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2012 DIGILAW 536 (HP)

Rustam Singh v. State Of Himachal Pradesh

2012-09-11

V.K.SHARMA

body2012
JUDGMENT : V.K. Sharma, J. The petition has been filed on the following substantive prayers vide para 7(i) to (vi), out of which prayer No. (iv) is not pressed at the time of hearing:- "(i) That the orders dated 5.3.2004 vide Annexure-A10 withdrawing the ACP benefit of Rs. 5000-8100/- may kindly be quashed and set aside; (ii) That the applicant may be held entitled to the next higher scale of Rs. 5480-8925/- as per clause 2(i)(a) of the ACP Scheme and HPCS (RP) Rules Notified on 20.1.1998, Annexure-A3, w.e.f. 27.5.01/5.12.2002 (date of repatriation) with all consequential benefits forthwith; (iii) That the inaction of giving ACP benefit to the applicant in the pay scale of Rs. 5000-8100/- instead of and the eligibility and entitlement to the pay scale of Rs. 5480-8925/- may be declared to be arbitrary and malafide; (iv). That the respondents may be directed to give the benefit of proficiency increment on completion of 16 years of service on 27.5.2004, as per ACP Scheme dated 15.12.1998 Annexure-A13 with all consequential benefits forthwith; (v). That the orders dated 7.8.04, vide Annexure-A12, ordering recovery, my kindly be quashed and set aside; being contrary to the pay revision rules and ACP Scheme and the law, forthwith; (vi). That in the alternative to relief 7(i) (ii) the respondents may be directed to fix the pay of the applicant at Rs. 6400/- w.e.f. 13.10.02, as in Annexure-A14 from the date the junior was drawing higher pay, with all consequential benefits." 2. In reply, respondents No. 1 and 2 have taken the following stand vide para 3 on merits:- "3. That there is no illegality in the order of withdrawal of ACP granted to the applicant vide Annexure A-9 and withdrawal orders as referred above Annexure A-10, since the aforesaid order was passed in view of the letter No. Home(Prosecution)B (2)/99 dated 27.2.2004 of Home Deptt. which is attached as Annexure R-1, wherein directions were given to respondent No. 2 to recover the amount already paid to the applicant as the order of grant of ACP was in clear violation of Govt. instructions conveyed vide letter No. Home(Prosecution)B (2)1/99 dated 16 July 2003. The photocopy of letter dated 16.7.2003 is attached as Annexure R-2. The Govt. which is attached as Annexure R-1, wherein directions were given to respondent No. 2 to recover the amount already paid to the applicant as the order of grant of ACP was in clear violation of Govt. instructions conveyed vide letter No. Home(Prosecution)B (2)1/99 dated 16 July 2003. The photocopy of letter dated 16.7.2003 is attached as Annexure R-2. The Govt. instructions dated 18.8.99 which had been referred to in the letter dated 16.7.2003 attached as Annexure R-2-1 provide that "Period of service rendered against an ex cadre post will taken into account for reckoning the period of 8 or 18 years, for the grant of proficiency increment." After the filing of the present OA by the applicant, clarifications in the matter was sought from the A.D. vide letter No. DPr-B(15)1/2000-8696 dated 22.9.2004 (photocopy attached as Annexure R-3). Thereafter, Addl. Secy. (Hone) to the Govt. of HP, vide letter No. Home (Prosecution) B (2)1/99 dated 20.10.2004 has clarified the position in the matter. The relevant contents of the aforesaid letter are reproduced below: "I am directed to refer to your letter No. DPr-B(15)1/2000- 8696 dated 22.9.2004, on the subject cited above and to state that the matter has been examined in consultation with Finance Deptt. and it has been observed that the due to misinterpretation of the advice conveyed to you vide this Deptt. letter of even No. dated 16.7.2003, the benefit has been allowed to Sh. Rustam Singh, Jr. Scale Stenographer under the ACPS, which was not admissible. The 18.8.1989 instructions are not to be read in isolation with the other guidelines issued under ACPS from time to time. Para 5 of the ACPS circulated vide letter No. Fin(PR)B (7)-51/98 dated 15.12.98, provided that as a necessary corollary to this decision, the existing system of proficiency Step(s-up, shall under go a change to the extent indicated above. Other existing conditions governing to the grant of proficiency step(s)-up already notified shall continue to be applicable, mutandis, in accordance with the above orders. Other existing conditions governing to the grant of