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Himachal Pradesh High Court · body

2012 DIGILAW 988 (HP)

Shashi Sharma v. State of Himachal Pradesh

2012-12-18

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge: Since common questions of law and facts are involved in these writ petitions, the same were heard together and are being disposed of by this common judgment. However, in order to maintain clarity, the facts of CWP No. 5037 of 2011 have been taken into consideration. CWP No. 5037 of 2011 2. The Legal Assistants (Non Gazetted) Class-III and Law Officers (Gazetted) Class-II were placed in the pay scale of Rs.6400-10640/- w.e.f. 01.01.1996. The pay scale of the post of Law Officer was revised to Rs.7,000-10980/- from Rs.2000-3500/- for the incumbents who fulfilled the qualification and experience prescribed for the post of Assistant District Attorney of the Department of Prosecution and Litigation. The Law Officers, who did not possess this qualification and experience, were entitled to pay scale of Rs.6400-10640/-. The petitioner was promoted to the post of Law Officer by way of placement/transfer on 30.08.2003 and was placed in the pay scale of Rs.6400-10640/-. The nomenclature of the post of Legal Assistant in the pay scale of Rs.6400-10640/- working in various Government Departments was changed to Law Officer having the same pay scale of Rs.6400-10640/- without any financial benefits. The Law Officers were classified “Class-II (Gazetted)” on 19.9.2007. 3. The respondents (State) took a conscious decision to allow the pay scale of Rs.7000-10980/- to all the Law Officers of H.P. Secretariat with immediate effect on 10.4.2008. Petitioner made a representation on 13.06.2008, seeking pay scale of Rs.7000-10980/- and also for removal of anomaly and for further promotional avenues. The representation made by the petitioner was strongly recommended by the Director, Food Civil Supplies & Consumer Affairs, HP, Shimla-9 on 05.11.2009. However, the fact of the matter is that the representation made by the petitioner was rejected on 16.02.2010. 4. The respondents (State) has filed the reply. According to the averments contained in the reply, the petitioner is not discharging the same and similar duties which are being discharged by his counterparts in the Law Department of H.P. Secretariat. CWP No.8380 of 2010 5. The petitioner was appointed and promoted to the post of Legal Assistant on 20.02.2002. He is also seeking the pay scale of Rs.7000-10980/- at par with Law Officers working in Law Department of H.P. Secretariat and also for providing at least two or three promotional avenues from the post of Law Officer. CWP No. 8381 of 2010 6. The petitioner was appointed and promoted to the post of Legal Assistant on 20.02.2002. He is also seeking the pay scale of Rs.7000-10980/- at par with Law Officers working in Law Department of H.P. Secretariat and also for providing at least two or three promotional avenues from the post of Law Officer. CWP No. 8381 of 2010 6. The petitioner is working as Law Officer in the Department of Animal Husbandry since 1998. He is also seeking the pay scale of Rs.7000-10980/- at par with Law Officers working in Law Department of H.P. Secretariat and also for providing at least two or three promotional avenues from the post of Law Officer. 7. Mr. Ajay Mohan Goel, learned counsel for the petitioner(s) has vehemently argued that letter, dated 16.02.2010, Annexure P-9, is illegal, arbitrary, discriminatory, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that the petitioners are entitled to pay scale of Rs.7000-10980/-. He also argued that the duties being discharged by the petitioner(s) are akin to the duties being discharged by the Law Officers in the Law Department. He also prayed that the respondents (State) should provide at least two promotional avenues to the petitioners from the post of Law Officer. 8. Mr. Vikas Rathore, learned Deputy Advocate General has supported the issuance of Annexure P-9, dated 16.02.2010. According to him, the petitioners are not entitled to pay scale of Rs.7000-10980/-. He also argued that the duties being discharged by the Law Officers in the H.P. Secretariat are more arduous vis-à-vis the duties being discharged by the petitioner(s). He then contended that the grievance of the petitioner in CWP No. 5037 of 2011 has been redressed by granting him the benefit of Assured Career Progression Scheme w.e.f. 05.06.2006 vide letter, dated 19.03.2007. 9. I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. Legal Assistants (Non Gazetted) Class-III and Law Officers (Gazetted ) Class-II were put in the pay scale of Rs.6400-10640/- w.e.f. 01.01.1996. A conscious decision has been taken by the State Government to increase the pay scale of those incumbents who were fulfilling the qualifications and experience prescribed for the post of Assistant District Attorney of the Department of Prosecution and Litigation from Rs.2000-3500/- to Rs.7000-10980/-. A conscious decision has been taken by the State Government to increase the pay scale of those incumbents who were fulfilling the qualifications and experience prescribed for the post of Assistant District Attorney of the Department of Prosecution and Litigation from Rs.2000-3500/- to Rs.7000-10980/-. However, the respondent-State on 10.04.2008, has allowed the pay scale of Rs.7000-10980/- to those Law Officers also working in the Himachal Pradesh Secretariat despite the fact that neither they were qualified nor eligible for the post of Assistant District Attorney. The nomenclature of the post of Legal Assistant has also been changed to Law Officer on 04.12.2006 and they have also been granted Class-II (Gazetted) status vide notification, dated 19.9.2007. The petitioner has made a detailed representation, as noticed hereinabove, seeking removal of anomaly in the pay scale vis-à-vis Law Officers serving in the Law Department of H.P. Secretariat and also for providing at least two promotional avenues. The representation made by the petitioner was duly recommended by the Director, Food Civil Supplies & Consumer Affairs, Himachal Pradesh vide Annexure P-8, dated 05.11.2009 in CWP No. 5037 of 2011. The Director has also recommended that case of the petitioner for providing promotional avenues. The representation made by the petitioner has been rejected without assigning any reasons by the Special Secretary (FCS & CA) to the Government of Himachal Pradesh. The Special Secretary (FCS & CA), Government of Himachal Pradesh should have passed a speaking order instead of passing a laconic order. The speaking order suggests due application of mind. 11. The scope of judicial review in fixation of pay and revision of pay scales is very limited. However, if the decision is taken in an