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Himachal Pradesh High Court · body

2010 DIGILAW 1060 (HP)

Vijay Kumar Sharma v. State of Himachal Pradesh

2010-08-23

RAJIV SHARMA

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JUDGMENT : RAJIV SHARMA, J. 1. Petitioner was appointed as a Laboratory Technician in the Food and Drugs Laboratory Kandaghat in the pay scale of Rs. 510-940/-, which was revised to Rs.1410- 2460/-. The post of Laboratory Technician was subsequently re-designated as Senior Laboratory Technician. He was appointed as Assistant Chemical Examiner (purely temporary) for the purpose of Section 293 of the Code of Criminal Procedure for whole of the State of Himachal Pradesh, in addition to his own duties, in his own pay scale with immediate effect, in public interest vide notification dated 04.11.1989. He started discharging the duties of Assistant Chemical Examiner, however, vide notification dated 02.11.1995, he was promoted as Senior Scientific Officer (Class-II Gazetted) on ad-hoc basis in the pay scale of Rs.2200-3700/- for a period of six months or till the post was filled up on regular basis, whichever was earlier. 2. Mr. D.P. Gupta, learned counsel for the petitioner has strenuously argued that his client has not been paid the pay scale of Rs.2000-3500/- for working against the post of Assistant Chemical Examiner. He further contended that his client has also not been paid salary in the pay scale of Rs.2200- 3700/- beyond October, 1996. He lastly contended that his client should have been regularised as Senior Scientific Officer in view of Annexure A-12 and the recommendations made by the Director, Composite Testing Laboratory, Kandaghat vide Annexure A-13, dated 31.10.1996. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the petitioner cannot be paid the pay scale of Rs.2000-3500/- since according to him, the petitioner has been appointed as Assistant Chemical Examiner only for the purpose of Section 293 of the Code of Criminal Procedure. He further argued that petitioner was entitled to the pay scale of Rs.2200-3700/- only for a period of six months and he cannot be regularised as Senior Scientific Officer in contravention of the Recruitment and Promotion Rules. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has been appointed as Assistant Chemical Examiner on 4th November, 1989, as noticed above. The respondent-State has sought clarification from the State of Punjab about the pay scale of the post of Assistant Chemical Examiner. The clarification was furnished by the Public Analyst, Punjab on 10.09.1993. 5. Petitioner has been appointed as Assistant Chemical Examiner on 4th November, 1989, as noticed above. The respondent-State has sought clarification from the State of Punjab about the pay scale of the post of Assistant Chemical Examiner. The clarification was furnished by the Public Analyst, Punjab on 10.09.1993. It was stated that in Punjab, the Assistant Chemical Examiners were getting the pay scale of Rs.2000-3500/-. Petitioner has not been paid this pay scale. Mr. P.M. Negi, learned Deputy Advocate General has argued that the post of Assistant Chemical Examiner was not in existence in the State of Himachal Pradesh. There is no merit in this contention. A bare perusal of Annexure A-1 reveals that the petitioner has been appointed as Assistant Chemical Examiner and in the State of Punjab, the pay scale of the post of Assistant Chemical Examiner was 2000-3500/-. The Court can take judicial notice of the fact that the State of Himachal Pradesh adopts the pay scales of the State of Punjab. There is no merit in the contention of Mr. P.M. Negi, learned Deputy Advocate General that the petitioner was appointed as Assistant Chemical Examiner only for the purpose of Section 293 of the Code of Criminal Procedure. Petitioner has been allowed to work on the higher post and he had discharged the duties of higher responsibility. The case of the petitioner was also recommended by the Director, Composite Testing Laboratory, Kandaghat vide Annexure A-4, dated 30.11.1999. The Director has specifically mentioned that the Punjab Government has allowed the pay scale of Rs.2000-3500/- to the Assistant Chemical Examiners. He had also brought to the notice of Commissioner-Cum-Secretary (Health), Government of H.P. that though no such post was sanctioned in the Laboratory, but the petitioner could be allowed the benefit of pay scale of Rs.2000-3500/- against the vacant posts of Deputy Public Analyst/Dy. Govt. Analyst or Senior Scientific Officer in the similar pay scale. The Director had also brought to the notice of the Commissioner-Cum-Secretary (Health) that the functions discharged by the Assistant Chemical Examiner involves higher responsibility and in these circumstances, he has strongly recommended the case of the petitioner. 6. Petitioner has been promoted as Senior Scientific Officer (Class-II Gazetted) on ad-hoc basis in the pay scale of Rs.2200-3700/- for a period of six months or till the post was filled up on regular basis, whichever was earlier on 02.11.1995. 6. Petitioner has been promoted as Senior Scientific Officer (Class-II Gazetted) on ad-hoc basis in the pay scale of Rs.2200-3700/- for a period of six months or till the post was filled up on regular basis, whichever was earlier on 02.11.1995. He has been paid the salary in the pay scale of Rs.2200-3700/- up to September, 1996. It is evident from the contents of Annexure A-13 that on the basis of audit objections, the Accountant General of Himachal Pradesh has directed the respondents to make recoveries of over payments from the petitioner w.e.f. 04.05.1996. However, since the petitioner has worked as Senior Scientific Officer and Annexure A-12 was not withdrawn, he was entitled to get the salary of the said post at least for a period up to September, 1996 in the pay scale of Rs.2200-3700/-. In these circumstances, there was no occasion for the respondents to order recoveries after 04.05.1996. Mr. P.M. Negis contention that the petitioner was not entitled to the pay scale of Rs.2200-3700/- after 04.05.1996, in view of the observations made herein above, merits rejection. However, as far as the case of the petitioner seeking promotion to the post of Senior Scientific Officer/Senior Scientist is concerned, the same is to be regulated under the Recruitment and Promotion Rules framed by the respondent-State. Petitioner cannot seek regularisation against the higher post of Senior Scientific Officer only on the ground that at one given time he was appointed as Senior Scientific Officer for a period of six months on ad hoc basis. 7. Accordingly, in view of the observations made herein above, the petition is partly allowed. Respondents are directed to pay the petitioner the pay scale of Rs. 2000-3500/- w.e.f. 07.11.1989 to 01.11.1995, with a further direction that no recoveries shall be effected from the petitioners salary w.e.f. May, 1996 to September, 1996. No costs.