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2020 DIGILAW 813 (HP)

Hem Raj v. State of Himachal Pradesh

2020-11-09

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - By way of instant petition, prayer has been made on behalf of the petitioner to issue directions to the respondents to grant pay band of Rs.10300-34800+3200 grade pay to him from the date said pay scale stood revised vide Notification dated 4.10.2012 by the Finance Department alongwith benefits incidental thereto. 2. Petitioner was appointed as a Patwari on daily wage basis and thereafter his services were regularised vide office order dated 17.3.2004 issued by Superintending Engineer, IPH Circle, Kullu in the pay scale of Rs.3120-5160, which was subsequently revised to Rs. 5910-20200 from the year 2006. Vide Notification dated 28.9.2012, Annexure P-2, Governor, Himachal Pradesh, exercising powers vested under rule-9 of HP Civil Services (Category/Post-wise Revised Pay) Rules, 2012 read with rule-3 of the Rules ibid, revised the pay scale of category of Patwari from Rs.5910-20200+1900 Grade Pay to Rs.10300-34800+3200 grade pay but since the aforesaid revised pay scale/band was not given to the petitioner, he approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 2706 of 2016, which now stands transferred to this Court and re-registered as CWPOA No. 7624 of 2019, praying therein for following main relief(s): "That the respondents may be ordered to grant pay band of Rs.10300-34800/- to the applicant from the date from which the said pay scale has been revised by the Finance Department i.e. w.e.f. 4.10.2012 with grade pay of Rs.3200/-, with all the benefits incidental thereof." 3. Having heard learned counsel for the parties and perused the material available on record, especially the reply filed by the respondents Nos. 1 to 5, this Court finds that there is no dispute inter se parties that the services of the petitioner stood regularised vide office order dated 17.3.2004 in the pay scale of Rs.3120-5160, which was further revised to Rs.5910- 20200 from the year 2006. Similarly, it is not in dispute that aforesaid scale of Rs. 5910-20200 was further revised by the Government of Himachal Pradesh by issuing Notification dated 28.9.2012 to Rs.10300-34800+3200 grade pay. Respondents, in their reply, while refuting the claim of the petitioner have made an attempt to make out a case that the issue with regard to grant of pay scale lies in the exclusive domain of the Government and in this matter, courts cannot interfere. Respondents, in their reply, while refuting the claim of the petitioner have made an attempt to make out a case that the issue with regard to grant of pay scale lies in the exclusive domain of the Government and in this matter, courts cannot interfere. Besides above, respondents, while placing reliance upon the judgments passed by Hon'ble Apex Court as well as this Court, have stated that no direction, if any, can be issued by courts to grant a particular pay scale to an employee, rather, only direction to consider case of an employee can be issued. There cannot be any quarrel with the aforesaid proposition of law that the State Government has the exclusive jurisdiction to grant pay scale to a particular category of employees and courts cannot interfere unless there is invidious distinction between similarly situate persons or there is arbitrariness as has been held by Hon'ble Apex Court in Shiba Kumar Dutta and others Vs. Union of India and others, (1997) 3 SCC 545 . Similar view has been taken in a judgment dated 28.5.2014 by this Court in LPA No. 146 of 2013 titled State of Himachal Pradesh and others vs. Navneet Gupta , wherein it has been held that the court cannot issue a writ of mandamus commanding authorities to give pay scale and at best direction can be issued to the authorities to consider the case of an employee for releasing a particular pay scale. 4. Petitioner, in the case at hand has approached this Court against the arbitrary approach of the respondents whereby he has been denied revised pay scale of Rs.10300- 34800+3200 grade pay, which has been granted to similarly situate persons. As per own case of the respondents, petitioner was appointed as a Patwari in the pay scale of Rs.3120-5160 but scale of Rs. 10300-34800+3200 grade pay as is being paid to other Patwaris has been denied to the petitioner on the ground that the pay scale of Rs.10300-34800+3200 grade pay is payable to Technical Grade-I (Patwari) and since the petitioner is still working as a Junior Technician Patwari in the pay scale of Rs.5910-20200 +2400 Grade Pay, he is not entitled to aforesaid revised pay scale. Besides above, respondents have stated in their reply that the petitioner is not entitled to pay scale of Rs.10300-34800+3200 grade pay as per Finance Department letter and this pay scale is applicable to trained Patwaris after two years, whereas petitioner is an untrained Patwari. 