Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 641 (HP)

BALDEV SINGH v. STATE OF H. P.

2016-05-02

PREM KUMAR, V.K.SHARMA

body2016
JUDGMENT : 1. Both these matters requiring common appreciation of facts and law, are taken up together for discussion and decision. However, for the sake of convenience, facts are taken from T.A. No. 889 of 2015, Sh. Baldev Singh v. State of H.P. and another. 2. On or about 15th July, 1987, the applicant (since retired as Superintendent Grade-I) was working as Assistant in the pay scale of Rs.570-1080. At that time he was posted in the office of the Block Primary Education Officer, Udaipur, District Lahaul & Spiti. Vide office order dated 15th July, 1987, Annexure P-2, on the recommendation of the Departmental Promotion Committee (in short DPC), he (Sr. No.25) was promoted as Assistant in the pay scale of Rs.600-1120 on officiating basis. It shall be pertinent to notice at this juncture that though nomenclature of both the posts in the lower and higher grades was the same, that is, Assistant, yet the fact remains that whereas the pre-promotional scale of Rs.570-1080 was lower, post-promotional scale of Rs.600-1120 was higher. Accordingly, his pay was fixed at Rs.725/-, vide office order dated 25th November, 1987, Annexure P-3. 3. However, after a long lapse of about twenty-four years, the applicant was served with a show cause notice dated 16.7.2011, Annexure P-4, text whereof is as under:- "No. EDN-H(Ele)(1)B(7)-3/2009-Pay Fix Directorate of Elementary Education Himachal Pradesh, Lal Pani, Shimla-1 71001 Dated the Shimla-1 the July, 2011 Sh. Baldev Singh, Superintendent Gr.-I, o/o the Dy. Director of Ele. Education, Kullu, H.P. Subject: - Regarding re-fixation of pay w.e.f. 17-08- 1987 by withdrawing the benefit of FR-22(l)a(1). Madam/Sir, On the subject cited above, it is to inform you that after perusal of your service-book received in this Directorate in connection with fixation of pay or: your promotion as Superintendent Gr.-I, the following discrepancies have been noticed:- That you joined on promotion as Asstt. on 17-08-1687 in the pay scale of Rs. 600-1120 on officiating basis and you had been allowed the benefit under FR-22(I )a(1) from the date of joining as Asstt; whereas, prior to this, you had already been holding the post of Asstt. in the pay scale of Rs.570-1080 w. e.f. 23-04-1982. However, on account of revision of pay scales w.e.f. 1-01-1986, both these scales i.e. Rs 570-1 080 and Rs.600-1 120 were clubbed together as scale of Rs. 1800-3200 and re-designated as Sr. Asstt. in the pay scale of Rs.570-1080 w. e.f. 23-04-1982. However, on account of revision of pay scales w.e.f. 1-01-1986, both these scales i.e. Rs 570-1 080 and Rs.600-1 120 were clubbed together as scale of Rs. 1800-3200 and re-designated as Sr. Asstt. Therefore, the benefit under FR-22(l)a(1) is not admissible on promotion/placement to the identical scale in same post. Hence, the benefit under FR-22(l)a(1) allowed to. you on 17-08-1987 is not, in order, under rules. In view of above, your pay requires to be re-fixed w.e.f. 17-08-1987 and the benefit under FR 22(l)a(1) which has been allowed in contravention of rules is to be withdrawn. You are, therefore, hereby given an opportunity of making a representation on the above proposal. Such a representation, if any, should be made in writing and submitted so as to reach this office by 6th August, 2011. Director." 4. The applicant submitted reply to the show notice dated 16.07.2011, Annexure P-4, vide Annexure P-5, dated 21st July, 2011 (Annexure P-2, dated 16.07.2011 in T.A. No.890 of 2015), which did not find favour with the appointing authority, respondent No.2, the Director Elementary Education, Himachal Pradesh, who passed the impugned order dated 16th September, 2011, Annexure P-6 (Annexure P-3 in T.A. No.890 of 2015), which reads as under:- "No. EDN-H(Ele)(1 )B(7) -3/2009-Pay Fix Directorate of Elementary Education Himachal Pradesh, Lal Pani, Shimla-1 71001 Dated the Shimla-1 the September, 2011 To Sh. Baldev Singh, Superintendent Gr.-I, o/of the Dy. Director of Ele. Education, Kullu, H.P. Subject: - Regarding re-fixation of pay w.e.f. 17-08-1987 by withdrawing the benefit of FR-22(I)a(1). Madam/Sir, Refer to your letter dated 21st July, 2011 vide which you have made a representation against the above cited proposal of re-fixation of your pay w.e.f. 17-08-1987 by withdrawing the benefit of FR-22(I)a(1) given in revised Pay Scales. In this regard, it is to inform you that the matter was considered at length at the Directorate level and it has been observed that you were designated as Sr. Assistant in the pay scale of Rs. 1800-3200 w.e.f. 1-1-1986 and were not covered as per the provisions of letter dated 5th August, 1989 and 31 st October, 1991. Therefore the benefit of FR- 22 given to you is not in order. Hence, your pay needs to be re-fixed by withdrawing the benefit of FR-22 given in revised pay scales applicable w.e.f. 01-01-1 986. Director Endst. 1800-3200 w.e.f. 1-1-1986 and were not covered as per the provisions of letter dated 5th August, 1989 and 31 st October, 1991. Therefore the benefit of FR- 22 given to you is not in order. Hence, your pay needs to be re-fixed by withdrawing the benefit of FR-22 given in revised pay scales applicable w.e.f. 01-01-1 986. Director Endst. No. even the September, 2011 Copy forwarded for information and necessary action to:- 1. The Deputy Director of Elementary Education, Kullu, Distt. Kullu, H.P. 2. Guard file. Director." 