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2012 DIGILAW 612 (HP)

Kulbir Singh Rana v. State of H. P.

2012-09-20

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, J. The present, in the given facts and circumstances, is a case of sheer injustice having been caused to the petitioners, on account of arbitrary exercise of power and in the matter of grant of pay scale an altogether discriminatory treatment meted out to them against similarly situate persons. This litigation in the given facts and circumstances has been thrusted upon the petitioners because being a covered matter the relief claimed by them could have otherwise been granted by the respondents themselves. The relief claimed in the writ petition reads as follows: (i) That the impugned notification dated 1.9.1998, Annexure P-2, pursuant to which two pay scales are allowed to the incumbents of the same cadre of BDOs w.e.f. 1.1.96 may kindly be quashed and set aside qua the cadre of BDOs. (ii) That the respondent department may be directed to allow to the petitioners to pay scale of Rs.7880-11660 at par with the petitioners in CWP(T) 6007 of 2008 (as allowed to them w.e.f. 1.1.1996), pursuant to judgment dated 6.8.2010, Annexure P-4 with further revision from time to time and all consequential benefits.” The relief so claimed in view of the implementation of the judgment of this Court in CWP(T) No.6007/2008, titled Balbir Singh Thakur & others Vs. State of H.P. and even as per the opinion obtained from the Law Department thrice and the own view of the Administrative Department, could have otherwise been granted to the petitioners by the respondent-State itself. If not shocking, it is painful to note that the just and legitimate claim of the petitioners has been discarded without there being any cogent and plausible reasons thereto in utter disregard to the law laid down by this Court in Balbir Singh’s case supra and contrary to the ratio of the judgment again that of this Court rendered on 5.5.2010 in CWP No.1807 of 2010 titled Prem Raj Vs. State of H.P. and its connected petitions, which reads as follows: “2……………..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. 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 be 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 judgmentsdecrees. 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.” 2. The above judgment was circulated by the Chief Secretary to the Government of Himachal Pradesh amongst all the Administrative Secretaries vide Circular No. Home(B)(15)3/2010 dated 25th October, 2010, Annexure P-10. 3. How the action of the respondent in this case is in utter disregard to the above directions of this Court is fully substantiated on record, because like Balbir Singh’s case supra, the petitioners were admittedly appointed as Block Development Officers on the basis of recommendations made by the Himachal Pradesh Public Service Commission in October, 1997 in the pre-revised scale of Rs.2410-4000. Later on, on the implementation of the report of 6th Pay Commission w.e.f. 1.1.1996 vide Notification dated 20.1.1998, Annexure P-1, pre-revised pay-scale of Rs.2410-4000 was revised to Rs.7880-11660. Accordingly, they were allowed the revised pay-scale of Rs.7880-11660 from the date of their appointment as Block Development Officers. Later on, the 1st respondent vide H.P. Civil Services (Revised Pay) First Amendment Rules, 1998, notified vide Notification dated 1.9.1998, Annexure P-2, had amended Schedule-I to the Rules and thereby converted the existing pay-scale of Rs.2410-4000 to Rs.7000-10980, however, as per entries below remarks column in the Schedule, protected those incumbents (BDOs), who were drawing their salary in the pre-revised scale of Rs.2410-4000 as on 1.1.1996 by allowing them the revised pay-scale of Rs.7880-11660. 4. 4. Consequent upon Notification Annexure P-2 supra, office order dated 14.1.1999 Annexure P-3 came to be issued and thereby Shri Balbir Singh Thakur aforesaid and 13 other Block Development Officers (petitioners in CWP(T) No.6007/2008) being appointed in October, 1997, were placed in the pay-scale of Rs.7000-10980 in supersession of their pay already fixed in the pay scale of Rs.7880-11660 vide office order No.RDD-AA-B(7)1/98 dated 6.5.1998. Aggrieved thereby Shri Balbir Singh Thakur aforesaid and others approached the erstwhile H.P. Administrative Tribunal, initially by filing Original application, which on its abolition was transferred to this Court and registered as CWP(T) No.6007/2008 and came to be decided by a Coordinate Bench of this Court vide judgment dated 6.8.2010, Annexure P-4. 5. Admittedly, the judgment in Balbir Singh’s case referred supra, has been implemented by the respondents. Irrespective of the petitioners having made a detailed representation Annexure P-7 highlighting therein all the details and even the judgment rendered by this Court as well as by the Apex Court, including in Balbir Singh’s case supra, instead of giving similar treatment to them also, their case seems to have been closed in a whimsical and arbitrary manner, probably on the opinion of the Finance Department, which reads as follows: “Fin.