Uma Shankar vs Haryana Urban Development Authority and Others

A.N. Jindal, J.—The suit for declaration filed by the plaintiff that he was entitled to pay scale of Rs. 4000-6000 w.e.f. the date of passing of the ITI examination and permanent injunction restraining the defendants from reducing his existing pay scale of Rs. 3050-4590 to the pay scale of Rs. 2550-3200/- and also from effecting any recovery as a consequence of reduction of pay scale, was dismissed on 21.7.2010 by the trial court and the appeal against the said judgment was also dismissed by the Additional District Judge, Gurgaon on 25.9.2010. Hence this regular second appeal. The plaintiff was working as Fitter Helper under the administrative control of the defendants in HUDA Sub Division No. 6, Gurgaon. He was appointed on daily wages basis on 1.1.1993 and came on regular cadre w.e.f. 19.3.1997. Initially he was matriculate with ITI in Fitter Trade. He was granted pay scale of Rs. 3050-75-3950-80-4590 by the defendants in view of the educational qualification w.e.f. January, 2001 and his pay was fixed at Rs. 3350/- w.e.f. 1.2.2005 after granting him annual grade increment of Rs. 75/-. The Haryana Government vide notification No. FD-6/23/3 (FD)-83 dated 23.8.1990, granted the pay scales to the technical posts like one held by the plaintiff. It was further claimed that as the plaintiff was matriculate with ITI, therefore, he was entitled to the pay scale of Rs. 1200-2040/- which was later on revised to Rs. 4000-100-4800-100-6000. The employees who had been granted pay scale of Rs. 950-1400 were granted pay scale of Rs. 3050-4590 on account of the revision of pay scales of employees w.e.f. 1.1.1996. Though the Chief Engineer/HUDA, Panchkula had issued instructions vide letter No. 3831 dated 21.7.2000, to take necessary action on the instructions of the Government dated 23.8.1990 and the defendant No. 4 also endorsed the instructions to subordinate offices on 26.7.2000, but the plaintiff was not granted the revised pay scale w.e.f. 1.1.1996 in the pay scale of Rs. 4000-6000 and w.e.f. 19.3.1997 in the regular capacity. He was given the scale of Rs. 3050-4590 w.e.f. January, 2001, whereas, he was entitled to the pay scale of Rs. 4000-6000 w.e.f. 19.3.1997. Thus, he claimed the revised pay scale of Rs. 4000-6000 with consequential benefits by way of present suit and challenged the reduction of his salary by reducing his pay scale of Rs. 3050-4590.

Upon notice, the defendants appeared and filed written statement, wherein, besides taking preliminary objections, they inter alia pleaded that the plaintiff was wrongly granted pay scale of Rs. 3050-4590 which he was not entitled as the required qualification for the post of Helper was not metric with ITI or ITI without insistence of matriculation. He having no requisite qualification, was not entitled to the pay scale of Rs. 3050-4590. It is also relevant to mention here that the post the plaintiff was not a technical post whereas he was given technical scale. The minimum qualification prescribed for the said post was metric with ITI certificate. The instructions issued vide notification No. FD-16/23/3 (FD)-83 dated 23.8.1990, were not applicable to him, as such he was not entitled to pay scale of Rs. 3050-4590 w.e.f. 1.1.1996. Consequently, he was also not entitled to the pay scale of Rs. 4000-6000.

Replication was also filed. From the pleadings of the parties, the trial court framed the following issues:-

Whether the plaintiff is entitled to decree for declaration as prayed for? OPP

Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the suit is not maintainable? OPD

Whether the plaintiff has not served with the legal notice, if so, its effect? OPD

Relief.

Both the parties led evidence. The plaintiff lost his claim before both the courts below.

The plaintiff examined PW-2 Om Parkash, Deputy Superintendent, HUDA of division No. 2, Gurgaon, who clarified that the plaintiff was wrongly given the pay scale of Rs. 3050-4590, which was alter on withdrawn as the plaintiff was not holding the technical qualifications. He was given this scale on account of the wrong interpretation. As such, after withdrawal of the scale, the plaintiff was duly informed. He also admitted that there was no minimum qualification for Class IV employee and even an illiterate could work on the said post. The plaintiff has failed to prove that he was working on a technical post so as to be entitled to the increased pay scale after having ITI certificate. He was merely a Fitter Helper which could not be termed as technical post. DW-1 Azad Singh, Assistant of the office of Executive Engineer, HUDA also admitted that Class IV employee falls in group "D" category of the employees. Similarly, the plaintiff had also admitted the same situation. He has also produced the copy of the order wherein service of the plaintiff was regularized as Class IV employee. He also produced notification Ex. DW 2/2 as regards the qualification of the Fitter Helper. He further deposed that the instructions mentioned in Ex. DW 3/3 are not applicable to the plaintiff as ITI worker having ITI certificate in technical, electrical, diesel mechanic and tractor mechanic are eligible for ITI scale and the workers having ITI diploma in printing press, molder fitter etc. are not eligible and the plaintiff being a Class IV employee having no requisite qualification and mere Helper cannot be said to be a technical hand, hence eligible to claim scales permissible to the technical posts. The notification Ex. DW 1/2 dated 16.3.2009 also reveals that at Sr. No. 14 of Appendix "A" and Sr. No. 3 of Appendix "B", the scale and qualification of the Fitter Helper is prescribed as minimum 5th Class pass. Moreover, letter Ex. DW 1/4 also refers to the Government instructions issued vide No. G/23/3PR (FD)-88 dated 23.8.1990 and modified vide No. 6/23/3PR (FD)-88 dated 26.7.1991, which provide that the workers having ITI certificate with mechanical, electrical, diesel mechanic and tractor mechanic are eligible for ITI scale instead of worker having ITI diploma in printing press, molder, fitter etc. As such, the mere fact that the plaintiff a matriculate and ITI diploma of Fitter does not entitle him to take his case in the category of technical so as to entitle him to provide the scale as prayed for as neither he was posted on a technical post nor he was having requisite qualification.

The learned counsel for the appellant has placed reliance on the judgment delivered by the Division Bench of this Court in CWP No. 7928 of 1993, titled as Ram Kishan and others v. State of Haryana and others, decided on 1.12.1993, but the said judgment is not applicable to the facts of the present case as none of the petitioners was on non technical post falling in the category of Class IV employees. As such, both the courts below have taken right view of the matter. No substantial question of law arises for determination in this case.