PUNJAB STATE POWER CORPORATION LIMITED v. RAJESH KUMAR JINDAL & Ors.

1.9 Exercise of option for promotion as Internal Auditor was a “conscious option”. Further, it was always open to the appellant-Board to revise the scale of pay in terms of Regulation 3(g) of the Punjab State Electricity Board (Revised Pay) Regulations, 1988. That apart, while recommending the different pay scales for Head Clerks and Internal Auditors, the Pay Anomaly Committee was conscious about those Circle Assistants/ARAs who have already exercised their option for promotion as Head Clerks between 01.01.1986 to 03.10.1990. The Pay Anomaly Committee in para (5.1) of its report expressed its view that the option may be given to the employees who have been promoted between 01.01.1986 to 03.10.1990 as Head Clerks and Internal Auditors for the post of Head Clerk, provided some vacancies are available in the cadre of Head Clerk. The Pay Anomaly Committee has also expressed its view that once they are appointed as Head Clerks, they will be given the seniority as would have been if they would have exercised their option as Head Clerks in the first instance on promotion from Circle Assistants/ARAs. [Para 34, 35] [313-A-D]

1.10 The promotional avenues which are available to all the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks. Therefore, for this reason also, option of Internal Auditors which has been exercised by the Internal Auditors was a “conscious option” exercised by them because of more promotional avenues may available in the channel of Internal Auditors. That apart, the pay scales available in the promotional channel for Internal Auditors are also sharply higher than the Head Clerks. From submission of the appellant-Board, it is found that the increase in the pay scale is much higher on promotion against the post in the Internal Auditor promotional channel. Thus, for the said reason also, the choice of Internal Auditors made by all the A B C D E F G H 294 SUPREME COURT REPORTS [2019] 2 S.C.R. persons (including those who have exercised the option between 01.01.1986 to 03.10.1990) is a reasoned choice keeping in view the greater promotional avenues and the higher pay scales which are available. [Paras 36, 37] [314-A-E]

1.11 The direct recruited Internal Auditors are entitled to a time-bound promotional scale on completion of nine years of service Rs.1900-3300 (unrevised) and sixteen years of service Rs.2000-3500 (unrevised). However, no such time-bound promotional scale is available to Head Clerks. Head Clerks are not directly recruited and their appointment as Head Clerk is by promotion only. [Para 38] [314-F-G]

1.12 The Court has to keep in mind that a mere difference in service conditions, does not amount to discrimination. Unless there is complete identity between the two posts, they should not be treated as equivalent to claim parity of pay scale. No doubt, Internal Auditors were earlier placed in the same group namely Group XII; but educational qualifications for the post of Head Clerk and mode of recruitment are different. As submitted by the appellant-Board, that in 1980, there were only four posts in Group XII but subsequently some posts were added to Group XII and in total fourteen posts. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the submission of the Internal Auditors for claiming parity of pay scale with that of Head Clerks merely on the ground that the post of Internal Auditor was placed in Group XII, then if such parity of pay scale may have to be extended to all other posts, it would have huge financial implication on the finance of the Board which is a service-oriented institution owing to the consumers. [Para 39] [315-A-E]

1.13 The Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. A B C D E F G H PUNJAB STATE POWER CORPORATION LIMITED v. RAJESH KUMAR JINDAL & OTHERS 295 The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The Single Judge erred in recording that the respondents were in the same category of “Sub Fire Officers” within the same group which have been decided by the earlier judgment dated 21.01.2010. [Para 40][315-F-H]

