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Himachal Pradesh High Court · body

2019 DIGILAW 636 (HP)

Shishu Pal v. State of HP

2019-05-28

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. (oral): 1. In nutshell, grouse of the petitioners, who are admittedly class-IV employees working on different posts for the last 20 years in the respondent-trust, is that respondents have adopted pick and choose policy while giving benefit of one additional increment on completion of 20 years of regular service in terms of office memorandum dated 31.7.2012 and 15.12.2012, issued by the Principal Secretary (Finance) to the Government of Himachal Pradesh, whereby it was decided that one additional increment on completion of 20 years of regular service would be given to all the class-IV employees irrespective of the fact that some of them have been promoted within Class-IV categories. 2. Before adverting to the factual matrix of the case, it would be apt to take note of the communication dated 15.12.2012 (Annexure P- 2), which reads as under:- “The undersigned is directed to refer to this Department’s OM of even number dated 31st July, 2012 on the above cited subject and to say that references are being received in this department for clarification whether benefit of additional increment on 20 years of service will also be admissible to those employees who have been promoted within the Class-IV category. The matter has been considered and it is clarified that one additional increment, on completion of 20 years regular service will, be given to all class-IV employees, irrespective of the fact that some of them have been promoted within the class-IV categories. However, this benefit will be admissible only to those Class-IV categories which remain as such in the pay scales of Class-IV notified vide Finance Department O.M. No. Fin(PR)B(7)1/98-II dated 3.5.2001 and notifications No.Fin(PR)B(7)-1/2009 dated 26-8-2009 and Fin(PR)B(7)-64/2010 dated 27.9.2012. This may kindly be brought to the notice of all concerned.” Close scrutiny of aforesaid communication reveals that vide office memorandum dated 31.7.2012, Government of Himachal Pradesh decided to give benefit of one additional increment on the completion of 20 years of service to the class-IV employees in all categories. Subsequently, vide aforesaid communication dated 15.12.2012, Principal Secretary (Finance) while giving clarification pursuant to the queries made by the different departments again reiterated that one additional increment on completion of 20 years service would be given to all class-IV employees irrespective of the fact that some of them have been promoted within class-IV categories. 3. Subsequently, vide aforesaid communication dated 15.12.2012, Principal Secretary (Finance) while giving clarification pursuant to the queries made by the different departments again reiterated that one additional increment on completion of 20 years service would be given to all class-IV employees irrespective of the fact that some of them have been promoted within class-IV categories. 3. Perusal of Annexure P-3 i.e. communication dated 17.11.2012, issued by the Sub Divisional Officer (Civil) Barsar cum Chairman, Baba Balak Nath Temple Trust, Barsar, further reveals that pursuant to aforesaid office memorandum dated 31.7.2012, respondents No.2 and 3 have granted benefit of additional increment to one Sh. Surender Nath (class-IV employee of the respondent-trust) after completion of 20 years services. However, interestingly, respondent-trust arbitrarily without assigning any cogent and convincing reasons, refused to grant such benefit of additional increment to the petitioners herein, who have admittedly completed more than 20 years of service and as such, Employees’ Association vide resolution dated 5.4.2016 (Annexure P- 4), requested respondent authorities to consider their cases. 4. It further emerges from the record that Sub Divisional Officer (Civil) Barsar cum Chairman, Baba Balak Nath Temple Trust, Barsar, vide communication dated 11.12.2015 forwarded the matter to the Deputy Commissioner Hamirpur cum Commissioner Baba Balak Nath Temple Trust, Deothsid, Barsar (Annexure R-1 annexed with the reply of respondents). In the aforesaid communication, Sub Divisional Officer (Civil) Barsar cum Chairman, Baba Balak Nath Temple Trust, Barsar, specifically mentioned that employees, who have completed 20 years of service in the respondent-trust are entitled to the benefit of additional increment in terms of office memorandum No. Fin(C)B(7)-3/2012 dated 31.7.2012. However, the Deputy Commissioner Hamirpur cum Commissioner Baba Balak Nath Temple Trust, Deothsid, Barsar, vide communication dated 3.2.2016, rejected the claim as forwarded by the Sub Divisional Officer (Civil) Barsar cum Chairman, Baba Balak Nath Temple Trust, Barsar, on very flimsy grounds without even bothering to look into the office memorandum dated 31.7.2012. The Deputy Commissioner, in communication dated 3.2.2016 (Annexure R-2 annexed with the reply of the respondents) has observed that since salary of temple employees is not paid by the government, but by the donations of the thousands of the pilgrims and as such, Sub Divisional Officer (Civil) Barsar cum Chairman, Baba Balak Nath Temple Trust, Barsar, ought to have legally examined the case before forwarding the case to him. 5. 