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Punjab State Through the Secretary to Govt. of Punjab Medical and Health Dept. and anr. Vs. Lekh Raj Bowry and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 204 of 1966
Judge
Reported inAIR1968P& H337
ActsConstitution of India - Article 16 and 16(1); Punjab Ayurvedic Department (Class III Technical) Service Rules, 1963 - Rule 13
AppellantPunjab State Through the Secretary to Govt. of Punjab Medical and Health Dept. and anr.
RespondentLekh Raj Bowry and ors.
Appellant Advocate Narinder Singh, Adv. for;Adv. General
Respondent Advocate Abnasha Singh and; C.K. Aggarwal, Advs.
DispositionAppeal dismissed
Cases ReferredMrs. J. K. Pritam Singh v. State of Punjab
Excerpt:
.....force of the 1963 rules, the petitioners as well as all other members of the ayurvedic department state service class iii continued to be treated on an equal footing as was being done since november 1, 1956. no distinction in the conditions of service was at all made till then between vaidyas and hakims who had attended the five years course (which had been introduced in the government ayurvedic college, patiala, since 1952-53, the first batch of which course came out after five years, that is in 1958) and others who had attended four years course. 150--10--200/15--275/15--380, would be admissible to the vaidyas and hakims posted in the dispensaries or anywhere in the department provided they held five years degree, and that the revised scale would be admissible to them from the date of..........punjab states union with the erstwhile state of punjab, a separate cadre of vaidyas and hakims in state service class iii (technical) was formed. though at the time of their initial appointment in the different states which merged into the patiala and east punjab states union, the vaidyas and hakims were not appointed on any uniform pay; they were formed into a single cadre of vaidyas and hakims in state service class iii (technical) and appointed on and with effect from november 1, 1956 on the same conditions and in the same grade with exactly same or similar nature of duties to perform under one and the same designation. on arrest 23 1963, the governor of punjab framed the punjab ayurvedic department (class iii technical) service rules, 1963 (hereinafter called the 1963 rules), under.....
Judgment:

1. The short question which calls for decision in this Letters Patent Appeal against the judgment of a learned Single Judge of this Court, dated March 16, 1966 (since reported in Lekh Raj Bowry v. Punjab State, 1966-68 Pun LR 517) allowing the writ petition of Lekh Raj Bowry and others and directing the Punjab State and its Director of Health Services (appellants before us) not to enforce the revised scales of pay of Vaidyas and Hakims serving in the Punjab Ayurvedic Department in such manner as to subject the respondents to a lower scale of pay than the one allowed to some other members of the same cadre, by the impugned order--is whether an executive order placing some members of a unified cadre in a higher scale of pay as against other members of the same cadre, on the ground that those favoured were better qualified, is or is not violative of the fundamental right guaranteed by Article 16 of the Constitution, to those members of the initially same cadre who have been prejudicially affected by such a direction.

2. The facts giving rise to this appeal are not in dispute and may first be summarised. On the merger of the Patiala and East Punjab States Union with the erstwhile State of Punjab, a separate cadre of Vaidyas and Hakims in State Service Class III (Technical) was formed. Though at the time of their initial appointment in the different States which merged into the Patiala and East Punjab States Union, the Vaidyas and Hakims were not appointed on any uniform pay; they were formed into a single cadre of Vaidyas and Hakims in State Service Class III (Technical) and appointed on and with effect from November 1, 1956 on the same conditions and in the same grade with exactly same or similar nature of duties to perform under one and the same designation. On Arrest 23 1963, the Governor of Punjab framed the Punjab Ayurvedic Department (Class III Technical) Service Rules, 1963 (hereinafter called the 1963 Rules), under Article 309 of the Constitution, regulating the recruitment and conditions of service of persons appointed to the above said service. Minimum qualifications for direct recruitment of members to the service were prescribed in Rule 6 read with Appendix 'A' to the 1963 Rules. By virtue of Rule 10, the seniority inter se of the members of the service was required to be determined by the dates of their continuous appointment in the service. Rule 13 provided as below:--

'A member of the Service shall on appointment be entitled to the pay scale as shown in Appendix 'A' or such scales as may be authorised by Government from time to time'.