1.14 Merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was the “conscious exercise of option”, the impugned judgment cannot be sustained and is set aside. [Para 41][316-A-B] Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353 : [2000] 4 Suppl. SCR 638 ; S.C. Chandra and Others v. State of Jharkhand and Others (2007) 8 SCC 279 : [2007] 9 SCR 130 ; Union Territory Administration, Chandigarh and Others v. Manju Mathur and Another (2011) 2 SCC 452 : [2011] 1 SCR 883 ; State of Haryana and Others v. Charanjit Singh and Others (2006) 9 SCC 321 : [2005] 4 Suppl. SCR 57 ; Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research and Others (2012) 12 SCC 666 : [2012] 8 SCR 831 ; Steel Authority of India Limited and Others v. Dibyendu Bhattacharya (2011) 11 SCC 122 : [2010] 13 SCR 429 ; Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850 : [1968] 2 SCR 186 ; Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643 : [2006] 4 Suppl. SCR 66 - referred to. A B C D E F G H 296 A SUPREME COURT REPORTS [2019] 2 S.C.R. Case Law Reference [2000] 4 Suppl. SCR 638 referred to [2007] 9 SCR 130 B [2011] 1 SCR 883 referred to referred to [2005] 4 Suppl. SCR 57 referred to [2012] 8 SCR 831 [2010] 13 SCR 429 [1968] 2 SCR 186 referred to referred to referred to [2006] 4 Suppl. SCR 66 referred to Para 14 Para 15 Para 15 Para 15 Para 15 Para 16 Para 21 Para 39 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.195-198 of 2019. From the Judgment and Order dated 23.02.2012 of the High Court of Punjab and Haryana at Chandigarh in LPA No. 264 of 2012 and Order dated 04.05.2012 in CM No. 1606 –LPA & 1607 –LPA of 2012 and RA No. LP-16 of 2012 in LPA No. 264 of 2012 . Nidhesh Gupta, Sr. Adv., Pritpal Singh Nijjar, Ms. Vriti Gujral, Ms. Pallavi Singh, A. Venayagam Balan, Advs. for the Appellants. Saravpreet Singh, Tushar Bakshi, Shovit Singh, Naresh Bakshi, Advs. for the Respondents. The Judgment of the Court was delivered by R. BANUMATHI, J. 1. Leave granted.

2. These appeals arise out of the judgment dated 23.02.2012 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No.264 of 2012 and Order dated 04.05.2012 in LPA 1607-LPA of 2012 dismissing the appeals and the order dated 04.05.2012 in review petition in RA No.LP-16 of 2012 dismissing the review filed by the appellant- Board by holding that the SLP(C) No.10896 of 2011 involving the same issue i.e. parity of pay scale is already pending before the Supreme Court. C D E F G H PUNJAB STATE POWER CORPORATION LIMITED v. RAJESH KUMAR JINDAL & OTHERS [R. BANUMATHI, J.] 297

3. The parity in the pay scales of two posts – Head Clerks and the Internal Auditors in Group XII of the Punjab State Electricity Board (PSEB) is the subject matter of the issue in these present appeals. Brief facts of the case are as under:- The Punjab State Electricity Board (PSEB), in exercise of the power conferred under Section 79(c) of the Electricity (Supply) Act, 1948 framed “Punjab Public Works Departments (Electricity Branch) State Service Class-III (Subordinate Posts) Rules, 1958 (adopted by the Board) Amendment Regulations, 1975. The recruitment and conditions of service governing the Head Clerks was introduced on 11.09.1985 which is called the Punjab State Electricity Board Ministerial Services Class–III Regulations, 1985 providing for educational qualifications and minimum experience required for Head Clerks. Initially, the pay scale of Head Clerks was Rs.150-300 and the pay scale of Internal Auditors was Rs.130-240. The pay scale of Internal Auditors was revised to Rs.150-300 w.e.f. 01.08.1963. Head Clerks and Internal Auditors were getting same pay scale of Rs.225-500 from 01.06.1967 and Rs.620-1200 from 01.01.1978. From 21.03.1989, revised scale of pay of regular employees was issued by the PSEB, and w.e.f. 01.01.1986, the scale of pay of the Head Clerks and the Internal Auditors was revised to Rs.1640-2925.

4. Pay Anomaly Committee was constituted by the appellant-Board to review the anomalies in the pay scales of various cadre. That on the basis of the report of Pay Anomaly Committee, the pay scale of both the categories - Internal Auditors and Head Clerks have been improved vide office order No.223/Fin./PRC-1988 dated 03.10.1990. The Internal Auditors have been allowed the revised scale of Rs.1800-3200 w.e.f. 01.01.1986 considering that the posts of Internal Auditors are filled by 55% from direct recruitment and 45% by promotion. The Head Clerks have been allowed the pay scale of Rs.2000-3500 with effect from 01.01.1986 and thus linked the scale of Head Clerk with Superintendent Grade-II under State Government.

5. Aggrieved by the order dated 03.10.1990 issued by the appellant-Board and alleging disparity and violation of Article 14 of the Constitution of India, the respondents preferred Civil Writ Petition No.10117 of 1992 before the High Court of Punjab and Haryana at Chandigarh, contending that the Internal Auditors, Head Clerks as well A B C D E F G H 298 SUPREME COURT REPORTS [2019] 2 S.C.R. as Sub Fire Officers belong to same group viz. Group XII and that Internal Auditors were always on par with the Head Clerks being the promotional post from the post of Circle Assistants/ARAs Group XII. It was averred that vide order dated 03.10.1990, the appellant-Board fixed the pay scale of the Internal Auditor at Rs.1800-3200 and of the Head Clerks at Rs.2000-3500 and thus disturbing the parity in the pay scales of two posts which were being maintained for more than two decades. According to the respondents, the pay scale of Rs.1800-3200 had been given to the post of Circle Assistant from which the respondents were being promoted and there is no justification to give the same pay scale to the promotional post as well as feeder cadre. The said revision of pay scale was totally illogical and without any justification.

