Punjab-Haryana High Court
Baljinder Singh And Ors vs State Of Punjab And Others on 4 August, 2023
Neutral Citation No:=2023:PHHC:101039
CWP No.5382 of 2003(O&M) 1
and other connected matters 2023:PHHC:101039
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CWP No.5382 of 2003(O&M)
Date of Decision: 4th August, 2023
Baljinder Singh and others .....Petitioners
VERSUS
State of Punjab and others ....Respondents
2. CWP No.16546 of 2009(O&M)
Swaranjit Singh and others ..............Petitioners
Versus
State of Punjab and others .............Respondents
3. CWP No. 16836 of 2012(O&M)
Jagtar Singh and others ........Petitioners
Versus
State of Punjab and another ..........Respondents
4. CWP No. 1985 of 2014(O&M)
Gurjinder Singh ...........Petitioner
Versus
State of Punjab and another ............Respondents
5. CWP No. 2128 of 2014(O&M)
Darshan Singh and another ............Petitioners
Versus
1 of 14
::: Downloaded on - 05-08-2023 06:09:39 :::
Neutral Citation No:=2023:PHHC:101039
CWP No.5382 of 2003(O&M) 2
and other connected matters 2023:PHHC:101039
State of Punjab and another ...........Respondents
6. CWP No. 15464 of 2012(O&M)
Rupinder Singh and others ...........Petitioners
Versus
State of Punjab and another .............Respondents
CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Present: Mr.Sanjay Kaushal, Sr.Advocate,
with Ms. Ojaswini Gagneja, Advocate
for the petitioners in CWP No. 5382-2003 and
CWP No.16546-2009.
Mr. Anil Malhotra, Advocate,
for the petitioners in CWP Nos. 15464 & 16836 of 2012
and CWP Nos. 1985 and 2128 of 2014.
Mr. R.K.Kapoor, Addl.A.G.Punjab
****
SANJEEV PRAKASH SHARMA, J
1. Since all the above titled petitions i.e Civil Writ Petition No.5382
of 2003, No.16546-2009, No.16836-2012, No.1985-2014, No.2128-2014 and
No.15464-2012, raise the common questions of law, therefore, are being
decided by a common order. For convenience, facts are being taken from CWP
No.5382-2003.
2. The petitioners by way of this writ petition assail the notification
dated 25.02.1991 issued by the respondents whereby the post of Patwari has
been split in two parts; Junior and Senior Patwaris and further different pay
scales have been allocated to Senior Patwaris and Junior Patwaris as 1350-
2400 and 950-1800 with different allowances by dividing the total number of
posts of Patwari to 50% each.
2 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
3. Brief facts which require to be noticed are that earlier the
Patwaris working in Revenue Department of Punjab Government were
commonly placed in the same pay scale by the 1st pay commission as well as
by the 2nd pay commission. On 01.01.1978, Patwaris were granted two tier pay
scale 400-660 and selection grade of 510-800. In 1988, the Patwaris were
granted the same pay scale w.e.f 01.01.1986. However, on 25.02.1991, the
Cadre of Patwaris was split into two parts, as above, by issuing the impugned
notification dt. 25.02.1991.
4. It is contended that the petitioners are working as Patwaris with
the Revenue Department of Punjab and are appointed in District Jalandhar. It is
undisputed that their common conditions of service are governed by The
Punjab Revenue Patwaris, Class-III Service Rules, 1966 and under Rule 2(h)
of these Rules, Patwari means a Revenue Patwari including an Assistant
Patwari. Under Rule 16 of these Rules, the scales of pay for the post of Patwari
as stated in Appendix "A" was Rs.60-175 and no separate pay scales for Senior
or Junior Patwaris was stipulated in the Service Rules. As per Rule 10 of the
said Rules, direct appointment as Patwari in the Puniab Revenue Patwaris
Class-IlI Service Rules is made from amongst the accepted Patwari candidates
or by promotion from amongst the Assistant Patwaris besides by transfer or
absorption prescribed under this Rule. The qualifications to the post of Patwari
do not distinguish any separate requirement of Senior or Junior Patwari.