In Column 3 of the Appendix 'A', the time scale of pay of Vaidyas (serial No. 11) and Hakims (serial No. 34) were mentioned as Rs. 80--5-- 105/5--135/7--170 and Rs. 80--5--120/5-- 135/7--170 respectively. Qualifications for recruitment of Hakims and Vaidyas were mentioned against the respective items in Column No. 4 of Appendix 'A'. We are, however, not concerned with the same in this case as the said qualifications are relevant only for new entrants under Rule 6. After the coming into force of the 1963 Rules, the petitioners as well as all other members of the Ayurvedic Department State Service Class III continued to be treated on an equal footing as was being done since November 1, 1956. No distinction in the conditions of service was at all made till then between Vaidyas and Hakims who had attended the five years course (which had been introduced in the Government Ayurvedic College, Patiala, since 1952-53, the first batch of which course came out after five years, that is in 1958) and others who had attended four years course.

By Punjab Government notification, dated February 18, 1964 (Annexure 'A-1' to the writ petition), it was ordered that the revised scale of Rs. 150--10--200/15--275/15--380, would be admissible to the Vaidyas and Hakims posted in the dispensaries or anywhere in the department provided they held five years degree, and that the revised scale would be admissible to them from the date of the original order, that is with effect from October 7, 1963. The respondents complained of having been discriminated against and submitted representations to the Government. Copies of some of those representations had been filed with the writ petition. By letter, dated July 21, 1964 (Annexure 'K' to the writ petition), the sanction of the Governor of Punjab to the revision of the pay scales of Vaidyas and Hakims with three and four vears degree course from the unified scale of Rs. 80-- 5--105/5--135/7--170, to the following two different scales with effect from the date of the issue of the orders was conveyed by the Punjab Government to the Director, Health Services, Punjab:--

(i) Rs. 100--8--200/10--250, for three years degree course; and

(ii) Rs. 120--8--200/10--300, for four years degree course.

The above-said orders of the Punjab Government (Annexure 'A-1' and Annexure 'K') were impugned in this Court by a petition under Article 226 of the Constitution on the ground that they were discriminatory and violative of Articles 14 and 16 of the Constitution. The writ petition was contested by the State. All the material facts were admitted in the written statement of the Government, wherein it was emphasised that even after the revision of the pay scales by the impugned orders, there had been no bifurcation of the cadre and no effect on the inter se seniority of the members of the cadre, but only a higher grade had been given to better qualified persons without disturbing their service conditions, seniority or chances or promotion. Approving the law laid down by the Calcutta High Court in Aswini Kumar Rath v. Director of Public Instruction, Government of West Bengal, (1965) 11 Fac LR 163 (Cal), the learned single Judge (Pandit J.) held that the impugned orders were illegal and directed the issue of a writ in the nature of mandamus directing the Government not to enforce the revised scales of pay in such a manner as to subject the writ petitioners to a lower scale of pay man the one allowed to the Vaidays and Hakims with five years degrees. Parties were, in the circumstances of the case, left to bear their own costs.

3. The judgment of the learned single Fudge has been assailed before us by Shri Narinder Singh, learned counsel for the appellants, on two grounds; viz. :--

(i) that it is contrary to the law laid down by the Supreme Court in Kishore Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139 and in the State of Punjab v. Joginder Singh, AIR 1963 SC 913; and

(ii) that Rule 13 of the 1963 Rules justified the passing of the impugned orders.

We are unable to agree with any of the contentions of the learned counsel for the appellants in this behalf. Whereas certain observations of their Lordships of the Supreme Court in Kishori Mohanlal Bakshi's case, AIR 1962 SC 1139 (supra) are definitely against the view propounded by Mr. Narinder Singh, no part of the judgment helps the appellants. Counsel has relied on the abstract observations of the Supreme Court contained in the following sentence divorced from its context:--

'As between citizens holding posts in different grades in Government service there can be no question of equality of opportunity. It is fantastic to suppose that Article 16 of the Constitution forbids the creation of different grades in the Government service; that is what the petitioner's argument amounts to'.