arbitrary and unreasonable manner, the Courts can interfere. The minimum qualification prescribed for the post of Law Officer is LLB. The petitioners are eligible, qualified and experienced to be appointed as Assistant District Attorney. The petitioners are handling all types of cases before the Courts of law and also before the quasi judicial authorities. The petitioner in CWP No. 5037 of 2011 is also looking after the work of Weights and Measures (Legal Metrology) Organization. The drafts pertaining to amendments to be incorporated in the Statutes, Notifications etc. pertaining to the parent department are also prepared by the petitioner(s) on behalf of the department up to AD level. The petitioner in CWP No. 5037 of 2011 is also looking after the work of Weights and Measures (Legal Metrology) Organization. The drafts pertaining to amendments to be incorporated in the Statutes, Notifications etc. pertaining to the parent department are also prepared by the petitioner(s) on behalf of the department up to AD level. The petitioner(s) are also preparing replies to the petitions filed in various Court cases and tendering legal opinion on legal issues. 12. Mr. Vikas Rathore, learned Deputy Advocate General has also argued that the Law Officers in the H.P. Secretariat are mainly doing the work relating to construction of Statutes, Acts, Regulations, Statutory rules, Orders, preparation of various Ordinances, Acts, Bills as well as various amendments in the Acts/Rules etc. Hindi translation of Acts/Rules/Bills etc. is also being undertaken by the Law Officers of the H.P. Secretariat. There is a specific reference to Rules 39 to 54 of the ‘Rules of Business of the Government of Himachal Pradesh’. It cannot be said that the duties being discharged by the petitioners are not as arduous as the duties being discharged by their counter-parts in the Law Department of H.P. Secretariat. 13. While fixing the pay scale, the employer has to take into consideration the Recruitment and Promotion Rules, qualifications, quantum of work and quality of work etc. In the instant case, the respondent-State has not placed any tangible evidence on record to substantiate that the duties being discharged by the petitioners are not same or similar vis-à-vis the duties being discharged by the Law Officers in the Law Department of H.P. Secretariat. The Court can take judicial notice of the fact that in all the Departments, there are only one or two Law Officers, who are looking after all the legal work. The cadre of Law Officers in the H.P. Secretariat is very large. The pay scale of Law Officers till 07.12.2002 in the Departments of State of Himachal Pradesh and Law Officers in the H.P. Civil Secretariat was the same, i.e., Rs.6400-10640/-. It was only on the basis of Annexure P-3, dated 7.12.2002 that the higher pay scale was granted to those Law Officers who were eligible and qualified for the post of Assistant District Attorney. It was only on the basis of Annexure P-3, dated 7.12.2002 that the higher pay scale was granted to those Law Officers who were eligible and qualified for the post of Assistant District Attorney. However, the fact of the matter is that, as noticed above, the respondent-State has allowed the pay scale of Rs.7000-10980/- to all the Law Officers working in the Law Department of H.P. Secretariat, irrespective of the fact whether they were qualified/eligible and experienced as per the Recruitment and Promotion Rules for the post of Assistant District Attorney. The petitioners have been discriminated against by the respondent-State by denying them the pay scale of Rs.7000-10980. Petitioners are also entitled to the pay scale of Rs.7000-10980 on the principle of “equal pay for equal work”. 14. The Apex Court in Haryana State Minor Irrigation Tubewells Corporation and others versus G.S. Uppal and others, (2008) 7 SCC 375 has held that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts may interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. The Apex Court has held as under: “21. There is no dispute nor can there be any to the principle as settled in the above-cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. 15. Now, as far as the promotional avenues are concerned, it is settled law that there should be at least two or three promotional avenues for every employee to improve public service, to remove stagnation and avoid frustration amongst the services. 15. Now, as far as the promotional avenues are concerned, it is settled law that there should be at least two or three promotional avenues for every employee to improve public service, to remove stagnation and avoid frustration amongst the services. The Special Secretary (FCS&CA) to the Government of Himachal Pradesh has also advised the Administrative Department to consider the case for providing promotional opportunities by suitable amendment in the Recruitment and Promotion Rules. 16. Their Lordships of the Hon’ble Supreme Court in Food Corporation of India and others versus Parashotam Das Bansal and others, (2008) 5 SCC 100 have held that promotion is a normal incidence of service and the courts can direct creation of avenues for promotion in their absence. Their Lordships have held as under: “12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the Superior Court will have the jurisdiction to issue necessary direction. 13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country.” 17. Similarly, their Lordships of the Hon’ble Supreme Court in A. Satyanarayana and others versus S. Purushotham and others, (2008) 5 SCC 416 have reiterated that the purpose of promotion is to remove stagnation and avoid frustration amongst employees. Their Lordships have held as under: “28. The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of 2008 decided on 5.2.2008]. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of 2008 decided on 5.2.2008]. The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to sub-serve the object in place of subverting the same. 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.” 18. Accordingly, in view of the observations and discussions made hereinabove, the writ petitions are allowed. Annexure P-9 dated 16.2.2010 is quashed and set-aside to the extent whereby the representations made by the petitioners have been rejected. The respondents are directed to release the pay scale of Rs.7000-10980/- to the petitioners from the due date, within a period of ten weeks from today, failing which, the petitioners shall be entitled to interest @ 9% per annum on the delayed payment. Respondents are also directed to frame a scheme within a period of three months from today to provide at least 2-3 promotional avenues to the petitioners. The pending application(s), if any, also stands disposed of. No costs.