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2012 DIGILAW 264 (HP)

Roshan Lal Parmar v. State Of Himachal Pradesh

2012-05-08

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. - On the recommendations of the Departmental Promotion Committee held in the year 1985, 16 H.P.H.S. Grade (1) doctors, including petitioner were promoted in the pay scale of 1400-2000 with effect from the date of taking over of charge against number of available vacancies vide letter dated 30.4.1985. Respondent-State vide notification dated 25.5.1988 on the basis of recommendations of the review Departmental Promotion Committee was pleased to promote 21 doctors, including petitioner as Specialist Grade (General) from the date shown against each name. Petitioner is at Sr. No. 15. State Government vide letter dated 27.12.1988 decided to re-fix the salary of one of the incumbents, who was promoted with the petitioner, i.e. Dr. P.P. Vaidya. This letter is quoted in the judgment rendered in O.A. (M) No. 475/1995 dated 10.11.2000. However, the re-fixation in favour of P.P. Vaidya and R.S. Chandel was withdrawn on 2.7.1993. Dr. P.P. Vaidya approached the learned erstwhile Himachal Pradesh Administrative Tribunal by way of O.A. (M) No. 475/1995. The same was accepted on 10.11.2000. Similarly, placed Dr. R.S. Chandels petition bearing O.A. (M) No. 477/1995 was also accepted on the basis of ratio of judgment rendered in O.A. (M) No. 475/1995 on 11.7.2001. Petitioner also made representation that he being similarly situate should be given the benefits at par with Dr. P.P. Vaidya and Dr. R.S. Chandel since he had also been promoted as Specialist Grade (General). The representation made by the petitioner was rejected on 20.5.2002. It is in these circumstances, the present petition has been filed. 2. Mr. Dilip Sharma, learned Senior Advocate has strenuously argued that his client was also entitled to re-fixation of pay at par with Dr. P.P. Vaidya and Dr. R.S. Chandel. He has referred to the judgment pronounced by the Tribunal in O.A.(M) No. 475/1995 and O.A. (M) No. 577/1995 decided on 10.11.2000 and 11.7.2001, respectively. According to him, the judgment was in rem and not in personam since the question of law was decided in these petitions. 3. Mr. Vikas Rathore has vehemently argued that since the petitioner was working as Grade-I Doctor and on promotion as Surgical Specialist, the scale remained the same, thus, there is no question of refixation of his salary. 4. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 5. Petitioner has been promoted along with Dr. P.P. Vaidya and Dr. 4. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 5. Petitioner has been promoted along with Dr. P.P. Vaidya and Dr. R.S. Chandel, as is evident from notification dated 25.5.1988. Dr. P.P. Vaidya and Dr. R.S. Chandel have been granted relief by the learned Tribunal in OA (M) No. 475/1995 and OA (M)No. 477/1995 decided on 10.11.2000 and 11.7.2001, respectively. The operative portion of the judgment rendered by the Tribunal in OA (M) No. 475/1995 reads thus: "12. In the Annexure PD aforesaid it has been very specifically mentioned that the pay of the applicant was fixed on promotion as Specialist on acquiring higher duties and responsibilities as per Government of India Order (II) under F.R. 22 (Page 64.). That means the respondents admitted that after promotion as Surgical Specialist the applicant acquired higher duties and responsibilities to be discharged with the promotional post. 13. At this stage Annexure PAA be referred wherein there is nothing in the order itself that after promotion as Surgical Specialist the applicant did not acquire higher duties and responsibilities. Moreover, the order Annexure PD referred to above, wherein that aspect has been admitted by the Government, has not been waived of at all. 14. The order Annexure PAA has been passed on the basis of some opinion given by the Finance Department. It has been contended by the respondents that the Finance Department opined that when on promotion the scale remains the same the question of carrying duties and responsibilities of greater importance than those attached to the post already held by the applicant will not arise. This question is not a conclusive one but has to be ignored on the sole ground that the State Government as pointed out earlier has admitted itself that the post of Surgical Specialist to which the applicant was promoted was carrying duties and responsibilities of greater importance. Otherwise also, the applicant prior to the promotion was in H.P.H.S. Grade-I Doctor and it is without saying that duties and responsibilities of Surgical Specialist are of greater importance than of Grade-I Doctor. In that view of the matter also, it cannot be said on any stretch of imagination that the post of Surgical Specialist was not having greater importance than those attached to the Grade-I Doctor. 15. In that view of the matter also, it cannot be said on any stretch of imagination that the post of Surgical Specialist was not having greater importance than those attached to the Grade-I Doctor. 