Therefore, there is no distinction or classification of Senior or Junior Patwaris
as per the said Rules and there is a single unified Cadre of Patwaris. There is a
common joint Seniority of Patwaris in the unified Cadre without any
distinction, quota or classification of any Senior or Junior Patwari in the Cadre
3 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
and inter se Seniority of Patwaris is maintained districtwise which is
determined by length of continuous service in the Cadre of Patwari. There is no
breakup of Senior or Junior Patwari. The Patwaris are governed by the same
conditions of service as per the above service Rules and they perform the same
duties, functions and job responsibilities without any distinction or difference
of job description. There are no separate designated posts of Senior or Junior
Patwari in the Service Rules which have common application to all Patwaris
who are identical.
Learned counsel further contended that the placement of senior
Patwaris in Rs.1365-2410 in the scale of Rs.4400-7000 which gave
them a higher jump in the enhanced pay scale of Rs.5910-20,200, gave
them a further higher leap in the further enhancement in the scale of
Rs.10,300-34,800 thereby still creating and perpetuating the
discrimination of the earlier division of junior and senior Patwaris. To
demonstrate the effect of the artificial discrimination created by the two
pay scales of Junior and Senior Patwaris and to effectively establish the
recurring pecuniary loss and civil consequences suffered by the
petitioners in common, the chart has been placed.
5. In support of his contentions, learned counsel for the petitioners
relies upon the law laid down in Attar Singh v. State of Haryana 1995(1)
SCT 107 (P&H), Rajinder Singh v. State of Punjab and another vide CWP
No.17189 of 2010, decided on 12.07.2013, Jaswinder Singh v. State of
Punjab 1997(4) RSJ 769, O.P.Verma v. State of Punjab and another
2014(1) RCR (Civil) 281, Nikka Singh and others v. The Union Territory,
Chandigarh 2009(7) SLR 467, Land Development Union (Punjab) v.
Punjab State and others 2013(2) SLR 520, Union of India v. Dineshan
4 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
K.K. 2008(1) SCC 586, State of Punjab and others v. Senior Vocational
Staff Masters Association and others 2017(9) SCC 379, State of Punjab
and others v. Rajinder Kumar and others LPA No.1024 of 2009, decided on
30.08.2010, State of Punjab and others v. Jagjit Singh and others 2016
AIR (SC) 5176 and Gujarat Rajya Pachhat Varqa Chhartralaya
Karamachari Maha vs. State of Gujarat 2002(3) Guj.LH 684.
6. Reply has been filed on behalf of the State and it has been argued
that the notification dated 25.02.1991 has been challenged after lapse of more
than 18 years. It is also stated that the said recommendations are under the 3rd
pay commission and scrapped by the subsequent 4th pay commission w.e.f
01.01.1996 and the 5th pay commission has also recommended for a single pay.
It is further pointed out that the bifurcation was made keeping in view the
stagnation in the Cadre of the Patwaris.
7. Learned counsel for the petitioners in re-joinder has relied upon
the judgment passed by the Supreme Court in Union of India and others v.
Tarsem Singh (2008) 8 SCC 648 to point out that there is a continuous wrong
and therefore, limitation would not apply in such matters. It is submitted that
while the 50% Patwaris received higher pay scale would automatically receive
higher pay under the 4th pay commission and the 5th pay commission while the
petitioners who were given lower grade on account of the notification dated
25.02.1991 (Annexure P-2) would continue to get lower grade.
8. I have considered the submissions and judgments cited by the
counsel for the parties.
9. The Punjab Revenue Patwaris Class III Service Rules,1966
Revenue Department lays down the Rules of Selection and Appointment of
Patwaris. There is no bifurcation in the Rules of Patwaris into Senior and
5 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
Junior Patwaris. The method of appointment is same for all Patwaris. The
seniority inter se members of the service as per Rule 15 is maintained district-
wise and is to be determined by the length of continuous service. Rule 15 of
seniority and Rule 16 regarding pay are quoted here as under:-
"15. Seniority. - The seniority inter se of members of the
Service in each cadre shall be maintained district-wise and
shall be determined by the length of continuous service on a
post in that cadre:
Provided that in the case of two or more members appointed on
the same date, their seniority shall be determined as follows :-
(a) a member recruited by direct appointment shall be
senior to a member recruited otherwise;
(b) a member appointed by promotion shall
be senior to a member appointed by transfer;
(c) in the case of members appointed by
promotion or transfer, seniority shall be
determined according to the seniority of such
members in the appointments from which they
were promoted or transferred; and
(d) in the case of members appointed by
transfer from different cadres, their seniority
shall be determined according to pay preference
being given to a member who was drawing a
higher rate of pay in his previous appointment, if
the rates of pay drawn are also the same then by
their length of service in those appointments and
if the length of such service is also the same, an
older member shall be senior to a younger
member.
