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Himachal Pradesh High Court · body

2005 DIGILAW 37 (HP)

NARESH KUMAR v. STATE OF H. P.

2005-03-10

BAKHSHISH KAUR, D.S.AMIST

body2005
JUDGMENT Ms. Bakhshish Kaur, Chairman.—There is practically no controversy so far as factual aspect of the case are concerned, therefore, needed to be stated in brief. S/Sh. Naresh Kumar (I), Devender Singh and others applicants appointed as Clerks were promoted as Senior Clerks in the pay scale of Rs. 1200-2130 further revised w.e.f. 1.1.1996 as per annexures P-l to P-4. 2. On 28.12.1998 vide annexure P-5 the benefit of senior scale of Rs. 1200-2130 (un-revised)/4020-6200 (Revised) already released in favour of Bharti Devi mentioned therein was withdrawn with immediate effect being not permissible in accordance with the provisions of Himachal Pradesh Civil Services (Revised Pay) First Amendment Rules, 1998 (in short the Rules). The applicants are, therefore, aggrieved by the action of the respondents in withdrawing the benefits already given to them. It is, therefore, prayed that annexure P-5 may be quashed. 3. The consistent stand taken by the respondents No. 1 and 2 is that OA is pre-mature and not maintainable in the present forum. It is admitted that senior scale of Rs. 1200-2130 was released in favour of the applicants in accordance with the instructions contained in Himachal Pradesh Finance Department notification dated 23.7.1990 and applicants were designated as senior clerks vide office orders annexures P-l and P-2. However, on the recommendation of departmental promotion committee (DPC) which met on 5.12.1998 the senior scale was withdrawn because the clerical cadre was divided the total number of posts of clerks including senior clerk and junior assistant into clerks in the ratio of 50 : 50 in the scale of Rs. 4400-7000 and Rs. 3120-5160 respectively. Since senior scale was released after 1st January, 1996, therefore, it was necessary to review their cases in the light of notification. Therefore, the impugned order is legal and is not liable to be quashed. 4. We have heard Sh. A.K. Gupta, learned Counsel for the applicants and Mrs. Abhilasha Kumari, learned Additional Advocate General for the respondents. 5. Mr. Gupta, learned Counsel for the applicant contended that on the recommendation of the D.P.C. the applicants were placed in the senior scale and they were designated as senior clerk as per orders annexures P-l and P-2. Consequently upon the release of senior scale their pay was re-fixed in senior scale of Rs. 1200-2130 with next date of increment indicated against their names as is reflected in annexure P-4. Consequently upon the release of senior scale their pay was re-fixed in senior scale of Rs. 1200-2130 with next date of increment indicated against their names as is reflected in annexure P-4. The act of the respondents in withdrawing the benefits already given to them vide ahnexure P-5 is highly unjustifiable and against the cannons of principles of natural justice, because no notice was issued nor any opportunity was given to the applicants. 6. On the contrary the stand taken by the respondents is that the Government of Himachal Pradesh vide its notification dated 1.9.1998 annexure R-l as defined under Para-II, Ministerial Staff of the Second Schedule, has divided the total number of posts of clerk including senior clerk and junior assistant existing on 1.1.1996 into the posts of clerk in the cadre in the scale of Rs. 3120-5160 and junior assistant in the scale of Rs. 4400-7000 in the ratio of 50 : 50. Thus on the recommendation of D.P.C. the clerical cadre of this establishment was divided in the ratio of 50 : 50 into junior assistant and clerks in the pay scale of Rs. 4400-7000 and Rs. 3120-5150 respectively, for that reasons the scale which was released in favour of the applicant from 1.1.1996 was reviewed and withdrawn. It is also contended that the applicants while opting for the revised scale of pay w.e.f. 1.1.1996 had also given an undertaking to refund any excess payment made as a result of fixation of pay by way of adjustment against future payment or otherwise. 7. The respondents in their reply have also mentioned that the pay of the applicants No. 1, 3, 4, 5, 6, 8 and 9 have already been fixed in the revised pay scales of Rs. 3120-5100 w.e.f. 1.1.1996 vide order annexure R-2 dated 12.1.1999 and they are being paid salary since January, 1999. So far as the applicants No. 2 and 7 are concerned, their pay was to be re-fixed by the Sub-Divisional Officer (C) Paonta Sahib. 8. To resolve the controversy it is immaterial that the applicant referred to above are getting the pay vide order dated 12.1.1999, Annexure R-2 or that they have given an undertaking for over payment due to wrong fixation of pay. 8. To resolve the controversy it is immaterial that the applicant referred to above are getting the pay vide order dated 12.1.1999, Annexure R-2 or that they have given an undertaking for over payment due to wrong fixation of pay. The material point is that the government vide its notification dated 1.9.1998 annexure R-I as defined under Para-II, Ministerial Staff of the Second Schedule, has divided the total number of posts of clerk including senior clerk and junior assistant in a cadre existing on 1.1.1996 into the posts of clerk in the cadre in the scale of Rs. 3120-5160 and junior assistant in the scale of Rs. 4400-7000 in the ratio of 50 : 50. The Departmental Promotion Committee who had met on 5.12.1998 has also recommended that the clerical cadre of this establishment was divided into Junior Assistant and Clerks in the ratio of 50 : 50 in the scales as mentioned above. It is open to the government to bring different scales. There being reasons for different scales then the withdrawal of benefits already given to the applicant having been withdrawn vide annexure A-5 cannot be termed as illegal. However, since the applicants received higher scale due to no fault of their, rather the orders were issued by the respondents, therefore, it shall be just and proper not to recover any amount in excess already paid to them and in this regard reliance is placed on "Shyam Babu Verma and others v. Union of India and others, (1994) 2 SCC 521 and RH. Reddy and others v. N.T.R.D. and others (Andhra Pradesh High Court) 2002 (2) SLR 694." 9. Precarious situation has arisen on account of subsequent event i.e. by way of notification dated 1.9.1998 in dividing the total number of posts of clerk including senior clerk and junior assistant in a cadre existing on 1.1.1996 into the posts of clerk in the cadre in the scale of Rs. 3120-5160 and junior assistant in the scale of Rs. 4400-7000 respectively in the ratio of 50 : 50 and the departmental promotion committee has also recommended the withdrawal of senior scale already released in favour of the applicants. Thus order of re-fixation or dividing 2 cadres in the categories mentioned above is done by the appropriate authorities then in such a situation the act of the respondents does not require any interference for the aforesaid reasons. 10. Thus order of re-fixation or dividing 2 cadres in the categories mentioned above is done by the appropriate authorities then in such a situation the act of the respondents does not require any interference for the aforesaid reasons. 10. The CA is disposed of to the extent that no recovery of over payment if any already made to the applicants on account of re-fixation of pay be made. The claim of the applicants for quashing the impugned order annexure P-5 dated 28.12.1998 is not acceptable and OA to this extent stands dismissed. O.A. dismissed. -