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Himachal Pradesh High Court · body

2018 DIGILAW 366 (HP)

N K Arya (retd ) v. Cantonment Board

2018-03-15

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J —Present petition has been filed for grant of revised basic pay of Rs. 15, 100/-, alleging wrong fixation of his pay scale w.e.f. 1.1.1996 on revision of pay scale vide Pay Scale Rules, 1998 issued by the State of Himachal Pradesh and against payment of lesser rate of interest against deposit in GPF and also for extension of benefit of Assured Carrier Progression Scheme dated 13.12.1998 introduced by the State of Himachal Pradesh for regular employees adopted by the respondent. 2. I have heard learned counsel for the parties and have also gone through the records of the case. 3. It is undisputed fact that petitioner being MBBS, was appointed as Sub Incharge in Cantonment Dispensary in the year 1972 and the post was re-designated as Resident Medical Officer w.e.f. 1.11.1982. It is also admitted that revision of pay scale and Assured Carrier Progression Scheme notified by State of Himachal Pradesh to its employees are also applicable in present case. Pay scales of services, including H.P. Health Services Class-1 (Generalist) were revised by the State Government vide notification dated 1.9.1998 w.e.f. 1.1.1996. Initially, grant of four tier pay scale to H.P. Health Services Class-1 (Generalist) along with some other categories was withheld with the objective of framing guidelines for such releases and such guidelines were issued by the Government of Himachal Pradesh on 23rd June, 2000 (Annexure PB) for implementing the four tire pay scale in respect of these categories, including H.P. Health Services Class-1 (Generalist) . These guidelines were to be effective w.e.f. 1.1.1996 and it was considered to be Assured Career Progression Scheme, in respect of these categories. 4. State of Himachal Pradesh had also introduced Assured Carrier Progression Scheme for regular employees of Government which was circulated vide communication dated 15th December, 1998 (Annexure RF) . 5. On 1.1.1996, petitioner was in pre-revised scale of Rs. 3700- 100-4000-125-5000-150-5300 and his basic pay at that time was Rs. 4,625/- and after revision of pay scale, pay scale of petitioner was fixed in the pay scale of Rs. 14300-400-15900-450-18150/-. 6. Petitioner was not granted benefit of Assured Carrier Progression Scheme, referredand also paid lesser rate of interest against his GPF in comparison to Government employees. 7. 3700- 100-4000-125-5000-150-5300 and his basic pay at that time was Rs. 4,625/- and after revision of pay scale, pay scale of petitioner was fixed in the pay scale of Rs. 14300-400-15900-450-18150/-. 6. Petitioner was not granted benefit of Assured Carrier Progression Scheme, referredand also paid lesser rate of interest against his GPF in comparison to Government employees. 7. For redressal of his grievances, petitioner had made various representations to respondent Board, either himself or through Employees Union, some of which have been placed on record as Annexures P-D, P-E, P-G, P-H, P-I and P-J. A legal notice (Annexure P-K) dated 11th July, 2005 was also served upon respondent through an Advocate by the petitioner. In response whereof, respondent Board had replied vide letter dated 29.7.2005 (Annexure P-L) justifying interest on GPF and non-grant of benefit of fixation of pay scale, payment of rate of ACP Scheme. 8. The petitioner had also filed a Civil Writ Petition No. 984 of 2005, which was disposed of by this Court vide judgment dated 4th July, 2007 with direction to respondents to decide the petitioner''s case and also his representations within four weeks, from the date of receipt of order. Review preferred against the said order by the respondent was also dismissed on 3.9.2007 on the ground that respondents were only directed to decide the matter pending before it. 9. Thereafter, respondent took a decision rejecting the claim of the petitioner with respect to fixation of his pay, as requested by him in accordance with fitment table issued with the Pay Revision Rules, 1998, grant of benefits of Assured Carrier Progression Scheme, 1998 with further clarification that rate of interest on GPF was being paid as per Rule 43 of CFS Rules, 1937. The decision taken in proceedings of hearing dated 23.5.2008 was communicated to the petitioner vide Annexure P-O, which led to filing of present petition. 10. Petitioner along with other documents has also placed on record the extract of fitment table published with Pay Revision Rules, 1998 with respect to pre-revised scale of Rs. 3700-100-4000-125-5000- 150-5300. 11. In response to the petition, grounds taken for rejection of the claim of the petitioner in Annexure P-O have been reiterated. 10. Petitioner along with other documents has also placed on record the extract of fitment table published with Pay Revision Rules, 1998 with respect to pre-revised scale of Rs. 3700-100-4000-125-5000- 150-5300. 