Chandigarh Administration And … vs Ram Chander Saini And Another on 9 October, 2009

             IN THE HIGH COURT OF PUNJAB AND HARYANA
                           AT CHANDIGARH


                   Civil Writ Petition No.11226 of 2009
                     Date of decision: 9th October, 2009


Chandigarh Administration and another
                                                                ... Petitioners
                                   Versus
Ram Chander Saini and another
                                                             ... Respondents


CORAM:       HON'BLE MR. JUSTICE T.S. THAKUR
             HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Present:     Mr. Harsimran Singh Sethi, Advocate for the petitioners.


Notes: 1.    Whether Reporters of local newspapers 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?


KANWALJIT SINGH AHLUWALIA, J.

Chandigarh Administration is aggrieved against the impugned

judgment (Annexure P-4) dated 25th February, 2009 rendered by

Chandigarh Bench of the Central Administrative Tribunal (hereinafter

referred to as, ‘the Tribunal’), whereby the Tribunal has upheld the principle

that a junior cannot draw salary more than the senior placed in the same

grade, especially if anomaly has arisen due to grant of increment at higher

rate to the junior person. The Chandigarh Bench of the Tribunal had given a

direction to the Chandigarh Administration to remove the disparity of pay

between the senior and the junior by stepping the salary of senior person

respondent No.1, who approached the Tribunal and succeeded there
Civil Writ Petition No. 11226 of 2009 2

however, the arrears of pay were restricted to 38 months from the date of

retirement.

Having noticed the substantial question of law, which has been

answered by the Tribunal, it will be necessary to recapitulate the facts.

Respondent Ram Chander Saini was appointed as a Science Master in

1977 in the pay scale of Rs.220-500 with the basic pay of Rs.256/- per

month. On 1st January, 1978 on revision of pay scale, respondent employee

was placed in the pay scale of Rs.620-1200 with the initial start of Rs.600/-

per month. The respondent employee Ram Chander Saini was granted

three advance increments at the rate of Rs.12/- per month, which were

admissible to him under rules. Charan Singh Saini joined the service

subsequently on 1st January, 1978 in the pay scale of Rs.620-1200. He was

also held entitled to three advance increments. However, at that time in the

revised pay scale, rate of increment was Rs.20/-, Rs.20/- and Rs.25/-. Thus,

his pay was fixed at Rs.725/- per month. Simply because the respondent

employee was granted benefit of three increments in old scale at the rate of

Rs.12/- each, when revision of pay scales took place his junior, who joined

the service later, was placed at the initial basic pay of Rs.725/- per month

and basic pay of the respondent employee remained Rs.660/- per month. It

is not disputed that both the employees, i.e. the respondent employee Ram

Chander Saini, who was senior and Charan Singh Saini, who was junior,

were granted three advance increments as per rules having possessed

higher qualification.

Ram Chander Saini respondent employee approached the

Central Administrative Tribunal, Chandigarh Bench with a prayer that his

pay be stepped up and made at par with his junior as per FR 22(I)(a)(i) and

CCS(RP) Rules, 1997 and the anomaly be removed.

Civil Writ Petition No. 11226 of 2009 3

After hearing counsel for the parties, the Tribunal held as

under:

“In our considered opinion, the arguments advanced on
behalf of respondents justifying lower pay to seniors for having
been inducted in to service earlier than those who were
inducted into service at a later stage, cannot be accepted. It
has led to a disparity of pay between the seniors and the
juniors and it is a settled proposition of law that a senior person
cannot be paid lesser than his juniors just because he had
joined at an earlier point of time when the rate of increments
granted was lesser.”

A similar question arose qua the employees working in the

State of Punjab. Respondent employee relied upon judgment (Annexure A-

18), wherein a Single Bench of this Court, in ‘Rawail Singh and others v.

State of Punjab and another’ Civil Writ Petition No. 17005 of 1989 decided

on 1st March, 1995, held as under:

“This Court had an occasion to deal with some-what
similar matter in Dharam Pal and others Vs. State of Punjab and
others [1994(2) SCT 336 (P&H)] (Civil Writ Petition No. 10506 of
1989, decided on 15.12.1993) wherein the instructors working in
various institutes in the State of Punjab, though were imparting
training in various trades, but instructors imparting training in
some trades were getting higher pay compared to the others
who were imparting training in other trades. Resultantly, some of
the instructors junior to the petitioners therein started getting
more pay and in these circumstances, it was held that “the
grievance of the petitioners is legitimate. The disparity cannot be
allowed to be continued for the reason that the qualifications for
appointment to all the posts of instructors are the same and they
are governed by same service conditions and there is a joint
seniority list of all the instructors. Further, their seniority is
depending on the date of appointment irrespective of the pay
drawn. In this view of the matter, senior persons are certainly
Civil Writ Petition No. 11226 of 2009 4

entitled to all those benefits which their juniors in the same cadre
are getting i.e. the pay of a senior cannot be less than that of a
junior.” In this case too, the persons who joined service with
postgraduate qualifications on or before 01.01.1978 or acquired
the said qualifications before 01.01.1978. Respondents have not
pointed out any reason for creating and not removing the
anomaly in question, except the ground that the petitioners have
been granted two revised pay scale and cannot be given the
same benefit for the second time. This stand of the State has
resulted in an anomalous situation, i.e. juniors have started
getting more pay compared to their seniors, which is wholly
unjust, unfair and inequitable. Fixing of pay of the juniors in a
higher scale than that of seniors, is clearly discriminatory and
violative of Article 14 of the Constitution of India, and the action
of the State in depriving the petitioners of their justifiable right
cannot be sustained. Petitioners, thus are entitled to be brought
at par with that of their seniors.”

