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Himachal Pradesh High Court · body

2006 DIGILAW 294 (HP)

KUNDAN LAL v. STATE OF H. P.

2006-09-14

NARINDER SINGH THAKUR, VIJAY PAL SINGH

body2006
JUDGMENT Narinder Thakur, Vice Chairman: The applicant has filed the present Original Application and he has sought mainly the following reliefs: "a) Qash the impugned orders A-4 and A-5 issued arbitrarily, malafidely and illegally by the respondents; b) Direct the respondents to protect the pay of the applicant at Rs.450/- and pay the same accordingly in the category of Fresh w.e.f 16.5.1985. c) Direct the respondents to re-calculate the pay of the applicant after protecting his pay at Rs.450/ as on 16.5.1985 and work out arrears of the same till now and pay the same alongwith interest @ 18%. d) Direct the respondents to accordingly re-fix the pay of the applicant w.e.f. 1.1.1986 and 1.1.1996 after the revision of 4th and 5th Pay Commission and workout arrears thereon accordingly and pay the same to the applicant alongwith interest @ 18%. e) Direct the respodonents to produce all the relevant documents for perusal by this Tribunal...." 2. The applicant is feeling aggrieved by the impugned order Annexure -A/4 and A-5 issued by the respondent whereby the applicant has been denied i protection of pay of Rs.450/- as on 16.5.1985 after transferring the applicant form j the category of Cook to Fresh on medical grounds due to the injury attributable to service condition. 3. The case of the applicant as set out in the Original Application is that in June 1970 he was initially engaged as daily wager Cook by the respondent department and on 1.1.1980 he was regularized in the trade of Cook itself. When the applicant was regularized in the trade of Cook his pay scale was. Rs.300-5-325/5-350/10/430. On 3.1.1984, the right eye of the applicant got injured during the course of his duty while the applicant was cutting a log of wood for the mess and a splinter of wood flicked and hurt his eye. Ultimately, he lost his sight by one eye and the sight of other eye also got dimmed down and therefore, the Doctors advised him to avoid the work effecting his second eye. The disability of the applicant was assessed as 52? % by the Doctors as per Annexure-A-1. 4. On 16.5.1985 the applicant was transferred and posted as a Fresh in pursuance of Rule 7(1) (i) of H.P. Police Department Class IV Services (Recruitment, Promotion and Certain Conditions of service) Rule 1973, vide I.G. Police. The disability of the applicant was assessed as 52? % by the Doctors as per Annexure-A-1. 4. On 16.5.1985 the applicant was transferred and posted as a Fresh in pursuance of Rule 7(1) (i) of H.P. Police Department Class IV Services (Recruitment, Promotion and Certain Conditions of service) Rule 1973, vide I.G. Police. Shimla letter No. A.4-10-MS/79-26458 dated 16.5.1985 (Annexure-2) as the said injury has taken place during the course of employment of the applicant in a bonafide Govt. Duty and the was to be offered an alternative appointment in the same and similar pay scale. 5. The pay scales of Cooks and Frash were identical at that relevant point of time and they were being paid a pay scale of Rs.3000-325/5-350/10-430. Both the categories were under Class-IV at the relevant point of time. 6. While transferring the applicant form et category of Cook to the category of Fresh the applicant has reached the pay scale at this stage of Rs.325/- and as such the pay scale in the new category was protected accordingly at Rs.325/- by the respondent department in accordance with the relevant rules and regulation. In the meantime, one Shri Bhagat Ram and others have filed TA No.253/86 before this Tribunal whereby this Tribunal was pleased to direct the respondent department to give the pay scale of 400/600 w.e.f. the back date, i.e. 1.3.1980, to the category of Cooks as was being paid to the Cooks of the other department and they were directed to be treated as Class 111 employees. Accordingly the respondent department has given the said benefit to the applicant w.e.f. 1.3.1980 to 16.5.1985 in the pay scale of Rs.400-600 vide letter dated 5.6.1998 (Annexure-3 and A-3/1) and the last pay drawn in the category of Cooks by the applicant was thus fixed as 450/- as under:- Prior to Decision of Tribunal After the decision of Tribunal In the pay Scale ofrs.300-400 in the pay scale of Rs.400-600 1980 300 1980 400 1981 305 1981 410 1982 310 1982 420 1983 315 1983 430 1984 320 1984 440 1985 325 1985 450 7. From the above tabular demonstration it is evident that after re-fixation the last pay drawn in the category of cook to Rs.450/- the arrears for the period w.e.f. 1.3.1980 to 16.5.1985 was also paid to the applicant. From the above tabular demonstration it is evident that after re-fixation the last pay drawn in the category of cook to Rs.450/- the arrears for the period w.e.f. 1.3.1980 to 16.5.1985 was also paid to the applicant. However, while doing so, the respondent department has not protected the said last drawn pay of the applicant in his new category of Frash and reverted him back. 8. The applicant made a representation to the respondent department in this regard. Which was rejected by the respondents department vide order dated 31.10.1998 (Annexure-A/4 and A-4/1) arbitrarily and illegally. The applicant again made detailed representation to the respondent department but the same almost wit the similar fate of rejection vide memo dated 18.12.1998 (Annexure-5 and A-5/1). 9. Accordingly, when the pay of the applicant was re-fixed after the 4th and ."In pay Commission i.e. 1.1.1986 and 1.1.1996, the same has also not been re-fixed properly due to the reason that the pay of the applicant as on 16.5.1985 has not been protected at Rs.450. 10.In the reply to the above contention of the applicant, the respondent department has sated that the service, of the applicant were transferred on compassionate grounds from Cook to Frash in the same pay scale keeping in view of the injury sustained by the applicant. The pay of the applicant was protected consequent upon the transfer of the applicant form the post of Cook to that of Fresh. The applicant worked as a Cook w.e.f. 1.1.1980 to 24.5.1985 when the services were transferred from Cook to that of Fresh. Consequent upon the grant of pay scale of Rs.400-600 to Cooks w.e..f. 1.1.1980 the pay of the applicant was fixed in the said scale upto 24.45.1985 i.e. the day he served as a Cook. Since applicant has been transferred to Cook to that of Frash which was in the scale of Rs.300-430. The applicant has been given the benefit of scale of Rs.4000-600 till the date he worked as Cook. The pay of the applicant has been fixed as Rs.430/-w.e.f. 25.5.1985 at the maximum of pay scale in the pay scale of 300-430 as he was appointed as a Fresh from that date. It is further stated by the respondents that he has correctly been fixed at Rs.430/- in view of the-provision laid down in FR 22 (a) (iii). 