11. In response to the petition, grounds taken for rejection of the claim of the petitioner in Annexure P-O have been reiterated. Along with this reply, extract of Rule 40 of Cantonment Fund Servant Rules, 1937 has been placed on record and calculation of pay fixation after revision of pay scale along with sanction of final pension/gratuity/death gratuity in respect of petitioner on his retirement has also been placed on record. 12. Relying upon High Court Employees Welfare Assn., Calcutta and others Vs. State of W.B. and others , (2007) 3 SCC 637 , learned counsel for the petitioner has contended that issuance of pay scale has to be followed by a fitment in the revised pay scale in the case of existing employees, who are receiving the pay under unrevised pay scale and formula and principal of fitment provided either in the pay revision rules or by separate orders, is to be made basis for fixation of pay in the revised pay scale and the employees already in service are not to be treated as new recruits so as to fix their pay scale at the lowest stage of the applicable pay scale, but at the stage, which is corresponding to their basic pay which they are getting at the time of revision of pay scale. Learned counsel for the petitioner has also put reliance upon the pronouncement of the Apex Court in State of Madhya Pradesh Vs. Mala Banerjee , (2015) 7 SCC 698 for persuading his claim for grant of benefit of Assured Carrier Progression Scheme. 13. On the contrary, learned counsel for the respondent has argued that as explained in the reply to notice (Annexure P-L) and proceedings of hearing rejecting the claim of petitioner (Annexure P-O) , respondent Board has committed no mistake in fixation of pay of the petitioner and also rejecting his claim for grant of benefit of Assured Carrier Progression Scheme. He further submitted that so far as rate of interest on GPF is concerned, the same has been also awarded in consonance with the Rules applicable in this regard. He further submitted that so far as rate of interest on GPF is concerned, the same has been also awarded in consonance with the Rules applicable in this regard. Learned counsel for the respondent has advocated that fixation of pay scale as undertaken in office order No. 218 dated 13.5.2004, placed on record with Annexure R-D, is in consonance with the Pay Revision Rules, 1998 and the same has, resulted into enhancement of Rs. 1925/- per month to the petitioner. It is also pointed out that benefit of Assured Carrier Progression Scheme is not available to the category of employees who have been allowed three or more grade structure of pay scale under Rules 1998. 14. It is admitted fact that prior to revision of pay scale, petitioner was in the pay scale of Rs. 3700-100-4000-125-5000-150-5300 and as on 1.1.1996, his basic pay was Rs. 4625/-. In fitment table placed on record by the petitioner with Annexure PC, corresponding salary for basic pay of Rs. 4625/- in the revised scale is Rs. 15, 100/-. This table has not been disputed in reply, however, learned Central Government Counsel, under instructions of Mrs.Nirmala Chandel, Office Superintendent present in the Court along with record, has invited the attention of Court towards fitment tables published in Behal''s Ready Reckoner, wherein corresponding pay scale in fitment table for Rs. 4625/- has been indicated as Rs. 14, 300/-. Perusal of said table indicates that this fitment table is with respect to pay scale of Rs. 4500-125-5000-150-5900-200-6700/-. This fitment table does not pertain to the pay scale of Rs. 3700-100-4000-125- 5000-150-5300. There is also reference of this pay scale in another table in the Ready Reckoner produced by learned Central Government Counsel, but there also the pay scale of Rs. 3700-100-4000-125-5000-150- 5300/- is not starting pay scale, but it starts from pay scale of Rs. 3000- 100-4000-125-5000-150-5300/-. Therefore, only fitment table on record, applicable to unrevised pay scale of Rs. 3700-100-4000-125-5000-150- 5300/-, is the table placed by petitioner with Annexure P-C. Plea of respondent that vide office order No. 218, dated 13.5.2004, on re-fixing of pay scale of petitioner, petitioner has gained benefit of Rs. 1925/- and as such his claim is not sustainable, is a misconception. 15. As observed by the Apex Court in High Court Employees Welfare Association''s case, pay scale has different stages. It starts with initial pay and ends with ceiling. 1925/- and as such his claim is not sustainable, is a misconception. 