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2018 DIGILAW 489 (HP)

Raj Kumar v. Bhakra Beas Management Board

2018-03-28

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —There is a very short issue involved in the present petition. Vide Annexure P-1, dated 14.05.1997, the petitioner was offered appointment on temporary basis as a Khansama by the respondentBoard in the pay scale of Rs. 750-1410/- with initial start of Rs. 770/-. Vide Annexure P-2, one Sh. Gajraj Singh was also appointed as Khansama purely on temporary basis by the said Board, on the same terms and conditions, on which the petitioner was so appointed, except that the appointment of Gajraj Singh was in the pay scale of Rs. 830-1600/-. According to the petitioner, when both he and Gajraj Singh stood appointed against the post of Khansama, purely on temporary basis, then there could not have been any discrimination intra both of them, as far as grant of pay scale is concerned. It is in these circumstances that the present petition has been filed by the petitioner, praying for the following reliefs: "(i) Direct the respondents to remove the anomaly/disparity in pay scale of the petitioner and grant the petitioner pay scale of Rs.830- 1600/- from the date of his appointment i.e. 16.05.1997. (ii) Direct the respondents to calculate the arrears of salary due to the petitioner which was not granted to him due to lesser pay scale and pay the same in lump sum. (iii) Direct the respondents to pay interest @9% p.a. on the due amount from 16.05.1997. (iv) Direct the respondents to grant all consequential benefits to the petitioner. (v) Direct the respondents to pay the costs of litigation. (vi) Or any other orders or directions which this Hon''ble Court may deem fit be passed in the interest of justice." 2. By way of reply so filed by the respondent-Board, the claim of the petitioner has been refuted. 3. When this case was heard on 20.09.2017, this Court passed the following order: "Learned counsel for the petitioner submits that the petitioner shall be satisfied in case he is granted parity in the pay scale at least from the month of May, 1997 with other incumbents, who were appointed as Khansamas on temporary basis in the same month in the pay scale of Rs. 830-1600/-. A perusal of Annexure P-1 demonstrates that the petitioner was offered a temporary post of Khansama in Beas Sutlej Link Project under the respondent-Board in the pay scale of Rs. 750/- with initial start of Rs. 770-1410/-. 830-1600/-. A perusal of Annexure P-1 demonstrates that the petitioner was offered a temporary post of Khansama in Beas Sutlej Link Project under the respondent-Board in the pay scale of Rs. 750/- with initial start of Rs. 770-1410/-. On the other hand, Annexure P-2 demonstrates that one Sh. Gajraj Singh was also offered a temporary post of Khansama in Beas Sutlej Link Project under the respondent-Board, but in the pay scale of Rs. 830-1600/-. This communication is dated 20th May, 1997. Why this discrepancy is there in the pay scales of two Khansamas, who have been temporarily engaged in the year 1997 by the respondent-Board, in my considered view, has not been satisfactorily explained in the reply so filed by the respondent-Board. Documents on record also demonstrate that intra department communications exist to the effect that there was discrepancy in the pay scale of petitioner vis--vis similarly situated persons and higher authorities were requested to look into the matter. In these circumstances, before this Court proceeds with the case on merit, let respondent-Board file an affidavit explaining as to why the persons who were offered appointment on temporary post of Khansama in the month of May, 1997 were offered different pay scales. Let the needful be done within a period of four weeks. List on 8th November, 2017." 4. In compliance to the said order, an affidavit has been filed by the Additional Superintending Engineer, BRSC & PD Division, BBMB, Sundernagar, District Mandi, wherein the act of the respondents has been justified on that ground that though the initial appointment of the petitioner as well as Gajraj Singh on temporary basis was as a Khansama, but subsequently, Special Secretary, BBMB decided that petitioner be appointed in the pay scale of Rs. 750-1410/- under the Category of Helper-Cook, whereas Gajraj Singh be appointed in the pay scale of Rs. 830-1600/- as a Cook. Relevant para of the affidavit is quoted hereinbelow: "2. 