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2020 DIGILAW 884 (HP)

Joginder Singh v. State of Himachal Pradesh

2020-12-09

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. - Petitioner has approached this Court, seeking direction to the respondents to grant one increment to him on his promotion to the post of Joint Director (Technical Education) from the post of Principal (Polytechnic)on and w.e.f. 03.08.2017 in subsequent years. 2. Petitioner, who was serving as a Principal Government Polytechnic Paonta Sahib in Technical Education Department, was promoted as Joint Director (Technical Education) on 02.08.2017. 3. Pay Scale of posts of Principal (Polytechnic) and Joint Director (Technical Education) are identical and they fall in Pay Band-5 Rs.37400-67000+8700 (Grade Pay). 4. As a Principal, vide order dated 07.07.2017, after granting annual increment to the petitioner on the post of Principal, his pay was fixed at Rs.68690+8900 (Grade Pay) and his total basic pay was fixed at Rs.77,590/-. Post of Joint Director (Technical Education) is also in Pay Band-5 Rs.37000-67000+8700 (Grade Pay). Post of Joint Director (Technical Education) is a promotional post, feeder category whereof, is Principal (Polytechnic) serving in the Department of Technical Education. 5. On promotion as Joint Director (Technical Education), additional increment on promotion, was not given to the petitioner, whereupon he had represented to the Department for grant of increment on such promotion. For receiving no response from the Department, present petition was preferred. 6. Petitioner is claiming his right to have increment on promotion to the post of higher responsibility, on the ground that Joint Director is appointed/promoted on the basis of recommendation of DPC after considering candidature of incumbents serving as Principals (Polytechnic) and Joint Director has control over incumbents serving as Principals (Polytechnic) throughout the State and, therefore, post of Joint Director (Technical Education) is a post carrying duties and responsibilities of greater importance than those attached to the posts of Principal. Therefore, it is claimed by the petitioner that he is entitled for benefit of increment on his promotion by applying provisions of F.R. 22(I)(a)(1). 7. To substantiate his claim, petitioner has also placed reliance upon grant of such increment to incumbents promoted as Joint Directors prior to him and he has placed on record orders dated 17.11.2004 and 03.01.2008 as Annexure P-8 Corollary, which indicate that vide these orders incumbents promoted from the post of Principals to the post of Joint Director were granted benefit under F.R. 22 (I)(a)(1) on their promotion. 8. 8. During pendency of petition, in sequel to orders dated 28.08.2020 and 11.09.2020 passed by this Court, respondents have decided representation of the petitioner on the basis of report of Services Committee which was constituted vide order dated 14.09.2020. Relevant observations of the Committee are as under:- "The committee comprehensively examined the matter strictly in the light of the instructions issued by the Govt. vide letter dated 10/09/2020 (Copy enclosed as Ann-1) duly taking into account the directions given by the Hon'ble High Court on dated 28/8/2020 (Copy enclosed as Ann-II) and observed the following:- i) Dr. Joginder Singh, was appointed as HOD (Commerce & Secretarial Practice now Modern Office Practice) on 28/4/1992, in the pay scale of Rs. 3700- 5300. He was promoted to the post of Principal (Polytechnic) in the Pay Band-5 Rs. 37400-67000+8700 Grade Pay and further promoted to the post of Joint Director (Technical Education) vide Govt. Notification No. EDN(TE)2(12)2017 dated 2/8/2017 in the same Pay Band-5 of Principal (Polytechnic) to Rs.37400- 67000+8700 Grade Pay. The Pay Scale of the both posts is identical. ii) As per Rule FR-22(III) for the purpose of this rule, the appointment shall not be deemed to involve the assumption of duties and responsibilities of greater importance, if the post to which it is made is on the same scale of pay as the post, other than a tenure post, which the Government servant holds on a regular basis at the time of his promotion or appointment or on a scale of pay identical therewith. iii) As per Rule 11 of HPCS(Revised) Rule, 2009 clarification issued vide letter No. Fin(PR)B(7)-1/2009 dated 19/9/2009 provided that the pay on promotion after 1/1/2006 in the revised pay structure from one grade to another shall be fixed under Rule FR22(I)a(i) whereas the applicant Dr. Joginder Singh was promoted in the same Pay Band-5, therefore the aforesaid rule could not be applicable in the case of the applicant. Keeping in view the facts and perusal of record as stated above, the matter regarding grant of the increment on the promotion as Joint Director to the Petitioner has been examined at this Directorate level in the light of the aforesaid Govt. instructions conveyed by the Principal Secretary (TE) to the Govt. H.P. vide letter referred to above and found that the pay scale of the post of Principal (Polytechnic) and Joint Director is same i.e. Rs. instructions conveyed by the Principal Secretary (TE) to the Govt. H.P. vide letter referred to above and found that the pay scale of the post of Principal (Polytechnic) and Joint Director is same i.e. Rs. 37400-67000+8700 G.P., therefore, the benefits of increment on promotion to the post of Joint Director can not be allowed to the applicant Dr. Joginder Singh, Joint Director being promotion on identical pay scale. 2. ... ... ... a) ... ... ... b) ... ... ... However in view of the detailed facts and submission as made in Para (ii) and (iii) above, the financial benefits by way of granting one increment on promotion to the post of Joint Director under Rule FR-22(1)a(i) were erroneously given as Rule FR-22(1)a(i) is applicable only for promotion from one grade to another whereas the incumbents i.e. Sh. D.R. Sharma and Sh. A.K. Ahuja were promoted in the same Pay scale of Rs. 14300-18600/-." 