Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 792 (HP)

STATE OF H. P. v. SANJAY KUMAR

2013-09-04

A.M.KHANWILKAR, KULDIP SINGH

body2013
JUDGEMENT A.M.KHANWILKAR, C.J. - 1. HEARD counsel for the parties. 2. AS short question is involved, the appeals are taken up for final disposal forthwith by consent. These appeals take exception to the common judgment of the learned Single Judge, dated 18th December, 2012, in CWP No. 8381 of 2010 and connected matters. The respondents herein had filed writ petitions under Article 226 of the Constitution of India seeking direction against the respondents in the writ petitions appellants herein to give parity of pay scale to them commensurate with the pay scale of the Legal Assistants, later on changed to Law Officers, working in H.P. Secretariat. The learned Single Judge has noticed the similarity of the work discharged by the respondents writ petitioners in paragraph 11 of the impugned judgment. 3. HOWEVER, the grievance of the appellants is that the learned Single Judge has not referred to dissimilar work and the additional duties discharged by the Legal Assistants working in H.P. Secretariat, which was placed on record by way of replyaffidavit filed by the Under Secretary (FCS & CA) to the Government of Himachal Pradesh, dated 13th September, 2011, in CWP No. 5037 of 2011, and, in particular, in paragraphs 2 and 3 of the preliminary submissions. In paragraph 2, the department had highlighted the dissimilar work discharged by the Legal Assistants in the H.P. Secretariat. Paragraphs 2 and 3 of the preliminary submissions read thus: "2. The posts of Legal Assistants in H.P. Secretariat were redesignated as Law Officer in the pay scale of Rs. 20003500 w.e.f. 09.05.1991 strictly on Punjab Pattern. The pay scale of the Legal Assistants / Law Officers working in various Government Departments has also been revised strictly on Punjab pattern of pay scales. The pay scale of the Law officers of H.P. Secretariat was further revised vide notification dated 07.12.2002 (as Annexure P3 of the CWP), whereby pay scale of Rs. 700010980 was allowed to such incumbents who fulfill the qualifications and experience prescribed for the post of Assistant District Attorney of the Department of Prosecution. Those Law Officers who did not possess such qualifications and experience were entitled to the pay scale of Rs. 640010640. Later on, the matter was reconsidered by the government and all such Law Officers of H.P. Secretariat have also been allowed the pay scale of Rs. 700010980 vide notification dated 10.04.2008 (as Annexure P4 of the CWP). Those Law Officers who did not possess such qualifications and experience were entitled to the pay scale of Rs. 640010640. Later on, the matter was reconsidered by the government and all such Law Officers of H.P. Secretariat have also been allowed the pay scale of Rs. 700010980 vide notification dated 10.04.2008 (as Annexure P4 of the CWP). Working of the Law Officers in the H.P. Secretariat is quite different than that of the working in various government Departments. The Law Officers of the H.P. Secretariat are mainly doing the work which relates to construction of Statutes, Acts, Regulations, Statutory rules, Orders, preparations of various ordinances, Acts, Bills etc. as well as various amendments in the Acts / Rules etc. Hindi translation of such Acts / Rules / Bills etc, are also being done by the Law Officers of the H.P. Secretariat. The job of Law Officers working in the various Departments are confined to the drafting of replies to various court cases pertaining to the Department concerned and tendering of legal opinion on such matters and allied matters. Thus there is huge difference between the duties and responsibilities being performed by the Law Officers of H.P. Secretariat and the Law Officers posted in various Government Departments. As such the pay scale of Rs. 700010980 has rightly been allowed to the Law Officers of H.P. Secretariat on the basis of the Punjab pattern of pay scales on post to post and department to department basis and the action of the government can not be said to be arbitrary and unreasonable. In fact no discrimination has been done against the petitioner. Hence, this Writ Petition is liable to be set aside on these grounds. 3. The plea of the petitioner that that he has not been given adequate promotional benefits is also not tenable in view of the fact that before coming into effect the new pay scale w.e.f. 01.09.2009, the State Government had introduced Assured Career Progression Scheme to its regular employees. The salient feature of this scheme was that in case an employee was not promoted to the next higher level on account of nonavailability of a vacancy at higher level or non existence of a promotional level in the cadre, the employee would be granted the pay scale which is next higher in the hierarchy of pay scale, after 08 years of service. The petitioner, after being appointed as Legal Assistant on 5.6.1998, was promoted / placed to the post of Law Officer on 30.8.2003 in the same pay scale of Rs. 640010640/ (prerevised) without any financial benefits due to identical pay scales of both the posts. However, due to stagnation of the petitioner on the same pay scale for 08 years, he was given higher pay scale of Rs. 700010980 and a proficiency step up w.e.f. 05.06.2006 under the "Assured Career Progression Scheme" vide notification dated 19th March, 2007 (Annexure R I). In view of this the present writ petition deserves rejection outrightly." 4. NOTWITHSTANDING the abovesaid stand of the appellants on affidavit, the learned Single Judge, in paragraph 13 of the impugned judgment, proceeds to observe that the respondentState has not placed any tangible evidence on record to substantiate that the duties being discharged by the writ petitioners were not same or similar visavis the duties discharged by Law Officers in the Law Department of H.P. Secretariat. This finding, in our opinion, is error apparent on the face of the record. As a result, instead of examining the correctness of other questions, on the basis of which the matter proceeded before the learned Single Judge, we deem it appropriate to quash and set aside the impugned judgment and relegate the parties before the learned Single Judge for reconsideration of the writ petitions, on its own merits, in accordance with law and uninfluenced by the observations made in the impugned judgment. All questions raised rt in the writ petitions, or for that matter, in the replyaffidavit and including available to the respective parties are left open to be ou decided afresh. 5. APPEALS disposed of accordingly, so also the pending application(s), if any. 6. WE place on record the assurance given by the learned counsel for the State that the State will take steps to challenge the decision in the third petition (CWP No. 8380 of 2010) within two weeks from today, so that even that appeal can be disposed of on the same terms and the parties in all the three writ petitions would stand relegated before the learned Single Judge for reconsideration of the respective petitions. Copy of this order be forwarded to the Chief Secretary and Law Secretary to the Government of Himachal Pradesh for information and necessary action.