proficiency step(s)-up already notified shall continue to be applicable, mutandis, in accordance with the above orders. Thus the 18.8.89 instructions which provides that the period of service rendered against an ex cadred post will be taken into account for reckoning the period of 8 or 18 years for the grant of proficiency increments, is to be read with the other instructions which provides that an employee will be eligible to proficiency increment(s) only if, he has not gained any enhancement in his basic pay, except by way of annual increment and fixation of pay as a result of revision of pay scale from time to time, during preceding during preceding eight years for the first prop. Increment and 18 years for the second increment as on the date from which prop. Increment is given. The 18.8.89 instructions has further been amplified below classificatory instructions issued vide letter No. Fin(C)B (7)-6/88-II dated 6.4.90, which provides that in the ex cadre post if the appointment is in the same pay scale, only then the benefit of proficiency step-up will be admissible. However, if the appointment has been made against a higher post, involving financial gains in the basic pay, the benefit of proficiency increment will not be admissible. This issue has also been clarified vide Point No.6 and 7 of the 6.4.90 instructions. In the instant case Sh. Rustam Singh worked against the higher post w.e.f. 20.11.99 to 5.12.2003 in the higher pay scale of Rs. 6400-10640 and gained enhancements in his basic pay during this period, as such this period is to be excluded for reckoning the period of eight years under the ACPS, since the benefit under the ACPS is to be given on the original post held by Sh. Rustam Singh." Photocopies of the Govt. Instructions dated 20.10.2004 as referred in above said letter Annexure R-6 attached as Annexures R-2, R-3, R-4 and A-13 already attached with the application. Hence, in view of the facts stated above, the order passed by the Honble Tribunal dated 25.8.2004 regarding staying of operation of impugned orders Annexure A-10 dated 5.3.2004 and A- 12 dated 7.8.04 deserves to be vacated, since Shri Rusatam Singh is not entitled for ACP benefit, as per Govt. instructions. It is further submitted that Sh. Rustam Singh was given higher pay scale of Rs. instructions. It is further submitted that Sh. Rustam Singh was given higher pay scale of Rs. 5000-8100 as a measure personal to him corresponding to the revised basic pay scale of the post of JSS of Rs. 4400-7000 w.e.f. 1.1.96 and as such in view of the clarifications circulated by the Finance Deptt. vide letter No. Fin(PR)B (7)51/98 dated 9th July, 1999, wherein it has been clarified that in the cases where such protection has been allowed under HP(CS) Revised Pay Rules, 1998, the employers shall be granted next higher pay scale in accordance with ACPs with reference to the basic time scale of the post and not the personal pay scale as per Annexure R-5 read with Annexure A/2(a)HPCS(RP) Rules, 1998 dated 1.9.98, attached as Annexure R-5/1. Hence, the basic time scale of the post of JSS being 4400-7000, the next higher scale of Rs. 5000-8100 had rightly been allowed to the applicant since the un-revised pay scales of Rs. 1200-2130 to 1500-2700 to JSS were revised to 4400-7000, since the time scale of 1500-2700 (unrevised) was abolished and the designation and the revised equivalent to the un-revised pay scale i.e. 5000-8100 of the officials working as JSS (Grade-I) as on 1.1.96 was protected as a measure personal to them, hence the claim of the applicant for the grant of scale of Rs. 5480-8925 is not legally justified in view of the instructions issued for grant of ACP as elaborated in Govt. instructions issued vide letter No. Fin.(PR)B (7)51/98 dated 9th July 1999 which is attached as Annexure R-5 and the action of the respondent regarding withdrawal of ACPs benefits retrospectively vide Annexure A-10 and A-12 is not unfair, unjust, illegal, arbitrary, malafide, discriminatory and unconstitutional, as alleged by the applicant. Moreover this fact has been made clear in letter of the Addl. Secy. (Home) to the Govt. of HP vide Annexure R-6, that due to mis-interpretation the advice conveyed vide letter dated 16.7.2003 (Annexure R-2), the benefit was allowed to Sh. Rustam Singh, Jr. Scale Stenographer under ACP, which was not admissible. (ii). In reply to the sub-para (ii) of para 3, it is submitted that the applicant was asked to comply with the Govt. of