SUPREME COURT OF INDIA

 

Er. Gurcharan Singh Grewal

 

Vs.

 

Punjab State Electricity Board

 

C.A.Nos.65-67 of 2009

 

(Altamas Kabir and Markandey Katju JJ.)

 

09.01.2009

 

JUDGMENT

 

ALTAMAS KABIR, J.

 

1.    Leave granted.

 

2.     These three appeals arise out of orders dated 23rd September, 2005, 21st April, 2006 and 23rd February, 2007, relating to Civil Writ Petition No.16811 of 2003 and Review Petitions filed therein before the High Court of Punjab and Haryana at Chandigarh.

 

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 :-

 

"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:-

 

"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 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.

 

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 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.

 

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 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 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 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.

 

16.     The writ petition is allowed to the aforesaid extent.

 

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