5. Consequently, the impugned office order dated 17th September, 2011, Annexure P-1 (also Annexure P-1 in T.A No.890 of 2015), was issued where under pay of the applicant was re-fixed to his detriment by withdrawing the benefit of F.R. 22(C) extended vide office order dated 25th November, 1987, Annexure P-3. Being aggrieved, the applicants are before this Tribunal on the following substantive prayers (i) and (ii):- (i) "That the respondent: may kindly be directed to restore the earlier pay fixation with all its consequential benefits retrospectively by quashing impugned pay fixation Order dated 17.9.2011 (Annexure P-1) and order dated 16th Sept., 2011 (Annexure P-6) in the interest of justice and fair play. (ii) That the respondents may also kindly be directed not to effect any recovery of alleged over/excess payment as pointed out on re-fixation of pay by the Respondent No.2 Director Ele. Education HP since the petitioner has not misrepresented his case in any manner when his pay was fixed under FR -22-C by the respondent department on his promotion during the year 1987." 6. We have heard the learned counsel for the applicants and the learned Additional Advocate General assisted by the learned Deputy Advocate General and perused the record. 7. In support of the above prayers, the applicants have relied upon the law laid down by the Honble Supreme Court in Syed Abdul Qadir and Others v. State of Bihar and Others, (2009) 3 SCC 475 , head note-B and the Hobble High Court of Himachal Pradesh in Ram Lal Sharma and Others v. State of H P. and another, CWP No. 8451 of 2008, decided on 30th November, 2010, Tripta Devi v. State of H.P. and another, CWP No. 8165/2014, decided on 20.3.2015 and Ram v. Himachal Road Transport Corporation and others, CWP No. 9550/2013, decided on 25.6.2015. 8. 8. The precise ground on which the benefit of F.R. 22(C) extended in favour of the applicant pursuant to promotion on officiating basis from Assistant in the pay scale of Rs.570-1080 to a post carrying same nomenclature as Assistant in the pay scale of Rs.600-1 120, vide office order dated 15th July, 1987, Annexure P-2 (Annexure P-6 in TA No.890 of 2015) on the basis of which his pay was fixed under F.R. 22(C) vide office order dated 25th November, 1987, Annexure P-3, is that he was designated as Senior Assistant in the pay scale of Rs. 1800-3200 with effect from 01.01.1986 and as such was not covered under office memoranda dated 5th August, 1989, Annexure P-7 (Annexure P-4 in T.A. No.890 of 2015)and 31st October, 1991, forming part of Annexure P-8 (Annexure P-5 in T.A. No.890 of 2015). However, the fact remains that the promotion was from a lower scale to a higher scale carrying higher duties and responsibilities as Assistant (Hqr./Senior) as compared to the Assistant in the office of BPEO at Udaipur, District Lahaul & Spiti. 9. Secondly, the applicant is squarely covered under situation (i) contemplated under office memorandum dated 5th August, 1989, Annexure P-7 (Annexure P-4 in T.A. No.890 of 2015) as having arisen between the dates of 1.1.1986 and the date of issue of orders for revision of pay scale of that particular category of post carrying higher duties and responsibilities. 10. Though the benefit of F.R. 22(C) on promotion in identical pay scale was withdrawn vide O.M. of similar number dated 29.8.1990, yet the fact remains that it was subsequently restored vide office memorandum dated 31st October, 1991, forming part of Annexure P-8 (Annexure P-5 in T.A. No.890 of 2015), subject to the condition that where the event of promotion after 1.1.1986 till the date of revision of scales of these posts has taken place more than once, the benefit of F.R. 22(C) will be available only once. 11. According to the applicant, benefit of F.R. 22(C) was extended to him without any misrepresentation or fraud etc. on his part. 11. According to the applicant, benefit of F.R. 22(C) was extended to him without any misrepresentation or fraud etc. on his part. Further, since the promotion was from the post of Assistant in the pay scale of Rs.570-1080 to a post carrying the same nomenclature as Assistant in the higher pay scale of Rs.600-1 120 and the consequent posting from the post of Assistant in the office of BPEO Udaipur, District Lahaul & Spiti was to that of Assistant (Hqr./Senior) in the Directorate carrying higher duties and responsibilities, his case was squarely covered under memorandum dated 5th August, 1989, Annexure P-7, read with memorandum dated 31st October, 1991, forming part of Annexure P-8 (Annexure P-5 in T.A. No.890 of 2015). The action on the part of the respondents to withdraw the benefit after long lapse of twenty-four years and that too only from the applicant(s) and leaving their seniors/juniors similarly situate, is discriminatory in nature and, thus, violative of Articles 14 and 16 of the Constitution. 12. In the result, the transferred applications succeed and are accordingly allowed and the impugned office orders dated 17th September, 2011, Annexure P-1 (in both the T.As.) and the impugned orders dated 16th September, 2011, Annexure P-6, in T.A. No.889 of 2015 and Annexure P-3 in T.A. No.890 of 2015, are quashed. As a result, consequential benefits, if any, shall be payable to the applicants, as expeditiously as possible, but in any case not later than 30th June, 2016, as they stand already retired from Government service in December, 2012 and May, 2013, respectively, as Superintendent Grade-I. 13. The transferred applications as also miscellaneous application(s), if any, stand disposed of in the above terms. 14. Let a duly signed copy of the order be placed in T.A. No.890 of 2015. In the Court of Narinder Chauhan, Financial Commissioner (Appeals) Himachal Pradesh at Shimla.