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Uttarakhand High Court · body

2016 DIGILAW 734 (UTT)

Richa Mina v. State of Uttarakhand

2016-10-19

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. 1. The issue raised in all these writ petitions is common. 2. Pursuant to an advertisement issued calling for applicants for a walk-in-interview for appointment as Contractual Senior Residents, the petitioners in all these cases applied. The salary, which was mentioned in the advertisement, was Rs. 85,928/- per month approximately. The pay band was mentioned as Rs. 15,600-39,100 and the grade pay was mentioned as Rs. 6,600/-. This was besides allowances. The petitioners were appointed vide order dated 12.08.2015 on contractual basis for two years. Therein, the figure Rs. 85,928/- was conspicuous by its absence, but the pay band was mentioned, as was indicated in Annexure No. 1 advertisement and it was shown as Rs. 15,600-39,100. The petitioners started receiving the salary on the said basis. Thereafter, by Annexure No. 6 dated 21.11.2015, which is the impugned order, the salary of the petitioners has been reduced. The English translation of the said order reads as under: “From Om Prakash, Chief Secretary, Uttarakhand State. To, Director, Department of Medical Education Directorate, Chandar Nagar Dehradun. Department of Medical Education –1 Dehradun dated 21 November 2015 Subject :- Regarding revision of pay scale of Senior Resident and Junior Resident Doctors of Government Medical College, Haldwani and Veer Chandra Singh Garhwali Government Medical Science and Research Institute, Srinagar Garhwal working on contract basis. Sir, Kindly refer to your Letter No. 26P/Chi. Shi./192/2015/11000 dated 10.09.2015 in respect to above subject, by means of which you have requested to equal the pay scale of the Senior Resident and Junior Resident working on contract basis in Government Medical College, Haldwani revising to the salary at Veer Chandra Singh Garhwali Government Medical Science and Research Centre, Srinagar Garhwal fixed as per the government order no. 656/XXVIII(1)/2009-33/2009 dated 14.10.2009 and Uttarakhand Medical Education Service Regulations, 2014. 2. In furtherance of above I have been directed to state that in relation to revising the pay scale of Senior Resident and Junior Resident working on contract basis in Government Medical College, Haldwani and Veer Chandra Singh Garhwali Government Medical Science and Research Institute, Srinagar Garhwal, Mr. Governor grants approval to the following revised pay scale superseding the government order no. 656/XXVIII(1)/2009-33/2009 dated 14.10.2009:- ANNEXURE NO. S. No. Post of Doctor Sanctioned Pay Band (in Rs.) from 01.04.2009 Sanctioned Grade Pay (in Rs.) from 01.04.2009 Total after adding Grade Pay on the minimum of Pay Band 1. Governor grants approval to the following revised pay scale superseding the government order no. 656/XXVIII(1)/2009-33/2009 dated 14.10.2009:- ANNEXURE NO. S. No. Post of Doctor Sanctioned Pay Band (in Rs.) from 01.04.2009 Sanctioned Grade Pay (in Rs.) from 01.04.2009 Total after adding Grade Pay on the minimum of Pay Band 1. Junior Resident Rs. 15,600-39,100 Rs. 5,400 Rs. 21,000 2. Senior Resident Rs. 15,600-39,100 Rs. 6,600 Rs. 22,200 3. The above revised pay scale will be provided after adding sanctioned non-practice allowances provided as per Government Order No. – 216/XXVII-2-2009-88/2003 dated 28.02.2009. 4. Apart from above, other allowances which are sanctioned to them will be payable as per the sanctioned rate to the employees of the state government. 5. In case the employees working on above post in above Government Medical colleges have been given more sanctioned salary, allowances, etc. than they will be payable as per revised from the date 01 April, 2009 and recovery will be done of more amount paid. In this regard, the Government orders issued time to time will be deemed to be amended to that extent. This order is being issued after getting approval from Finance Department vide Government order no. 862/XXVII(7)/2015, dated 11.2015. Yours Sincerely Sd/- II. (Om Prakash) Chief Secretary No. 3070/XXVIII(1)/2015/33/2009, as dated Copy to the following for information and necessary action:- 1. Accountant General (Accounts &Entitlement) Maajra, Dehradun 2. Commissioner, Kumaon/ Garhwal Region 3. District Magistrate, Nainital/Pauri Garhwal 4. Additional Director, Medical Education department, Directorate, 107, Chandar Nagar, Dehradun 5. Principal, Government Medical College, Haldwani/Srinagar