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2021 DIGILAW 391 (UTT)

Ramchandra Tomar v. State Of Uttarakhand

2021-08-13

RAVINDRA MAITHANI

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JUDGMENT Ravindra Maithani, J. (Oral). - Since common question of law and facts are involved in all these writ petitions, they are being decided by this common judgment. 2. This is third round of litigation. The petitioners, who were initially appointed as Constables in the Provincial Armed Constabulary (for short, "PAC") were given pay scale of the Head Constables, after completion of 14 years of services. After completion of 24 years of service, they were entitled to another higher pay scale. The period of 24 years of service was to fall after 01.06.2006, the day from which, the recommendations of Sixth Pay Commission (for short, "PC") were made applicable. In the State of Uttarakhand by a Government Order dated 17.10.2008, the recommendations of Sixth PC were made applicable and options were invited from the employees to give their options within a period of 90 days. 3. It is the case of the petitioners that they were never informed about the Government Order dated 17.10.2008. It is only after the lapse of about 5 years, the respondent no. 4 sought options from the petitioners by a letter dated 12.02.2013. The petitioners gave their options to grant benefit of Sixth PC from the date of acceptance of pay scale that is w.e.f. 15.03.2006. Accordingly, the pay of the petitioners was revised on 12.03.2013. But again, on 19.01.2016, the pay scale of the petitioners was reduced to a lower grade. This order dated 19.01.2016 was challenged by the petitioners in a bunch of writ petitions, i.e. Writ Petition (S/S) No.l606 of 2016 and connected writ petitions (for short, "the first writ petition"). The first writ petition was allowed by the Court on 27.03.2017. The order dated 19.01.2016, by which the pay scale of the petitioners was reduced, was quashed with the liberty to the respondents to proceed with the matter, in accordance with law, with a further rider that the amount already paid should not be recovered. The matter was further considered by the department and the claim of the petitioners was again rejected, by the order dated 19.01.2016, Aggrieved by it, another bunch of writ petitions came up for consideration before this Court, namely, Writ Petition (S/S) No. 2876 of 2017 and connected matters (for short, "the second writ petition) which were decided by this Court on 27.09.2018. The Court allowed the writ petitions and observed "in my considered view, the respondents have committed gross illegality in passing the orders impugned........... Orders impugned are set aside so far same relate to petitioners. The respondents are directed to pass a fresh order fixing the pay-scale of the petitioners taking in account the observations made by this Court in the body of the judgment..............." 4. It would be necessary to reproduce as to what observations were made by this Court in the second writ petition on 27.09.2018. In paragraphs 12 and 13 of the judgment, this Court observed as hereunder:- "12. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. As far as submission of learned Deputy Advocate General that petitioners were given opportunity twice to submit their options is concerned, if this contention is taken to be true, in that event, at least one employee should have opted for the pay revision; but, none of the employees have opted, therefore, I find force in the submission of the learned counsel for the petitioners that the petitioners were not informed about the Government Order dated 17.10.2008; but, in any case, when the then Commandant, 40th Battalion, P.A.C. gave opportunity to the petitioners, then it will be assumed that time for submitting options was extended by the respondents. 13. Moreover, it is a case where the petitioners claimed the benefit of VIth Pay Commission Report, benefit of which has already been given to other employees, therefore, I do not think that the case of the petitioners should be declined on the ground that options were not given in time. The claim of the petitioners is legitimate. So far the main argument of the learned counsel for the petitioners that, before passing the order impugned, the petitioners were not accorded opportunity of hearing is concerned, this fact is not denied by the respondents in their counter affidavit. It is a fact that, before reducing the pay-scale of the petitioners, no opportunity of hearing was accorded to the petitioners." (emphasis supplied) 5. The respondents being aggrieved by the judgment and order dated 27.09.2018, passed in second writ petition, preferred Special Appeal No. 148 of 2019, ("the Special Appeal") which was decided on 02.04.2019. In the special appeal, the judgment and order passed in the second writ petition was modified. The respondents being aggrieved by the judgment and order dated 27.09.2018, passed in second writ petition, preferred Special Appeal No. 148 of 2019, ("the Special Appeal") which was decided on 02.04.2019. In the special appeal, the judgment and order passed in the second writ petition was modified. The Court observed in paragraph nos. 8, 9 and 10 as hereunder:- "8. We see no reason, therefore, to interfere with the order of the learned Single Judge, to the extent he held that the petitioners had opted for the scheme notified in the Government Order dated 17.10.2008; and they were entitled thereby to the benefits thereunder. The fact remains that the actual entitlement of the petitioners to the benefits of the Government Order dated 17.10.2008 necessitates computation and determination by the authorities concerned. While Sri Anil Bisht, learned Standing Counsel for the appellants, would contend that, even in terms of the Scheme, constables are entitled only to be placed in the pay scale of Rs. 9300-43800 with a grade pay of Rs. 4200, Sri Tapan Singh, learned counsel for the respondents-writ petitioners, would contend that, in terms of the Government Order dated 17.10.2008, all Head/ Constables are entitled to be placed in the pay scale of Rs. 10230-40430 with a grade pay of Rs. 4200. 