750-1410/- under the Category of Helper-Cook, whereas Gajraj Singh be appointed in the pay scale of Rs. 830-1600/- as a Cook. Relevant para of the affidavit is quoted hereinbelow: "2. That in compliance to the aforementioned direction, the deponent submits that the anomaly which the petitioner is raising before this Hon''ble Court by way of present writ petition, on the representation of the petitioner and that too during the pendency of the present writ petition, the matter/issue of the petitioner was taken up for consideration by the Chief Engineer, BSL Project, BBMB, Sundernagar, District Mandi (H.P.) with the Special Secretary, BBMB, Madhya Marg, Chandigarh and vide communication bearing number 4557-58/R&R/4139/R-4, dated 10/05/2017. The Special Secretary has decided the same while conveying that the petitioner was appointed in the pay Scale of Rupees 750-1410 with IS 770 revised to Rupees 2720-4775 (w.e.f. 01/01/1996) under the category of "Helper-Cook", whereas Gajraj Singh had been appointed in the scale of Rupees 830-1600 revised to Rupees 2930- 5300 under the category of "Cook". True copy of the communication dated 10/05/2017 is attached herewith as Annexure R-A for the perusal of the Hon''ble Court." 5. Having heard learned counsel for the parties and having perused the pleadings, this Court is of the considered view that there is an apparent discrimination meted out to the petitioner by the respondents. It is not in dispute that the appointment of the petitioner, though on temporary basis was against the post of Khansama. It is also not in dispute that the appointment of Sh. Gajraj Singh was also against the post of Khansama and on temporary basis. Whereas the petitioner was appointed as such on 14.07.1997, Sh. Gajraj Singh was appointed as such on 10.05.1997. A perusal of the appointment letters Annexure P-1 and P-2 demonstrates that there is no difference whatsoever in the terms and conditions of the appointments of such two persons except pay scale. Justification which has been given in the affidavit so filed by the respondent-Board, can not be accepted, when admittedly in the appointment letters, the terms and conditions of appointment of both Gajraj Singh and the petitioner are the same. 6. Article 14 of the Constitution of India prohibits discrimination. Justification which has been given in the affidavit so filed by the respondent-Board, can not be accepted, when admittedly in the appointment letters, the terms and conditions of appointment of both Gajraj Singh and the petitioner are the same. 6. Article 14 of the Constitution of India prohibits discrimination. Though classification is permitted, however, to satisfy the test of reasonability, the same should satisfy the following twin test: "(a) classification ought to be based on intelligible differentia; and (b) intelligible differentia must have some nexus with the object to be achieved." 7. In the present case, both the petitioner as well as Sh. Gajraj Singh were appointed as Khansamas. Thus, there is no intelligible differentia between these two persons. Therefore, the act of the respondents of granting different pay scales to said persons, in my considered view, is violative of Article 14 of the Constitution of India. 8. This Court is not oblivious of the fact that Gajraj Singh was appointed later in time, but then, as a model employer, it was expected from it to have had brought the pay of the petitioner at par with Gajraj Singh after the appointment of later on higher pay scale. By not doing so, respondent-Board has discriminated between similarly situated persons, thus violating Article 14 of the Constitution of India. 9. Accordingly, this petition is allowed and the act of respondents of discriminating the petitioner vis--vis similarly situated persons in matter of pay scale is held to be bad. Respondents are directed to pay to the petitioner the pay scale of Rs. 830-1600/- as revised from time to time against the post of Khansama from the date of filing of the petition with all consequential benefits. It is clarified that in case the arrears are paid to the petitioner by the respondent-Board within a period of three months from today, then no interest shall be payable on the same, however, in case arrears are not paid within the said period, then the arrears shall also carry simple interest @6% per annum. Petition stands disposed of, so also pending miscellaneous applications, if any.