6. In the counter affidavit filed before the High Court, the appellant- Board contended that though the posts of Head Clerks and Internal Auditors are categorised in Group XII, that cannot be the reason for claiming parity of pay scale. It was averred that the manner of recruitment, nature of duties and responsibilities of both the cadres are entirely different and respondents cannot claim parity of scale of pay. As per PSEB Ministerial Services Class-III Regulations, 1975, the post of Head Clerk is a promotional post and is generally available to the employees after completion of twenty-five years of service; whereas in the case of Internal Auditors, they are partly recruited directly from the market to the extent of 55% and balance 45% from Circle Assistants/ARAs after obtaining option for the purpose. According to the Board, on promotion the Circle Assistant/ARA are also eligible to opt for the cadre of Head Clerk and they cannot contend that they have not been given any opportunity for the post of Head Clerk. It is averred that the exercise of option to go in the channel of cadre of Internal Auditor is a ‘preferred option’ because of the promotional avenues with higher scales of pay. In view of this position, the Pay Anomaly Committee did not accept the demand of Internal Auditors to give parity with Head Clerks in the matter of pay scale.

7. Sub Fire Officers which is categorised in Group XII approached the High Court by way of Civil Writ Petition No.9294 of 1993 seeking parity in pay scale as that of the Head Clerks and Internal Auditors on the ground that they are included in the same group viz., Group XII. The learned Single Judge vide judgment dated 21.01.2010 allowed the CWP A B C D E F G H PUNJAB STATE POWER CORPORATION LIMITED v. RAJESH KUMAR JINDAL & OTHERS [R. BANUMATHI, J.] 299 No.9294 of 1993 filed by the Sub Fire Officers by holding that till some point of time, persons working as Head Clerks, Head Clerk-cum- Divisional Accountants and Internal Auditors were given same scale of pay and therefore, parity of scale of pay cannot be denied to the Sub Fire Officers when the scales were increased for other three classes of persons within Group XII.

8. Against the order dated 21.01.2010 in CWP No.9294 of 1993, the appellant-Board preferred LPA No.713 of 2010 which came to be dismissed by the judgment dated 28.09.2010. Aggrieved by the judgment dated 28.09.2010, the appellant preferred SLP(C) No.10896 of 2011 before this Court wherein, notice was issued and the same was pending for consideration before this Court.

9. The learned Single Judge of the High Court by its order dated 11.11.2011 allowed the Civil Writ Petition No.10117 of 1992 filed by the respondents-Internal Auditors claiming parity of pay scale with the Head Clerks on the erroneous assumption that the respondents are Sub Fire Officers or similarly situated as Sub Fire Officers who are seeking parity of wages with other persons. The learned Single Judge relying on the judgment in CWP No.9294 of 1993 dated 21.01.2010 allowed the writ petition without going into the merits of the contention of either of the parties. Appeal (LPA No.713 of 2010) preferred by the appellant-Board also came to be dismissed on the ground that SLP (C) No.10896 of 2011 is pending before the Supreme Court.

10. In these appeals, we are concerned with the question of parity of pay scale between the Head Clerks and the Internal Auditors. Though various contentious issues arose for determination between the parties, learned Single Judge as well as the Division Bench of the High Court proceeded under the erroneous footing as if the respondents are placed on par with Sub Fire Officer and held that the issue is covered by the judgment in CWP No.9294 of 1993 and that the issue is pending before the Supreme Court in SLP(C) No.10896 of 2011. Since the writ petition was filed way back in the year 1992 and the lis is pending between the parties for more than twenty-six years, we have proceeded to consider the matter on merits without remitting the matter back to the High Court. We have heard the parties at length.