9. It is wholly unnecessary for us to dwell on this issue, as the learned Single Judge has directed the appellants herein to pass a fresh order, fixing the pay scale of the respondents-writ petitioners. We modify the order of the learned Single Judge to the limited extent that the appellants herein shall put each of the respondents-writ petitioners on notice individually, enclosing thereto a copy of the entire scheme notified in the Government Order dated 17.10.2008, informing them of the pay scales to which they are entitled to be placed in, and furnishing details of the manner in which the appellants had arrived at the pay scale to which the respondents-writ petitioners were entitled to. 10. On receipt of such a notice, each of these respondents-writ petitioners shall be entitled to submit their objections thereto within three weeks from the date of receipt of the notice. The appellants shall, thereafter, consider each of these objections, and pass individual orders assigning reasons for their fixing the respondents-writ petitioners in the pay scale to which they are entitled to. The appellants shall, thereafter, consider each of these objections, and pass individual orders assigning reasons for their fixing the respondents-writ petitioners in the pay scale to which they are entitled to. The entire exercise, culminating in a reasoned order being passed determining the pay scales of the respondents-writ petitioners, shall be completed within four months from today." (emphasis supplied) 6. The respondents undertook the exercise and again by order dated 31.07.2019 denied the claims of the petitioners. Aggrieved by it, the petitioners have come up before this Court in these writ petitions for quashing the order dated 31.07.2019 with the directions to the respondents that they should be paid salary, as was fixed by the respondents by office order dated 12.03.2013. There are other reliefs as well. In Writ Petition (S/S) No. 132 of 2018, after decision in the first writ petition, respondents constituted a Committee and based on the recommendations of the Committee, the salary of the petitioner Surendra Singh Rawat was fixed. The petitioner Surendra Singh Rawat challenged the report dated 28.07.2017 submitted by the Committee as well as the order dated 26.08.2017, by which, the salary of Surendra Singh Rawat was reduced. He also sought directions that he should be paid salary as fixed on 12.03.2013. 7. The respondents have filed their counter affidavits. According to the respondents, the provisions of the Government Order dated 17.10.2008 came into operation w.e.f. 01.01.2006; the employees were to submit their options within a period of 90 days; if an incumbent does not submit his option within a period of 90 days then it will be considered that the incumbent has opted for the new revised pay scale and would be paid according to the new revised pay scale w.e.f. 01.01.2006. It is also averred by the respondents that respondent no.4 issued a letter dated 12.02.2013,contrary to the Government Order dated 17.10.2008. It is the case of the respondents that fitment table used once cannot be used again. 8. Heard learned counsel for the petitioners and perused the record. 9. Learned counsel for the petitioners would submit that, in fact, respondents have not complied with the directions of this Court passed in Special Appeal No. 148 of 2019 dated 02.10.2019. It is the case of the respondents that fitment table used once cannot be used again. 8. Heard learned counsel for the petitioners and perused the record. 9. Learned counsel for the petitioners would submit that, in fact, respondents have not complied with the directions of this Court passed in Special Appeal No. 148 of 2019 dated 02.10.2019. Learned counsel would argue that, in fact, in the second writ petition, the Court had already decided that it will be assumed that the time for submitting options was extended by the respondents and they should not be denied the benefit on the ground that they did not exercise their options within the given time. It is argued that in the special appeal, the Court did not interfere with the findings recorded in the second writ petition, instead it was merely modified, directing the respondents to make the calculations, as per the Government Order dated 17.10.2008 and informing the petitioners individually, as to what would be made available to them as per the Government Order dated 17.10.2008 and to proceed accordingly. But, it is argued that instead of assuming that the petitioners have exercised their options on time, again the respondents took the view that since the petitioners did not exercise their options within time, their pay would be fixed w.e.f 01.01.2006 as provided in the Government Order dated 17.10.2008. It is, according to learned counsel for the petitioner, an illegality and non compliance of the directions of this Court. 