Judgment:
Civil Writ Petition No.448 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.448 of 1994 Date of Decision:
16. 8.2013 Prem Raj Giri and others .....Petitioner.
Versus The Haryana State Cooperative Supply and Marketing Federation LTD.and another .....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK Present: Mr.Samrat Malik, Advocate for the petitioner Mr.Kshitij Sharma, AAG, Haryana.
*** 1.Whether Reporters of local papers may be allowed to see the judgment?.”
2. To be referred to the Reporters or not?.”
3. Whether the judgment should be reported in the Digest?.
*** RAMESHWAR SINGH MALIK J.
Feeling aggrieved against the alleged inaction on the part of the respondent authorities, petitioners have approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Mandamus.
Facts of the case, which are hardly in dispute, can be put into a narrow compass.
PetitioneRs.being the employees of Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
2. respondent No.1, i.e.The Haryana State Cooperative Supply and Marketing Federation Limited ('HAFED' for short).moved number of representations dated 17.3.1988 (Annexure P-2).6.4.1989 (Annexure P-3) and 28.2.1992 (Annexure P-4).claiming revision of their pay scales w.e.f.1.1.1986 on the basis of policy decision dated 11.11.1987 (Annexure P-1) issued by HAFED revising the pay scales of its employees w.e.f.1.1.1986.
This revision of pay scales for its employees was adopted by the HAFED on the basis of guidelines contained in Haryana Government notification dated 29.4.1987.
Consequent upon the policy decision Annexure P-1, i.e revision of pay scales of HAFED employees on the pattern of the respondent State, benefit of revision of pay scales was granted to the employees of the HAFED, w.e.f.1.1.1986.
However, inadvertently, some categories of employees of the HAFED were left and their case could not be considered for revision of pay scales.
Aggrieved, petitioner No.1 moved the above said three representations Annexures P-2 to P-4.
When the petitioners were pressing hard, they were informed vide communication dated 22.4.1992 (Annexure P-5) that the matter has already been referred to the RCS (Registrar Cooperative Societies) for consideration and approval, vide letter dated 18.9.1989.
Since the approval was awaited, action would be taken after receipt of approval from RCS.
Petitioner No.1 moved another representation dated 9.10.1992 (Annexure P-6).Respondent No.1 issued another communication dated 4.12.1992 (Annexure P-7) again saying that the matter regarding revision of pay scales of the Kumar Amit petitioners was under consideration of Haryana Bureau of Public 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
3. Enterprises ('HBPE' for short) and approval thereof, was still awaited.
Thereafter, another representation dated 5.5.1993 ( Annexure P-8) was moved on behalf of petitioner No.1, which was replied by respondent No.1, vide letter dated 9.6.1993 (Annexure P- 9) intimating petitioner No.1 that matter was under consideration and he would be informed after its finalisation.
Meeting of the Standing Committee took place on 23.7.1992 and revision of pay scales was ordered, removing the anomaly.
Minutes of the meeting are appended as Annexure P-10.
Finally, in its meeting held on 22.3.1993, the Standing Committee on Public Enterprises, vide Annexure P-11, decided that revision of pay scales will be effective from 1.4.1993.
Consequently, vide order dated 7.10.1993 (Annexure P-12).respondent No.1 revised the pay scales of the petitioneRs.but w.e.f.1.4.1993, instead of 1.1.1986 and the anomaly was not removed from the date it was created.
Having been left with no other option, petitioners approached this Court, by way of instant writ petition.
Notice of motion was issued and pursuant thereto, written statement on behalf of respondent No.1 was filed.
However, a separate written statement was filed on behalf of respondent No.2.
Later on, writ petition was admitted for regular hearing.
That is how, this Court is seized of the matter.
Learned counsel for the petitioners submits that entitlement of the petitioneRs.for revision of their pay scales w.e.f.1.1.1986, had never been in dispute, at any point of time.
On the Kumar Amit part of the petitioneRs.they had been doing their best by making 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
4. repeated representations to the respondent authorities requesting for their early decision.
However, when the pay scales of the petitioners were finally revised, the same were revised w.e.f.1.4.1993 instead of 1.1.1986, thereby causing serious prejudice and recurring financial loss to the petitioneRs.Once the respondents have removed the anomaly, they were under legal obligation to remove it right from the day when it was created, because it was their own inadvertent mistake.
He further submits that since the petitioners had been made to suffer for a long time, at the hands of the respondents, even without disputing their eligibility and entitlement for the relief being claimed herein, the writ petition may be allowed with costs.
To buttress his arguments, he relied upon the Judgment of the Hon'ble Supreme Court in Union of India and another versus S.Thakur, 2008 (13) SCALE 27 and two judgments of this Court in Om Parkash Malik and others versus The State of Haryana, 1991 (4) SLR 75.and in CWP No.363 of 1995 (D.K.Gupta and others versus State of Haryana and others).decided on 24.7.2013.
