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Himachal Pradesh High Court · body

2025 DIGILAW 801 (HP)

Satish Kumar v. State of H. P.

2025-04-24

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua , J. Respondents notified Revised Pay Rules 2022 on03.01.2022. These Rules mandated exercise of option within the set time lines by the government employees for fixation of revised Pay. Petitioner exercised his option and his pay in the Revised Pay Scales 2022 was fixed accordingly. Later respondents issued an office letter granting further benefits to Government employees covered under that letter towards fixation of their pay in the Revised Pay Scales. No specific time line was mentioned in the office letter for exercise of any further option. Petitioner statedly on becoming aware of the officeletter, sought its applicability to him. Respondents have rejected his prayer on the ground of it having been made beyond the cut off date mentioned in some later office communications, hence the petition. 2. Background 2(i) Petitioner was appointed as Constable on 21.03.1992. He was promoted as Head Constable in the year 2015 and further to the post of Assistant Sub Inspector (ASI) in the year 2021. He is currently serving as ASI. 2(ii) On 03.01.2022 in exercise of powers conferred by proviso to Article 309 and Clause (3) of Article 187 of the Constitution of India read with proviso to Sub-rule (1) of Rule 10 of the Himachal Pradesh Vidhan Sabha Secretariat (Recruitment and Conditions of Service) Rles, 1974, respondents notified the Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 (In short Revised Pay Rules, 2022). The rules were deemed to have come into force on and w.e.f. 01.01.2016. Rule 7 whereof provided fixation of pay of the Government employees. Different options were made available to the Government employees including the petitioner for fixation of pay for coming over to revised pay structure. Rule 6 of the Revised Pay Rules, 2022 provided for exercise of option by the employees. Sub Rule 4 thereof stipulated ‘option once exercised shall be final’ and as per Sub Rule (1), the option was to be exercised within one month from the date of notification of the Revised Pay Rules. Rule 6 reads as under:- 6. Exercise of option. Sub Rule 4 thereof stipulated ‘option once exercised shall be final’ and as per Sub Rule (1), the option was to be exercised within one month from the date of notification of the Revised Pay Rules. Rule 6 reads as under:- 6. Exercise of option. (1) The Government employee shall exercise option in the Form appended to these rules so as to reach the authority specified in sub-rule (2) within a period of one month from the date of notification of these rules: Provided that:- (i) in the case of a Government employee, who on the date of notification of these rules, is out of India or on leave or on deputation or on foreign service or on active service, the option shall be exercised in the said Form so as to reach the said authority within a period of one month from the date of his taking the charge of his post under the State Government, if that date is later than the date specified in this sub-rule; and (ii) where a Government employee is under suspension on the date of notification of these rules, the option shall be exercised within a period of one month from the date of his return to his duty, if that date is later than the date specified in this sub-rule. (2) The option in the Form shall be submitted by the Government employee to the Head of the Office. (3) If the option is not received within the time specified in sub-rule (I), the Government employee shall be deemed to have opted/ elected to be governed by the revised pay structure with effect from first day of january, 2016. The Head of the Office shall determine his pay in the revised pay structure with reference to provisions of rule 7 of these rules. (4) The option once exercised shall be final. Note 1. Persons, whose services were terminated on or after the first day of january, 2016 and who could not exercise their option within the specified period, on account of discharge on the expiry of the sanctioned posts, resignation, dismissal or discharge on disciplinary grounds, shall be entitled to the benefits under these rules, if otherwise admissible. Note 2. Note 1. Persons, whose services were terminated on or after the first day of january, 2016 and who could not exercise their option within the specified period, on account of discharge on the expiry of the sanctioned posts, resignation, dismissal or discharge on disciplinary grounds, shall be entitled to the benefits under these rules, if otherwise admissible. Note 2. Persons, who have died on or after the first day of January, 2016 and could not exercise the option within the specified period shall be deemed to have opted for the revised pay structure on and from the first day of January, 2016 or any subsequent date which is most beneficial to their dependents. Note 3. Persons, who were on earned leave or any other leave on the first day of January, 2016, which entitled them to leave salary, shall be allowed the benefits admissible under these rules. 