10. Learned counsel for the petitioners would also submit that the discrimination has been made by the respondents only on the ground that the petitioners did not exercise their options on time. But, this Court in the second writ petition had already held that it shall be presumed that the time for exercising the options was extended. Reference has been made to the case of a Amba Dutt Mandoli to argue that he was given enhanced pay scale. Hence, it is argued that these writ petitions deserve to be allowed. 11. But, this Court in the second writ petition had already held that it shall be presumed that the time for exercising the options was extended. Reference has been made to the case of a Amba Dutt Mandoli to argue that he was given enhanced pay scale. Hence, it is argued that these writ petitions deserve to be allowed. 11. On the other hand, learned State counsel would submit that:- (i) The Sixth PC was made applicable by the Government Order dated 17.10.2008, which stipulates that an option was to be exercised within a period of 90 days; further by virtue of the Government Order of the year 2009, another period of 30 days was given to exercise the option, but the petitioners failed to exercise their option. (ii) The benefit of Sixth PC could have been given only in accordance with the Government Order dated 17.10.2008. Although the second writ petition was allowed and the observations were made in the judgment, but in the special appeal, the order passed in the second writ petition was modified and the respondents were directed to notify each of the petitioners the scheme as given in the Government Order dated 17.10.2008, informing that all the pay scales to which they were entitled to. (iii) In fact, pursuant to the decision passed in the special appeal on 02.04.2019, the respondents were directed to decide the cases of the petitioners, in accordance with the Government Order dated 17.10.2018. According to the Government Order dated 17.10.2018, the options were to be exercised within 90 days since then, which were not exercised by the petitioners, therefore, in accordance with this Government Order, the petitioners pay could have been revised w.e.f. 01.01.2006. (iv) The case of Amba Dutt Mandoli is different from that of the petitioners because Amba Dutt Mandoli did exercise his option to opt for the revised pay scale well within time, whereas the petitioners did not opt for that. 12. The dispute is within a very narrow space. Admittedly, the Sixth PC were made applicable in the State of Uttarakhand by the Government Order dated 17.10.2008, Paragraphs 11 and 17 of this Government Order dated 17.10.2008 are important insofar as, present dispute is concerned. Paragraph 11 makes provision, in case a government servant continues his salary in the then existing pay scale. Admittedly, the Sixth PC were made applicable in the State of Uttarakhand by the Government Order dated 17.10.2008, Paragraphs 11 and 17 of this Government Order dated 17.10.2008 are important insofar as, present dispute is concerned. Paragraph 11 makes provision, in case a government servant continues his salary in the then existing pay scale. Paragraph 17 of it provides for the situation if the option is not exercised within 90 days and according to this clause, in such a situation, it shall be presumed that such employee had opted for revised pay scales and it shall be fixed w.e.f. 01.01.2006. Paragraph 15 of the Government Order dated 17.10.2008 provides that the option shall be exercised within 90 days. 13. The question is as to whether, the petitioners have exercised their options within time or not. But, this question has lost significance after the judgment of this Court dated 27.09.2018 passed in the second writ petition. As quoted hereinabove, in paragraph 12, this Court has categorically held that it shall be assumed that time for submitting options were extended by the respondents. It has reference to the letter dated 12.02.2013 issued by the respondent no.4 inviting option. This chapter was closed by this Court on 22.09.2008. In paragraph 13, as highlighted hereinabove of the judgment in the second writ petition, this Court has further observed that "claim of the petitioners is legitimate". Second writ petition was allowed with this observation. The claim of the petitioners was upheld. Needless to mention in paragraph 11 of their writ petition, the petitioners have categorically stated that they had exercised the option to grant benefit of Sixth PC from the date of acceptance of pay scale on 15.03.2006. As stated, the judgment and order dated 27.09.2018 passed in the second writ petition was challenged in the Special Appeal No. 148 of 2019. The opening line of paragraph 8 of the judgment in the special appeal are as hereunder:- "We see no reason, therefore, to interfere with the order of the learned Single Judge, to the extent he held that the petitioners had opted for the scheme notified in the Government Order dated 17.10.2008; and they were entitled thereby to the benefits thereunder. The fact remains that the actual entitlement of the petitioners to the benefits of the Government Order dated 17.10.2008 necessitates computation and determination by the authorities concerned. The fact remains that the actual entitlement of the petitioners to the benefits of