Per contra, learned counsel representing respondent No.2, i.e.only the State, fairly states that entitlement of the petitioners was never in dispute.
However, he justifies belated action taken by respondent No.2 on the ground that reference was received late from HAFED-respondent No.1, which is clear from its own communication dated 22.4.1992 (Annexure P-5).He further submits that vide communication dated 24.10.1989 (Annexure R-1).a Standing Committee was constituted to examine and to decide the Kumar Amit proposals on different service matteRs.pertaining to the State Public 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
5. Enterprises, i.e.Boards, Corporations, Companies and Cooperative Institutions on the references sent by the Managing Director of the concerned Public Enterprises, including the removal of anomaly in the revision of the pay scales.
He further submits that since respondent No.1 did not send the reference in time, there was no scope of alleging any delay on the part of respondent No.2.
He next contended that as and when the reference was received from HAFED-respondent No.1, appropriate decision was taken by the Standing Committee on Public Enterprises and conveyed to HAFED, accordingly.
Having heard the learned counsel for the parties at considerable length, after careful perusal 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, the instant writ petition deserves to be allowed with costs.
To say so, reasons are more than, which are being recorded hereinafter.
Before considering the case on merits, it is pertinent to refer to some of the orders passed by this Court during the regular hearing of the case.
When the case came up for hearing on 10.1.2013, following order was passed by this Court:- “ Adjourned to 1.2.2013.
Learned counsel for the parties would check whether anything survives in this petition to the extent:- (i) whether the petitioners are interested in pursuing the writ petition;(ii) whether the Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
6. petition has become infructuous in the meanwhile on account of the petitioners having already been granted the benefits sought.
Learned counsel for respondent No.2 also wishes to place on record the documents referred as Annexures I to IV in the letter dated 11.1.1987 (annexed as Annexure P-1 in this writ petition).He may do so before the next date of hearing.”
On 1.2.2013, when nobody appeared on behalf of respondent No.1, the case was adjourned in the interest of justice, by passing the following order:- “Learned counsel for the petitioners has sought instructions and submits that the petitioners are very much interested in pursuing the case.
Learned counsel for respondent No.1, i.e.The contesting respondent, is not present today.
In the interest of justice, adjourned to 22.2.2013.”
When the case was taken up on 12.4.2013, following order passed:- “Learned Senior Counsel for the petitioner contends that the petitioners belong to those categories who were inadvertently left Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
7. out of consideration for revision of pay scales, when the pays scales were revised for the cadre, generally w.e.f.01.01.1986.
The reply of respondent No.2, i.e.Haryana Bureau of Public Enterprises, does not disclose whether the petitioners and similarly situated employees were left out inadvertently, or by conscious decision.
Mr.Sharma, appearing for respondent No.2, seeks time to see the record and bring the factual position before the Court.
On his request, adjourned to 3.5.2013.”
On 3.5.2013, again nobody appeared on behalf of respondent No.1 and on the request made by learned counsel for the State, case was adjourned to 10.5.2013.
When the case was taken up on 10.5.2013, following order passed:- “Learned counsel for respondent No.2 seeks yet another opportunity to obtain instructions as to why the petitioners and their cadre of employees were given revision of pay scales w.e.f.1.4.1993, whereas other cadres within the same organization, i.e.HAFED, were given revision of pay scales w.e.f.01.01.1986.
Adjourned to 17.5.2013.
Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
8. It is made clear that no further adjournment shall be granted and, in the absence of arguments on behalf of HAFED, Managing Director, HAFED shall remain present in Court on that date.”
When the case again listed for regular hearing before this Court on 22.7.2013, following order was passed:- During the couRs.of hearing, after reading the relevant para from the written statement filed on behalf of respondent No.2, learned counsel for the State could not substantiate, as to what was the ground for rejection of the claim of the petitioner.
Learned counsel for the State seeks time to get instructions.
On his request, adjourned to 8.8.2013.”
A combined reading of the above said orders passed by this Court would show that even during the regular hearing of the case, none of the respondents took desired interest in the matter, as if the claim of the petitioner was not in dispute and they had been waiting only for the orders of this Court.
At the time of hearing, there was no representation on behalf of respondent No.1-HAFED.
Thus, this Court was left with no other option except to proceed further to decide the case on merits.
It has gone undisputed on record that the petitioners were Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
9. entitled for the revision of pay scales in question w.e.f.1.1.1986.
Thus, the genuine claim and entitlement of the petitioners had never been in dispute at any point of time.
Even during the couRs.of arguments, entitlement of the petitioners was not disputed.