Garhwal 6. Senior Treasury Officer, Nainital/Pauri Garhwal 7. Guard file. By order Sd/- II. (G.N. Pant) Deputy Secretary” 3. Accordingly, the petitioners are before us seeking the following reliefs (WPSB 205 of 2016): “(a) Issue a writ, order or direction in the nature of mandamus directing the respondents to continue to pay the petitioner her salary, etc. as per the advertisement and government order dated 14.10.2009 as was being paid to her before the issuance of Government order dated 21.11.2015. (b) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the difference of Rs.29,565 for the salary of the month of December 2015. (c) Issue a writ, order or direction in the nature of certiorari quashing & setting aside the government order dated 21.11.2015 issued by the State Government and further orders dated 11.12.2015 and order dated 19.01.2016. (c) Issue a writ, order or direction in the nature of certiorari quashing & setting aside the government order dated 21.11.2015 issued by the State Government and further orders dated 11.12.2015 and order dated 19.01.2016. (d) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay to the petitioner the difficult area allowance as per the government order dated 31.03.2015 and arrears of the difficult area allowance with interest since 31.03.2015.” 4. Counter affidavit and the rejoinder affidavit have been filed. 5. In the counter affidavit filed in Writ Petition (S/B) No. 205 of 2016, it is essentially stated as follows: “3. That it is submitted here that vide Government Order dated 14.10.2009 the salaries of Junior resident was fixed on the pay band of Rs. 15600-39100+grade pay of Rs. 5400 and for the Senior resident it was 15600-39100+grade pay of Rs. 6600. It is stated that while adding the aforesaid pay for calculation of the basic salary in the table, the basic pay of the Senior resident was mistakenly typed as 33000/-, though, it should have been typed as 22200 (15600+6600). It is stated that since the aforesaid mistake was of purely bona-fide clerical mistake. That it is pertinent to submit here that when the aforesaid mistake was realized the Government order dated 21.11.2015 was issued for correction of the clerical mistake. It is stated that due to the aforesaid correction of mistake the pay admissible to the petitioner has been reduced.” 6. We heard Mr. Lalit Belwal, learned counsel for the petitioners and Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand/respondents. 7. Learned counsel for the petitioners would submit that, in the order, which is impugned, the Government has not set out a case of any clerical error or any error. He further complains of violation of principles of natural justice insofar as the impugned order has been passed depriving the petitioners of the benefit they were getting without affording an opportunity of hearing to them. It is further submitted that the case of the respondents appears to be that the pay band being Rs. 15,600-39,100 with grade pay of Rs. 6,600/- in Annexure No. 3 Government order dated 14.10.2009, by a mistake, instead of the total being Rs. 22,200/- i.e. by adding Rs. 15,600/- (basic pay) with Rs. 6,600/- (grade pay), the figure is shown as Rs. 15,600-39,100 with grade pay of Rs. 6,600/- in Annexure No. 3 Government order dated 14.10.2009, by a mistake, instead of the total being Rs. 22,200/- i.e. by adding Rs. 15,600/- (basic pay) with Rs. 6,600/- (grade pay), the figure is shown as Rs. 33,000/-. It is a clear case of a mistake and the petitioners, according to the State cannot base a cause of action on the mistake committed. Per contra, Mr. Lalit Belwal, learned counsel for the petitioners would in fact submit that it is not correct to characterize it as a mistake and in this regard, he drew our attention to the Rules relating to pay fixation (Annexure RA-2). In particular, he drew our attention to Clause (F) “pay fixation of the direct recruits (probationers)”. Since we are concerned only with PB-3, namely, Rs. 15,600-39,100, we extract the same as follows:- PB-3: 15600-39100 Grade Pay Pay in the Pay Band Total 5400 15600 21000 6600 18750 25350 7600 21900 29500 8. Therefore, he would submit that it is not correct on the part of the Government to contend that it is just a matter of totaling the minimum of the scale with the grade pay and fix the basic pay. This aspect is disputed by the learned Chief Standing Counsel. 