15. On the basis of the aforesaid circumstances the present application has to be disposed of in favour of the applicant. 16. In view of the foregoing reasons the present application is accepted and Annexure PAA and PA are set aside and as a consequence thereof the remaining reliefs prayed for stand granted in favour of the applicant and against the respondents except that the applicant shall not be entitled to interest at the rate of 12% per annum with respect to the release of his retirement dues. The parties are, however, left to bear their own costs." 6. The judgment rendered by the Tribunal in case of Dr. P.P. Vaidya has been followed in principle in the case of Dr. R.S. Chandel, i.e. OA (M) No. 477/1995. There is no distinction between the case of petitioner vis-a-vis Dr. P.P. Vaidya and Dr. R.S. Chandel. In all fairness, respondent-State should have redressed the grievance of the petitioner on the basis of judgments rendered by the Tribunal in the cases of Dr. P.P. Vaidya and Dr. R.S. Chandel instead of compelling the petitioner to file the original application before the Tribunal, which after the abolition of Tribunal has been transferred to this Court and assigned CWP (T) No. 9009/2008. The learned Tribunal has taken into consideration that the Doctors who are promoted as Surgical Specialist are carrying duties and responsibilities of greater importance vis-à-vis Grade-I G.D.O. The expression used in Annexure PB is promotion and not placement. Promotion presupposes higher responsibilities with higher pay. The judgment rendered by the Tribunal was in rem and not in personam. 7. The following principle of law has been laid down with the ensuing direction vide paras 2 and 3 of the judgment rendered by a Division Bench of this Court in CWP No. 1807 of 2010, titled as Prem Raj v. State of Himachal Pradesh and others and connected matters, decided on 5.5.2010: "2. It is seen that the first respondent has rejected the representation on the ground that the decision in CWP (T) No. 2346 of 2008, Madan Gopal v. State of Himachal Pradesh and another, decided on 13-3-2009, would apply only to the petitioners therein. It is seen that the first respondent has rejected the representation on the ground that the decision in CWP (T) No. 2346 of 2008, Madan Gopal v. State of Himachal Pradesh and another, decided on 13-3-2009, would apply only to the petitioners therein. We are afraid that the first respondent has not understood the law in its correct perspective. In Annexure P- 7 judgment, this Court held that in view of the decree passed by the Sub Judge Ist Class, Hoshiarpur, the Laboratory Attendants have been held entitled to the pay scale of Rs. 950-1800, and being similarly situated person, the petitioner is covered by Annexure P-7 judgment and was granted the benefit also. Thus, the Government has accepted in principle the entitlement of the Laboratory Attendants for the pay scale of Rs. 950-1800/-. Once a principle has been settled by the Court in one case and the same principle having been accepted by the State, it is not necessary that all the persons similarly situated, should approach the Court and obtain individual relief. That would only lead to multiplicity of proceeding and docket explosion apart from increasing the workload on administrative side of the Government. Therefore, there will a direction to the Chief Secretary to the State of Himachal Pradesh to see that a judgment in the case of an incumbent, if accepted on principle by the Government, is implemented in the case of all the similarly situated persons without for obtaining individual judgments-decrees. We are compelled to issue such a direction since we found that in several judgments, the Government has taken such a stand that a judgment would apply only in the case of the petitioner before the Court. The Government is entitled to such a stand in case the judgment applies only to individual concerned and that judgment is in personam, but if the judgment even in individual case is on principle and if that principle as such is followed by the Government in the case of one employee, that benefit should be extended to all the similarly situated persons. 3. The Chief Secretary will issue appropriate guidelines in this matter to the Administrative Departments within two months." 8. Accordingly, in view of the observations and discussions made herein above, the petition is allowed. Respondents are directed to re-fix the salary of the petitioner at par with Dr. P.P. Vaidya and Dr. 3. The Chief Secretary will issue appropriate guidelines in this matter to the Administrative Departments within two months." 8. Accordingly, in view of the observations and discussions made herein above, the petition is allowed. Respondents are directed to re-fix the salary of the petitioner at par with Dr. P.P. Vaidya and Dr. R.S. Chandel with effect from 27.12.1988 within a period of eight weeks from today with all the consequential benefits. Pending application(s), if any, also stands disposed of. No costs.