Note 1. - This rule shall not apply to persons appointed
on purely provisional basis pending their passing the
qualifying tests.
Note 2. - In the case of members whose period of
probation is extended under rule 14, the date of
appointment for the purpose of this rule shall be deemed
6 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
to have been deferred to the extent the period of
probation is extended.
16. Pay. - The members of service shall be entitled to
such scales of pay including special pay, if any, as may
be authorised by Government from time to time. The
scales of pay at present in force in respect of specified
post given in Appendix A', to these rules.
10. Facts as have been noticed above while recording the contentions
of the petitioners reflect that the pay scale of Patwaris has been bifurcated only
for the limited period when the 3rd pay commission recommendations were
enforced. The contention of the respondents that the same was made in order
to avoid stagnation is found to be without any basis. If the stagnation is the
criteria, the same would apply to all the Patwaris. However, while making
recommendations, the 4th pay commission and onwards, the Cadre has
remained the same. The pay scale has also remained the same for all the
Patwaris. But on account of change of pay scale of 50% Patwaris in the grade
of Rs.1800-3200 and the remaining in 1640-2925, a cascading effect has
occurred as is seen from the table noticed above and although the pay scales
under the 4th pay commission and thereafter done, drew differences between
the pay scales of the Patwaris. Artificially two different pay scales as denied to
be provided to 50% Patwaris who are senior in comparison to the 50%
Patwaris who are junior.
11. However, it is an admitted position that there is no channel of
promotion from the Junior Patwaris to the Senior Patwaris. Classification made
is therefore, artificial and cannot be allowed on the anvil of Article 14 of the
Constitution of India.
7 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
12. In Union of India v. Dineshan K.K.'s case (supra), it has been
held as under:-
19. In the present case, therefore, in the light of the admitted
factual position, the question of examination of external
comparisons, internal relativities and other factors, to be kept
in view for job evaluation, considered to be a complex issue to
be studied only by expert bodies, does not arise. As a necessary
corollary, the issue as to whether there is a complete or
wholesale identity between the said paramilitary forces, does
not survive for consideration.
20. Thus, the short question requiring our consideration is
whether having admitted in their affidavit referred to
hereinabove, the apparent disparity and anomaly in the pay
scales of Radio Mechanics, the administrative authorities, the
petitioners herein, could be permitted to perpetuate apparent
discriminatory differentiation in the pay scales because of the
disparity in pre-revised and revised scales of the personnel of
Assam Rifles prior to the recommendations of the Fourth Pay
Commission, irrespective of the identity of their powers, duties
and responsibilities with other paramilitary forces. In our
considered opinion, in view of the total absence of any plea on
the part of the Union of India that Radio Mechanics in other
paramilitary forces were performing different or more onerous
duties as compared to the Radio Mechanics in Assam Rifles, the
impugned decision of the Government was clearly irrational
and arbitrary and thus, violative of Article 14 of the
Constitution."
13. In State of Punjab and others v. Senior Vocational Staff
Masters Association and others's case (supra), the Apex Court has held as
under:-
17) The principle of equality, is also fundamental in
formulation of any policy by the State and the glimpse of the
same can be found in Articles 38, 39, 39A, 43 and 46 embodied
in Part IV of the Constitution of India. These Articles of the
Constitution of India mandate that the State is under a
8 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
constitutional obligation to assure a social order providing
justice- social, economic and political, by inter alia, minimizing
monetary inequalities, and by securing the right to adequate
means of livelihood and by providing for adequate wages so as
to ensure, an appropriate standard of life, and by promoting
economic interests of the weaker sections. Meaning thereby, if
the State is giving some economic benefits to one class while
denying the same to other then the onus of justifying the same
lies on the State specially in the circumstances when both the
classes or group of persons were treated as same in the past by
the State. Since Vocational Masters had been drawing same
salary as Vocational Lecturers were drawing before the
application of 4 th pay commission, any attempt to curtail their
salary and allowances would amount to arbitrariness which
cannot be sustained in the eyes of law if no reasonable
justification is offered for the same.