the Government Order dated 17.10.2008 necessitates computation and determination by the authorities concerned. While Sri Anil Bisht, learned Standing Counsel for the appellants, would contend that, even in terms of the Scheme, constables are entitled only to be placed in the pay scale of Rs. 9300-43800 with a grade pay of Rs. 4200, Sri Tapan Singh, learned counsel for the respondents-writ petitioners, would contend that, in terms of the Government Order dated17.10.2008, all Head Constables are entitled to be placed in the pay scale of Rs. 10230-40430 with a grade pay of Rs. 4200." (emphasis supplied) 14. Now, it is crystal clear that in the second writ petition, this Court has held that it will be assumed that the respondents extended the time to exercise options and found the claim of the petitioners legitimate and allowed the second writ petition. These observations of the Court made in the second writ petition on 23.09.2017 were confirmed in the special appeal in very clear terms. In the special appeal, the Court further affirmed that the petitioners had opted for the scheme notified in the Government Order dated 17.10.2008 and they were entitled to avail the benefits thereunder. It was not left to the respondents to further calculate the time as to when the petitioners exercised their options. It was beyond the reach of the respondents, in view of the judgment passed by this Court in the second writ petition and the special appeal. It was none of the business of the respondents to further see as to whether the petitioners had opted for the options under the Government Order dated 17.10.2008 or not, because it was settled and it was held that the petitioners did exercise the option under Government Order dated 17.10.2008 and they were entitled to the benefits thereunder. 15. But, the fact remains that the Court in the special appeal modified the judgment and order dated 23.09.2017 passed in the second writ petition to see as to what is the modification, it would be apt to reproduce it once again. 15. But, the fact remains that the Court in the special appeal modified the judgment and order dated 23.09.2017 passed in the second writ petition to see as to what is the modification, it would be apt to reproduce it once again. " We modify the order of the learned Single Judge to the limited extent that the appellants herein shall put each of the respondents-writ petitioners on notice individually, enclosing thereto a copy of the entire scheme notified in the Government Order dated 17.10.2008, informing them of the pay scales to which they are entitled to be placed in, and furnishing details of the manner in which the appellants had arrived at the pay scale to which the respondents-writ petitioners were entitled to." (emphasis supplied) 16. This modification is with regard to calculations alone. It had not given any further opportunity to the respondents to ascertain whether the options were within time or not. It is further clear by the last lines of paragraph 8, of the judgment dated 02.04.2019 of this Court passed in special appeal, because there, the parties raised arguments with regard to the pay scale to which the petitioners should be entitled to and in the beginning line of the paragraph 9 of the judgment in the special appeal, this Court observed that 'it is wholly unnecessary for us to dwell on this issue.' Only calculation part was left with the respondents, but by the impugned order, the claim of the petitioners was further denied by the respondents on the ground that they did not exercise the options on time. It is so categorically observed in the impugned order dated 31.07.2019. Therefore, this Court is of the view that the petitioners have been denied of their claim despite the repeated orders of this Court passed on 27.09.2018 in the second writ petition and on 02.04.2019 in the special appeal. Accordingly, the writ petitions deserve to be allowed. 17. The writ petitions are allowed. 18. The impugned orders were set aside. The calculation alone is to be informed by the respondents to the petitioners. Accordingly, the writ petitions deserve to be allowed. 17. The writ petitions are allowed. 18. The impugned orders were set aside. The calculation alone is to be informed by the respondents to the petitioners. To settle the issue finally, as directed by this Court in special appeal on 02.04.2019, the Court reiterates the directions passed by this Court in Special Appeal No. 148 of 2019, dated 02.04.2019 as hereunder:- (i) The respondents shall put each of the petitioners on notice individually enclosing thereto a copy of the entire scheme notified in the Government Order dated 17.10.2008, informing them of the pay scales to which they are entitled to be placed in, and furnishing details of the manner in which the respondents had arrived at the pay scale to which the petitioners were entitled to. (ii) On receipt of such a notice, each of these petitioners shall be entitled to submit their objections thereto within three weeks from the date of receipt of the notice. The respondents shall, thereafter, consider each of these objections, and pass individual orders assigning reasons for their fixing the petitioners in the pay scale to which they are entitled to. 19 The Court makes it clear that the respondents shall proceed on the basis that the petitioners had exercised their option within time as per Government Order dated 17.10.2008 and accordingly, the calculation will be made.