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Himachal Pradesh High Court · body

2007 DIGILAW 294 (HP)

T. C. P. NEGI v. STATE OF H. P.

2007-07-12

B.S.CHAUHAN, NARINDER SINGH THAKUR

body2007
JUDGMENT Narinder Thakur, Vice-Chairman.—The applicant in the present original application is mainly praying for the following reliefs : (a) Quash the impugned order Annexures A-l, A-3, A-8 and A-9 issued arbitrarily, mala fide and illegally by the respondents. (b) Direct the respondents to protect and fix the pay of the applicant @ Rs. 3,500/- w.e.f. 14.9.1988 with annual increments failing one year thereafter with all the consequential benefits and interest on the arrears thereon @ 18% PA till the payment. (c) Direct the respondents to give benefit under 22(l)(a)(1) and 22-B to the applicant on the basic pay Rs. 3,500/- w.e.f. 14.9.1988 with all consequential benefits and arrears and interest thereon @ 18% PA till the payment. 2. The case of the applicant is that he was initially appointed as Research Assistant in the respondent/State in November 1968. Thereafter, his services were transferred to the Himachal Pradesh University (Agriculture Department) and when new University was established in the name of Dr. Y.S. Parmar University, his services were placed on their disposal in the capacity of Assistant Scientist. 3. In the year 1988, the respondent department has advertised a post of Deputy Director to be filled in by the direct recruitment and the applicant applied for the same through proper channel and was selected through the process of Public Service Commission and he accordingly was appointed as Deputy Director in the respondent department on 14.9.1988. The new post of Deputy Director carried duties and responsibilities of greater importance than those attached to the post held previously by him. The applicant was thereafter promoted as Joint Director in 1999 and he retired from the service on 30.11.2001. 4. When the applicant joined service in the respondent department, he had already reached at the basic pay of Rs. 1,400/- in the pay scale of 700-1600 (Pre 86 scales), which was later revised by his previous employee to Rs. 3,500/-. When he was appointed as Deputy Director in the respondent department, the pay scale of the applicant was Rs. 1200-1850 (pre-86 scales) in terms of FR 22 and 22-B read with FR-27. 5. Accordingly, the applicant made a representation on 24.6.1989 (A-2) to the Director of Horticulture for fixation of his pay. The matter remained under active consideration of various authorities for quite long time. Ultimately, vide letter dated 7.11.1998 (Annexure A-3) the request of the applicant was rejected. 1200-1850 (pre-86 scales) in terms of FR 22 and 22-B read with FR-27. 5. Accordingly, the applicant made a representation on 24.6.1989 (A-2) to the Director of Horticulture for fixation of his pay. The matter remained under active consideration of various authorities for quite long time. Ultimately, vide letter dated 7.11.1998 (Annexure A-3) the request of the applicant was rejected. The applicant once again sent a detailed representation to the H.P. Public Service Commission on 25.11.1998 (Annexure A-4) requesting for giving recommendations for protecting the pay of the applicant at Rs. 3,500/- w.e.f. 14.9. 1988. The Public Service Commission vide letter dated 20.1.1999 (Annexure A-5) gave its recommendations to the Secretary (Horticulture) for granting four advance increments to the applicant in the pay scale of Rs. 1200-1850 (pre 86 scales) so as to protect the pay of the applicant at Rs. 1,400/- in the new post as the applicant was drawing the basic of Rs. 1,400/- in his previous post. Thereafter, a sanction was also given by the Government on 31.3.1999 (Annexure A-6) vide which the object behind giving four increments was clearly spelled out, i.e. "with a view to protect his existing pay in the previous post under FR 27". The Director of Horticulture vide letter dated 19.5.1999 (Annexure A-7) also gave effect to the sanction accorded by the Government to protect the pay of the applicant. However, on the same day i.e. 19.5.1999 (Annexure A-8), the Director of Horticulture re-fixed the salary of the applicant @ Rs. 2,640/- which an action on the part of the Director of Horticulture has been challenged to be as wrong and illegal and in violation of the object-of giving four increments with a view to protect the last drawn pay of the applicant, which after revision of pay should have been @ Rs. 3,500/-. 