Himachal Pradesh High Court
(Finance) To The vs Narinder Gupta on 30 August, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF AUGUST, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA,
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
LETTERS PATENT APPEAL NO.60 OF 2011
RESERVED ON: 24th AUGUST, 2022
PRONOUNCED ON:30.08.2022
Between:-
STATE OF HIMACHAL
PRADESH, THROUGH
PRINCIPAL SECRETARY
(FINANCE) TO THE
GOVERNMENT OF HIMACHAL
PRADESH. ....APPELLANT
(BY MR. ASHWANI SHARMA,
ADDITIONAL ADVOCATE
GENERAL)
AND
1. NARINDER GUPTA, SON OF
SHRI J.D. GUPTA, RESIDENT
OF MOHALLA HARIPUR
BAGICHI, JAIN NIWAS, NAHAN,
DISTRICT SIRMOUR,
HIMACHAL PRADESH,
PRESENTLY WORKING AS
READER TO THE ADDITIONAL
DISTRICT & SESSIONS JUDGE,
SIRMOUR AT NAHAN, H.P. ....RESPONDENT
2. HON'BLE HIGH COURT OF
HIMACHAL PRADESH,
THROUGH ITS REGISTRAR
::: Downloaded on - 31/08/2022 20:02:38 :::CIS
2
GENERAL.
3. DISTRICT & SESSIONS JUDGE,
SIRMOUR AT NAHAN, ....PROFORMA
HIMACHAL PRADESH. RESPONDENTS
.
(BY MR. NARESH KUMAR
TOMAR, ADVOCATE, FOR R-1)
__________________________________________________
This Letters Patent Appeal coming on for
pronouncement this day, Hon'ble Ms. Justice Sabina,
delivered the following:
JUDGMENT
State r has filed the Letters Patent Appeal,
challenging the judgment dated 10.07.2008, passed by the
learned Single Judge, whereby, writ petition filed by the private
respondent Narinder Gupta was allowed.
2. The controversy involved in the present case is as
to whether by issuing the Notification dated 01.09.1998, the
benefit which had been already granted to the private
respondent by way of revision of pay scale as per
order/notification dated 09.01.1998 (Annexure PE and
Annexure PF attached to the writ petition), could be withdrawn
by giving retrospective effect by way of amendment vide
Notification dated 01.09.1998 (Annexure PG to the writ
petition).
3. Case of the private respondent, in brief, was that he
had joined as a Clerk in the pay scale of Rs.400-600 on
28.01.1987 on temporary basis and was posted as Civil
.
Ahalmad in the Court of Sub Judge-cum-Sub Divisional Judicial
Magistrate, Kandaghat. He was granted the pay scale of
Rs.1200-2100 with effect from 28.01.1992 in the Grade of
Senior Clerk. He was confirmed in the Clerk Grade in the pay
scale of Rs.950-1800 against permanent post with effect from
01.04.1995 vide office order dated 21.02.1997. After completion
of 10 years of service, he was placed in the grade of Junior
Assistant and was promoted to higher pay scale of
Rs.1500-2700 with effect from 28.01.1997 vide office order
dated 21.02.1997. A Notification dated 09.01.1998 was issued
by the Finance Commissioner-cum-Secretary Finance to the
Government of Himachal Pradesh with regard to the revision of
pay scales with effect from 01.01.1996 with minimum start of
Rs.2,620/- for all the employees of the State Government. In
pursuance to Annexure PE and Annexure PF, attached to the
writ petition, private respondent was granted the pay scale of
Rs.5000-8100 with effect from 28.01.1997 and his basic pay on
01.01.1998 was fixed at Rs.5,160/-. Thereafter, a Notification
was issued on 01.09.1998 and the cadre of Clerks, as on
01.01.1996 , was bifurcated in the ratio of 50:50, i.e. 50% of the
posts of Clerks, were allowed the pay scale of Rs.3120-5160
and the remaining 50% posts were designated as Junior
.
