LPA No.71 of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CASE NO.: LPA No.71 of 2006
DATE OF DECISION: March 10, 2009
THE PUNJAB STATE CO-OPERATIVE ...APPELLANT
AGRICULTURAL DEVELOPMENT BANK LTD.
VERSUS
PUNJAB STAE CO-OPERATIVE AGRICULTURAL ...RESPONDENTS
DEVELOPMENT BANK PENSIONER'S ASSOCIATION
& OTHERS
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
PRESENT: MR. R.N. RAINA, ADVOCATE FOR THE APPELLANT.
MR. GAURAV CHOPRA, ADVOCAE
FOR RESPONDENTS NO.1 TO 3.
MS. AMBIKA LUTHRA, AAG, PUNJAB.
ASHUTOSH MOHUNTA, J.
This order shall dispose of L.P.A. No. 71 of 2006, filed by the
Punjab State Cooperative Agricultural Development Bank Ltd. and L.P.A.
No. 137 of 2006, filed by State of Punjab against order/judgment, dated
14.12.2005 [reported as 2006 (1) SCT 633], passed by a learned single
Judge of this Court, allowing CWP No. 899 of 2000 filed by present
respondent Nos. 1 to 3 in both the appeals. In view of same order/ judgment
being under challenge in both the appeals, we dispose of both the appeals by
a common order.
The brief facts of the case are that on the recommendations of
the 3rd Pay Commission, the appellant – State of Punjab revised the pay
scales of its employees on 21.05.1989, w.e.f. 01.01.1986. The appellant –
LPA No.71 of 2006 -2-
Bank also, vide resolution No. 37 dated 06.07.1989, revised the pay scale of
its employees, on the pattern of Punjab Government after obtaining the
approval of the Registrar Cooperative Societies, Punjab. The Punjab
Government issued a notification dated 24.12.1992, where by the
Government amended and revised the Master pay scale in order to remove
certain anomalies in pay scales. The appellant bank also introduced the
amended master pay scale w.e.f. 01.01.1986 vide order dated 09.12.1997 in
order to remove the anomalies. However it was clarified that the arrears of
pay to the affected employees on account of the amended master pay scale
will be allowed only w.e.f. 01.04.1996. As per the stand of the appellant
bank the arrears were paid to the employees w.e.f. 01.01.1993.
Feeling aggrieved by the restriction on the payment of the
arrears of pay only w.e.f. 01.04.1996, even though anomaly was removed
w.e.f. 01.01.1986, the present respondent Nos. 1 to 3, one of which is the
Pensioner’s Association of the appellant – bank, filed the aforementioned
writ petition challenging the order dated 09.12.1997 to the extent it
restricted the payment of arrears only w.e.f. 01.04.1996. The only short
question which arose for the consideration of learned single Judge and now
we are required to examine in these appeals is as to whether the employees
of the appellant-bank are entitled to arrears of pay w.e.f. 01.01.1986 i.e. the
date from which the anomaly was removed or the same could be restricted
to payment w.e.f. 01.04.1996. In other words the dispute is regarding the
payment of arrears of pay w.e.f. 01.01.1986 to 31.03.1996 or 31.12.1992 as
the case may be.
The learned single Judge held that the order dated 09.12.1997
was violative of Article 14 and 16 (1) of the Constitution of India to the
LPA No.71 of 2006 -3-
extent it denies the arrears to the present respondent Nos. 1 to 3 and other
affected employees with effect from the date of removal of anomaly i.e.
01.01.1986. The present respondent Nos. 1 to 3 were held entitled to the
arrears of salary arising on account of revision of pay scale w.e.f.
01.01.1986 upto 31.03.1996. The learned single Judge further directed that
if any employee has been paid the arrears w.e.f. 01.01.1993, the same shall
be adjusted. The learned single Judge also held the present respondent Nos.
1 to 3 entitled to the consequential benefits in the form of revised pension
and allowances, wherever the said direction was applicable. While arriving
at the aforesaid conclusion the learned Single Judge relied on the decision
of the Hon’ble Supreme Court in State of Punjab vs. Dr. Dharampal (C.A.
No. 10549 of 1996 decided on 25.08.1998) and earlier decisions of this
court in Joginder Singh Saini vs. State of Punjab [1999 (1) SCT 520] and
Prem Parkash Nayar vs. Punjab State Electricity Board [2003 (2) SCT
550].
We have heard the learned counsel for the parties at great
length. Mr Raina, Learned Counsel appearing on behalf of the appellant –
Bank has vehemently argued that the learned single Judge erred in
entertaining the writ petition and the writ petition was liable to be dismissed
at the threshold on ground of availability of alternative remedy. The
respondent Nos. 1 to 3 failed to avail the alternative remedy of revision as
provided under Section 69 of the Punjab Cooperative Societies Act, 1961.
He contended that the respondent Nos. 1 to 3 should have filed a revision
petition before the State Government against the order dated 09.12.1997 in
the first instance under the aforesaid provision.
We are not impressed by the argument of the learned counsel
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for the appellant – bank. It is by now well settled that the existence of a
remedy by way of revision does not bar the jurisdiction of the High Court to
entertain a petition under Art. 226 as the remedy to file revision is not an
efficacious remedy. Reference can be made to the decision of the Hon’ble
Supreme Court in the case of Collector of Customs and Excise, Cochin v.