(Pr)B(7)-32/2010 No.51756817 Dated 29.3.11 Finance Pay Revision Department Examined in FD. AD is informed that the incumbents appointed by direct recruitment and by promotion cannot be treated as similarly situated as the petitioners in the CWP(T) No.6007/2008-Balbir Singh Vs. State of HP and Anr. The opining of the Law Department is contrary to the fundamental of pay revision. There are so many categories of employees where the existing incumbents as on 1.1.1996 were allowed higher pay scale in relation to the pre-revised pay scale as a measure personal and the category has been allowed lower pay scale after 1.1.1996. Since the State government follow Punjab pattern of pay scales on post to post and department to department basis, as such any deviation from the Punjab pattern may have its far reaching consequence. If this matter is decided in favour of the representations then similar treatment is required to be given to all such categories in various departments. In view of the above the orders dated 6.8.2010 passed in CWP(T) No.6007/2008-Balbir Singh vs. State of HP and anr is not applicable in the case of the present representationists. [This has the approval of Pr. Secy. In view of the above the orders dated 6.8.2010 passed in CWP(T) No.6007/2008-Balbir Singh vs. State of HP and anr is not applicable in the case of the present representationists. [This has the approval of Pr. Secy. (Finance)] Sd/- Deputy Secretary (Finance)” 6. It is worthwhile to mention here that this Court while following the law laid down in its judgment dated 8.9.2009 rendered in CWP(T) 4063/2008 titled Sanjiv Kumar Mahajan and others Vs. State of H.P. & another, has already held in Balbir Singh’s case supra that there cannot be two pay-scales for the same cadre of Block Development Officers on the basis of cut off date, hence, there was no occasion for the 1st respondent to have opined in this matter in the manner extracted hereinabove. Thus, the view of the matter so taken by the 1st respondent is in utter disregard to the law laid down by this Court. 7. Now, if examining the present case in the above scenario, Shri Balbir Singh Thakur aforesaid and 13 others were appointed as Block Development Officers, after the cut off date i.e. 1.1.1996, like the petitioners before this Court in the present writ petition, who have also been appointed as Block Development Officers on different dates after 1.1.1996, the cut off date, however, in the pay-scale of Rs.7000-10980 instead of Rs.7880-11660. This has led to following two different pay-scales in respect of the officers in the same cadre, i.e. those, who were already in position as BDOs on 1.1.1996 and Shri Balbir Singh Thakur and 13 others appointed after 1.1.1996, have been allowed the pay-scale of Rs.7880-11660 whereas the petitioners before us have been placed in the pay scale of Rs.7000-10980. 8. As observed above, in view of the rule issued by this Court in Sanjiv Kumar Mahajan and Balbir Singh’s cases supra, there cannot be two pay-scales for the officers in the same cadre on the basis of cut off date. 9. It is significant to note that the Administrative Department had examined the representation submitted by the petitioners in its right perspective while taking note of the law laid down by this Court in Balbir Singh’s case supra vis-à-vis the rules and the relevant provisions of law. However, submitted the matter for obtaining the opinion from the law department. 9. It is significant to note that the Administrative Department had examined the representation submitted by the petitioners in its right perspective while taking note of the law laid down by this Court in Balbir Singh’s case supra vis-à-vis the rules and the relevant provisions of law. However, submitted the matter for obtaining the opinion from the law department. The opinion dated 16.3.2011 Annexure P-8 (Colly) given by the Law Department reads as under: “N-12 (ante): Examined in the law Department. It is settled position of law that different pay scales cannot be allowed by the Government for incumbents holding same posts in the same cadre. If the judgment passed by the Hon’ble High Court in CWP(T) No.6007/2008 in the matter Balbir Singh Thakur and others Vs. state of H.P. and another had attained the finality and stood implemented by the A/D then, in that eventuality at the representationist including all the members of the BDO cadre are entitled to the same scale of Rs.7880-11660/- being similarly situated. The AD is advised to take up the matter with Finance Department to remove the anomaly in the pay scale as per the judgment of the Hon’ble High Court dated 6.8.2010 in Balbir Singh Thakur case.” 10. The Finance Department has, however, taken the following view of the matter, when referred to it by the Administrative Department: “FINANCE PAY RFEVISION DEPARTMENT Examined in F.D. AD is informed that the incumbents appointed by direct recruitment and by promotion cannot be treated as similarly situate as the petitioners in the CWP(T) No.6007/2008-Balbir Singh Vs. State of H.P. and anr. The opinion of the Law Department is contrary to the fundamentals of pay revisions. There are so many categories of employees, where the existing incumbents as on 1.1.96 were allowed higher pay scale in relation to the pre-revised pay scale as a