Civil Writ Petition No.

10397-CAT of 2006 [1]

IN THE HIGH COURT OF PUNAJB AND HARYANA AT

CHANDIGARH

1. Civil Writ Petition No. 10397-CAT of 2006

Date of Decision: April 04, 2008

Union Territory, Chandigarh Administration ............ Petitioner

versus

Jaspal Kaur and others ............. Respondents

Present: Shri Sanjeev Kaushik, Advocate for the petitioner.

Shri R.K. Sharma, Advocate for the respondents.

2. Civil Writ Petition No. 14634-CAT of 2007

Union Territory, Chandigarh Administration ............ Petitioner

versus

Central Administrative Tribunal and another ............. Respondents

Present: Shri Aman Chaudhary, Advocate for the petitioner.

Shri R.K. Sharma, Advocate for the respondents.

3. Civil Writ Petition No. 15068-CAT of 2007

Union Territory, Chandigarh Administration ............ Petitioner

versus

Central Administrative Tribunal and another ............. Respondents

Present: Shri Aman Chaudhary, Advocate for the petitioner.

Shri R.K. Sharma, Advocate for the respondents.

Civil Writ Petition No. 10397-CAT of 2006 [2]

CORAM

HON'BLE MR.JUSTICE HEMANT GUPTA.

HON'BLE MR.JUSTICE MOHINDER PAL

1.Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?
3.Whether the judgment should be reported in the Digest ?
-.-

HEMANT GUPTA, J.

This order shall dispose of Civil Writ Petition Nos. 10397-CAT

of 2006, 14634-CAT and 15068-CAT of 2007 as common question of law

is involved in these writ petitions. The facts are being taken from Civil Writ

Petition Nos. 10397-CAT of 2006.

Chandigarh Administration has challenged the order passed by

the Central Administrative Tribunal, Chandigarh Bench, Chandigarh

(hereinafter to be referred as “the Tribunal”) on 28.02.2006, Annexure P-9,

whereby Dearness Allowance was ordered to be paid to the contractual

employees of the Chandigarh Administration.

The brief facts, out of which present writ petition arises, are

that respondents No.1 and 2 (hereinafter to be referred as “the applicants”)

have been engaged on contractual basis on a fixed pay of Rs.2200/- and

Rs.2000/- respectively on 22.07.2000 on 89 days basis. They continued to

work on contractual basis. In OA No. 461/CH/2001, the Tribunal passed an

order on 31.05.2002 directing the petitioner Administration to consider the

case of the applicants for re-adjustment against the available vacancies and

for equal pay for equal work. On 02.12.2002, a direction was issued in OA

No. 126/CH/2002 titled “ Krishan Kumar vs. Union Territory” filed by

Civil Writ Petition No. 10397-CAT of 2006 [3]

similarly situated employees that the applicants therein and all school

teachers similarly placed and claiming similarly reliefs shall not be replaced

or substituted by the new incumbents appointed or to be appointed on

contractual basis and all the existing contract-appointees shall continue to

work till they are relieved by the duly selected regular teachers appointed in

accordance with the rules. It was also ordered the school teachers including

the applicants shall further be entitled to minimum of the pay scale as

admissible to the regular teachers and no deductions shall be made for the

period of artificial breaks or vacations.

During the pendency of the said Original Application i.e.

Krishan Kumar's case, Chandigarh Administration issued a circular on

24.07.2002 deciding to grant consolidated pay i.e., minimum of the pay

scale plus Dearness Allowance as admissible to the regular employees at the

time of appointment against the vacant post. In terms of the said circular,

the applicants herein were granted consolidated salary of Rs.8000/- and

Rs.7000/- respectively w.e.f. 24.07.2002 i.e., the date when the policy

decision was taken by the Chandigarh Administration.

The applicants filed Original Application No. 801-CH of 2003

claiming minimum of pay scale plus Dearness Allowance from the date they

are in continuous appointment i.e. 22.07.2000 to 23.07.2002 after adjusting

the amount earlier paid. The said application was allowed by the Tribunal

on 08.12.2003. The operative part of the said order reads as under:-

“ In view of the foregoing, the OA succeeds and is

allowed. The respondents are directed to pay the minimum of
the scale of pay to the applicants from the date of their
continuous appointment with the respondents w.e.f. 22.7.2000
till 23.7.2002 (ignoring the artificial breaks and vacations),
after adjusting the salary already paid to them. They will also
Civil Writ Petition No. 10397-CAT of 2006 [4]

be paid the salary for the summer vacations of the years 2001
and 2002. These directions will be complied with by the
respondents within three months from the date of receipt of a
certified copy of this order.
No order as to costs”.

The said order was challenged by the Chandigarh

Administration in a writ petition before this Court. The said writ petition

was dismissed. However, it was ordered that the applicants will be entitled

to back wages of 18 months prior to the filing of the Original Application in

the year 2001. In pursuance of such order passed by the Tribunal as

modified by this Court, the applicants were paid the requisite amount vide

order dated 19.05.2005, Annexure P-5.