6. The applicant made a representation to the Director of Horticulture on 10.6.1999 against illegal and wrong fixation of his pay despite the recommendations of Public .Service Commission and the sanction of the Government. The Director of Horticulture made a further reference of the matter to the Secretary (Horticulture) on 29.6.1999. The Secretary (Horticulture) on 30.10.1999 (Annexure A-9) wrote to the Director of Horticulture that the pay fixed vide letter dated 19.5.1999 was correct. There are two letters bearing same number dated 19.5.1999, one of which was correct wherein the pay of the applicant was fixed at Rs. The Secretary (Horticulture) on 30.10.1999 (Annexure A-9) wrote to the Director of Horticulture that the pay fixed vide letter dated 19.5.1999 was correct. There are two letters bearing same number dated 19.5.1999, one of which was correct wherein the pay of the applicant was fixed at Rs. 1,400/ - (Pre-86 scales) and as such the pay of the applicant was to be re-fixed @ Rs. 3,500/- in post 86 revision. 7. The applicant on 9.2. 2001 made a detailed representation to the Secretary (Horticulture) stating therein the manner in which the pay of the applicant was to be re-fixed. On 11.5.2001 (Annexure A-10) the applicant again sent a detailed representation with illustrations as to how the pay of the applicant was to be re-fixed. This representation of the applicant was further routed to the Secretary (Horticulture) by the Director of Horticulture on 20 June, 2001 for giving sanction to fix the pay of the applicant @ Rs. 3,500/-. The said representation of the applicant has come to be rejected on 20.12.2001.Annexure A-l. 8. In the reply filed by the respondent department, the claim of the applicant has been contested. It has been stated that the applicant has no locus standi to file and maintain the present Original Application as the pay of the applicant was rightly fixed by the respondents under the rules. It is further stated that the applicant was appointed as Research Assistant in Agriculture Department. Later on he joined the University as Assistant Scientist. It is averred that when the applicant joined as Deputy Director of Horticulture in the respondent department, as fresh candidate in the pre-1986 pay scale of Rs. 1200-1850 he was rightly allowed the basic pay of Rs. 1,200/- that is increments under Rule FR 27 vide Government office order No. HTC-B(7)/l/86 dated 31.3.1999 in this very scale on the request of the applicant and the recommendations of the H.P. Public Service Commission. The case of the applicant has rightly been rejected by the Government vide letter No. HTC-B(7) 1/ 96 dated 7.11.1998 as the pay scale of the applicant when he joined as Deputy Director of Horticulture was not regulated by the UGC as such protection of scale/pay of University could not be given to the applicant. The case of the applicant has rightly been rejected by the Government vide letter No. HTC-B(7) 1/ 96 dated 7.11.1998 as the pay scale of the applicant when he joined as Deputy Director of Horticulture was not regulated by the UGC as such protection of scale/pay of University could not be given to the applicant. However, benefit of four advanced increments under Rule FR-27 has been allowed to the officer in the pay scale of the post he joined under H.P. Government. It is averred that on the recommendation of the H.P. Public Service Commission, the pay of the applicant was fixed in the pay scale of the post he joined by allowing him four advance increments, which cannot be taken as a commitment of the Government to further increase his pay on account of higher pay scale granted by the UHF, Solan retrospectively under UGC pattern. It is further averred that respondent No. 2 has rightly re-fixed the pay of the applicant at Rs. 2,640/- on 14.9.1988 and in the revised scale of Rs. 2400-4000. In fact, the revised scale of the post is Rs. 2400-4000 and the officer being a direct recruitee and has been given the initial scale of Rs. 2,400. The pay has been fixed at Rs. 2,640/ in the revised scale at the instance of four advance increments allowed by the Government in his favour in the pre revised scale. This has been done quietly in accordance with the Finance Department Notification No. Fin (C)-B(7)6/ 88 dated 7.11.1998 under provisions (1) of Rule 5 (1) in which it is clearly stated that a person appointed for the first time to a post on or after 1.10.1986 shall not be eligible to exercise his option and his pay will be fixed at initial of the scale of the post. 9. We have heard the rival contentions of the learned Counsel