18) We are conscious of the fact that a differential scale on the
basis of educational qualifications and the nature of duties is
permissible. However, it is equally clear to us that if two
categories of employees are treated as equal initially, they
should continue to be so treated unless a different treatment is
justified by some cogent reasons. In a case where the nature of
duties is drastically altered, a differential scale of pay may be
justified. Similarly, if a higher qualification is prescribed for a
particular post, a higher scale of pay may be granted. However,
if the basic qualifications and the job requirements continued to
be identical as they were initially laid down, then the Court
shall be reluctant to accept the action of the authority in
according a differential treatment unless some good reasons
are disclosed. Thus, the decisions relied upon by learned senior
counsel are clearly distinguishable and are not applicable to
the facts of the present case.
Conclusion:
19) In view of the forgoing discussion, we are of the considered
opinion that the High Court was fully justified in declaring that
the vocational masters are entitled to pay scale of Rs. 6,400-
10,640/- on the ground that the nature of duties being
9 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
discharged by the vocational masters are the same as
vocational lecturers and that there was no rationale behind
making a classification between the two especially when both
the categories were treated as one and the same in all the
previous pay revisions since 1978 onwards. Vide notification
dated 31.03.1995, only the nomenclature of vocational masters
was changed without changing their nature of duties and pay
scales. Further, the impugned order dated 16.07.2003 deserves
to be quashed on the short ground that it has been passed
without complying the rules of natural justice. The same could
not have been passed without giving an opportunity of hearing
to the concerned employees."
14. In Gurdev Singh and another v. State of Punjab vide CWP
No.1748 of 1995, decided by the Division Bench on 28.11.1995, this Court
was examining the similar notification issued in respect of Craft Instructors
Grade II whereby 50% of the Instructors were given pay scale of Rs.1800-3200
while the remaining 50% were granted grade of 1640-2925 w.e.f 01.01.1986 on
the basis of seniority after considering the various aspects, this Court has held
as under:-
"20. It has been argued by Mr. P.S. Patwalia, learned counsel
for the petitioners that both the cadres were amalgamated and there
Was no reason to separate them. He has also argued that the duties,
responsibilities and the qualifications required Grade-I and Grade-I1
posts are the same. He has cited before us a case of Attar Singh Vs.
State of Haryana, reported in 1995(1) SCT 107. It is the case where the
department was directed to pay to Classical, Vernacular and Sanskrit
equal pay teachers. The learned Single Judge of this Court had
considered the fact that doctrine of equal pay for equal work is
enshrined in Article 39(d) of the Constitution of India and has been
treated as an intergral part of the "equity before Law" contained in
Articles 14 and 16 of the Constitution and that it is the function and
mandatory duty of executive authorities to give effect to the provisions
of the Constitution. It was further held that it was for the Department
10 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
to prove that classification between the group of employees was
reasonable and justified beyond arbitrariness and hostile
discrimination."
15. In Punjab State Cooperative Milk Producers Federation
Limited and another v. Balbir Kumar Walia and others (2021) 8 SCC 784,
the Supreme Court held that different educational qualification and experience
prescribed for appointment can be a ground to have different pay scales/pay
structure. In Civil Appeal No.172 of 2023 titled Union of India v. Rajib
Khan decided on 16.01.2023, the Supreme Court reiterated that classification
based on higher educational qualification or a different educational
qualification for grant of higher pay scale cannot be objected and parity cannot
be claimed.
16. Similarly in State of West Bangal v. Sri Deb Kumar
Mukherjee's case (supra), the Apex Court upheld the classification within a
Cadre on ground of selection based on merit and seniority or seniority-cum-
merit for the purpose of grant of selection grade or Super Time Grade after a
specific period of service rendered in a particular Cadre.
17. In contradistinction of above, in the present case, where the
Cadre of Patwari is same, method of selection is same and the post is same,
merely because a person in the seniority list of Patwaris above, it would be a
fortuitous circumstance as to who may fall within the first 50% of the seniority
list of Patwaris. As and when a person may retire, the next would claim higher
grade. Seniority being a volatile incident of service as a person may go up in
the seniority on account of senior persons being promoted or retired or having
expired. The pay of such individual Patwari cannot be allowed to be changed
11 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
on such circumstances and a stability is required to be maintained for grant of
the pay scale to all persons in the Cadre.