Thereafter, the applicants raised a claim before the Tribunal by

way of Miscellaneous Application that, in fact, they are entitled to minimum

of pay scale from the date of their initial appointment along with Dearness

Allowance as revised from time to time and not the Dearness Allowance as

applicable on the date of appointment. The said claim has been accepted by

the Tribunal in the order Annexure P-9. Though the order does not

specifically deal with the payment of revised Dearness Allowance from time

to time but reading of the pleadings and the orders passed by the Tribunal,

which are subject matter of challenge in CWP Nos 14634-CAT and 15068-

CAT of 2007, makes it absolutely clear that the claim of the applicants in all

the three writ petitions is for payment of Dearness Allowance as revised

from time to time.

The petitioners have been granted Dearness Allowance on the

basis of circular of Chandigarh Administration dated 24.07.2002 where it is

contemplated to pay Dearness Allowance as admissible to regular

Civil Writ Petition No. 10397-CAT of 2006 [5]

employees at the time of appointment. The question which arises is whether

a contractual employee is entitled to revision in Dearness Allowance from

time to time as is being given to the regular employees. In counter affidavit

dated 30.03.2008, the applicants have attached circular issued by the

Chandigarh Administration on 13.03.2007 wherein the situation arising on

account of payment of Dearness Allowance as applicable on the date of

appointment was explained and it was decided that all future appointments

shall be made on consolidated contractual amount irrespective of the

amount of Dearness Allowance payable.

It is not disputed that the applicants were appointed on

contractual basis. As the applicants were engaged on contractual basis, in

our opinion, the applicants cannot insist for the same benefits as are being

paid to the regular employees. Somewhat similar matter came up for

consideration before this Court in CWP No. 11836-CAT of 2002 titled Dr.

Lok Raj and others vs. Chandigarh Administration and others,

decided on March 12, 2008. This Court relied upon Full Bench decision of

this Court in Vijay Kumar and others vs. State of Punjab and others,

2002(1) SLR 694 and decision of Hon'ble Supreme Court in State Bank of

India vs. M.R. Ganesh Babu, (2002) 4 SCC 556. After considering the

aforesaid judgements and the judgement of Hon'ble Supreme Court in

Secretary, State of Karnataka vs. Uma Devi, 2006(4) SC 1 and the order

passed in Civil Appeal No. 4492 of 1997 titled State of Punjab and

others vs. Devinder Singh and others, decided by the Hon'ble Supreme

Court on 21.07.1997, it was found that non grant of increments to the

petitioners, who have been appointed on consolidated salary, cannot be said

to be arbitrary or violative of the principles of equal pay for equal work.

Civil Writ Petition No. 10397-CAT of 2006 [6]

In M.R. Ganesh Babu's case (supra), Hon'ble Supreme Court

found that the claim of equal pay must depend upon the nature of work done

and that it cannot be judged by the mere volume of work, there may be

qualitative difference as regards reliability and responsibility. Functions

may be same but the responsibilities make a difference. One cannot deny

that often the difference is a matter of degree and there is an element of

value judgment by those who are charged with the administration in fixing

the scales and other conditions of service. It was further held that the

judgment of administrative authorities concerning the responsibilities which

attach to the post, and the degree of reliability expected of an incumbent,

would be a value judgment of the authorities concerned, which, if arrived at

bona fide, reasonably and rationally, was not open to interference by the

court.

In Dr. Lok Raj's case (supra), the petitioners claimed

increments though they were appointed on consolidated salary. The said

claim was not found to be sustainable. In the present case, the claim of the

applicants is grant of Dearness Allowance revised from time to time. The

basis of issue is similar in both the cases. The applicants in the present case

were appointed on a consolidated salary with Dearness Allowance as

applicable on the date of appointment. Obviously, such circular was issued

keeping in view the financial implication on the Administration. As

contractual employees, the applicants cannot claim parity with the regular

employees. The pay and allowances which are admissible and paid to the

regular employees cannot be claimed by the contractual employees as there

is marked qualitative difference in respect of their responsibility and

reliability. The applicants are not holding civil post under the State but
Civil Writ Petition No. 10397-CAT of 2006 [7]

discharging their contractual obligations in terms of the contract. Therefore,

the order passed by the Tribunal granting parity with the regular employees

so as revision of Dearness Allowance from time to time is wholly

unjustified and not tenable in law.

Consequently, order dated 28.02.2006, Annexure P-9, in CWP

No. 10397-CAT of 2006; order dated 10.05.2007, Annexure P-5, in CWP

No. 14634-CAT of 2007 and CWP No.15068-CAT of 2007 are set aside.

The writ petitions are allowed as prayed for.

(HEMANT GUPTA)
JUDGE

April 04, 2008 (MOHINDER PAL)

ks JUDGE