5. However, having carefully perused the material available on record, this Court finds no force in the grounds raised by the respondents, while rejecting claim of the petitioner. Respondents have averred in their reply that the category of petitioner i.e. Patwari(s) not recruited strictly as per Recruitment and Promotion Rules but regularised as per regularisation policy is/are not entitled to pay scale of Rs. 10300-34800+3200 grade pay. As per respondents, pay band/scale of Rs.10300-34800+3200 grade pay has been granted to certain Patwaris as per Finance Department letter dated 25.8.2015 (Annexure R-1). It has been further averred in the reply filed by the respondents that the category of petitioner being Technician has been bifurcated in the ratio of 20:30:50 in the pay scale of Rs.4550-7200, 4020-6200 and 3120-5160, respectively in the revised pay rules. As per Notification dated 28.9.2012, revised pay scale of Junior Technician is Rs.5910- 20200+2400 grade pay with effect from 1.10.2012. As per respondents, petitioner would pay scale of Rs.10300- 34800+3200 grade pay as per seniority, when he will be upgraded as Junior Technician Grade I. Besides above, respondents have stated that as per Recruitment and Promotion Rules, minimum educational qualification for appointment to the post of Patwari is matriculation or higher secondary part-I and person must have passed Patwar examination conducted by Himachal Pradesh Revenue Department. 6. Having perused order dated 17.3.2004 (Annexure P-1), whereby petitioner's services came to be regularised, this Court finds that the petitioner does not fall in the category of Patwari Technician, category of which was bifurcated in the ratio of 20:30:50 by creating three-tier pay scales of Rs.4550- 7220, 4020-6200 and 3120-5160 in the pre-revised pay rules, as such, his case cannot be said to be covered under Notification dated 28.9.2012, whereby pay scale of Junior Technician came to be revised, rather, case of the petitioner is/was required to be considered in light of Notification dated 28.9.2012, Annexure P-2, whereby pay band of Patwari came to be revised from 5910-20200 to Rs.10300-34800+3200 grade pay with effect from 1.10.2012. Otherwise also, question with regard to requisite qualification, if any, possessed by the petitioner cannot be allowed to be raised at this stage, especially when it was not taken into consideration at the time of initial appointment and regularisation. Once services of the petitioner have been regularised as Patwari, his legitimate claim cannot be allowed to be defeated on the ground of his having not possessed requisite qualification. 7. By now, it is well settled that qualification is to be seen at the time of initial appointment. Their Lordships of the Hon'ble Supreme Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 have held that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Their Lordships have further held that the initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service and once the appointments are made as daily rated workers and they are allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification. Their Lordships have held as under: "6. The main controversy centres round the question whether some. petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial-entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short periods created by the respondent. In the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years, service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rupees 10,000/- in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs." 8. During the pendency of this case, this Court having perused record, deemed it necessary to offer an opportunity to the respondents to rectify its mistake and as such, directed learned Additional Advocate General to have instructions vide order dated 8.10.2020, but interestingly, respondents again vide communication dated 2.11.2020, issued under the signatures of Superintending Engineer, Jal Shakti Circle, Kullu, which is taken on record, have reiterated that the petitioner was not recruited strictly as per Recruitment and Promotion Rules, but regularised as per regularisation policy hence, he is not entitled to pay band/scale of Rs.10300-34800+3200 grade pay. As per respondents, aforesaid pay scale stands granted to the Patwaris who possess minimum qualification as prescribed under Recruitment and Promotion Rules but, as has been observed herein above, such plea is not available to the respondents at this stage. Once, it is an admitted fact that the services of the petitioner were regularised as a Patwari, he cannot be discriminated from the Patwaris who subsequently came to be appointed or were appointed in terms of Recruitment and Promotion Rules on the ground of his having not possessed requisite qualification. By becoming Patwari, petitioner has become similarly situate to that of other Patwaris, who may have been appointed in terms of Recruitment and Promotion Rules. There cannot be any distinction that the Patwaris, who were regularised in terms of regularisation policy framed by the Government, cannot be equated with Patwaris, who came to be appointed in terms of Recruitment and Promotion Rules. 