Om Parkash v. State of Haryana & Ors.

This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby his suit seeking a decree of mandatory injunction directing the defendant/respondents to grant him the pay scale of Rs. 1200-2040 from the date when his pay scale was reduced to Rs. 950-1500, with further claim of refund of the amount recovered from him on account of his excess payment along with interest, was dismissed. The facts giving rise to this appeal as alleged are that the plaintiff was appointed as Road Roller Driver with respondent on daily wage basis. Earlier he had filed a suit for regularization of his services which was decreed and the appeals filed by the respondents were dismissed. His services were brought on regular establishment from 21.7.1997 and he was getting the pay scale of Rs. 1200-2040 with effect from 1.9.1997 up to 30.4.1998 as was admissible to the drivers in the State of Haryana. However, later on his pay scale was reduced to Rs. 950-1500. Since as per the recommendation of the 4th pay commission, the other drivers were granted the pay scale of Rs. 1200-2040, the plaintiff was also entitled to the refund of payment of an amount already recovered from him on account of excess payment for the period from 1.9.1997 RSA No. 2245 of 2008 2 to 30.4.1998 along with interest. Thus the present suit was filed. The suit was resisted by the defendant/respondents. It was admitted that the services of the plaintiff were regularized as per judgment dated

1.8.1996.Howegver, it was denied that any discrimination was caused to the plaintiff in fixing his pay scale. It was pleaded that the pay scale of the Road Roller Driver was Rs. 400-660 which was revised as per the recommendation of the 4th pay commission to Rs. 950-1500. The earlier appeal related only to regularization of the service and was not related to fixation of pay scale. All other averments were denied and dismissal of the suit was prayed. No replication was filed by the appellant. On the pleadings of the parties, following issues were framed:- 1) Whether the plaintiff is entitled to mandatory injunction as prayed for on the grounds mentioned in the plaint ?OPD 2) Whether the plaintiff has no locus standi to file the present suit ? OPD 3) Whether the suit is bad for non-joinder and mis-joinder of necessary parties ?OPD 4) Whether the suit is bad for want of notice under Section 52 of Haryana Municipal Act, 1973 ?OPD 5) Whether the suit is not maintainable in the present form ?OPD 6) Whether suit is hopelessly time barred ?OPD. 7) Whether the plaintiff has not come to the court with clean hands? OPD 8) Relief. After hearing learned counsel for the parties and perusal of the record, the trial Court dismissed the suit holding that the appellant was not entitled to the relief of mandatory injunction and the suit was also beyond limitation. Feeling aggrieved from the aforesaid judgment and decree of the trial court, the appellant filed an appeal before the lower Appellate Court which RSA No. 2245 of 2008 3 was also dismissed. The relevant paras of the judgment of the lower Appellate Court reads as follows:- “13. Learned counsel for the appellant-plaintiff had argued that the plaintiff was granted the pay scale of Rs.1200-2040 which was illegally reduced to Rs. 950-1500 and the recovery effected consequent thereupon is absolutely illegal and unwanted. He further contended that the drivers of Jeep, car, truck and fire brigade are being paid the pay scale of Rs. 1200-2040 but a discrimination has been caused in reducing the pay scale of the plaintiff as the similarly situated drivers in the PWD (B&R) Department of the State of Haryana were getting the pay scale of driver of other vehicles.