18. The respondents have also raised the question of delay. In Union
of India and others v. Tarsem Singh's case (supra), the Apex Court carved
out an exception to the principle of rejecting service matter claims on the
ground of delay and latches and held that the said principle would not apply in
cases of continuous wrong and where interest of 3rd party are not effected. It
has been held by the Apex Court as under:-
4. The principles underlying continuing wrongs and recurring/
successive wrongs have been applied to service law disputes. A
`continuing wrong' refers to a single wrongful act which causes
a continuing injury. `Recurring/successive wrongs' are those
which occur periodically, each wrong giving rise to a distinct
and separate cause of action. This Court in Balakrishna S.P.
Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan - [AIR
1959 SC 798], explained the concept of continuing wrong (in
the context of Section 23 of Limitation Act, 1908 corresponding
to Section 22 of Limitation Act, 1963) :
"It is the very essence of a continuing wrong that it is an act
which creates a continuing source of injury and renders the
doer of the act responsible and liable for the continuance of the
said injury. If the wrongful act causes an injury which is
complete, there is no continuing wrong even though the damage
resulting from the act may continue. If, however, a wrongful act
is of such a character that the injury caused by it itself
continues, then the act constitutes a continuing wrong. In this
connection, it is necessary to draw a distinction between the
injury caused by the wrongful act and what may be described
as the effect of the said injury."
In M.R.Gupta v. Union of India [1995 (5) SCC 628], the
appellant approached the High Court in 1989 with a grievance
in regard to his initial pay fixation with effect from 1.8.1978.
The claim was rejected as it was raised after 11 years. This
12 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
Court applied the principles of continuing wrong and recurring
wrongs and reversed the decision. This Court held :
"The appellant's grievance that his pay fixation was not in
accordance with the rules, was the assertion of a continuing
wrong against him which gave rise to a recurring cause of
action each time he was paid a salary which was not computed
in accordance with the rules. So long as the appellant is in
service, a fresh cause of action arises every month when he is
paid his monthly salary on the basis of a wrong computation
made contrary to rules. It is no doubt true that if the appellant's
claim is found correct on merits, he would be entitled to be paid
according to the properly fixed pay scale in the future and the
question of limitation would arise for recovery of the arrears
for the past period. In other words, the appellant's claim, if any,
for recovery of arrears calculated on the basis of difference in
the pay which has become time barred would not be
recoverable, but he would be entitled to proper fixation of his
pay in accordance with rules and to cessation of a continuing
wrong if on merits his claim is justified. Similarly, any other
consequential relief claimed by him, such as, promotion etc.,
would also be subject to the defence of laches etc. to disentitle
him to those reliefs. The pay fixation can be made only on the
basis of the situation existing on 1.8.1978 without taking into
account any other consequential relief which may be barred by
his laches and the bar of limitation. It is to this limited extent of
proper pay fixation, the application cannot be treated as time
barred........."
In Shiv Dass v. Union of India - 2007 (9) SCC 274, this Court
held:
"The High Court does not ordinarily permit a belated resort to
the extraordinary remedy because it is likely to cause confusion
and public inconvenience and bring in its train new injustices,
and if writ jurisdiction is exercised after unreasonable delay, it
may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was pointed
out that when writ jurisdiction is invoked, unexplained delay
13 of 14
Neutral Citation No:=2023:PHHC:101039
and other connected matters 2023:PHHC:101039
coupled with the creation of third party rights in the meantime
is an important factor which also weighs with the High Court in
deciding whether or not to exercise such jurisdiction.
In the case of pension the cause of action actually continues
from month to month. That, however, cannot be a ground to
overlook delay in filing the petition.......... If petition is filed
beyond a reasonable period say three years normally the Court
would reject the same or restrict the relief which could be
granted to a reasonable period of about three years."
19. Applying the aforesaid, this Court finds that in the present case
the petitioners suffer continuous wrong. This Court is satisfied by the reasons
putforth by the learned counsel and hold that the notification dated 25.02.1991
seeks to create artificial classification and discrimination between the similarly
placed persons and violates Article 14 of the Constitution of India as similarly
placed persons have been classified differently without their being any basis.
The notification is thus, arbitrary and is accordingly quashed and set aside to
the extent of dividing the Patwaris in two categories and granting two different
pay scales.
20. Accordingly, all the writ petitions are allowed.
21. All the petitioners will have to be placed in the higher pay scale
of 1350-2400 as has been given to their Senior Patwaris and pay fixation shall
be done accordingly within a period of four months. The arrears shall also be
released in their favour.
(SANJEEV PRAKASH SHARMA)
th
4 August, 2023 JUDGE
mamta
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:101039
14 of 14