Once that is so, it was the sheer arbitrary and discriminatory action on the part of the respondent authorities and particularly of respondent No.1 which put the petitioners to wholly unwarranted harassment, besides recurring financial loss and that too without any reason, much less cogent reasons thereof.
Having said that, this Court is of the considered view that the petitioners were entitled to the revised pay scales w.e.f.1.1.1986 itself.
Thus, impugned action of the respondents denying this benefit to the petitioners cannot be sustained.
Once respond-HAFED has taken a conscious decision dated 11.11.
1987 (Annexure P-1).to equate its employees with the State Government employees, in the matters of pay scales and also adopted revision of pay scales w.e.f 1.1.1986 for the HAFED employees, entitlement of the petitioners for revision of their pay scales w.e.f.1.1.1986 itself also gets crystallised.
It is the further undisputed factual aspect of the matter that while revising the pay scales of its employees w.e.f.1.1.1986, HAFED-respondent No.1 could not consider, because of inadvertent mistake, some categories of its employees including the petitioneRs.for the purpose of revision of their pay scales, along with other similarly situated employees of HAFED.
This was the reason that the petitioners had to move Kumar Amit repeated representations.
2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
10. The contention raised by learned counsel for the State deserves to be accepted that the Management of the HAFED sent belated reference to the Standing Committee on Public Enterprises.
He rightly relies upon the official communication dated 22.4.1992 (Annexure P-5) issued by HAFED in this regard.
In this view of the matter, it is held that it was a casual approach adopted by the concerned officers/officials of respondent No.1-HAFED, which has resulted in causing serious prejudice to the petitioneRs.The categoric averments taken by the petitioners in para 5 to 10 of the writ petition have not at all been denied by respondent No.1.
This material and undisputed fact on record also goes a long way to show that the Management of respondent No.1 had been proceeding on an indifferent approach towards the genuine and reasonable claim of the petitioneRs.while sending the belated reference.
Respondent No.2 also fell in a serious error of law, while revising the pay scales of the petitioners w.e.f.1.4.1993 instead of 1.1.1986.
Minutes of the meeting of the Standing Committee on Public Enterprises held on 22.3.1993 appended at Annexure P-11 would show that it was totally cryptic and not speaking.
Once the claim of the petitioners was found to be genuine and no fault was found with the petitioneRs.they should not have been denied their due claim w.e.f.1.1.1986.
The revision of pay scales was made effective from 1.1.1986.
No reason, whatsoever, is forthcoming as to why the benefit of revision of pay scales was not granted to the petitioners w.e.f.1.1.1986, the date Kumar Amit from which other similarly situated employees of HAFED, were 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
11. granted this benefit.
In view of the abovesaid discussion, it is unhesitatingly held that action of the respondents making the revised pay scales effective from 1.4.1993 instead of 1.1.1986, was wholly arbitrary and discriminatory as well.
Such an action on the part of the respondent authorities cannot be sustained.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in S.
Thakur's case (supra).The relevant observations made by the Hon'ble Supreme Court in para 7 of the judgment, which can be gainfully followed in the present case, read as under:- "As observed earlier, no restructuring of cadre and redistribution of posts in regard to 40 posts of Assistant Directors was involved at all so as to justify the stand of the appellants to extend the benefits of revised pay scales of Assistant Directors with effect from January 1, 1997.
No other reason could be advanced by the appellants to justify their stand that the Assistant Directors were entitled to benefit of revised pay scale with effect from January 1, 1997.
As the appellants were not required to undertake exercise of restructuring of cadre not was it necessary to amend the recruitment Rules, the Assistant Directors forming part of the group of 40 to which the respondent Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
12. belonged could not have been denied the benefit of revision of pay scale with effect from January 1, 1996, which benefit was awarded to other similarly situated employees with effect from January 1, 1996.
As the decision to give benefit of revision of pay scale to the Assistant Directors with effect from October 1, 1997 was found to be unreasonable, unjust, arbitrary and prejudicial to the section of the employees, the Tribunal directed the appellants to grant benefit of revision of pay scale to the respondent with effect from January 1, 1996.
The said decision was not found to be erroneous or illegal at all and therefore the High Court was justified in not interfering with the same while exercising powers under Article 226 of the Constitution.
Respondent No.1, being an instrumentality of the State, certainly falls within the ambit of the “State”.
under Article 12 of the Constitution.
Learned counsel for the State did not dispute this aspect of the matter.
In an almost identical fact situation, this Court in Om Parkash Malik's case (supra) held as under:- The learned counsel for the petitioners then submitted that both the Board as well as the State of Haryana fall within the meaning of 'State' as defined in Articles 12 and 36 of the Constitution of India and therefore, whatever grades Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
13. the State of Haryana gives to its employees must ipso facto be given by the Board to its employees as well.