9. Reliance is placed upon judgment of Hon'ble Apex Court rendered in K.T. Veerappa v. State of Karnataka (SC), 2006 (5) SLR , wherein it has been held as under: "15. In the present cases, in compliance to the judgment of the learned Single Judge of the High Court, the Vice- Chancellor of the Mysore University constituted a Committee headed by Shri Hiriyanna. The said Committee, in its Report dated 8.6.1991, has recorded the obversvations that the details of the pay scales assigned by the 'Muddappa Committee', 'the Manjunath Committee', 'the Acharya Committee', 'the Gopala Reddy Committee' as also the pay scales given effect to from 1.1.1977 and the claims of the appellants, on individual basis, could perhaps have been attended to by the University itself after the 'Muddappa Committee' made its recommendations. The Vice-Chancellor and Registrar of the Mysore University, while appearing before the Division Bench of the Karnataka High Court in C.C.C. Nos. 84 to 103 of 1992 in compliance to the Order dated 16th April, 1992 had brought to the notice of the Bench that the direction issued by the learned Single Judge in W.A. Nos.2220 to 2239/1989 dated 18.4.1990 and 29.1.1991 had already been complied with and arrears of salary had been paid to the employees of the University, who filed the said Writ Petitions. Thereafter, the respondent-University submitted certain proposed amendments to the Statute and the same were sent to the State Government for approval. Thereafter, the respondent-University submitted certain proposed amendments to the Statute and the same were sent to the State Government for approval. The State Government, for the reasons best known to it, till date has not been able to state any good reason as to why the amendment of the Statute as proposed by the University in regard to the fixation of the pay scales of its employees could not have been approved by the competent authority. The Vice-Chancellor in its affidavit dated 25.1.2000 filed in the Writ Appeal Nos. 7007-55/1999 has categorically stated that the respondent-University, in its Meeting held on 17.4.1999, decided to comply with the orders of the Court and also to extend the benefit of the revised pay scale with effect from 1.1.1977 to those employees who are eligible for such benefits and have not gone to the Court. This decision was taken on the representation submitted by the appellants. 16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent-University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21.6.1989 recorded by the learned Single Judge in W. P. Nos.21487-21506/1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time. 17. Shri Sobha Nambisan, Principal Secretary to Government, Education Department (Higher Education), Government of Karnataka, in his latest affidavit dated 6.3.2006 filed in these proceedings has stated that after 1.1.1977, the Government of Karnataka has revised the pay scales of employees of State Government in 1982, 1987, 1994 and 1999. From 1.1.1977 to 2006, the dearness allowance, house rent allowance and other allowances have also been revised. From 1.1.1977 to 2006, the dearness allowance, house rent allowance and other allowances have also been revised. The revision of pay scales, dearness allowance, house rent allowance and other allowances extended to the State Government employees were also extended to the University employees from time to time. Moreover, a large number of Mysore University employees were promoted in terms of the time- bound promotion schemes of 10 years, 15 years and 20 years in terms of the Government Orders issued from time to time. The additional financial implications of Rs.60 lakhs will have to be borne by the State Government. He has categorically stated that the revision of pay scales extended to the employees of State Government time and again will also be extended to all the University employees. 18. In our view, the impugned judgment of the High Court in W. A. Nos. 7007-55/1999 dated 8.3.2000 is not legally sustainable. It is, accordingly, quashed and set aside." 10. Reliance is also placed upon a judgment of this Court in Dr. Y.S. Parmar Uni. Of Hort. & Forst vs. Mr. Satish Chand,2017 2 HimLR(DB) 877 , wherein this Court has held as under: "13. Careful perusal of impugned judgment passed by learned Single Judge suggests that the same is based upon correct appreciation of law having been laid down by the Hon'ble Apex Court in a catena of judgments. Hon'ble Apex Court has repeatedly observed that the principle of "equal pay for equal work" is not a mere slogan but a fundamental right which can be enforced through constitutional remedies prescribed therein. Hence, learned Single Judge rightly concluded that determining of grant of pay scale is not the sole prerogative of the executive, rather an aggrieved employee has every right to knock the doors of justice for the redressal of his grievances." 11. At the cost of repetition, it may be observed that since there is nothing on record to suggest that the petitioner falls in the category of Patwari Technician, his pay cannot be regulated as per Notification dated 28.9.2012. 12. In view of the detailed discussion supra, I find sufficient merit in the petition at hand, which is accordingly allowed. Respondents are directed to grant pay scale/band of Rs.10300-34800+3200 grade pay to the petitioner from the date said pay scale/band has been made applicable to all other Patwaris, with all consequential benefits. 12. In view of the detailed discussion supra, I find sufficient merit in the petition at hand, which is accordingly allowed. Respondents are directed to grant pay scale/band of Rs.10300-34800+3200 grade pay to the petitioner from the date said pay scale/band has been made applicable to all other Patwaris, with all consequential benefits. Pending applications, if any, stand disposed of.