11. The pay of the applicant has been fixed as Rs.430/-w.e.f. 25.5.1985 at the maximum of pay scale in the pay scale of 300-430 as he was appointed as a Fresh from that date. It is further stated by the respondents that he has correctly been fixed at Rs.430/- in view of the-provision laid down in FR 22 (a) (iii). 11. We have heard the learned counsel for the respective parties at length and peruse the pleadings as well as record of the case carefully. 12. Admittedly, the applicant suffered an eye injury resulting in permanent disablement as per Annexure-A-1 to the extant of 52% during the course of the employment. The said disablement has incapacitated him to discharge the duty as a Cook is also admitted fact from the record. At that point of time when the applicant suffered said injury both the post of as well as Fresh were Class IV posts and in the identical pay sale of 300-430. As such, while the applicant applied for change of cadre in the given facts and circumstances, he could have applied only for Class IV post. As such it cannot be said that the applicant has of his free volition applied for change form Class 111 to Class IV posts. In the given fact and circumstances he had no option to seek change within the same cadre. However, subsequent to the decision of this tribunal in one pending TA No. 253/1986 titled as Bhagat Ram vs. State of H.P. the post of Cook in the Police Department was ordered to be treated as Class 111 Post in the pay scale of 400-600 w.e.f. 1.3.1980, which period covered the applicant also. In pursuance to the said decision respondent department also granted the benefits-to all the 168 Cooks on the strength of this department on the relevant period. The applicant too was also given benefit for the period he remained as a Cook and the decision of this Tribunal was implemented after June, 1998. 13. The respondent department granted benefit of decision to the applicant from 1.3.1980 till 1985 and in this way in the cadre of Cook, basic pay of the applicant has reached 450. However, form 24.5.1985, the respondent department reduced the pay of the applicant and fixed it Rs.430/- the maximum pay of the category of Fresh. 13. The respondent department granted benefit of decision to the applicant from 1.3.1980 till 1985 and in this way in the cadre of Cook, basic pay of the applicant has reached 450. However, form 24.5.1985, the respondent department reduced the pay of the applicant and fixed it Rs.430/- the maximum pay of the category of Fresh. So, this difference of Rs.20/- has been bone of contention and require adjudication by this tribunal. 14. The Govt. of India has enacted an Act known as "The person with disabilities (equal opportunities protection of rights and full participation" Act, 1995) with the sole novel object4ive of protection and safeguard of rights of the person with disabilities. Section 47 of the said Act clearly stipulates that no establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. It further lays that if an employee after acquiring disability is not suitable for the post he was holding, he should be shifted to some other post with the same pay scale and the service benefits in case same is not possible then he may be kept on a supernumerary post until suitable post is available or he attain the age of superannuation, which ever is earlier. The promotion shall not be denied to him. 15.From the above provision the object behind enactment it is amply evident and the said act is certainly a piece beneficial legislation and thus require to be interpreted in a manner that it benefits the one for whose purpose it has been enacted. 16. The respondent department while re-fixing the salary of the applicant in the yaear1998 has lost the sight of this piece of enactment which has come into force in 1996. As such, the contention of the respondent department to justify their action under provision F.R 22 (a) (111) cannot be sustained. Be it be clarified herewith that FR 22 (a) (111) envisage a position where an appointment to the new post is made on his request under sub Rule (a) of Rule 15. So what needs to be read to the provision of this Rule is that where the request has been made for the appointment to the new post out of free violation and with clear cut understanding of its consequences of reduction in salary etc. So what needs to be read to the provision of this Rule is that where the request has been made for the appointment to the new post out of free violation and with clear cut understanding of its consequences of reduction in salary etc. As has been pointed out above, at the relevant point of time, when the applicant requested for the change of his cadre, both cadre were in the same class and pay scale As such, the provision of FR 22(a) (111) cannot be applied to the disadvantage of the applicant. Moreover, the order dated 16.5.1985 (Annexure-2) does not talk of giving any fresh appointment to the applicant. It only seeks of transfer and posting of the applicant as a Fresh. As such also the said provision of FR cannot be made applicable in case of the applicant. However, the pay of the applicant could have been protected under the provision of FR 22, B and 27. 17.In view of the above discussion we find the action of the respondent department not to be justified and legal as a result the impugned order contained in Annexure-A/4 and A-5 are quashed and the respondent department is directed it to protect the pay of the. applicant Rs.450/- w.e.f. 16.5.1985 and as a result grant! the applicant all the consequential benefits including arrears from the said date I after re-fixing the pay of the applicant. So far as the payment of interest on arrears is concerned. We allow the same and the same shall be calculated in the same manner as is done in respect of GPF balances. The above directions will be complied with the respondents within a period of two months form this order. With these observations the Original Application stands finally disposed of.