representing their parties and gone through the pleadings and the record of the case. 10. The controversy in the present case is that the applicant joined service in the respondent department in pursuant to an advertisement to fill up the post of Deputy Director by way of direct appointment. He applied for the same through proper channel. He was selected and at the time of his joining the respondent department he has already reached at the basic pay of Rs. He applied for the same through proper channel. He was selected and at the time of his joining the respondent department he has already reached at the basic pay of Rs. 1,400/- in the pay scale of Rs. 700-1600/- (pre-86 scales) in the previous employment, which was later revised by the previous employer to Rs. 3,500/-. When he was appointed as Deputy Director in the respondent department, the pay scale of the applicant was 1200-1850 (pre-86 scales). He was fixed at the initial of the said pay scale i.e. @ Rs. 1,200/-. On the representation and on the recommendation of the H.P. Public Service Commission, his pay was re-fixed and protected at Rs. 1,400/- in the pay scale of Rs. 1200-1850/- (pre 86 scales) in terms of FR 27 as is evident from the perusal of Annexure A-6. The Annexure A-6 clearly states reason for doing so, i.e. "with a view to protect his existing pay in the previous post under FR 27." However, in the meanwhile, the Pay Commission revised the scale for the respondent department w.e.f. 1.1.1986 as well as simultaneously the UGC also revised scale for Universities from the same date. Accordingly, his previous employer revised his scale and fixed his pay @ Rs. 3,500/- in the scale as per new scales. The same was accordingly brought to the notice of the respondent department, where too the scale of Rs. 1200-1850 was revised to Rs. 2200-4000. The respondent department in the revised pay scale re-fixed the salary of the applicant @ Rs. 2,640/- as on the date of joining i.e. 14.9.1988. Thus the whole exercise of pay protection granted to the applicant was rendered superfluous. Virtually, the applicant stood to gain nothing. 11. On bare perusal of the Annexure A-6, it is amply evident, that there was all intention and object to protect the pay of the applicant being drawn by him previously. As such the said intention should have been carried to its logical end by re-fixing his salary @ Rs. 3,500/- by the respondent department after over all revision in scales throughout the country. The view and stand taken by the respondent department is thus very hyper-technical and cannot stand the test of reasonableness and fair play. Notwithstanding, the case of the applicant is fully covered under various provision of FR. 3,500/- by the respondent department after over all revision in scales throughout the country. The view and stand taken by the respondent department is thus very hyper-technical and cannot stand the test of reasonableness and fair play. Notwithstanding, the case of the applicant is fully covered under various provision of FR. After giving appointment as Deputy Director in the respondent department, the pay of the applicant was to be re-fixed in accordance with the provisions as contained in FR-22-B. The applicant was given appointment in the respondent department on 14.9.1998 as a Deputy Director after following the process of selection through Public Service Commission and the applicant has applied through proper channel. The date on which the applicant was given appointment as Deputy Directed, the scales have not been revised. In previous post the applicant was working in the scale of Rs. 700-1600 and he has reached the basic of Rs. 1,400/-. New post of Deputy Director carried the pay scale of Rs. 1200-1850/-. After the revised scales came into force retrospectively w.e.f. 1.1.1986, the pay of the applicant was fixed @ Rs. 3,500/- by his previous department. Similarly, the pay scale of Rs. 1200-1850 was revised to Rs. 2400-4000/-. Accordingly, the last pay drawn of the applicant was to be taken as Rs. 3,500/-. Public Service Commission has already recommended the protection of the applicant. As such the pay of the applicant was to be protected at Rs. 3,500/- and thereafter the benefit of FR 22 (1) (a)(l) was to be given to the applicant and the pay of the applicant was to be re-fixed after giving the benefit under the above provisions. 