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Punjab High Court · body

2017 DIGILAW 765 (PNJ)

Om Parkash v. State of Haryana

2017-03-18

P.B.BAJANTHRI

body2017
JUDGMENT : P.B. BAJANTHRI, J. 1. By this common order, the above Civil Writ Petitions shall be disposed of as the issue involved in all these cases are identical. For brevity, facts are being taken from CWP No.17496 of 2014. 2. In the instant writ petition, the petitioners have questioned the validity of the impugned condition stipulated in Annexure P-3. Extract of Annexure P-3 reads as under:- “5. These orders shall be applicable with immediate effect i.e. w.e.f. issuance of these orders. In such cases where ACP has already been granted, the existing ACP Grade Pay shall be replaced with modified ACP Grade pay without the benefit of increment. Other terms and conditions for grant of ACP Grade Pay and fixation of pay therein shall remain unchanged.” Further the petitioners have sought for a direction to the respondents to extend the benefit of modified ACP Grade pay and grant of ACP scale w.e.f. 1.1.2006 from the date the pay revision was actually given effect. In these bunch of petitions some of the petitioners are in service as on 4.3.2014 and some of them are retired. Thus, they form a separate class of persons. Having regard to the status of the petitioners read with order dated 4.3.2014 vide Annexure P-3, question for consideration is whether order dated 4.3.2014 which has been issued while invoking under Rule 26 and Rule 28 of the Haryana Civil Services (Assured Career Progression) Rules, 2008 dated 30.12.2008 while giving effect from 1.1.2006 is applicable to those who are in service and those who are retired as on 4.3.2014 or not. The State Government issued Rules called Haryana Civil Services (Assured Career Progression) Rules, 2008 on 30.12.2008. These Rules deemed to have come into force on 1.1.2006. For the purpose of deciding the present litigation, it is necessary to read Rule 2 which reads as under:- 2. Categories of Government servants to whom the rules apply (1) Save as otherwise provided by or under these rules, these rules shall apply to persons appointed to Civil Services and posts of group 'A', 'B', 'C' and 'D' in connection with the affairs of the Government of Haryana and whose pay is debitable to the Consolidate Fund of the State of Haryana and are mentioned in the Schedule I of these rules. (2) These shall not apply to:- a. Officers of Judiciary working in connection with the affairs of Haryana State; b. Persons not in whole time employment; c. Persons paid out of contingencies; d. Persons paid otherwise than on monthly basis, including those paid on a piece-rate basis or on the basis of daily wages or on consolidated contractual payment; e. Any other class or category of persons whom the Government may by order, specifically exclude from the operation of all or any of the provisions contained in these rules;” 3. The State Government on the representations and persistent demand of Haryana Government employes insofar as extending the benefit of ACP those who have completed 10, 20 and 30 years was modified to 8, 16, and 24 years, respectively on 4.3.2014. On 4.3.2014 itself the official respondents found that there was error in respect of first and second category insofar as modified ACP Grade Pay to the extent that 1650-1800-2000 (1st 2nd and 3rd ACP) instead of 1800-1900-2000 (1st 2nd and 3rd ACP). The same was noticed by the Department which is evident from the noting dated 4.3.2014 which reads as under: “It was agreed upon between the representatives of the Haryana Karamchari Talmel Committee and the State Govt. to provide the grade pay of Rs.1800/- and 1900/-respectively in 1st and 2nd ACP of Items No.1 & 2 of notification No.1/83/2008-1PR (FD), dated 04.03.2014. However, there is a minor mistake at the time of issuance of the order. Hon'ble CM has, therefore, ordered that necessary correction and amendment be made in the notification as per the agreement made with the representatives of the Haryana Karamchari Talmel Committee.” 4. Consequently, on the very same day while rectifying the first and second category of modified ACP Grade pay to the extent that 1800-1900-2000 (1st 2nd and 3rd ACP) issued an order in which top of the order it was stated “(to be substituted bearing with same number, point and date)”. These words are issued with reference to rectifying the error committed by the officials insofar as 1st and 2nd category of modified ACP Grade Pay. Therefore, it does not mean that the substitution of ACP Rules issued on 30.12.2008. These words are issued with reference to rectifying the error committed by the officials insofar as 1st and 2nd category of modified ACP Grade Pay. Therefore, it does not mean that the substitution of ACP Rules issued on 30.12.2008. In view of these factual aspects, learned counsel for the petitioners submitted that the petitioners who have already retired from service as on 4.3.2014 are entitled to benefit of 4.3.2014 order for the reasons that they have been granted the benefit of 10, 20 and 30 years ACP benefit which is required to be modified to 8, 16 and 24 years. It was further contended that the retired employees form a class and those who are in service, they form a class. There would be discrimination in extending the benefit of ACP vide order dated 4.3.2014. Hence, the retired employees are also entitled for the benefit of 4.3.2014 order. Therefore, condition cited supra is arbitrary and illegal. 