Equality was claimed in that case between two different services, the members of which had never been members of one uniform cadre. There can be no quarrel with the proposition that nothing prohibits the State from initially giving different scales of pay to persons holding different qualifications at the time of their initial appointment or from constituting different grades in Government service. But what was attacked as illegal before the learned single Judge was the meting out of different treatment to members of the same cadre in the matter of their emoluments which is one of the most important conditions of service. Dealing with the case of Income-tax Officers, it was observed by the Supreme Court in its above-said judgment, inter alia, as follows:--

'If, of the Income-tax Officers of the same grade, some are eligible for promotion to a superior grade and others are not, the question of contravention of Article 16(1) may well arise'.

The instant case seems to fall in the category referred to in the above-quoted observation and not in the other category in which Kishori Mohanlal Bakshi's case, AIR 1962 SC 1139, fell, which was depicted in the following sentence in the judgment of the Supreme Court :--

'No such complaint can, however, be reasonably made (complaint of violation of Art. 16), if for example all Income-tax Inspectors are eligible under the rules for promotion to the posts of Income-tax Officers, while Income-tax Sub-Inspectors are eligible for promotion only as Income-tax Inspectors, but not directly as Income-tax Officers'.

Reliance placed by Mr. Narinder Singh on the judgment of the Supreme Court in AIR 1963 SC 913 is even more misconceived. The distinction between that case and this is succinctly brought out by a reference to the following passage in the judgment of the Supreme Court:

'As we have stated already, the two services started as independent services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the Government order of September 27, 1967 did not integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was no question of inter se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Article 14 or Article 16(1). They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles'

4. I want to lay emphasis on the last sentence in the above-quoted passage which makes the crucial difference. Their Lordships of the Supreme Court emphasised in that case that the complaint of Joginder Singh and others could not be justified as the two groups constituted two distinct services, as there was no question of inter se seniority between the members of the two services and as the two sets of personnel had started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not, therefore, be a denial of equal opportunity. That is not the case here. Though some of the Hakims and Vaidyas may have started dissimilarly at the time of their appointment in different States they had not continued dissimilarly but had after their being unified into one single cadre in the same time scale of pay, been appointed to the newly form-ed cadre in the united Punjab, irrespective of their initial educational qualifications. Once this had happened, some members of the unified cadre could not be treated dissimilarly as against others of the same cadre in the matter of their pay and other relevant conditions of service on the ground that some of them possessed higher or better qualifications. It is settled law that the equality of opportunity guaranteed by Clause (1) of Article 16 of the Constitution does not end with the stage of initial appointment, but would inevitably govern all matters relating to employment including questions of emoluments, chances of promotion etc.

5. Nor does Rule 13 of the 1963 Rules appear to help the appellants. The rule merely envisages the prescribing of pay scales different than those shown in Appendix 'A' to the rules from time to time for members of the service who have to be appointed thereto. The expression 'on appointment' in Rule 13 is significant. The rule does not, however, appear to be intended to authorise the Government to change the pay scales of some of the existing incumbents of the unified cadre, to the prejudice of others in the same cadre on the basis of something which pre-existed the appointment or absorption of the two sets of persons in the same scale of pay. We have, therefore, no reason to differ from the view taken by the learned single Judge; The judgment under appeal also came up for consideration before another Division Bench of this Court (Shamsher Bahadur, J. and myself) in Mrs. J. K. Pritam Singh v. State of Punjab, Civil Writ No. 1631 of 1964, D/-14-9-1966 (Punj), and the law laid down by Pandit, J, was expressly approved by the Bench. No argument has been advanced before us today which might have possibly persuaded us to take a different view of the law on the subject.

6. The counsel for the respondents made it clear that his clients never intended the withdrawal of benefits of the revised scale from others, but in fact claimed that the writ petitioners should not be deprived of the benefits of the same. Sardar Abnasha Singh, the learned counsel for the writ petitioners also took pains to point out to us that the State Government has not so far given effect to the judgment of the learned single Judge in spite of the fact that it was pronounced as long ago as on March 16, 1966. All that we need say is that if this is so, it is a matter of regret, as the operation of the direction issued by the learned single Judge was not stayed in this appeal.

7. In the circumstances detailed above, this appeal fails and is dismissed with costs.


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