5. Having carefully perused the contents of aforesaid communication dated 3.2.2016 issued by the Deputy Commissioner Hamirpur cum Commissioner Baba Balak Nath Temple Trust, Deothsid, Barsar, this Court has no hesitation to conclude that Deputy Commissioner proceeded to decide the case of employees, who have completed more than 20 years service, in a very hot haste manner without application of mind. Communication dated 3.2.2016, issued by the Deputy Commissioner, nowhere suggests that Deputy Commissioner while rejecting the case of the petitioners examined question with regard to applicability of instructions contained in the office memorandum dated 31.7.2012, qua the employees of the respondent-trust. Reasons assigned by the Deputy Commissioner while rejecting the case of the petitioners are not tenable, especially, in view of the fact that some of the employees, who have completed more than 20 years of service in respondent-trust, have been already given benefit of additional increment in terms of office memorandum dated 31.7.2012 issued by the Government of Himachal Pradesh. 6. After having carefully examined documents made available on record as well as arguments advanced by Mr. Ajay Sharma, learned Senior Counsel, representing the petitioners, this Court is not persuaded to agree with Mr. Avneesh Bhardwaj, learned Counsel representing the respondent-Trust, that instructions/rules framed by the Government of Himachal Pradesh are not applicable to the employees of the trust, who are paid salary from the donations received by the temple. As has been taken note herein above, one of the employee has been already granted benefit of additional increment in terms of aforesaid policy decision taken by the state Government. Apart from above, there are ample documents annexed with the petition as well as rejoinder to the reply filed by the trust suggestive of the fact that respondent-trust has been following/adopting rules/instructions framed by the State Government from time to time. Employees Service Rules 2001 Baba Balak Nath Temple Trust Employee, Terms and working Condition (8th amendment) Rules, 2007 further reveals that age of retirement and benefit on account of gratuity of the employees of trust are also to be governed as per government rules/instructions. Employees Service Rules 2001 Baba Balak Nath Temple Trust Employee, Terms and working Condition (8th amendment) Rules, 2007 further reveals that age of retirement and benefit on account of gratuity of the employees of trust are also to be governed as per government rules/instructions. Fixation of pay on promotion of the employees of respondent trust is also regulated by the government rules and as such, claim of the petitioners cannot be merely rejected on the ground that since salary of the employees is paid out of the donations, they cannot be granted benefit in terms of office memorandum dated 1.7.2012, issued by the Government of Himachal Pradesh. 7. Leaving everything aside, there is no plausible explanation rendered on record by the respondents for adopting pick and choose method, while granting benefit of additional increment after completion of 20 years of service to its employees in terms of government notification dated 31.7.2012. Mr. Avneesh Bhardwaj, learned counsel, was unable to assign any reason for granting benefit of additional increment to one of its employee namely Surender Nath, ignoring all other employees, who have admittedly completed more than 20 years. The Deputy Commissioner, while rejecting the recommendations made by the SDO (Civil) has not categorically stated that instructions contained in office memorandum dated 31.7.2018 are not applicable to the employees of the respondenttrust. 8. Consequently, in view of the above, present petition is allowed and Annexure R-2 annexed with the reply of the respondents dated 3.2.2016 is quashed and set-aside and respondent-trust is directed to consider the case of the petitioners as per similarly situate persons, afresh, in light of office memorandum dated 31.7.2012 issued by the Government of Himachal Pradesh, expeditiously, preferably within a period of two months. Accordingly, present petition is disposed of, along with pending applications if any.