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PETITIONER: THE STATE OF PUNJAB & ANR.

       Vs.

RESPONDENT: DHARAM PAUL & ORS.

DATE OF JUDGMENT:       22/01/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  1996 SCC  (7) 295        JT 1996 (1)   563  1996 SCALE  (1)527

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      Leave granted.      These appeals  by the  State  of  Punjab  are  directed against the  judgment of  the Division  Bench of  the Punjab High Court  which dismissed  the Letters  Patent  Appeal  in limini and  confirmed the order of the learned Single Judge. The question  that arises  for consideration  is whether the respondents are  entitled to the relief of getting their pay step up and made equal to the pay drawn by other instructors irrespective of  the trade  in which  they are  working. The respondents filed Writ Petitions in the High Court of Punjab and Haryana  alleging that even though they possess the same qualification and  were appointed  as instructors  and  were continuing as  such, but  with  effect  from  4.1.1961,  pay scales of  instructors in  respect of  8 trades were changed whereas the  respondents’ pay  scales have not been changed. In the  subsequent scales  have not  been  changed.  In  the subsequent pay  revision  even  though  there  has  been  no distinction  but   yet  those  group  of  persons  who  were distinction but  yet those group of persons who were drawing a higher  scale of pay on the basis of their trades continue to get  the same  higher pay even though they are juniors to respondents  and,   therefore,  the  respondents  should  be entitled to  get their  pay by way of stepping up. The stand of the  State, on  the other  hand, was  that it is no doubt true that  prior to  1961 all  the instructors  in Grade  II irrespective of  their trade  were getting same scale of pay but subsequently  in respect  of instructors of 8 trades the pay scales  were changed and respondents were not covered by those 8  trades. Some of the employees similarly situated as the respondents challenged the said classification by filing a Writ  Petition which  was ultimately dismissed the Letters Patent Appeal  against the  same was  also dismissed  and as such the  matter became  final. In 1970 the State Government

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revised the  staffing pattern  for instructors of Industrial Training Institutions/Centers and placed all the instructors in the  pay scale of Rs. 160-400. While doing so, in respect of those  instructors who  were getting  higher scale of pay numbering 181  were allowed to enjoy their earlier pay scale as personal  to them and all the instructors were designated as instructors  and not  junior or  senior. In the year 1976 the pay scale was further revised to Rs. 225-500 and the pay of individual  instructor was  fixed in  the scale depending upon the salary he was drawing in the pre-existing scale. It is only  in the  year 1989 the respondents instructors filed the Writ  Petition claiming  he relief  of step  up  on  the allegation that  their juniors  of step up on the allegation that their juniors are getting a higher amount. According to the stand  of the State Government in view of the failure on the part  of the  State Government in view of the failure on the part of the respondents to assail the correctness of the classification providing  different scale of pay made on the basis of  their trade,  inasmuchas the Writ Petition as well as the  Letters Patent  Appeal against  the same having been dismissed, it  is not  open for  them to re-open the matter. The further  stand is that even when one pay scale was fixed by way  of revision  for all  the instructors  but those who were getting  a higher  scale of pay in pursuance to earlier order were  allowed to  continue in the said higher scale of pay as  personal to them and necessarily in fixing their pay in the  revised scale  the amount they were drawing prior to revision has  to be  taken into account and thus question of stepping up  of the  respondents’ pay  does not  arise.  The learned Single  Judge allowed the Writ Petition No. 10506 of 1989 which  judgment was upheld in Letters Patent Appeal out of which  Special Leave Petition No. 4855 of 1995 arises. In the two  other cases  the earlier judgment of the said Court has merely been followed.      The learned  counsel for  the appellant  submitted that the so-called  division amongst  the  instructors  giving  a higher scale  in respect  of 8  trades and  a lower scale in respect of  the rest  by virtue  of Government’s Order dated 23rd February,  1962, has  become final  and notwithstanding the fixation  of one  scale of  pay for  all instructors  in 1970, instructors  of the 8 trades who were getting a higher scale of pay have been allowed to enjoy the same as personal to them  and, therefore,  the High  Court was  in  error  to direct the  appellant to step up the pay of the respondents. Mr.  Rao,   learned  senior   counsel  appearing   for   the respondents, on the other hand, contended that the so-called bifurcation of  the instructors  as  junior  and  senior  is nothing but  a misnomer  as educational qualification of all instructors is  the same and they had been recruited through the same  process. The  learned counsel  further urged  that since on  their  representation  the  Government  ultimately abolished the  distinction and  brought all  of them  in one scale in  the year 1976, there would be no justification for fixing the  pay of  the junior  people at a higher slab than the respondents  and,  therefore,  the  High  Court  rightly directed for stepping up of the pay.      Having heard  learned counsel  for the  parties and  on examining the  materials on  record we are of the considered opinion that  the High Court committed an error by directing stepping up  of the pay of the respondents on the assumption that  the  juniors  are  getting  a  higher  amount.  It  is undisputed that  the instructors originally were getting one scale of pay, namely, 80-200 prior to 1961, but by virtue of the Government’s  Order dated  23rd February,  1962 the said pay scale  of Rs  80-200 was  revised to Rs. 160-330 only in

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respect of  the instructors  in the  8 trades. The aforesaid pay revision  in respect of the instructors belonging to the 8 trades  was challenged  unsuccessfully by  the rest of the instructors belonging  to the  other  trades  and  the  Writ Petition (Civil)  No. 3038/69  was dismissed  as well as the Letters Patent  Appeal No.  654/1970 against  the  same  was dismissed by  judgment dated  24th January,  1972. While the State Government  in September  1970 put all the instructors in  one  pay  scale  of  Rs.  160-400  but  so  far  as  181 instructors who  had got  a higher scale of pay in pursuance to the  Government  order  dead  23rd  February,  1962  were allowed to enjoy their scale as personal to them. This being the admitted  position, in  1976 the  pay scale  was further revised to Rs. 225-500 in respect of all the instructors but while fixing  the pay  in the  revised scale necessarily the higher pay drawn by those 181 instructors belonging to the 8 trades was  taken into account and they got a higher sum. In these circumstances  the question  of stepping up of the pay of  respondents   does  not  arise.  Those  181  instructors originally may  have been junior to these respondents but by virtue of  the government  order dated  23rd February,  1962 they  having  been  given  higher  scale  of  pay  then  the respondents and  the same benefit having been continued as a personal pay  to them, in the subsequent revision of the pay scale and  the persons  similarly  placed  like  respondents having challenged  and lost in the earlier Writ Petitions it is not  open to  them to  reopen the matter. In this view of the matter  we have  no hesitation to come to the conclusion that the  learned Single  Judge  without  adverting  to  the relevant facts  granted the  relief of  stepping up  on  the ground that  the qualification  to the  post of  instructors being the  same and  they being  governed  by  same  service conditions a  junior person  cannot get  a higher  sum.  The Division Bench  committed error  in  limini  dismissing  the Letters  Patent   Appeal.  We   accordingly  set  aside  the judgements of  the learned  Single  Judge  as  well  as  the judgment of  the Division  Bench and allow these appeals and consequently the  Writ Petitions  filed by  the  respondents stand dismissed.  But in the circumstances, there will be no order as to costs.