Er.Gurcharan Singh Grewal & Anr vs Punjab State Electricity Board & Ors

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3. The appellants herein filed the aforesaid writ

petition, inter alia, for the following

relief:-

"(iv) Quashing the order no. 202 dated 9.7.2002

(Annexure Indian Penal Code-3) passed by the

respondent No.3 withdrawing the benefits of pay

fixation already granted to petitioners Satinder

Singh and directing the respondent to step-up the

pay of the petitioners to that of their junior

Sh. Ram Prakash Shori and the petitioners may be

granted all arrears of Pay, retiral benefits and

other consequential benefits with interest @ 18%

per annum."

4. In the written statement/counter affidavit

filed on behalf of the respondent, Punjab

State Electricity Board, and its officers, it

was stated in Paragraph 7 that the relief

claimed by the petitioner had already been

granted. When the writ petition came up for

final hearing the High Court on 23rd

September, 2005, disposed of the same by

passing the following order :-

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"In view of the averments made in paragraph

7 of the written statement, the writ

petition has been rendered infructuous.

Disposed of as such."

5. Subsequently, a review petition came to be

filed by the writ petitioners before the High

Court claiming that the statement made in

paragraph 7 of the written statement,

concerned only the writ petitioner No.2, and

without considering the case of the respondent

No.1 on a separate footing he too was denied

relief, although he was not covered by such

statement. When the Review Petition came up

for hearing on 21st April, 2006, learned

counsel for the petitioners was not present

and on the submissions made on behalf of the

respondents that no relief had been claimed in

the writ petition on behalf of the petitioner

No.1, the High Court dismissed the review

petition by passing the following order:- 4

"Learned counsel for the respondent submits that

the relief claimed in the review petition is not

claimed in the main petition for petitioner No.1.

Therefore, the review petition is not

maintainable.

Dismissed."

6. On dismissal of the review petition in the

absence of the counsel for the petitioners, a

miscellaneous application was filed for

modification of the order passed in the review

petition, which was also dismissed by the High

Court on 23rd February, 2007.

7. It is against the said three orders of the High

Court that these appeals have been filed.

8. Appearing for the appellants, Mr. Nidesh Gupta,

learned senior advocate, submitted that when the

writ petition was filed on behalf of both the

appellants, it was only natural that the reliefs

therein had been claimed in respect of both and it 5

could not be confined to the appellant No.2 alone,

as was done in the instant case, merely on account

of the statement made in the written statement of

the respondents that the grievance of the appellant

No.2 had already been addressed. Mr. Gupta

submitted that the appellants were similarly

situated and it was their common ground that they

were receiving lesser salary than their junior.

Mr. Gupta submitted that Paragraph 7 of the writ

petition was absolutely clear that it was the

common case of the appellants that since they were

receiving lesser pay than their junior, Shri Ram

Prakash Shori, who was receiving a higher salary,

their salaries were also required to be stepped up

to that of Shri Shori. Mr. Gupta also urged that

the position would be further clarified from the

question of law formulated in Paragraph 9 of the

writ petition. It was urged that it was,

therefore, wrong to say that no case had been made

out on behalf of the appellant No.1 and hence no

relief could be granted in his favour. 6

9. Referring to prayer (iv) in the writ petition,

Mr. Gupta urged that specific reference had

been made to the appellant No.2, Satinder

Singh, since his pay had been stepped up but

was, thereafter, reduced by an order dated 9th

July, 2002, passed by the respondent No.3

withdrawing the benefit of pay fixation which

had already been given to him. Mr. Gupta urged

that the prayer, however, was not confined to

the appellant No.2 alone, but to the appellant

No.1 also, as otherwise the very purpose of him

being made petitioner No.1 in the writ petition

would be meaningless. Mr. Gupta submitted that

the High Court was misled into relying on the

statement made in paragraph 7 of the written

statement filed by the respondent in dismissing

the writ petition as far as the appellant No.1

was concerned. Even while considering the

review petition, in the absence of learned

counsel for the appellants, the Court was

persuaded to accept the statement made on

behalf of the respondent that relief claimed in 7

the review petition had not been claimed in the

writ petition itself as far as the appellant

No.1 is concerned and the review petition was

not, therefore, maintainable. Mr. Gupta

submitted that the orders passed on the writ

petition and review petitions were passed on an

erroneous understanding that the appellant No.1

had not prayed for any relief in the writ

petition and he was not therefore entitled to

the reliefs prayed for by the appellants.