15. As observed by the Apex Court in High Court Employees Welfare Association''s case, pay scale has different stages. It starts with initial pay and ends with ceiling. It also denotes the annual increments payable to the employee on basic pay during the interregnum between initial pay and the highest basic pay in the said scale, as the basic pay started from initial pay keeps on increasing after grant of annual increment in the basic pay. Therefore, fitment table, corresponding to various stages of basic pay of unrevised pay scale and revised pay scale, is a devise to ascertain the fixation of pay of the serving employee in the new pay scale. In office order No. 218 dated 13.5.2004 (Annexure RD) , existing pay scale and revised pay scales have been rightly shown as 3700-100-4000-125-5000-150-5300 and 14300-400-15900-450-18150. Existing basic pay of petitioner has also been correctly reflected as Rs. 4625/-. But instead of fixing his pay on the basis of fitment table, his pay has been fixed at initial start of the revised pay scale at Rs. 14, 300/-. Here, the respondent Board has committed a mistake by fixing the revised pay scale of petitioner at initial start of revised pay scale instead of fixing at pay scale corresponding to his existing basic pay, as the pay scale of the petitioner after revision of pay scale was to be fixed in accordance with fitment table corresponding to his basic pay existing on the date of revision and in present case, it would have been Rs. 15, 100/-. Needless to say that petitioner shall also be entitled for annual increments in the said revised pay scale accordingly. 16. So far as Assured Carrier Progression Scheme, 1998 (Annexure R-E) is concerned, as indicated in exception clause, this scheme was applicable to all employees, except in respect of such categories of employees who had been allowed three or more grade structure of pay scale under the Rules, 1998 or for whom, benefit of carrier progression was already available under any Rules and Instructions notified earlier. In reply to the notice (Annexure PL) as well as proceedings rejecting the claim of the petitioner (Annexure PO) , it is clearly mentioned, which is not disputed, that Medical Officers in Himachal Pradesh Government, to which category petitioner belonged, were entitled for following pay scales on completion of certain period of their service. "1. 7880-13500 initial Rs.8000/- 2. 10025-15100 after completion of four years regular service 3. 12000-15500 after completion of nine years regular service. 4. 14300-18150 after completion of 14 years regular service." Therefore, petitioner was belonging to the category which was allowed three or more grade structure of pay scale under Rules 1998 and to which the Assured Carrier Progression Scheme, 1998 was not applicable and therefore, he was not entitled to derive the benefit out of said scheme and respondent Board has rightly rejected his claim on this issue. 17. Further, petitioner himself has placed on record Annexure PA, PB, i.e. guidelines for grant of four tire pay scale and it is undisputed that these guidelines covers the post of the petitioner. It is evident from these guidelines that four tire pay scale was granted to the category of H.P. Health Services Class-I (Generalist) , which was corresponding category of the petitioner''s post. In its eligibility clause it is clearly mentioned that it was an Assured Carrier Progression Scheme in respect of categories covered in these guidelines which includes category of petitioner. 18. Employer has a right to frame different policies for its employees, based on intelligible classifications of various categories of employees. Employer has a right to take a decision as to which of the policy is to be applicable to a particular category of employees. As observed in Mala Banerjee''s case , judicial review in a policy matter is only permissible when the policy is contrary to law or in violation of provisions of the Constitution or arbitrary or irrational. In present case, category of petitioner has been excluded from applicability of ACP Scheme (Annexure RE) . However, his category has been granted four tire pay scale in lieu of that and the said grant of four tire pay scale has been provided as Assured Carrier Progression Scheme in respect of his category. Therefore, there is no illegality, irrationality, arbitrariness or unconstitutionality in the action of respondent board. Hence on this count petitioner is not entitled for any review. 19. Therefore, there is no illegality, irrationality, arbitrariness or unconstitutionality in the action of respondent board. Hence on this count petitioner is not entitled for any review. 19. It is fairly submitted by learned counsel for the petitioner that grant of rate of interest on the GPF of the petitioner was to be governed by Cantonment Fund Servant Rules, 1937 and as per reply of the respondent, the rate of interest has been granted accordingly and thus nothing survives to be adjudicated on this issue. 20. With the aforesaid observations, present petition is party allowed and disposed of with direction to the respondent Board to fix the pay scale of the petitioner according to corresponding fitment table of pay scale of Rs. 3700-100-4000-125-5000-150-5300/- in the revised pay scale i.e. Rs.4300-400-15900-450-18150/- with basic pay of Rs. 15, 100/- along with annual increments w.e.f. 1.1.1996 and other consequential benefits, including pensionary benefits etc. and to calculate the arrears payable to the petitioner within three months from today and pay the same to the petitioner within the same period. 21. The petition stands disposed of, so also the pending application(s) , if any.