9. At this stage it would be relevant to refer provision of F.R.22(I)(a)(1), which reads as under:- "F.R.22.(I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:- (a)(1) Where as Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more. Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment / promotion, to be exercised within one month from the date of such regular appointment. *Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or rupees one hundred, whichever is more." 10. Learned counsel for the petitioner has also placed reliance upon G.I., M.F., O.M. No. 10/02/2011-E. III/A, dated the 7th January, 2013, wherein it is notified as under:- "2. Learned counsel for the petitioner has also placed reliance upon G.I., M.F., O.M. No. 10/02/2011-E. III/A, dated the 7th January, 2013, wherein it is notified as under:- "2. In terms of this Ministry's O.M. No. 169/2/2000-IC, dated 24-11-2000, dealing with the situation whereby both the feeder and the promotional grades were placed in the identical revised pay scales based on the recommendations of the Fifth Central Pay Commission, it was provided, inter alia, that only in cases where it was not found feasible to appropriately restructure cadres in question on functional, operational and administrative considerations, extension of the benefit of fixation of pay under FR 22(I) (a) (1) could be considered on the merits of each case, provided all the conditions precedent for the grant of this benefit were fully satisfied and promotion to the post in question actually involved assumption of higher responsibilities." 11. Applicability of aforesaid O.M. dated 07.01.2013 in the State of Himachal Pradesh has not been established. It is settled position that Office Memorandum issued by Government of India is not ipso facto applicable to the State of Himachal Pradesh unless it is adopted by the State of Himachal Pradesh or it is made applicable to the State of Himachal Pradesh by virtue of any provision of law or order of competent authority issuing it. Therefore, applicability of aforesaid O.M. in State of Himachal Pradesh, is doubtful,more particularly for framing of its own Rules by State of Himachal Pradesh namely Himachal Pradesh Civil Services (Revised Pay) Rules, 2009, to regulate and implement revision of payscales in the State of Himachal Pradesh. 12. Otherwise also, contents of the aforesaid O.M. dated 07.01.2013, referred by learned counsel for the petitioner, are applicable to those cases where both the feeder and promotional grades were placed in the identical revised pay scales based on the recommendations of Fifth Central Pay Commission. There is nothing on record to establish that posts of Principal and Joint Director, in present case, have been placed in identical revised pay scale on the basis of recommendation of Fifth Central Pay Commission and prior to that these posts were having different pay scale. There is nothing on record to establish that posts of Principal and Joint Director, in present case, have been placed in identical revised pay scale on the basis of recommendation of Fifth Central Pay Commission and prior to that these posts were having different pay scale. Further, there is a rider in this O.M. for consideration of a case for grant of benefit of fixation of pay under F.R.22(I)(a)(1) that it would be considered on merit of each case provided all the conditions precedent for grant of these benefits are fully satisfied. F.R. 22(III) is very clear that when appointment is to the post having identical pay scale then, it shall not be deemed to involve assumption of duties and responsibilities of greater importance for the purpose of this Rule i.e. F.R. 22. Therefore, condition precedent for getting benefit under this Rule is that promotional post should be having different/higher scale of pay and, thus, in case of promotion to the post, in identical pay scale, benefit of F.R. 22 is not expendable in view of specific provision of F.R. 22(III) and the effect and enforcement of F.R. 22(III) cannot be wiped out by an Office Memorandum. Therefore, observations of the Service Committee quoted supra have force and appears to be correct. 13. With respect to grant of benefit of F.R. 22 in case of incumbents promoted earlier as Joint Director from the post of Principal, it is submitted on behalf of the respondents that such grant of benefit was erroneous and contrary to law and plea of respondents, for discussions herein above, appears to be correct. 14. It is a settled law that a wrong precedent cannot be made basis for grant of benefit in other cases and thus petitioner cannot be benefited for erroneous grant of earlier incumbents. Hence, I find no merit in claim of petitioner. 15. Before disposing of present petition, it would be necessary to point out that it is also expected from the respondent-authority to take appropriate action, in accordance with law to rectify its mistake committed in case of incumbents promoted earlier, at least for future, in accordance with law. Hence, I find no merit in claim of petitioner. 15. Before disposing of present petition, it would be necessary to point out that it is also expected from the respondent-authority to take appropriate action, in accordance with law to rectify its mistake committed in case of incumbents promoted earlier, at least for future, in accordance with law. Therefore, respondents are directed to take appropriate action with respect to fixation of pay and consequential benefits thereof, with respect to D.R. Sharma and A.K. Ahuja on their promotion from post of Principal to the post of Joint Director, in accordance with law to ensure fixation of their pension on the basis of their correct pay fixation by following proper procedure, provided under law. It is made clear that no recovery shall be made from the pension/amount already paid to those incumbents. However, payment of correct pension shall be ensured for future. Necessary action will be completed by the respondents on or before 31.01.2021. 16. Petition is dismissed in aforesaid terms. Pending application(s), if any, also stand disposed of.