12. It is well settled law now that pay etc. are property as envisaged under Article 300-A of the Constitution of India and the same cannot be withheld in this manner. Fixation of pay etc. is at recurring cause of action. The protection of pay and their giving benefit under FR-22 (l)(a)(l) was inevitable as the applicant would not have otherwise preferred to join on the lower pay by incurring loss in his basic pay. 13. It will be fruitful to reproduce the relevant provision governing the matter. Fixation of pay etc. is at recurring cause of action. The protection of pay and their giving benefit under FR-22 (l)(a)(l) was inevitable as the applicant would not have otherwise preferred to join on the lower pay by incurring loss in his basic pay. 13. It will be fruitful to reproduce the relevant provision governing the matter. FR 22-B reads thus : "22-B (1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre— (a) during the period of probation, he shall draw pay at the minimum of the time scale or at the probationary stages of the time scale of the serviced or post, as the case may be : Provided that if the -presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post; (b) on confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time scale of the service or post in accordance with the provisions of Rule 22 or Rule 22-C as the case may be : Provided that the pay of Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time scale of the service or post. (2) The provisions contained in sub-rule (1) shall apply mutatis mutandis to cases of Government servants appointed on probation with definite conditions against temporary posts in another service or cadre where recruitment to permanent posts of such service or cadre is made as probationers, except that in such cases the fixation of pay in the number indicated in Clause (b) of sub-rule (1) shall be done under Rule 31 of these Rules immediately on the expiry of the period of probation and on regular officiating appointment to a post, either permanent or temporary in the service or cadre. (3) ..............................................................." 14. (3) ..............................................................." 14. The above provision leave no manner of doubt that the applicant was holding the lien on his post in the University permanently and his presumptive pay on that post was higher than in his new post. As such, his last pay drawn was subject to the protection under above provisions. The State Government has issued clear instructions in this regard that the employees who have been taken from Boards/Corporations/bodies/ universities are entitled to the benefit of their last pay protection. 15. In this regard our attention has also been drawn to the decision of the Honble Delhi High Court reported in 1999 (3) SCT 443 titled as M.C. Gupta v. UOI, wherein the Honble High Court has held that pay protection is to be granted under FR 22 on direct appointment from one employment to another employment. Protection of pay is a fundamental right and cannot be denied. In the light of above discussion and legal position, the present original application is allowed. The impugned orders contained in Annexures A-1, A-3, A-8 and A-9 are hereby quashed and set aside being illegal and arbitrary. The reliefs in para 7 (b) and (c) are allowed. However, rate of interest is curtailed to and we allow the same on the analogy the Government charges from an individual in case of refund of pension. As per the Government of India Department of Pen & PW OM No. F.7/ 1/93-P & PW(F) dated 25th August, 1994 and 31st August, 1995 published in Swamys Pension Compilation (14th Edition 1998) at pages 40-41, wherein it is laid down that "it has been decided that wherever the employees are required to refund the pensionary benefits received by them for the service already rendered by them under the Central or State Government or autonomous bodies in order to avail of the benefit of counting of post services for pension purposes in terms of the provisions of Rules 17 to 20 of CCS (Pension) Rules, 1972 and Department of Pension and Pensioners Welfare OM No. 28/10/84—PU dated 29th August, 1984 as amended from time to time, the rate of interest will be the rate applicable on GPF accumulations from time to time, for the period from the date of receipt of pensionary benefits to the date of their refund to the Government/Autonomous Body". The interest will be calculated in the same manner as is done in respect of GPF balances. The above directions will be complied with by the respondents within the period of two months. No orders as to cost. The original application stands finally disposed of in the light of above. Application disposed of.