11. We have heard Mr. Nidhesh Gupta, learned Senior counsel appearing for appellant-Board at length and Mr. Saravpreet Singh, learned A B C D E F G H 300 SUPREME COURT REPORTS [2019] 2 S.C.R. A counsel appearing for the respondents. The learned Senior counsel Mr. Nidhesh Gupta has inter alia made the following submissions:- · Appellant-Board is competent to revise the pay scales in terms of Regulation 3(g) of Punjab State Electricity Board (Revised Pay) Regulations, 1988 in relation to any post specified in Column No.2 of the Schedule. · Internal Auditors who have been directly recruited as Internal Auditors against an open advertisement have consciously applied for the post in the pay scale of Rs.1800-3200 cannot raise a plea that they will have to be placed on par with Head Clerks. · Promotional avenues available to the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks; the pay scales which are available in the promotional position are sharply higher compared to the Head Clerks and exercise of option as Internal Auditor is a “preferred option”. · · Internal Auditors cannot claim parity with Head Clerks on the premise that they are in Group XII; though there were only four cadre in the year 1988 in Group XII, seven more posts were added in Group XII by Finance Circular No.44/89 dated 15.06.1989. Thereafter, vide Finance Circular No.45/89 dated 26.06.1989, there were further increase of seven posts in Group XII and total fourteen posts were added to Group XII. For all these posts, mode of recruitment, qualifications, nature of duties and responsibilities are entirely different and merely because the posts are mentioned in one cadre, they cannot claim parity of scale of pay. If parity of pay scale is to be extended to the posts merely on the ground that they are categorised in one Group irrespective of the mode of recruitment, qualifications, nature of duties and responsibilities, it will lead to huge financial repercussion causing huge financial loss to PSEB which is a public service-oriented institution.

12. Learned counsel for the respondents Mr. Saravpreet Singh submitted that posts of Internal Auditors being in Group XII, who were on par with Head Clerks should be given parity of pay scale as that of B C D E F G H PUNJAB STATE POWER CORPORATION LIMITED v. RAJESH KUMAR JINDAL & OTHERS [R. BANUMATHI, J.] 301 Head Clerks, irrespective of the promotional avenues available to the Internal Auditors. It was submitted that the Internal Auditors were always treated on par with Head Clerks being the promotional post from the post of Circle Assistants/ARAs and when so, there was no justification to disturb the parity in the pay scales of two posts which were being maintained for quite some time. Contention of the respondents is that there was a parity of pay scales of the posts of Internal Auditors and Head Clerks for about two decades and while so, the order dated 03.10.1990 issued by the appellant-Board revising the pay scale of Head Clerks from Rs.1640-2925 to Rs.2000-3500 has disturbed the long- standing parity of pay scales of the posts of Head Clerks and the Internal Auditors. It is their contention that where the parity in the pay scales of two posts has been maintained over a period of time then, if the pay scale of one post is revised, the said pay scale is to be maintained for other post also and disturbing such parity would be arbitrary and violative of the Article 14 and Article 16 of the Constitution of India. Much arguments were advanced on the retrospective operation of the order dated 03.10.1990 (w.e.f. 01.01.1986) contending that such retrospective operation has caused serious prejudice to the Internal Auditors who have been promoted between the year 1986 to 1990.

13. In the light of the submissions, several issues arise for determination inter alia areas under:- · Whether the Internal Auditors are entitled to claim parity of pay scale with Head Clerks and Head Clerk–cum–Divisional Accountants irrespective of the nature of recruitment, qualifications and nature of duties and responsibilities? · Can the Internal Auditors claim equity of pay scale, merely because they are in the same group (Class-XII) irrespective of the nature of work and the internal qualification for recruitment. In view of the promotional avenues available to the Internal Auditors and the high pay scales which are available in the promotional position, opting for Internal Auditors, is it not a “preferred option”? · When there are about fourteen posts categorised in Group XII, can Internal Auditors claim parity of pay scale with the Head Clerks merely because they were categorised in Group XII? A B C D E F G H 302 SUPREME COURT REPORTS [2019] 2 S.C.R. A B C D E F G H

14. Ordinarily, the courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission etc. The aggrieved employees claiming parity must establish that they are unjustly treated by arbitrary action or discriminated. In Kshetriya Kisan Gramin Bank v. D.B. Sharma and Others (2001) 1 SCC 353, this Court held as under:- “7. The next question that arises for consideration is, as to what extent the High Court would be justified in exercise of its extraordinary jurisdiction under Article 226 to interfere with the findings of an expert body like the Equation Committee. In State of U.P.and Others v.J.P. Chaurasia and Others (1989) 1 SCC 121, this Court unequivocally held that in the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like the Pay Commission, and such expert body would be the best judge to evaluate the nature of duties and responsibilities of the posts and when such determination by a commission or committee is made, the court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration….”

15. In S.C. Chandra and Others v. State of Jharkhand and Others (2007) 8 SCC 279, this Court held as under:- “33. It may be mentioned that granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408. ...........

35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee PUNJAB STATE POWER CORPORATION LIMITED v. RAJESH KUMAR JINDAL & OTHERS [R. BANUMATHI, J.] 303 appointed by the Government instead of the court itself granting higher pay). A

36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. of W.B. v. Tarun K. Roy and Others (2004) 1 SCC 347.”