5. On the other hand, learned counsel for the respondents vehemently contended that the ACP benefit which was introduced on 30.12.2008 has been modified to the extent of 8, 16 and 24 years instead of 10, 20 and 30 years due to persistent demand of Haryana Government employees. Therefore, it is not a substitution of 2008 Rules as contended by petitioners. Hence, those who are retired from service are not entitled for the benefit of 4.3.2014 order. 6. Heard learned counsel for the parties. 7. Crux of the matter is whether the benefit of order dated 4.3.2014 arising out of ACP Rules, 2008 could be extended to those who have retired prior to 4.3.2014 and to those who are in service as on 4.3.2014 or not. The order dated 4.3.2014 vide Annexure P-3 while invoking under Rule 26 and 28 of the Haryana Civil Services (Assured Career Progression) Rules, 2008 dated 30.12.2008 is not applicable to such of those retired employees who have retired prior to 4.3.2014 for the reasons that having regard to the applicability of Clause Rule 2 of the Haryana Civil Services (Assured Career Progression) Rules, 2008 cited supra is concerned is not applicable to the retired employees. Therefore, whatever the rules made under Haryana Civil Service (Assured Career Progression) Rules, 2008 read with the order dated 4.3.2014 is not applicable to those who have retired from service. Therefore, whatever the rules made under Haryana Civil Service (Assured Career Progression) Rules, 2008 read with the order dated 4.3.2014 is not applicable to those who have retired from service. Accordingly, insofar as petitioners who have retired from service prior to 4.3.2014, the present petition stands dismissed. 8. Learned counsel for the petitioners those who have retired from service relied on decision of this Court passed in LPA No.352 of 2014 (State of Punjab and others Vs. A.P. Sharma and others) has considered the effect of retro active. Therefore, in terms of the said decision even for the retired employees are entitled for benefit of ACP from retrospective date. Perusal of the facts of the case in LPA read with the present matter, it is entirely different. There the question is relating to pension whereas in the present case relates to ACP when the ACP Rules, 2008 is very specific to the extent of application of ACP Rules, 2008 those who are in service and not for the retired employees. Therefore, the cited decision by the petitioners counsel is distinguishable. The same is not applicable to the retired persons like petitioners in these bunch of petitions. 9. The persons who are in service prior to 4.3.2014, the benefit of order dated 4.3.2014 is applicable to the extent that grant of ACP to those who have completed 8, 16 and 24 years of service, the same cannot be denied prospectively i.e. after 4.3.2014. Having regard to the fact that 4.3.2014 order is not substitution to the 2008 Rules as is evident from the fact that on 4.3.2014 certain modified ACP Grade pay in respect of category I and II was incorrect. In order to rectify the same, the official respondents have proceeded to pass a fresh order on 4.3.2014 with reference to cited note (supra). In that context the word “(to be substituted bearing with same number and date)” has been indicated. In other words it does not mean that substitution of the 2008 Rules. It is only substitution of 4.3.2014 order to the extent of rectifying the category 1 and 2 and modified ACP Grade Pay from 10650-10800-2000 (1st 2nd and 3rd ACP) to 1800-1900-2000 (1st 2nd and 3rd ACP), respectively. In view of these factual and legal aspects the petitioners are not entitled for any benefit retrospectively. It is only substitution of 4.3.2014 order to the extent of rectifying the category 1 and 2 and modified ACP Grade Pay from 10650-10800-2000 (1st 2nd and 3rd ACP) to 1800-1900-2000 (1st 2nd and 3rd ACP), respectively. In view of these factual and legal aspects the petitioners are not entitled for any benefit retrospectively. In other words intervening period from 1.1.2006 to 4.3.2014 is applicable to only those who are in service as on 4.3.2014 and not for those who have retired from service prior to 4.3.2014. 10. With the above observations, writ petitions stand disposed of.