14. On the other hand learned counsel for the respondents- defendants had contended that initially the plaintiff was granted the pay scale of Rs. 1200-2040 but the Auditor when raised an objection that he was not entitled to the said pay scale, the same was reduced and no discrimination has been caused to the plaintiff in this regard. It is an admitted fact that when the plaintiff joined the municipal committee in the year 1989 as Road Roller Driver on daily wages, the pay scale for the post of Road Roller Driver was Rs. 400-660 and as per the recommendation of 4th pay commission the said pay scale was enhanced to Rs. 950-1500. This fact is clearly apparent from notification, copy of which is Ex.P5. The contention of plaintiff-appellant that he falls in the category of Road Roller Drivers as are employed in PWD (B&R) is totally devoid of any force because the plaintiff is not an employee of PWD (B&R) rather he is an employee of Municipal Corporation and thus governed by the Haryana Municipal Services(Integration Recruitment and Conditions of Services Rules 1982 and as per Section 11(2) of the aforesaid rules the pay scale of the plaintiff is RSA No. 2245 of 2008 4 governed under the said rules. As per appendix A attached to notification Ex.P5 the pay scale of Road Roller Drivers has been fixed at Rs. 400-660, therefore, the plaintiff being Road Roller Driver was entitled to the said pay scale which was revised subsequently to Rs. 950-1500. Needless to mention that the category of drivers has been defined under serial No. 25 of Appendix B. The minimum qualification for the drivers defined as per which the drivers including Car, Jeep and Ambulance drivers should possess middle or matric with driving licence. This category of drivers has been made entitled to the pay scale of Rs. 420-700 as per Appendix A. The category of Road Roller Drivers had not been included in serial No. 25 of Appendix A meaning thereby that the category of Road Roller Drivers has been kept in the pay scale of Rs. 400-660. Merely the plaintiff once upon a time was granted a pay scale of Rs. 1200-2040 is not going to entitle him for the wrong pay scale as per his wishes.

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16. The defendant-respondent had seriously assailed the suit on the ground of limitation. It is an admitted fact that the pay scale of plaintiff was reduced in the year 1998, however, the present suit was filed only in the year 2003 on 21.7.2003 which is clearly barred by the period of limitation. There is no iota of evidence on record to show that the plaintiff had made any representation or had given any notice highlighting his legal right. Therefore, the findings of learned trial Court on issue No.6 are also affirmed.” Still not satisfied, the plaintiff has approached this court by way of instant appeal submitting that the following substantial questions of law arises in this appeal:-

1. Whether the appellant is entitled for granting the benefit of 4th pay commission as 1.1.1986 ? RSA No. 2245 of 2008 5

2. Whether the court can go beyond the pleading as well as traveling beyond the facts and evidence led appellant in the court ?

3. Whether the instructions issued by the Government of Haryana dated 1.1.1986 is not binding upon the department ?

4. Whether the court can dismiss the claim of the appellant on the ground which is not taken in the written statement by the respondent ?

5. Whether the law of limitation, can be involved in this case ? In support of this appeal, learned counsel appearing on behalf of the appellant has vehemently argued that the appellant was granted pay scale of Rs. 1200-2040 with effect from 1.9.1997 upto 30.4.1998, (the pay scale which was admissible to other drivers in the State of Haryana) and the same rules are applicable in the case of the appellant and since Haryana Government drivers of Jeep, Car, Truck and Fire Brigade were being paid the pay scale of Rs. 1200- 2040 but a discrimination has been caused in reducing the pay scale of the appellant as the similarly situated drivers in the PWD (B&R) Department of the State of Haryana were getting the pay scales of drivers of other vehicles and thus judgment and decree s of the courts below were liable to be set aside. I have heard learned counsel for the appellant and persued the impugned judgment and decrees. The only point raised by the counsel for the appellant before this court is that the Road Roller Drivers in the Department of PWD (B&R), Haryana are getting the pay scale of Rs. 1200-2040 with effect from 1.1.1986 under the PWD Rules and on the basis of the aforesaid rules, the appellant is also entitled to the same pay scale. The contention of the appellant that he falls in the same category of Road Roller Drivers as employed in PWD(B&R) Haryana is without any merit because the appellant is not an employee of PWD (B&R) Haryana and he is employee of Municipal Council, and thus governed by the Haryana Municipal Services Rules, 1982 and as per the aforesaid rules (Ex.P1), the pay scale of RSA No. 2245 of 2008 6 Road Roller Drivers has been fixed at Rs. 400-660 which was revised subsequently to Rs. 950-1500. Simply because the appellant was once granted a pay scale of Rs. 1200-2040 wrongly, the same cannot be made the basis for his entitlement to the said pay scale. Neither it has been proved that the pay scales as payable to the drivers of the State of Haryana were ever adopted by the Municipal Council, Karnal. In view of the aforesaid findings, no fault can be found with the impugned judgment and decree. No substantial question of law arises in this appeal. Dismissed. November 12, 2010 (RAKESH KUMAR GARG) JUDGE