9. There is another argument raised by Mr. Lalit Belwal, learned counsel for the petitioners. He would point out that a perusal of the Government Order dated 14.10.2009 would show that the context, in which the said Government Order was issued, was that a request was made that there must be pay parity between the Junior Residents and Senior Residents working at Haldwani with the Junior Residents and Senior Residents working at Government Medical College, Srinagar. It is in that context, however, that the Government has issued the pay scale, which is impugned. 10. Petitioners also have a case that there is a promise made in the advertisement of salary of Rs. 85,928/- approximately. To this, of course, the reply of the learned Chief Standing Counsel is that in the appointment order, the pay band alone is mentioned. Learned Chief Standing Counsel also would submit that both the orders, i.e. order dated 04.10.2009 and the impugned order speak about the minimum of the pay band being added to the grade pay. 11. 85,928/- approximately. To this, of course, the reply of the learned Chief Standing Counsel is that in the appointment order, the pay band alone is mentioned. Learned Chief Standing Counsel also would submit that both the orders, i.e. order dated 04.10.2009 and the impugned order speak about the minimum of the pay band being added to the grade pay. 11. In the first place, we notice that, in the advertisement pursuant to which the petitioners applied and were ultimately selected and appointed, there is a mention of salary of Rs. 85,928/- approximately. It is undoubtedly true that there is also reference to pay band of Rs. 15,600-39,100. Subsequently, in the appointment order, it is again true that there is no mention of any aggregate salary as such, but the pay band is mentioned with the grade pay and allowances. The petitioners were being paid much higher amounts than they would get under the impugned order. It is thereafter, that in connection with a request for parity between the officers in the Medical College at Haldwani and the Medical College at Srinagar that the impugned order was passed providing for the basic pay of the Junior Residents and the Senior Residents. We would think that, by this order, undoubtedly, there is a reduction in the pay scale or rather, in the emoluments, which the petitioners were getting. It is described as an error by the learned Chief Standing Counsel. This is disputed. In a situation, where a person is getting a benefit and it is sought to be taken away, we would think that principle of fairness requires that they are given an opportunity to show that the authority may be in error or is likely to fall in error. Employment is the new form of wealth. The emoluments received through employment constitute property. Depriving the same without affording an opportunity to the petitioners, who have challenged the order, in our view, is therefore vulnerable and infirm and is liable to be interfered with. The petitioners have come to Court challenging it. Therefore, qua the petitioners, we cannot uphold the said order. 12. Therefore, the impugned orders in all these writ petitions qua the petitioners respectively will stand quashed. The petitioners have come to Court challenging it. Therefore, qua the petitioners, we cannot uphold the said order. 12. Therefore, the impugned orders in all these writ petitions qua the petitioners respectively will stand quashed. The petitioners will appear before the Principal Secretary, Medical Education on 09.11.2016 at 11:00 A.M. The Principal Secretary, after hearing them, will take a decision in accordance with law, within a period of two weeks. 13. For the month of October, 2016, the salary to be paid to the petitioners will be calculated on the basis of Rs. 25,200/- being the minimum basic pay and they will be entitled also to D.A. and other allowances on that basis. This will be tentative and subject to the final decision to be taken by the Principal Secretary. If the Principal Secretary finds merit in the contentions of the petitioners, necessarily, the amounts, which have been deducted from the salary of the petitioners, will be paid to them within a period of one month from the date of the decision. If the contentions of the petitioners are not accepted, then, necessarily, the amounts can be recovered, if need be as per the said decision. We make it clear that we are not pronouncing on the merits of the matter. 14. The petitioners also have a case about not being paid the difficult area allowance. We leave it open to the petitioners to represent their grievance before the competent authority and it is for the competent authority to take a decision in that regard.