of the counsel for the petitioners that on the basis of the principle of equal pay for equal work, the petitioners are entitled to the same benefit as has been granted to similarly situated employees working on the same posts as the petitioners forming the same cadre having the same seniority with the same service rules governing their employment. Merely because the petitioners have been appointed after 03.07.1980, they cannot be discriminated against. The cut off date chosen as 03.07.1980 has no nexus with the object sought to be achieved and the.same is totally arbitrary. Merely because the petitioners have been appointed after 03.07.1980, they cannot be discriminated against. The cut off date chosen as 03.07.1980 has no nexus with the object sought to be achieved and the.same is totally arbitrary. It has been submitted by the counsel that they belong to the same category, therefore, merely on the basis of the date of appointment of the petitioners, they cannot be discriminated against when rest all is same and they cannot be deprived of the pay scale, which has been granted to the similarly situated employees, who were appointed prior to 03.07.1980. He then relies upon the judgment of the Bombay High Court in Chandrakant Jagannath Varadkar and others vs. Municipal Corporation of Gr. Bombay and others, 2006(3) SLR 400 and a Division Bench judgment ofthis Court in the case of Raj Pal and others vs. The State of Haryana and others, 1997( 1) SLR 655. 8. On the other hand, counsel for the respondents has contended that 03.07.1980 has been chosen for the employees, who were appointed prior to this date as the cut off date on the posts and from that date onwards the post of Auction Recorder has been upgraded and has been declared as a promotional post. The posts, on which the petitioners were appointed after the said date, became the feeder cadre posts and, therefore, they cannot be granted the higher pay scale of the promotional post as they were never appointed on a post, which was equivalent to the post held by the petitioners. The employees, who had been appointed before 03.07.1980, have been granted the higher pay scale on the ground that when they were initially appointed, the post of Auction Recorder was also the entry level post and, therefore, they formed a dass apart as they had all through been in the same pay scale and they were similarly placed as far as the pay scales are concerned. He relies upon the judgment of the Honble Supreme Court in the case of All India Reserve Bank Retired Officers Association and others vs. Union of India and others, AIR 1992 Supreme Court 767, State of Punjab and others vs. Amar Nath Goyal and others, AIR 2006 Supreme Court 171, New Delhi Municipal Council vs. Pan Singh and others, AIR 2.007 Supreme Court 1365, K. Thimmappa and others vs. Chairman Central Board of Directors, SBI and another, AIR 2001 Supreme Court 467, Tarsem Lal Gautam and another vs. State Bank ofPatiala and others, AIR 1989 Supreme Court 30, Union of India and another vs. R. Sarangapani and others, AIR 2000 Supreme Court 2163 and Sita Ram Bansaland others vs. State of Punjab and others, AIR 1997 Supreme Court 2341 to contend that there can be a cut off date for fixing the pay scales and there can be reasonable classifications within a dass and that cannot be termed as discrimination. 9. I have given my thoughtful consideration to the submissions made by the counsel for the parties and am of the view that the Claim of the writ petitioners cannot be accepted. There can be no dispute with regard to the assertion as put forth by the counsel for the respondent-Punjab Mandi Board that there can be reasonable Classification within a dass and there can also be a cut off date for grant of different pay scales within a category. There can also be a Classification within a cadre but the same is required to fall within the Parameters as has been spelt out by the Honble Supreme Court. The Honble Supreme Court while delving with the issue of Article 14 relating to the equality clause has, in the case of K. Thimmappa and others vs. Chairman Central Board of Directors, SB! and another, AIR 2001 Supreme Court 467, held as follows: "xxx xxx xxx xxx xxx What Article 14 prohibits is dass legislation and not reasonable Classification for the purpose of legislation. If the Rule Making Authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well defined dass then it would not be open to the Charge of discrimination. If the Rule Making Authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well defined dass then it would not be open to the Charge of discrimination. But to pass the test of permissible Classification two conditions must be fulfilled - (a) that the Classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from other left out of the group; and (b) that the differentia must have a rational relation to the object sought to be achieved by the Statute in question. The Classification may be founded on different basis and what is necessary is that there must be a nexus between the basis of Classification and the object under consideration. Article 14 of the Constitution does not insist that the Classification should be scientifically perfect and a Court would not interfere unless the alleged Classification results in apparent inequality. When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the Operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. If a law deals with members of well- defined dass then it is not obnoxious an it is not open to the Charge of denial of equal protection on the ground that it has no application to other persons. It is for the Rule Making Authority to determine what categories of persons would embrace within the scope of the rule and merely because some categories which would stand on the same footing as those which are covered by the rule are left out would not render the Rule or the law enacted in any manner discriminatory and violative of Article 14. It is not possible to exhaust the circumstances or criteria, which may afford a reasonable basis for Classification in all cases. It is not possible to exhaust the circumstances or criteria, which may afford a reasonable basis for Classification in all cases. It depends on the object of the legislation, and what it, really seeks to achieve." 