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2018 DIGILAW 578 (HP)

State Of Himachal Pradesh v. Chaman Singh

2018-04-07

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this appeal, State has challenged judgment dated 29.08.2014, passed by the learned Single Judge in CWP No. 5903 of 2010, titled as Chaman Singh Vs. State of H.P. and another, vide which, learned Single Judge while allowing the writ petition filed by the present respondent-petitioner, directed the State to grant and release the benefits of four tier pay scale as per Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 and further release the benefit of Assured Career Progression Scheme in favour of the petitioner on completion of 14 years of service with all consequential benefits in relation to gratuity, pension, leave encashment, as also revised pension based on the scale as would be granted to the petitioner upon completion of 14 years of service w.e.f. 01.10.2006. 2. Brief facts necessary for the adjudication of present appeal are that the respondent-petitioner (hereinafter referred to as '' the petitioner) approached this Court with the grievance that after his initial appointment as Block Development Officer on 25.09.1986, he stood promoted to the cadre of Himachal Pradesh Administrative Services on 01.10.1992. On 20.01.1998, a notification was issued by the respondent-State, which amended Rule 3 of the Himachal Pradesh Civil Services (Revised Pay 1st Amendment) Rules, 1998. This was followed by issuance of another notification on 01.09.1998, vide which certain modifications were introduced in the earlier notification. Thereafter, on 23.06.2000, State again issued instructions on grant of four tier pay scale. According to the petitioner, as he was inducted into Himachal Pradesh Administrative Services on 01.10.1992, accordingly in terms of notification dated 20.01.1998 as also amendment carried out on 01.09.1998, he became eligible for grant of benefits on completion of 14 years of service on 30.09.2006, but because of impediment which was subsequently created by Clause C(iii) of instructions issued on 23.06.2000, the scale to which the petitioner was otherwise entitled to upon completion of 14 years service was denied. As per the petitioner, Clause 3 of instructions was not in consonance with the Rules which were framed under Article 309 of the Constitution of India. 3. In response to the petition, State took the stand that the induction of the petitioner initially in H.P. Administrative Services on 01.10.1992 was on temporary basis and thereafter he was appointed on regular basis on 07.12.1993. 3. In response to the petition, State took the stand that the induction of the petitioner initially in H.P. Administrative Services on 01.10.1992 was on temporary basis and thereafter he was appointed on regular basis on 07.12.1993. He was thereafter released pay scales to which he was entitled to on completion of 4 and 9 years of service by computing length of service from 01.10.1992. According to the State, though the petitioner had completed 14 years of service on 30.09.2006, but he superannuated on 31.12.2006. He was to be released next higher pay scale w.e.f. 01.01.2007 as per the provisions of guidelines notified by the Finance Department on 23.06.2000, however, as he was not in service as on 01.01.2007, i.e. the day when he was to be considered for release of pay scale on completion of 14 years service in the cadre, he could not be conferred said benefit. 4. Learned Single Judge held that the dispute in issue was no more res integra in view of the judgment passed by the Hon''ble Division Bench of this Court in LPA No. 706 of 2011 titled as State of H.P. & Ors Vs. Dr. (Mrs.) Madhuri Dhadwal. Relying upon the said judgment, learned Single Judge reiterated what was laid down by the Hon''ble Division Bench that benefits under Assured Career Progression Scheme could not be taken away by an executive order unless such a power was reserved to the Government either in the original Rules or the amended Rules. On these basis, learned Single Judge allowed the writ petition in following terms: "5. Thus, what would appear from the aforesaid decision is that the question posed before this Court is otherwise no longer res integra and fully answered by the aforesaid decision. Consequently, I have no option, but to allow this writ petition and accordingly the respondents are directed to grant and release the benefits of four tier pay scale as per Himachal Pradesh Civil Service (Revised Pay) Rules, 1998 and further release the benefit of Assured Career Progression Scheme to the petitioner on completion of 14 years of service with all consequential benefits as emerged out of out with relation to gratuity, pension, leave encashment and the revised pension based upon the scale as will now be granted to the petitioner after completion of 14 years w.e.f. 1.10.2006. The needful be done within a period of three months from the date of production of the copy of this order." 5. Feeling aggrieved, the State has filed this appeal. 6. We have heard the learned Additional Advocate General, as also learned Senior Counsel for the respondent. We have also carefully gone through the judgment passed by the learned Single Judge and the records of the case. 7. As per the learned Additional Advocate General, perversity with the judgment under challenge was that there was a subsequent amendment carried out in the Rules in the year 2013 and as the said amendment was not brought into the notice of the learned Single Judge, therefore, the judgment so passed by the learned Single Judge was not sustainable in the eyes of law. 8. No other point was urged. 9. In our considered view, there is no merit in the arguments so raised by the learned Additional Advocate General. This we say for the reason that the amendment, admittedly, has been carried out vide notification dated 14th August, 2013 and that too on the basis of judgment of this Court in Dr. (Mrs.) Madhuri Dhadwal''s case . Respondent in the present appeal superannuated as far back as in the year 2006. His grievance was that he was entitled to the benefits under the Assured Career Progression Scheme on completion of 4-9-14 years of service as from the date of his induction into Himachal Pradesh Administrative Services and the benefits to which he was entitled on completion of 14 years service were arbitrarily denied to him on the basis of executive instructions. This act of the State was held to bad in law by the learned Single Judge. Now, denial of a benefit to the petitioner, which took place in the year 2006 and which was held to be bad in law by the learned Single Judge, relying upon the Rule position, as it existed in the year 2006, cannot be said to be bad on the touchstone of the amendment in the Rules, which has been carried out vide notification dated 14th August, 2013. Incidentally, it is not the case of the State that this notification was retrospective in operation. Incidentally, it is not the case of the State that this notification was retrospective in operation. Even otherwise, rights which stood accrued to the petitioner as per the existing Rules at the time when he had completed 14 years of service cannot be otherwise also taken away by referring to a notification dated 14th August, 2013. The effect of this notification obviously is prospective and therefore, we are not in agreement with the submissions made by the learned Additional Advocate General that because the amendment carried out on 14th August, 2013 was not brought to the notice of the learned Single Judge, therefore, the judgment passed by the learned Single Judge is liable to be quashed and set aside. 10. Even otherwise, having carefully perused the judgment passed by the learned Single Judge, we do not find any perversity in the same. Learned Single Judge has rightly held by placing reliance upon the judgment passed by the Division Bench of this Court that the right of Assured Career Progression Scheme to which the petitioner was entitled on completion of 14 years of service could not have been arbitrarily denied on the basis of executive instructions. It is not the case of the State that the petitioner had not completed 14 years of service from the date of his induction in the cadre of Himachal Pradesh Administrative Services before his superannuation. The stand of the State simply is that because subsequently instructions stood issued to the effect that such a benefit was accruable only w.e.f. 01.01.2007, therefore, as the petitioner was not in job as on that date, he was not entitled for the same. 11. We are afraid, the stand of the State, in our considered view, is otherwise also not sustainable in the eyes of law, because when as per the Scheme, the incumbent is entitled for benefit of Assured Career Progression Scheme on completion of 14 years of service, the same cannot be arbitrarily denied to him by extending the date on the basis of executive instructions for the purpose of grant of this benefit. In view of above discussion, as we do not find any merit in the present appeal, the same is dismissed. Miscellaneous applications, if any, also stand disposed of.