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Himachal Pradesh High Court · body

2011 DIGILAW 1627 (HP)

Madhuri Dadwal v. State of Himachal Pradesh

2011-03-23

V.K.SHARMA

body2011
JUDGMENT V.K.Sharma, Judge The petition has been filed on the following prayers vide paras 7(1) to (3):- “(7.1) That the impugned para C(iii) of letter dated 23.6.2000, Annexure A-4, may kindly be struck down as in violation of the statutory revised pay rules at Annexure A-1. (7.2) That the impugned order dated 19.11.2001 at Annexure A-5 may kindly be quashed and set aside and the pay fixation of applicant made vide office order dated 23.10.1998 at Annexure A-2 may kindly be upheld with all consequential benefits. (7.3) That the respondent department may be directed to refund to the applicant the recoveries made from the salary of applicant pursuant to impugned order at Annexure A5 with interest on delayed payment at market rate.” 2. In reply, the respondents have taken the following stand vide para 6(4):- “In reply to this para it is submitted that the pay of the applicant was fixed by the Respondent No.3 vide office order dated 23.10.98 in accordance with the instructions / guidelines as already submitted in the preceding paras. It is further submitted that it was specifically mentioned in the pay fixation order dated 23.10.98 that the pay fixation is subject to verification by audit and further clarifications / guidelines, if so, issued by the Government in this behalf. Meanwhile fact remains that the Finance Department vide their letter dated 6.10.98 issued clarifications in continuation of notification dated 1.9.1998 that some departments have starting fixing pay of officers granted four tier pay scales on the basis of Finance Department Notification dated 1.9.98 without waiting for detailed guidelines/clarifications from the Government. Keeping in view this position the Finance Department advised that till detailed guidelines/clarifications are issued on the subject, further cases of pay fixation involving placement in the higher pay scales may not be finalized and the cases already decided will also be subject to review in accordance with the guidelines/clarifications issued by the Finance Department. Keeping in view this position the Finance Department advised that till detailed guidelines/clarifications are issued on the subject, further cases of pay fixation involving placement in the higher pay scales may not be finalized and the cases already decided will also be subject to review in accordance with the guidelines/clarifications issued by the Finance Department. Since the case of the applicant was finalized prior to the issuance of guidelines/clarifications issued by the Finance Department, hence, was subject to review subsequently on the basis of guidelines/clarifications which were issued on 23.6.2000 by Finance Department wherein it is very much clear that if the minimum of the higher scale is higher than the state arrived at, the pay of the incumbent shall be fixed at the minimum and next increment in the higher scale is to be allowed after completion of 12 months of service. It is in this context that the case of the applicant alongwith other similarly situated officers was reviewed and the pay of the applicant was re-fixed in consonance with the detailed guidelines contained in the F.D’s letter dated 23.6.2000. It is further submitted that the pay fixation under Assured Career Progression Scheme of the applicant alongwith other Medical Officers were reviewed by the Govt. whereby the applicant was placed in the scale of Rs.12000-15500 w.e.f. 1.1.99 after completion of 9 years of services as on 15.5.98. Hence the recovery of over payment w.e.f. 15.5.98 to 31.12.98 was worked out to the tune of Rs.30,379/-. The pay of the applicant ahs rightly been re-fixed in view of the detailed submissions made in the paras supra.” 3. In nutshell, the case of the petitioner is that in terms of notification dated 1st Sept., 1998, Annexure A-1, she was granted pay scale of Rs.12000-15500 on completion of 9 years of regular service in the entry scale vide office order dated 23.10.1998, Annexure A-2 and was fixed at Rs.12000/-as on 15.5.1998. However, later on, by virtue of an interim direction issued vide letter dated 6th October, 1998, Annexure A3, it was directed that “till detailed guidelines / clarifications are issued on the subject, further cases of pay fixation involving placement in higher pay scales may not be finalised. The cases already decided will also be subject to review in accordance with the guidelines /clarifications as may be issued”. The cases already decided will also be subject to review in accordance with the guidelines /clarifications as may be issued”. Consequently, vide guidelines dated 23rd June, 2000, Annexure A-4, it was inter alia provided as under vide guideline (C) (iii):- “All placements in the higher scales shall be given effect from the First day of January of the year next to the year in which an employee completes the required span for placement in the higher scale.” 4. Thus, it is manifest that instead of cut of date being completion of the requisite regular service of 9 years in the entry scale, grant of the higher pay scale was made applicable from the First day of January of the year next to the year in which an employee completes the required span for placement in the higher scale. Accordingly, the benefit of higher pay scale earlier granted to the petitioner vide office order dated 23.10.98, Annexure A-2, w.e.f 15.5.1998, was deferred and instead made applicable from 1.1.1999, thus, putting the petitioner to financial loss. 5. Being aggrieved, the petitioner moved the erstwhile H.P. State Administrative Tribunal by way of Original Application (OA), which on abolition of the said tribunal has been transferred to this Court and registered as CWP(T) No. 8656 of 2008. Vide interim order dated 26.8.2002, the Administrative Tribunal was pleased to direct the respondents not to effect recovery from the petitioner in terms of office order dated 19.11.2001, Annexure A-5. 6. It would be seen that the Himachal Pradesh Civil Services (Revised Pay) (First Amendment) stRules, 1998, were notified vide notification dated Sept., 1998,Annexure A-1, inter alia in exercise of the powers conferred upon the Governor, Himachal Pradesh, under the proviso to Article 309 of the Constitution of India, whereby, the benefit of the higher pay scale was to accrue to the concerned employee on completion of the requisite service of 4, 9 and 14 years in the entry scale, as the case may be. Such statutory Rules could not have been varied and that too to the detriment of an employee by way of executive instructions, such as guidelines dated 23rd June, 2000, Annexure A-4 and as such the same are liable to be quashed to the extent these are inconsistent with the aforesaid statutory Rules and are accordingly quashed to that extent. Such statutory Rules could not have been varied and that too to the detriment of an employee by way of executive instructions, such as guidelines dated 23rd June, 2000, Annexure A-4 and as such the same are liable to be quashed to the extent these are inconsistent with the aforesaid statutory Rules and are accordingly quashed to that extent. Consequently, office order dated 19.11.2001, Annexure A-5, shall stand quashed and office order dated 23.10.1998, Annexure A-2, restored with all consequential benefits payable within three months from the date of production of copy of this judgment by the petitioner. 7. The petition, as also pending CMP(s), if any, stand disposed of.