PUNJAB STATE Vs. LEKH RAJ BOWRY

JUDGEMENT

(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:-

(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. :-