In ‘Official Liquidator v. Dayanand’ 2008 (10) SCC 1, it was

noticed that in ‘Randhir Singh v. Union of India’ 1982 (1) SCC 618, it was

unequivocally ruled that the principle of ‘equal pay for equal work’ is not an

abstract doctrine and can be enforced by reading it into the doctrine of

equality enshrined in Articles 14 and 16 of he Constitution of India.

In Dayanand’s case (supra), the Court relying upon case law,

laid the test to determine ‘equal pay for equal work’ and held as under:

“95. The ratio of ‘Randhir Singh v. Union of India’ 1982
(1) SCC 618 was reiterated and applied in several cases

–‘Dhirendra Chamoli v. State of U.P.’ 1986 (1) SCC 637,
‘Surinder Singh v. CPWD’ 1986 (1) SCC 639, ‘Daily Rated
Casual Labour v. Union of India’ 1988 (1) SCC 122,
‘Dharwad Distt. PWD Literate Daily Wage Employees Assn.

v. State of Karnataka’ 1990 (2) SCC 396 and ‘Jaipal v. State
of Haryana’ 1988 (3) SCC 354 and it was held that even a
Civil Writ Petition No. 11226 of 2009 5

daily-wage employee who is performing duties similar to regular
employees is entitled to the same pay. However, in
‘Federation of All India Customs and Central Excise
Stenographers v. Union of India’ 1988 (3) SCC 91, ‘Mewa
Ram Kanojia v. AIIMS’ 1989 (2) SCC 235, ‘V. Markendeya v.
State of A.P.’ 1989 (3) SCC 191, ‘Harbans Lal v. State of
H.P.’ 1989 (4) SCC 459, ‘State of U.P. v. J.P. Chaurasia’
1989 (1) SCC 121, ‘Grih Kalyan Kendra Workers’ Union v.
Union of India’ 1991 (1) SCC 619, ‘GDA v. Vikram
Chaudhary’ 1995 (5) SCC 210, ‘State of Haryana v. Jasmer
Singh’ 1996 (11) SCC 77, ‘State of Haryana v. Surinder
Kumar’ 1997 (3) SCC 633, ‘Union of India v. K.V. Baby’ 1998
(9) SCC 252, ‘State of Orissa v. Balaram Sahu’ 2003 (1)
SCC 250, ‘Utkal University v. Jyotirmayee Nayak’ 2003 (4)
SCC 760, ‘State of Haryana v. Tilak Raj’ 2003 (6) SCC 123,
‘Union of India v. Tarit Ranjan Das’ 2003 (11) SCC 658,
‘Apangshu Mohan Lodh v. State of Tripura’ 2004 (1) SCC
119, ‘State of Haryana v. Charanjit Singh’ 2006 (9) SCC 321,
‘Hindustan Aeronautics Ltd. v. Dan Bahadur Singh’ 2007
(6) SCC 207, ‘Kendriya Vidyalaya Sangathan v. L.V.
Subramanyeswara’ 2007 (5) SCC 326 and ‘Canteen
Mazdoor Sabha v. Metallurgical & Engg. Consultants
(India) Ltd.’ 2007 (7) SCC 710, the Court consciously and
repeatedly deviated from the ruling of ‘Randhir Singh v. Union
of India’ and held that similarity in the designation or quantum
of work are not determinative of equality in the matter of pay
scales and that before entertaining and accepting the claim
based on the principle of equal pay for equal work, the Court
must consider the factors like the source and mode of
recruitment/appointment, the qualifications, the nature of work,
the value judgment, responsibilities, reliability, experience,
confidentiality, functional need, etc.”

On the touchstone of the criteria noticed above, we are of the

view that the respondent employee Ram Chander Saini and his junior
Civil Writ Petition No. 11226 of 2009 6

Charan Singh Saini are performing the same duty as a teacher. Their

qualifications, mode of recruitment/appointment, nature of work and

responsibilities are equal. The only difference is that the respondent

employee Ram Chander Saini had joined the service earlier than Charan

Singh Saini and was granted benefit of three increments for possessing

higher qualification earlier, when the rate of increment was lower. Therefore,

the principle of ‘equal pay for equal work’ can be invoked in the present case

and the disparity of senior person getting less salary than the junior can be

removed.

Mr.Harsimran Singh Sethi, learned counsel appearing for the

employer Chandigarh Administration, argued that different rates of

increment were prevailing at different times. The respondent employee was

granted three increments earlier, when the rate of increment was lower,

whereas Charan Singh Saini was granted benefit of three increments at the

time, when rate of increment prevailing was higher. Therefore, the

respondent employee is not entitled to make any grievance on this score. It

is further stated that respondent employee had not objected when the junior

was granted increments in October, 2002, and his pay was re-fixed on 4th

February.

We are not impressed by this argument. A perusal of the record

reveals that the respondent employee had earlier approached the Tribunal

and on 17th August, 2007, he was directed to submit an appeal/

representation to the authorities and was granted liberty to file fresh Original

Application against such order within the period of limitation starting from the

date of such order. The earlier order passed by the Tribunal has been

annexed as Annexure P-15. In compliance of the order, Chandigarh

Administration had rejected the claim of the respondent employee on 3rd

January, 2008 and he again approached the Tribunal for removal of the
Civil Writ Petition No. 11226 of 2009 7

anomaly and grant of equal pay, which was drawn by his junior. Therefore,

respondent employee was agitating for removal of disparity.

In these circumstances, we find that the order passed by the

Tribunal is just, appropriate and reasonable, and calls for no interference.

Hence, the present writ petition is dismissed in limine, with no

order as to costs.

    [T. S. THAKUR]                      [KANWALJIT SINGH AHLUWALIA]
    CHIEF JUSTICE                                  JUDGE

October 9, 2009
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