M/s. A. S. Bava [ AIR 1968 SC 13] and L. Hirday Narain v. Income-Tax
Officer, Bareilly [AIR 1971 SC 33] and this court in the case of Bhagwant
Singh Dhanao Vs. Punjab State Agricultural Marketing Board, [1996 (3)
SCT 757]. Even otherwise we do not find it proper to interfere in the facts
and circumstances of the present case merely on ground of availability of
alternative remedy in view of law laid down by Hon’ble Supreme Court in
para 21 of the judgment titled, L.K. Verma v. HMT Ltd. [ 2006(1) SCT
601 ], to the following effect:-
“21. In any event, once a Writ Petition has been entertained
and determined on merit of the matter, the Appellate Court,
except in rare cases, would not interfere therewith only on the
ground of existence of alternative remedy. (See Kanak v. U.P.
Avas Evam Vikas Parishad, 2003(4) RCR(Civil) 562 : 2003(7)
SCC 693). We, therefore, do not see any justification to hold
that the High Court wrongly entertained the writ petition filed
by the respondent.”
The learned counsel for the appellant bank has further
contended that the State of Punjab has revised the master pay scale for its
employees w.e.f. 01.01.1993 and not w.e.f. 01.01.1986. The appellant bank
has also decided to follow the State Government and amended the pay scale
on the pattern of the State Government and the appellant – Bank cannot be
LPA No.71 of 2006 -5-
forced to pay arrears w.e.f. 01.01.1986. The learned counsel contended that
the learned Single Judge has erred in not properly considering this aspect of
the matter. Again we do not find merit in contention raised by the learned
Counsel for the appellant – bank. The date from which the State of Punjab
granted the revised master pay scale is immaterial, once a decision has
already been taken by the appellant – bank to grant the revised master pay
scale to its employees w.e.f. 01.01.1986.
The learned counsel for the respondent Nos. 1 to 3 on the other
hand tried to support the judgment of the learned single Judge by
contending, that as per settled law, once there is anomaly in the pay scales,
the benefits are to be paid form the date of creation of the anomaly and no
artificial and arbitrary date can be fixed by the appellants in this regard. He
has relied upon the decision of this court in Gurmail Singh Dahdli and
others vs. Union of India and others [2008 (3) SCT 235]; Joginder Singh
Saini’s case supra; Jai Narayan Jakhar vs. Union of India and another
[CWP No. 15400 of 2006 decided on 14.01.2008] and Mrs. Suveena
Chaudhary vs. Chandigarh Industrial and Tourism Development
Corporation Limited [1998 (4) SCT 620], in support of his argument.
In Joginder Singh Saini’s case supra, which has also been
relied upon by the learned single Judge while deciding the writ petition, this
Court held that having accepted the factum of anomaly and having taken a
decision to remove the same, the Government cannot arbitrarily fix the date
with effect from which the benefit of revised pay scale is to be given to the
petitioners.
In Jai Narayan Jakhar’s case supra, a Division bench of this
Court held as under:-
LPA No.71 of 2006 -6-
“Having heard the learned counsel for the parties, we are of
the opinion that the stand of the respondents that the petitioner
is not entitled to the benefit of removal of anomaly in the Pay
Commission is wholly unjustified. It was during the
implementation of 5th Pay Commission report, it was found by
the respondents that there is anomaly in the pay scales. Once
the anomaly in the pay scales is found and sought to be
removed then it has to be removed from the implementation of
the recommendation of the Pay Commission i.e. 01.01.1996.
There is no explanation as to why the said anomaly is sought to
be removed from 10.10.1997. In the absence of any explanation
of removal of anomaly from 10.10.1997, we do not find the
action of the respondents fixing such date as justified.
Consequently, we hold that the petitioner is entitled to revised
pay scale of Rs 5220-140-8140/- w.e.f. 01.01.1996. Thus the
petitioner shall be entitled to the retiral benefits on the said
pay scale.”
In Suveena Chaudhary’s case supra , the court held to the
following effect :-
“…….It is true that it is always open to an employer to revise
the salaries / pay scales of its employees and also specify a
date from which the revision of pay scales shall take effect but
where an anomaly if pointed out in the revision of pay scales of
any post and that anomaly is sought to be removed then it
cannot be allowed to be removed from the date when the
employer decides to remove it. In the very nature of things it
LPA No.71 of 2006 -7-must relate back to the date when it existed. 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 Gurmail Singh Dahdli’s case supra, a division bench of this
court, cited with approval the observations made by the learned single Judge
in judgment impugned in the present case and held as under in para 8 of the
judgment :-
“8………..Once there was anomaly in respect of pensionary
benefits, pensionary benefits are payable from the date of
creation of anomaly and that interpretation will alone serve
the purpose and the object of removing anomaly.”
In view of the above, we are of the considered opinion that the
order/ judgment of the Learned Single Judge is sound in law. There is no
error in the view taken by the Learned Single Judge and we do not find any
valid ground to upset the order passed by the learned single Judge. The
appeals filed by the appellant – bank and the appellant – State of Punjab are
without merit and the same are accordingly dismissed.
(ASHUTOSH MOHUNTA)
JUDGE
March 10, 2009 (NIRMALJIT KAUR)
Gulati JUDGE