measure personnel and the category has been allowed lower pay scale after 1.1.96. Since the State government follow Punjab pattern of pay scales on post to post and department to department basis, as such any deviation from the Punjab pattern may have its far reaching consequence. If this matter is decided in favour of the representations then similar treatment is required to be given to all such categories in various departments. Since the State government follow Punjab pattern of pay scales on post to post and department to department basis, as such any deviation from the Punjab pattern may have its far reaching consequence. If this matter is decided in favour of the representations then similar treatment is required to be given to all such categories in various departments. In view of the above the orders dated 6.8.2010 passed in CWP(T) No.6007/2008-Balbir Singh vs. State of HP and anr is not applicable in the case of the present representations. [This has the approval of Pr. Secy. (Finance)]” 11. However, Administrative Department again decided to submit the matter to the Law Department for its opinion afresh taking into consideration the opinion of the Finance Department extracted supra. The Law Department again examined the matter on 2.6.2011 and opined as under: “Government of Himachal Pradesh Law Department N-24 (ante)-Examined in the Law Department. This department has gone through the opinion/views of the Finance Department at N-18 (ante). The present case is an entirely different because the Block Development Officers in the same cadre, performing the functions are being given different scale of pay. The B.D.Os who were appointed prior to 1-1-96 have been given the pay scale of Rs.7880-11660 and the BDOs, appointed/promoted after 1-1-1996 has been given the pay scale of Rs.7000-10980 w.e.f. 1-1-1996. Such an action of the State Government is not only arbitrary but would also amount to malafide exercise of power which is hit by Articles 14 and 16 of the Constitution. Where the act is arbitrary, it is implicit in it that it is unequal both according to logic and Constitutional Law and is therefore violative of Article 14, and if it affects any matter relating to public employment it is also violative of Article 16, because such action would be denial of equality. Thus, this Department reiterated its opinion dated 13.3.2011 as recorded at 13(ante). Moreover the present case is squarely covered by the judgment of the Hon’ble High Court dated 20.4.2010 in case Suresh Rana and ors. Vs. State of Himachal Pradesh & ors. CWP (T) No.14084 of 2008 reported as 2010(2) Shimla LC-104. In the instant case different pay scales was being paid to the incumbents appointed before 23-7-1990 and those appointed after 23-7-1990 despite being in the same cadre. Vs. State of Himachal Pradesh & ors. CWP (T) No.14084 of 2008 reported as 2010(2) Shimla LC-104. In the instant case different pay scales was being paid to the incumbents appointed before 23-7-1990 and those appointed after 23-7-1990 despite being in the same cadre. The Hon’ble High Court struck down the cut of date i.e. 23-7-1990 being violative of Articles 14 and 16 of the Constitution of India. Even the Administrative Department vide N-24 (ante) has also stated that principles of equal pay in a cadre as laid down by the Hon’ble High court in Sanjeev Kumar Mahajan case has also been implemented by the F.D. Recently the Hon’ble High Court in its judgment dated 6-5-2011 CWP(T) No. 11791 of 2008 decided on 6-5-2011 in case Ram Kishan Vs. State of H.P. has also taken a view that two pay scales cannot be granted to the Law Officers. AD is, therefore, advised to again take up the matter with the Finance Department to reconsider its view at N-18 (ante) in the light of law laid down by the High Court in the cases referred to above and policy decision be taken in consonance with the principles of law settled in the said judgments. This has the approval of Pr. Secretary (Law) ALR-cum-Under Secretary Law (O) to the Government of Himachal Pradesh.” 12. Consequently, the Administrative Department again decided to refer the matter to Finance Department for reconsideration on 7.6.2011 vide N-30, which reads as follows: “N-24 onwards In view of the advice of the law Department, the F.D. may be requested to reconsider the earlier advice tendered vide N-18 ante I n order to avoid probable litigation. It is also clarified that the matter is not one of priority between direct recruits and promotees as misconstrued in the opening remarks of the N-18 ante.” 13. The Finance Department, however, vide N-33 instead of concurring with the opinion of the Law Department supra, advised the Administrative Department to make reference to its counter-part in Punjab and seek clarification: “FINANCE (PAY-REVISION) DEPARTMENT Examined. AD is advised to make a fresh reference to their counterpart department in Punjab with all necessary details especially with regard to the BDOs who have been appointed on or after 1-9-1988 as to how the principle of “equal pay for equal work” is to be justified and thereafter refer the matter to this department. AD is advised to make a fresh reference to their counterpart department in Punjab with all necessary details especially with regard to the BDOs who have been appointed on or after 1-9-1988 as to how the principle of “equal pay for equal work” is to be justified and thereafter refer the matter to this department. The position in respect of Distt. Panchayat officers be also explained whether similar situation persists in their case.” 14. It seems that clarification sought from Punjab Government is still awaited. Fact, however, remains that there was no need or any occasion to have sought clarification from the Punjab Government, particularly when this Court has held authoritatively and in unequivocal terms that there cannot be two different pay-scales for the officers in the same cadre and discharging similar duties. 