The contentions is that both the employers being 'State' for the purposes of Part III and IV of the Constitution cannot be allowed to give different frades to their respective employees.
I regret my inability to accept this contention as well.
The Board, no doubt, is 'State' within the meaning of Article 12 of the Constitution and therefore, as an employer it cannot be allowed to discriminated amongst its own employees because all its actions have to be judged in the light of fundamental rights guaranteed by Part III of the Constitution.
Nevertheless, the Board as an employer is different from the State Government and its employees cannot be said to be State Govt.
employees and for this reason, this Board as an autonomous statutory body can always have and fix pays scales for its employees which may be different from the pay scales fixed by the State government for its own employees.
If the contentions of the learned counsel for petitioners were to be accepted then all different autonomous bodies not only within the State but throughout the country which would fall within the ambit of article 12, cannot have different pay scales for their respective employees.
I am of Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
14. the view that such bodies can have their own pay scales and the mere fact that those scales are different under one authority or the other would not violate the equality clause guaranteed by Article 14 of the Constitution.
Lastly, it was urged that the Pay Anomalies Committee constituted by the Board recommended the scale of 1350-2200 w.e.f.May 1, 1990 for the Upper Division Clerks and Typewriter Mechanics and the Board while accepting, the recommendations started giving those grades to them only w.e.f.the date recommended by the Committee and not from the date when the Board decided to revise the grands of its employees.
We find force it this contention.
It is not in dispute that Board decided to revise the grades of different categories of its employees w.e.f.1.1.1986 including the grades of the petitioneRs.It was only when some anomalies came to notice in the implementation of those revised grades that (sic) anomalies committee was constituted with a view to remove those anomalies.
This committee after examining the various anomalies and obviously with a view to remove them recommended to the Board the higher pay scale of Rs.1350-2200/- for the class of employees like the petitioneRs.If anomalies existed Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
15. in the implementation of the revised grades and the same had to be removed they must necessarily be removed from the date when the grades were revised and there would be no meaning in removing an anomaly from a date subsequent to the date when the grades were revised.
In other words, if new grades had to be given by way of removing an anomaly, such grades should take effect from the date when the grades were originally revised.
In this view of the matter, the petitioners are justified in claiming the higher grade of Rs.1350-2200/- w.e.f.1.1.1986.
Similarly, this Court in D.K.Gupta's case (supra).while deciding a similar controveRs.in favour of the employees, like the petitioners herein, observed as under:- "After hearing the learned counsel for the parties and noticing the grievance made in the petition, I am of the opinion that the decision of the respondents in prescribing a date other than the date which was prescribed for the employees of the State in the matter of revision of pay-scales is unsustainable being discriminatory.
Once the Corporation has taken a conscious decision to equate its employees with those of the State Government in the Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
16. matter of pay and which decision has not been questioned by the State, it cannot clearly limit the benefit by prescribing a date as this action would have no rationality, not any nexus with the object sought to be achieved.
Such an artificial distinction which the State chooses to impose without any plausible explanation is therefore, declared to be arbitrary.
Hence Annexure P-7 is quashed on this score Such an anomaly was bound to be rectified from the same date when it was created.
The respondents cannot be permitted to take the benefit of their own wrong and that too at the cost of employees, against whom there was no allegation of any kind, whatsoever.
In such a situation, employees like the petitioners could not have been made to suffer for the alleged bonafide mistake of the respondents.
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 in the given fact situation of the present case, discussed here-in-above, the present writ petition deserves to be allowed with costs.
Consequently, respondent No.1-HAFED, through its Managing Director, is directed to grant revised pay scales to the petitioners w.e.f.1.1.1986 instead of 1.4.1993.
Petitioners are held Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document Civil Writ Petition No.448 o”
17. entitled for the consequential financial benefits, including the arrears of salary along with interest @ 6% per annum, to be paid within three months from the date of receipt of certified copy of this order, failing which the petitioners will be entitled to receive all the consequential benefits along with interest @ 9% per annum.
Resultantly, with the observations made and directions issued, here-in-above, the instant writ petition stands allowed with costs, which are quantified at Rs.30,000/-.
It is further directed that the Managing Director of HAFED-respondent No.1 shall ensure that recovery of amount of costs, i.e.Rs.30,000/-, is effected from the concerned erring officers/officials, because of whose negligence, petitioners were made to suffer for this inordinate long period of more than 25 yeaRs.Before parting with the order, this Court hope and trust that the Managing Director, HAFED-respondent No.1 shall put in place an effective mechanism in consonance with the Haryana State Litigation Policy, so as to ensure that such kind of easily avoidable and unwarranted litigation is avoided in future.
(RAMESHWAR SINGH MALIK) JUDGE 16 8.2013 AK Sharma Kumar Amit 2013.09.17 10:48 I attest to the accuracy and integrity of this document