Assistants in pay scale of Rs.4400-7000 with a rider that the
posts of Junior Assistants would be filled up by promotion to the
extent of 100% from amongst the Clerks, who have an
experience of five years in the cadre of the department, in
which, they were working at the time of promotion. However,
the designation and the revised equivalent of the unrevised pay
scales of officials working as Senior Clerks and Junior
Assistants, as on 01.01.1996, was protected as a measure
personal to them. Alongwith notification Annexure PG, attached
to the writ petition, a second schedule was added. In pursuance
to Annexure PG, dated 01.09.1998, attached to the writ petition,
private respondent was promoted and designated as Junior
Assistant in the pay scale of Rs.4400-7000 with effect from
01.01.1996, vide order dated 06.10.1998 (Annexure PH
attached to the writ petition). Aggrieved by reduction of his pay
scale, private respondent approached this Court by filing the
writ petition.
4. Appellant State, in its reply, averred that in view of
the Notification dated 01.09.1998, the pay scales of the
employees were liable to be re-fixed as on 01.01.1996. It was
further averred that the private respondent had exercised his
option to switch over to the revised pay scale with effect from
.
01.01.1996, in pursuance to Notification dated 20.01.1998
(Annexure PF attached to the writ petition).
5. Learned Single Judge, vide the impugned order,
allowed the writ petition filed by the private respondent. Hence,
the present Letters Patent Appeal by the State.
6. Mr. Ashwani Sharma, learned Additional Advocate
General for the appellant-State, has argued that the learned
Single Judge has erred in allowing the writ petition filed by the
private respondent. In fact, private respondent had exercised
his option for revision of pay scale with effect from 01.01.1996
after issuance of Notification dated 20.01.1998. Hence, it could
not be said that the pay of the private respondent had been
reduced without any notice to him. The pay of the private
respondent was liable to be re-fixed with effect from
01.01.1996, as the Notification dated 20.01.1998, later
clarified/amended vide Notification dated 01.09.1998,
specifically provided that the amendment to the rules would be
applicable with effect from 01.01.1996.
7. Mr. Naresh Kumar Tomar, learned Counsel for the
private respondent, on the other hand, has opposed the appeal
and has submitted that the learned Single Judge by basing
.
reliance on the judgments of the Hon'ble Supreme Court, had
rightly allowed the writ petition filed by the private respondent.
In fact, the private respondent had given his option before the
issuance of the amended Notification dated 01.09.1998. From
Notification dated 20.01.1998, it could not be inferred that the
revision of pay scale would be detrimental to the interest of the
private respondent and his pay would be reduced.
8. Facts in the present case are not in dispute.
Admittedly, the private respondent was appointed as a Clerk on
28.01.1987 and his pay had been re-fixed/revised from
Rs.1500-2700 to Rs.5000-8100 with effect from 09.01.1998. A
perusal of Annexure PE and Annexure PF, attached to the writ
petition, reveal that the existing pay scale of Rs.1500-2700,
was revised to Rs.5000-8100 with effect from 01.01.1996. In
pursuance to the said order/Notification, the private respondent
was required to exercise his option for revised pay scale.
Private respondent exercised his option for the revision of pay
scale with effect from 01.01.1996. Admittedly, the option was
exercised by the private respondent on 11.06.1998. The said
option exercised by the private respondent and order passed in
pursuance thereto have been placed on record as Annexure
A-5 and Annexure A-6 with the appeal file. Private respondent
.
had exercised his option because as per the Notification dated
20.01.1998, he would have got the revised pay scale as
Rs.5000-8100 from Rs.1500-2700. The State, however,
amended the Notification dated 20.01.1998 by issuing another
Notification Annexure PG ( attached to the writ petition) on
01.09.1998. By issuing the said Notification, a second schedule
was added and the same reads as under:-
"The second schedule
(see rule 3 3(b), (g) and rule 4)
Revised Scales of Pay for Common Categories/posts
as specified hereunder:-
SI. No. Designation/Name Existing Revised Remarks
of Category pay scale Pay Scale
(In (In
Rupees) Rupees)
I. GENERAL HELPERS AND MAINTENANCE STAFF.
1. Peon, Chowkidar, 770-1410 2520-4140 -
Frash, Mali, Bhishti with initial
and Sweeper (with start of
combined Rs.2620/-
designation within
the above
designation such as
Peon-cum-
Chowkidar,
Sweeper-cum-
Frash etc.) and
other Class-IV in
the existing Scale
mentioned in
column-3 except
those mentioned at
item No.2 and 3 of
this serial number.