2(iii) Petitioner exercised his option on 03.01.2022 for coming over to the Himachal Pradesh Civil Services (Revised Pay) Rules, 2022. His option was received by the respondents in the Directorate of Police Communication and Technical Services, Himachal Pradesh & diarized on 24.02.2022 (Annexure R-1). 2(iv) One month period for exercising option under Rule 6(1) of the Revised Pay Rules, 2022 ended on 02.02.2022. On 10.02.2022, the State Finance Department issued an office letter under the subject “Implementation of Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 regarding enhancement of 15% to the employees”. Being relevant and being bone of contention between the parties, this entire letter is extracted hereinafter:- “Subject: “Implementation of Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 regarding enhancement of 15% to the employees” I am directed to invite your attention towards the subject cited above and to say that Governor, HimachaI Pradesh, is pleased to order that in the case of employees appointed before 01.01.2016, if the increase in the revised pay fixed under the Himachal Pradesh Civil Services (Revised Pay) Rules, 2022, is less than 15% (fifteen percent) over and above the formulation of existing Basic Pay as on 31.12.2015 plus notional Dearness Allowance calculated @ 113% (one hundred thirteen percent), such Government employee shall be entitled to minimum increase of 15% (fifteen percent), over and above the formulation of existing Basic Pay as on 31.12.2015 plus notional Dearness Allowance calculated @ 113% (one hundred thirteen percent). 2. 2. The Governor, Himachal Pradesh, is further pleased to order that if the increase in the revised pay of government employee appointed on or after 01.01.2016 fixed under Himachal Pradesh Civil Services (Revised Pay) Rules, 2022, as on date of joining in service or on the date of grant of higher Pay Band/ Grade Pay (after completion of two years), as the case may be, is less than 15% (fifteen percent) over and above the formulation of existing Basic Pay plus notional Dearness Allowance calculated @ 113% (one hundred thirteen percent), such Government employee shall be entitled to minimum increase of 15% (fifteen percent), over and above the formulation of existing Basic Pay plus notional Dearness Allowance calculated @ 113% (one hundred thirteen percent). 3 It is also clarified that in cases where a Government employee has already been placed in higher pay scale between 01.01.2016 and the date of notification of HP Civil Services (Revised Pay) Rules, 2022, on account of promotion, the Government employee shall have the option to switch over to the revised pay structure from the date of such promotion. 4. (I) The Government employee as mentioned in Paras I, 2 & 3 above opting for minimum increase of 15% (fifteen percent), over and above the formulation of existing Basic Pay plus notional Dearness Allowance calculated @ 113% (one hundred thirteen percent) in accordance with the above instructions shall not be entitled to given any arrears on account of enhancement in his revised pay with effect from 01.01.2016 to 02.01.2022. (II) The above minimum 15% enhancements allowed in the Paras 2 & 3 above shall be subject to the following conditions:- (a) Pay of the Government employee recruited on or after 01.01.2016 and upto 02.01.2022 shall not, in any case, be more than his/ her immediate senior government employee/ employees in the cadre. Similarly, pay of the Government employee promoted on or after 01.01.2016 and upto 02.01.2022 shall not, in any case, be more than his/ her immediate senior government employee/ employees in the cadre. If this condition arises, then the pay of the junior employee will be fixed at the same level as the senior. In case of any wrong fixation of pay due to extending minimum 15% raise, the same shall entail recovery from the salary of the concerned Government employee on its detection at any stage. If this condition arises, then the pay of the junior employee will be fixed at the same level as the senior. In case of any wrong fixation of pay due to extending minimum 15% raise, the same shall entail recovery from the salary of the concerned Government employee on its detection at any stage. (b) The pay of the Government employee fixed in accordance with the above instructions shall not entitle the senior employee to get the benefit of his pay to be refixed under senior- junior pay fixation instructions issued from time to time. The instructions issued earlier on the issue by the Government from time to time shall stand amended to this extent. 