Sabina, J. - (1.) PETITIONER has filed this petition seeking a direction to the respondents to grant him the revised pay scale of Accountant as has been done in the case of Shashi Puri, Accountant and in the case of Superintendents.
(2.) CASE of the petitioner, in brief, is that he had joined as an Accountant with respondent No. 1 on 15.1.1982 in terms of appointment letter Annexure P -1. Pay scale of the petitioner was revised from Rs. 750 -1300 to Rs. 800 -1400 + Rs. 50/ - as Special Pay vide Annexure P -2. Shashi Puri joined respondent No. 1 as Assistant Accounts in September 1981 and was promoted as an Accountant on 18.4.1988 in the pay scale of Rs. 800 -1400 + 50/ - as Special Pay. Thus, Shashi Puri was junior to the petitioner. Posts of Senior Auditor, Assistant Accounts Officer and Accounts Officer were re -designated as Section Officer, Accounts Officer and Senior Accounts Officer vide Annexure P -4. Pay scales of all the employees were revised by the respondents from time to time. However, the pay scale of Section Officer/Superintendent had been revised whereas the pay scales of Accountant and Divisional Accountant were not revised. Thus, the persons junior to the petitioner had been placed in a higher pay scale. Shashi Puri, who was junior to the petitioner, filed CWP No. 10751 of 1992. Vide order dated 11.12.1992, the said petition was disposed of as having been rendered infructuous in view of the statement made by the Advocate General, Punjab that the relief claimed by Shashi Puri had been granted to her. The said order was, however, not implemented and Civil Miscellaneous No. 6123 of 1993 was filed by the State for recalling the order dated 11.12.1992 in CWP No. 10751 of 1992. The said miscellaneous application was dismissed vide order dated 1.10.1993. Petitioner had, however, not been granted the same relief as had been granted to Shashi Puri. Hence, the present petition by the petitioner. Learned counsel for the petitioner has submitted that petitioner was entitled to the same pay scale as his junior Shashi Puri was getting. Further, petitioner was entitled to the same pay scale as was being given to Superintendents as the post of Accountant had been equated with the post of Superintendent. In support of his argument, learned counsel has placed reliance on "Kirpal Jeet vs. State of Punjab and another,, 1987(4) SLR, 594" wherein it was held as under: - After hearing the learned counsel for the parties and examining their pleadings and the material on record, I am of the considered view that this writ petition deserves to be allowed as the same is fully covered by the judgment in Harsaran Singh's case (supra). At the cost of repetition, it is held that once the State Government decided to equate the pay scale of a certain post with that of another post, it is not open to it to discriminate between the incumbents of the two posts for the grant of pay scale at the time of subsequent revision of pay scales. Such an action would be wholly violative of Article 16 of the Constitution of India inasmuch as it would be denying the equality of opportunity in the matter of employment. Incidentally, in the present case the petitioner is in a much better position. She possesses better qualifications than those possessed by the Lecturers (Junior Scale), who have been placed in the higher pay scale. She has also been entrusted, throughout her career, with duties of purely educational nature involving the imparting of instructions at various levels. The mere fact that she has to work in the office of the Director, Public Instructions, Punjab, instead of the educational institutions, is no ground to deny the same pay scale to her which she would have got had she been required to work in the educational institutions
(3.) LEARNED counsel has next placed reliance on "Anand Parkash versus State of Punjab,, 2005(5) SLR, 127" wherein it was held as under: - Learned counsel for the petitioner thereafter submits that the petitioner was entitled to be promoted from the date he was given Current Duty Charge. He submits that his claim is at par with the case of G.R. Kalra who was actually promoted on 5.9.1989 retrospectively w.e.f. 1.5.1988. In the said replication, the petitioner has categorically stated that the aforesaid Officer had been granted retrospective promotion from the date when he was given Current Duty Charge. The respondent has not converted the averments by filing a reply to the replication. However, at the time of the hearing, Ms. Tuli has submitted that from the record, it becomes evident that numerous persons who were senior to the petitioner, have not been granted the benefit of promotion with retrospective effect from the dates they were given Current Duty Charge. She also points out that in the order (Annexure P -7), it had been specifically pointed out that Avtar Singh, Tarlochan Singh, R.L. Kukkar and G.M. Wadhwa were not promoted from previous dates when they were entrusted Current Duty Charge on the post of Chief Engineer. It is not possible to accept the submission of Mrs. Tulli. Although these names had been mentioned in the order, but the corresponding plea had not been taken in the written statement. What has not been pleaded, cannot possibly be taken notice of. Apart from this, it is to be noticed that the case of the petitioner had throughout rested on the retrospective promotion having been granted to G.R. Kalra. The impugned order (Annexure P -7) does not even make a mentioned of the claim of the petitioner in comparison to the case of G.R. Kalra. It does not in any manner show as to how the claim of G.R. Kalra was distinguishable from that of the petitioner. It is a settled proposition of law that employees similarly situated cannot be given differential treatment. Such action would lead to violation of Articles 14 and 16 of the Constitution of India. Failure of the respondent to distinguish the case of the petitioner from the case of G.R. Kalra impels me to hold that the petitioner has been discriminated against. Therefore, the action of the respondent is in clear violation of Articles 14 and 16 of the Constitution of India. Even otherwise, I am of the considered opinion that the petitioner is clearly entitled to be promoted on the post of Chief engineer from 17.7.1991, the day he was given the Current Duty Charge. There was a clear vacancy available against which the petitioner could have been promoted. He was denied the promotion without any justification. The petitioner would also be entitled to the salary of the post of Chief Engineer, in view of the law laid down by the Supreme Court in a number of cases. In the case of Smt. P. Grover (supra), it has been categorically laid down that if a Government employee is asked to perform the duties of a higher post, the incumbent would be entitled to the salary of the higher post also. In the aforesaid case, the Supreme Court has observed as follows: - Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post. In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt. Grover is entitled to be paid the salary of a District Education Officer from the date she was promoted to the post, that is, July 19, 1976 until she retired from service on August 31, 1980. These observations are fully applicable to the facts and circumstances of the present case. The petitioner had worked on the post of Chief Engineer since 18.7.1971. He cannot, therefore, be denied the benefit of pay -fixation as Chief Engineer from the aforesaid date. Mrs. Charu Tuli, however, submits that the judgment in the case of Smt. P. Grover is distinguishable as the petitioner had not actually been promoted on the post of Chief Engineer and he had only been given Current Duty Charge. In support of the submission, she relies on a judgment of the Supreme Court in the case of State of Haryana v. R.K. Aggarwal, : 1997(3) SCT 638 (SC) : 1997(4) RSJ 49. I am of the considered opinion that the aforesaid judgment would not be applicable in the facts and circumstances of the present case. In that case, the Supreme Court was dealing with a situation where the position of seniority of the employee was subject -matter of litigation. It was not a case of an employee who had been given Current Duty Charge inspite of the fact that there was a clear vacancy in existence. In the present case, the petitioner has categorically averred that a clear vacancy was available against which the petitioner could have been promoted. He was not promoted, but given Current Duty Charge for the reasons best known to the respondent. No reasons have been spelt out as to why it was absolutely essential to give only Current Duty Charge to the petitioner rather than the promotion to which he was entitled.;