HP vide Annexure R-6, that due to mis-interpretation the advice conveyed vide letter dated 16.7.2003 (Annexure R-2), the benefit was allowed to Sh. Rustam Singh, Jr. Scale Stenographer under ACP, which was not admissible. (ii). In reply to the sub-para (ii) of para 3, it is submitted that the applicant was asked to comply with the Govt. directions through respondent 3 before taking further action for grant of stepping-up under ACPs vide Annexure A-12, and this action of the respondent No. 2 cannot be said to be in violation of Principle of natural justice, illegal and unconstitutional, as alleged by the applicant in this sub-para. " 3. A rejoinder refuting the above stand on behalf of respondents No. 1 and 2 has been filed by the petitioner. 4. The petitioner had joined the respondent-department as junior scale stenographer in the pay scale of Rs. 510-880 in terms of office order dated 11.5.1988, Annexure A-1. Thereafter, on completion of five years service he was granted senior scale of Rs. 1500-2700 w.e.f. 27.5.1993 vide office order dated 28.7.1993, Annexure A-2. Still further, after completion of eight years of service he was granted pay scale of Rs. 5000-8100 w.e.f. 27.5.2001 vide office order dated 4.9.2003, Annexure A-9. However, this benefit was withdrawn vide the impugned letter dated 5.3.2004, Annexure A-10, on the following grounds mentioned in para 2 thereof:- "The matter had been examined by the AD in consultation with Finance Deptt. Who has observed that the benefit under ACP given to Sh. Rustam Singh, JSS vide above order is in clear violation of Govt. instructions and directed to recover the amount already paid to Sh. Rustam Singh, JSS on account of such benefit immediately under intimation to them." 5. However, the fact remains that while issuing the impugned letter dated 5.3.2004, Annexure A-10, the principles of natural justice were not adhered to, as no opportunity of being heard was afforded to the petitioner. Being aggrieved he submitted representation dated 18.3.2004, but the same was not considered and instead vide the impugned order dated 7.8.2004, Annexure A-12, respondent No. 2 directed respondent No. 3 to effect recovery from the petitioner. 6. I have heard the learned counsel for the parties and gone through the record. 7. The parent department of the petitioner is department of Prosecution, Himachal Pradesh. 6. I have heard the learned counsel for the parties and gone through the record. 7. The parent department of the petitioner is department of Prosecution, Himachal Pradesh. Admittedly, during the period 20.11.1999 to 5.12.2002 he remained on deputation with the erstwhile H.P. State Administrative Tribunal on a higher post. According to respondents No.1 and 2 this period is liable to be excluded for reckoning the period of eight years service under the Assured Career Progression Scheme (ACPS) in terms of letter dated 20.10.2004, Annexure R-6 and rightly so. It being so, in any case the petitioner was entitled for the higher scale of Rs. 5000-8100 w.e.f. 10.6.2004 in terms of Rules 3 (g) and 4 of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 issued vide notification dated 20.1.1998, Annexure A-3 read with the Schedule (item No. 10) to the said Rules as amended by the Himachal Pradesh Civil Services (Revised Pay) (First Amendment) Rules, 1988 issued vide notification dated 1.9.1998, Annexure R5/1 read with the First Schedule (item No. 5) to the said Rules which is as under :- "Junior Scale Stenographer i. 1200-2130 (Junior scale Stenographer Grade. II 4400-7000 The pay scale of Rs. 1500-2700 is abolished. ii. 1500-2700 (Junior scale Stenographer Grade. I) The designation and the revised equivalent of the un-revised pay scale i.e. 5000-8100 of the officials working as Junior Scale Steno-Grapher Grade-I as on 1st January, 1996 shall be protected as a measure personal to them." 8. It is made clear that the period of deputation shall be liable to be ascertained from the service book of the petitioner, as in some of the documents of this case it is mentioned as 20.11.1999 to 5.12.2002 and in some others as 20.11.1999 to 5.12.2003 and shall be reckoned accordingly. 9. In the result, the petition succeeds partly and is allowed in part as indicated here in above in this judgment. Consequently, the impugned letters Annexure A-10 dated 5.3.2004 and Annexure A-12 dated 7.8.2004 shall stand set aside to that extent. 10. The petition, as also pending CMP(s), if any, stand disposed of.