5. Necessary amendment(s) in relevant rules will be issued in due course.” As per aforesaid office letter, the employees appointed before 01.01.2016 were held entitled to minimum increase of 15% over and above the formulation of existing Basic Pay as on 31.12.2015 plus notional Dearness Allowance calculated @ 113% if the increase in the revised pay fixation under the Revised Pay Rules, 2022 was less than 15% over and above the formulation of existing Basic Pay as on 31.12.2015 plus notional Dearness Allowance circulated @113%. Para 4 of the office letter provided that the Government employees mentioned in paras-1 to 3 of the office letter opting for minimum increase of 15% over and above the formulation of existing Basic Pay plus notional Dearness Allowance calculated @112%, in accordance with office letter, will not be entitled to be given any arrears on account of enhancement in his revised pay with effect from 01.01.2016 to 02.01.2022. Necessary amendments were to be carried out in the Rules for incorporating the provisions of the office letter. 2(v) Grievance in this writ petition centers around the aforesaid office letter. Petitioner seeks enhancement of 15% over and above the formulation of his existing Basic Pay in terms of office letter dated 10.02.2022. For availing this benefit, he represented to the respondents on 31.01.2023. 2(v) Grievance in this writ petition centers around the aforesaid office letter. Petitioner seeks enhancement of 15% over and above the formulation of his existing Basic Pay in terms of office letter dated 10.02.2022. For availing this benefit, he represented to the respondents on 31.01.2023. The respondents denied the benefit to the petitioner on the ground that:- Petitioner had submitted his option for availing benefit flowing from office letter dated 10.02.2022 on 31.01.2023, which was beyond the prescribed period; Petitioner was required to exercise his option for claiming benefit of office letter dated 10.02.2022 in terms of Rule 6 of the Revised Pay Rules, 2022, keeping in view subsequent office letters issued by the Finance Department on 11.02.2022 (Annexure R-3), 28.02.2022 (Annexure R-4) and 31.03.2022 (Annexure R-5) whereunder the cutoff date for exercising the option under Rule 6 of Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 was extended up-to 28.02.2022, 31.03.2022 and 15.04.2022 respectively. 3. Heard learned counsel on both sides and considered the case file. 4. Consideration 4(i) It is borne out from the record that Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 were notified on 03.01.2022 inter alia in exercise of powers conferred by proviso to Article 309 and Article 187(3) of the Constitution of India. Rule 6(1) of the Revised Pay Rules, 2022 stipulates exercise of option by the Government employees for fixation of their pay in accordance with Rule 7 within one month from the date of notification of the Rules i.e. by 02.02.2022. It is an admitted position of the parties that petitioner exercised his option accordingly on 03.01.2022, which was though diarized in the Directorate of Police Communication and Technical Services, Himachal Pradesh on 24.02.2022. 4(ii) After expiry of 30 days stipulated under Rule 6(1), the State Finance Department came out with another office letter on 10.02.2022. As per this letter (extracted earlier) inter alia the Government employees appointed before 01.01.2016 were entitled to minimum increase of 15%, over and above the formulation of existing Basic Pay as on 31.12.2015 plus notional Dearness Allowance calculated @ 113%, in case, increase in the revised pay fixation under the Revised Pay Rules, 2022 was less than 15% over and above the formulation of existing Basic Pay as on 31.12.2015 plus notional dearness allowance circulated @113%. The office letter dated 10.02.2022 did not specifically direct the employees falling within the ambit of this letter (para-1) to exercise option for availing the benefit flowing from the office letter 10.02.2022. There is no provision in the said office letter from which it can be inferred that any direction was given to the Government employees for exercising option and the time-lines thereof for availing the benefit of office letter dated 10.02.2022, therefore, contention of the respondents that petitioner did not exercise option within the stipulated period does not hold good. 4(iii) Further the time-lines given in the office letters dated 11.02.2022 (Annexure R-3), 28.02.2022 (Annexure R-4) and 31.03.2022 (Annexure R-5) cannot be treated as the period stipulated for exercise of option under office letter dated 10.02.2022. Annexures R-3 to R-5 have been issued by the State Finance Department under the subject “Exercising of option under Rule 6 of Revised Pay Rules, 2022 for revision of pay structure”. In terms of these office letters, the cut-off date for exercise of option under Rule 6 of the Revised Pay Rules, 2022 was extended upto 28.02.2022 (under Annexure R-3) and thereafter upto 31.03.2022 (under Annexure R-4) and finally upto 15.04.2022 (under Annexure R-5). Notably