10. Mr. Jagdish Singh Chhabra, who appeared for

the Punjab State Electricity Board and its

authorities, reiterated the submissions made

before the High Court that in the absence of

any case being made out or any relief being

claimed on behalf of the appellant No.1 in the

writ petition the High Court had quite

correctly dismissed the writ petition on the

ground that no relief could be given to the

appellant No.1 and the relief prayed for by the

appellant No.2 had already been given to him. 8

11. Mr. Chhabra also attempted to justify the

disparity in the pay of Shri Shori and the

appellant No.1 by urging that the appellant No.

1 had been granted the promotional scale with

effect from 1st January, 1996, where the

benefits of increment in the scale were lower.

On the other hand, Shri Shori who joined the

services of the Board in 1974, was granted the

promotional scale on 17th May, 2006, with

effect from 1st September, 2001, when the

increments and the pay-scales were higher. Mr.

Chhabra submitted that it is the disparity in

the incremental benefits that led to the

anomaly of the appellant No.1 getting a lower

salary in the promotional scale.

12. Having regard to the submissions made on behalf

of the respective parties, we have little

hesitation in accepting Mr. Gupta's submissions

that since the writ petition had been jointly filed 9

on behalf of the appellants, whose interest was

common, the prayer therein should not have been

confined to the appellant No.2 alone and that the

High Court should have granted relief to the

appellant No.1 also by directing that his pay also

be stepped up to that of his junior, Shri R.P.

Shori. Although, this question does not appear to

have been gone into by the High Court for the

simple reason that the writ petition was disposed

of only on the averments contained in paragraph 7

of the written statement filed on behalf of

respondents that the grievance of the appellant

No.2 duly addressed, there ought to have been at

least some discussion in the judgment of the High

Court regarding the claim of the appellant No.1.

Unfortunately, the case of the appellant No.1 was

not considered at all by the High Court.

13. Something may be said with regard to Mr.

Chhabra's submissions about the difference in

increment in the scales which the appellant No.1

and Shri Shori are placed, but the same is still 10

contrary to the settled principle of law that a

senior cannot be paid lesser salary than his

junior. In such circumstances, even if, there was a

difference in the incremental benefits in the scale

given to the appellant No.1 and the scale given to

Shri Shori, such anomaly should not have been

allowed to continue and ought to have been

rectified so that the pay of the appellant No.1 was

also stepped up to that of Shri Shori, as appears

to have been done in the case of the appellant

No.2.

14. We are unable to accept the reasoning of the

High Court in this regard or the submissions

made in support thereof by Mr. Chhabra, since

the very object to be achieved is to bring the

pay scale of the appellant No.1 at par with that

of his junior. We are clearly of the opinion

that the reasoning of the High Court was

erroneous and the appellant No.1 was also

entitled to the same benefits of pay parity with 11

Shri Shori as has been granted to the appellant

No.2.

15.We, accordingly, allow the appeals and set aside

the judgment of the High Court. Consequently,

the writ petition is also allowed and the

respondents are directed to extend the benefits

of pay parity with Shri Shori to the appellant

No.1, as was done in the case of the appellant

No.2.

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16. The writ petition is allowed to the aforesaid

extent.

17.There will, however, be no order as to costs.

_____________________J.

(ALTAMAS KABIR)

_____________________J.

(MARKANDEY KATJU) New Delhi Dated: 09.01.2009