10. Testing the submissions of the parties on the basis of the parameters laid down by the Honble Supreme Court, it would spell out that the rational for bringing in the Classification between the categories, which has been put forth by the respondent primarily is that w.e.f. 03.07.19,80 the post of Auction Recorder becomes a promotional post and the other posts become feeder cadre posts, although initially before the date fixed i.e. 03.07.1980, all the categories including that of Auction Recorders formed the entry level posts. This Classification passes the test of permissible Classification as the Classification is founded on an intelligible differentia which distinguishes persons, which are grouped together from other left out of the group and the differentia has rational relation to the object sought to be achieved by such decision. What is acceptable, therefore, as a broad principle, is that it can be accepted that a promotional post can have a higher pay scale than the feeder cadre post and that from the date the post becomes promotional post would be the relevant date from which the distinction can be drawn between the categories of employees. All employees, who were appointed before the post of Auction Recorder became a promotional post, would be one category and those employees, who are appointed after the said post having become a promotional post would form another category. That being so, the Classification is justified and would not amount to discrimination, Which could be said to be hit by the principle of equality as enshrined in Article 14 ofthe Constitution of lndia. 11. The next question which now comes for determination is whether the date 03.07-1980 has some nexus with the object sought to be achieved or the justification, which has been put forth by the respondent Mandi Board, is correct and acceptable. Perusal of thecircular No. 231 dated 11.11.1983 clearly shows that a decision has been taken by the Mandi Board to declare the post of Auction Recorder as a promotional post w.e.f. 03.07.1980. Those persons, who have been recruited after 03.07:1980, were working in the same pay scale of Rs. Perusal of thecircular No. 231 dated 11.11.1983 clearly shows that a decision has been taken by the Mandi Board to declare the post of Auction Recorder as a promotional post w.e.f. 03.07.1980. Those persons, who have been recruited after 03.07:1980, were working in the same pay scale of Rs. 400-600 on the date the said decision was taken, as a matter of fact, they were appointed in the said pay scale. They cannot thus make a grduse that they are also entitled to the higher pay; scale of Rs. 450-800 as the said pay scale is admissible after 03.07.1980 to a post, which is a promotional post of Auction Recorder and the categories to which the petitioners belong are the feeder cadre w.e.f. 03.07.1980. The judgments relied upon by the counsel for the petitioners cannot hold the field ifi the light of the authoritative pronouncement of the Honble Supreme Court in the case of K. Thimmappa and others (supra), reliance whereof has been made by this Court. 12. When we look this matter from another prospective i.e. the financial aspect and the liabilities which fall, the cut off date of 03.07.1980 can be justified on this ground as well. The decision for grant of the scale, as claimed by the petitioners, was purely given as personal grade to the employees, who were appointed prior to 03.07.1980. It has been taken note of that this is being done apart from the other ground on the ground that there were about 70-80 employees in the categories, who were to be granted the said personal grade. It has been pleaded that the Claim, which has been put forth by the petitioners, has vast financial implications. It will not only have cascading effect on the financial health of the Mandi Board and it will not only effect and disturb the pay structure not only of the Municipal Committees but also in the Punjab Mandi Board. As. has been held above, the cut off date, as fixed by the respondents, is justified. However, while taking a policy decision, the competent authority can limit the benefit to particular set of employees after calculating financial implications thereon. Financial and economic implications are very relevant and germane for any policy decision touching administration of the said authority and, therefore, can neither be termed as irrational nor arbitrary. However, while taking a policy decision, the competent authority can limit the benefit to particular set of employees after calculating financial implications thereon. Financial and economic implications are very relevant and germane for any policy decision touching administration of the said authority and, therefore, can neither be termed as irrational nor arbitrary. For these observations, reliance on the judgment of the Honble Supreme Court in the case of State of Punjab vs. Amar Nath Goyal and others, AIR 2006 Supreme Court 171 can be made. That being so, on this ground also, the cut off date as fixed by the respondents deserves to be upheld.- 13. In view of the above, I do not find any merit in the present petitions and dismiss the same. Petitions dismissed