the cutoff date extended under these office letters is only for exercising option under Rule 6 of the Revised Pay Rules, 2022. The office letter dated 10.02.2022 has not been made part of Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 by carrying out any amendment of the Revised Pay Rules 2022. Therefore, extension given by the respondents to the Government employees under Annexures R-3 to R-5 can only be construed for exercising the option under Rule 6 of Himachal Pradesh Civil Services (Revised Pay) Rules, 2022. There being no direction for exercise of option stipulated under office letter dated 10.02.2022, the question of exercising the option for availing the benefit under office letter dated 10.02.2022 does not even arise. Further more, Annexures R3 to R5 only extend the time for exercise of option under Rule 6(1) of the Revised Pay Rules, 2022. Provisions of office letter dated 10.02.2022 have not been incorporated in the Revised Pay Rules, 2022. The amendment intended in the Revised Pay Rules 2022 as per para- 5 of the office letter dated 10.02.2022 has still not been carried out. Provisions of office letter dated 10.02.2022 have not been incorporated in the Revised Pay Rules, 2022. The amendment intended in the Revised Pay Rules 2022 as per para- 5 of the office letter dated 10.02.2022 has still not been carried out. 4(iv) It is the case of the petitioner that office letter dated 10.02.2022 was not brought to the notice of the Government employees like the petitioner by the respondents in accordance with law. That it was not brought to the notice either by way of publication in the official Gazette or through any other reasonable mode of publication. The respondents’ stand is that ‘notification dated 10.02.2022 was in public domain and the petitioner was liable to be aware of this notification’. Firstl y it is to be noticed that in terms of Section 2 (30) of the Himachal Pradesh General Clauses Act, 1968, ‘notification shall mean a notification published under proper authority in the official Gazette’. Letter dated 10.02.2022 is neither nomenclatured as notification nor published in the official Gazette, hence cannot be treated as notification. Secondly, the factual assertion of the petitioner is that he was posted in the field at the relevant time. The moment he became aware of office letter dated 10.02.2022, he represented to the respondents i.e. on 31.01.2023 for claiming the benefits flowing from the said office letter. It would be relevant to quote M/s Pankaj Jain Agencies Vs. Union of India & Ors. , [AIR 1995 SCC 360] Hon’ble Apex Court held that if a subordinate legislation does not prescribe mode of publication or the mode prescribed is unreasonable, the legislation will take effect only when it is published through customarily recognized official channel-the official Gazette or some other reasonable mode of publication:- “9. In the present case indisputably the mode of publication prescribed by Section 25(1) was complied with. The notification was published in the Official Gazette on the 13-2-1986. As to the effect of the publication in the Official Gazette, this Court held [Srinivasan case8 AIR at P. 1067): "Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. The notification was published in the Official Gazette on the 13-2-1986. As to the effect of the publication in the Official Gazette, this Court held [Srinivasan case8 AIR at P. 1067): "Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication." (emphasis supplied) We, therefore, see no substance in the contention that notwithstanding the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operations and enforceability. This contention of Shri Ganesh is unacceptable.” State of Maharashtra Vs. Mayer Hans George, AIR 1965 SCC 722 holds that if there is no statutory requirement as to mode or form of publication even then the Court would conceive the rule to be that publication of notification is necessary either in usual form-the official Gazette or through some other media generally adopted for notifying such notifications. “45. Learned Counsel for the respondent also referred us to the decision of the Bombay High Court in Imperator v. Leslie Gwilt(1) where the question of the proper construction and effect of rule 119 of the Defence of India Rules, 1937 came up for consideration. The learned Judges held that there had not been a proper publication or notification of an order, as required by rule 119 and that in consequence the accused could not be prosecuted for a violation of that order. Other decisions of a like nature dealing with the failure to comply with the requirements of rule 119 of the Defence of India Rules or the Essential Supplies Act, or the Essential Commodities Act, were also brought to our notice but we consider that they do not assist us in the present appeal. Other decisions of a like nature dealing with the failure to comply with the requirements of rule 119 of the Defence of India Rules or the Essential Supplies Act, or the Essential Commodities Act, were also brought to our notice but we consider that they do not assist us in the present appeal. Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the Court holds to be mandatory, a failure tocomply with those requirements might result in there being no effective order the contravention of which could be the subject of prosecution but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in. the usual form i.e., by publication within the country in such media as generally adopted to notify to all the persons concerned the making of rules. In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being published in the Official Gazette. It therefore stands to reason that publication in the Official Gazette viz., the Gazette of India is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. As we have stated earlier, the notification by the Reserve Bank was published in the Gazette of India on November 24, 1962, and hence even adopting the view of Bailhache, J. the notification must be deemed to have been published and brought to the notice of the concerned individuals on November 25, 1962. The argument, therefore, that the notification, dated November 8, 1962 was not effective, because it was not properly published in the sense of having been brought to the actual notice of the respondent must be rejected.” The office letter dated 10.02.2022 pertained to financial aspects/15% enhancement/monthly pay admissible to Government employee for coming over to the Revised Pay Scales 2022. It had serious implications towards monthly salary of the Government employees. If the grant of benefits flowing under the office letter was dependent upon exercise of option by the employees, the same was required to be published in accordance with law/brought to notice of employees through some reasonable & accepted means. It had serious implications towards monthly salary of the Government employees. If the grant of benefits flowing under the office letter was dependent upon exercise of option by the employees, the same was required to be published in accordance with law/brought to notice of employees through some reasonable & accepted means. Merely saying that letter was in some ‘public domain’ is not enough to dispense with the requirement of bringing it to the notice of Government employees for whose benefit it was issued. Respondents have not even pleaded as to through which ‘public domain’ the letter was published. During hearing of the case, learned Deputy Advocate General submitted that the letter was available on the website of one of the respondents. The letter is neither a statutory rule nor a notification but has financial implications for a Government employee, merely displaying it on some website of some respondents, in the given facts would not discharge the burden of publishing it through accepted reasonable modes. The only logical inference is that respondents have not brought the office letter dated 10.02.2022 to the notice of the Government employees in accordance with law. Decision of the respondents in rejecting petitioner’s representation dated 31.01.2023 on the ground that the petitioner had sought benefit of office letter dated 10.02.2022 beyond the time-lines fixed for availing option under Rule 6 (1) of the Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 cannot be accepted. 5. The sum total of above discussion is that the provisions contained in office letter dated 10.02.2022 have not been incorporated in the Revised Pay Rules 2022. The office letter dated 10.02.2022 stands independent of the Revised Pay Rules, 2022. The office letter neither directs the employees to exercise option nor gives any time lines therefor. The time period fixed under the Revised Pay Rules 2022 for exercising option as extended from time to time up-to 15.04.2022 cannot be applied upon applicability of benefits flowing under office letter dated 10.02.2022. The office letter dated 10.02.2022 was not even published in accordance with law. In view of above, the present petition is allowed. Decision of the respondents rejecting petitioner’s representation as communicated by them in office letter dated 27.02.2023 (Annexure P-5) is quashed and set aside. The office letter dated 10.02.2022 was not even published in accordance with law. In view of above, the present petition is allowed. Decision of the respondents rejecting petitioner’s representation as communicated by them in office letter dated 27.02.2023 (Annexure P-5) is quashed and set aside. Respondents are directed to accept the request of the petitioner for re-fixation of his pay with 15% factor in terms of office letter dated 10.02.2022 (Annexure P-2) and take further consequential action inclusive of releasing admissible arrears to the petitioner, if any, on that count, within four weeks. Pending miscellaneous application(s), if any, shall also stand disposed of.