15. The only stand taken in reply to the writ petition that the respondent-State in the matter of pay-scales to its employees is following Punjab pattern and that the petitioners who were recommended to be appointed as BDOs by the HP Public Service Commission in the pay scale of Rs.7000-10980 and appointed as such vide Notification dated December 10, 2002, cannot be given the pay-scale of Rs.7880-11660, seems to have been taken merely for rejection being contrary to the law laid down by this Court in Sanjiv Mahajan and Balbir Singh’s cases cited supra and not supported by any cogent and plausible reasons. 16. In view of what has been stated hereinabove, it would not be improper to conclude that the pre-revised pay-scale of BDOs in the State was Rs.2410-4000. The same on the revision of pay-scales w.e.f. 1.1.1996 was revised to Rs.7880-11660 as per rules notified vide Notification dated 20.1.1998 Annexure P1/A. The incumbents who as on 1.1.1996 were in position as BDOs and those petitioners in CWP (T) No.6007/2008 titled Balbir Singh Thakur Vs. State of H.P. have been placed in the pay-scales of Rs.7880-11660. The petitioners herein, admittedly, similarly situated and discharging similar duties, however, have been placed in the pay-scale of Rs.7000-10980 on their appointment as BDOs. By doing so, the officers working in the same cadre and constituting one class, have been given different treatment. State of H.P. have been placed in the pay-scales of Rs.7880-11660. The petitioners herein, admittedly, similarly situated and discharging similar duties, however, have been placed in the pay-scale of Rs.7000-10980 on their appointment as BDOs. By doing so, the officers working in the same cadre and constituting one class, have been given different treatment. It is well settled at this stage that such a classification must be founded on intelligible differentia which distinguishes persons or things that are grouped together and such differentia must have rational relation to the object sought to be achieved. 17. In the case in hand, there seems to be no relation between the distinction made and the object sought to be achieved by classifying the officers in the same cadre into two different categories for the purpose of fixation of their pay. The impugned action on the part of the respondents in not allowing the petitioners the pay-scale at par with their counter-parts in the same cadre is manifestly unjust, unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India, because nothing has come on record to suggest that there is qualitative or quantitative deference in the duties and responsibilities being discharged by that category of BDOs who are placed in the higher pay-scale and the petitioners who are being given a lower pay-scale. 18. Thus, this Court is of the considered opinion that the petitioners are entitled to equal pay for equal work and also parity in the pay-scale with their counter-parts working in the same cadre. 19. In view of all the reasons hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, there shall be a direction to the respondents to fix the pay of the petitioners in the pay-scale of Rs.7880-11660 from the date of their respective appointments as BDOs with all consequential benefits, within four months from the date of production of a copy of this judgment by the petitioner concerned before the 2nd respondent. However, in view of the persuasive submissions made by Ms. Subh Mahajan, learned Deputy Advocate General, the arrears are restricted to three years prior to the date of institution of the writ petition, i.e. 4.5.2012. The due and admissible benefits on account of arrears shall be released to the petitioners within the same time, failing which together with interest @9% per annum from the due date. Subh Mahajan, learned Deputy Advocate General, the arrears are restricted to three years prior to the date of institution of the writ petition, i.e. 4.5.2012. The due and admissible benefits on account of arrears shall be released to the petitioners within the same time, failing which together with interest @9% per annum from the due date. No order as to costs, however, this view has again been taken keeping in view the submissions persuasive in nature made by Ms. Subh Mahajan, learned Deputy Advocate General, as the present in the light of the observations made hereinabove, was otherwise a fit case for imposing exemplary costs. 20. The writ petition is disposed of accordingly, so also the pending application(s), if any.