2. Head Mali, 800-1455 2720-4260 -
.
Jamadar and
Record Lifter
3. Daftri 800-1455 2820-4400 -
II. MINISTERIAL STAFF
1. Clerk i) 950-1800 3120-5160 The rate of
with initial (50%) typewriting
start of allowance to
Rs.1000/- the Typist
(Clerk) (20%) Clerks in the
ii) 1200-2130 Scales of
(Senior 4020-6200 3120-5160
Clerk) (40%) deployed on
iii) 1500-2700 full time
r (Junior 5000-8100 basis shall
Assistant) (50%) be Rs.75/-
(40%) p.m.
With effect
from 1st
Sept. 1997
and for
sanctioning
typewriting
allowance a
certificate to
the effect
that the
concerned
Clerks were
actually
deployed on
typing work
from the
Head of
Office will be
required
every month.
The designation and the revised equivalent of the
unrevised pay scale of officials working as Senior Clerks
and Junior Assistant as on 1st January, 1996, shall be
protected as a measure personal to them. For future, the
total number of posts of Clerk including Senior Clerk and
Junior-Assistant in a cadre existing on 1st January, 1996
shall be divided into the posts of Clerk in the scale of
Rs.3120-5160 and junior Assistant in the scale of Rs.4400-
7000 in the ratio of 50:50. The new posts of Junior
.
Assistant shall be created on the basis of actual
requirements.
The posts of Junior Assistant shall be filled up by
promotion to the extent of 100% from amongst the Clerks
who have an experience of working as such for a minimum
period of 5 years in the cadre of the department in which
he is working at the time of promotion.
3. Senior 1800-3200 5800-9200
Assistant
4. Steno- i. 1020-1800 3300-6200 The pay
Typist (Steno- scale of
Typist) 1200-2130 is
r (Grade-II) abolished.
ii. 1200-2130 The
(Steno- designation
typist) and the
(grade-I) revised
equivalent of
the
unrevised
pay scale
i.e. 4020-
6200 of the
officials
working as
Steno-typist
Gr.I as on 1st
January,
1996 shall
be protected
as a
measure of
personal to
them."
9. Thus, vide Notification dated 01.09.1998, in the
ministerial staff, three pay scales were created of Clerk, Senior
Clerk and Junior Assistant. It was further ordered that the
officials working as Senior Clerks and Junior Assistants, as on
01.01.1996, will be entitled for protection of their unrevised pay
.
scales as a measure personal to them. Private respondent was
never asked to exercise his option after the amended
Notification dated 01.09.1998 was issued. The pay scale of the
private respondent was reduced from Rs.5000-8100 to
Rs.4400-7000 on the ground that he had been placed in the
pay scale of Rs.5000-8100 with effect from 28.01.1997. Since
the private respondent was not drawing the pay scale of
Rs.5000-8100 on 01.01.1996, he was placed in the pay scale
of Rs.4400-7000. Aggrieved against the order of reduction of
his pay scale, private respondent filed a representation before
competent authority. It was conveyed to the private respondent
vide communication dated October 18/19,2001 that his
representation had been considered and rejected by learned
District & Sessions Judge. Private respondent then approached
this Court by way of a representation and vide communication
dated 16.04.2004, he was informed that his representation had
been considered and rejected. Both the representations were
rejected without giving any reasons.
10. The sole question that requires consideration is as
to whether the private respondent, who had been granted the
pay scale of Rs.5000-8100, could be placed in a lower pay
.
scale of Rs.4400-7000 with effect from 01.01.1996 on the basis
of Notification dated 01.09.1998 (Annexure PG attached to the
writ petition). No notice was issued to the private respondent
before ordering reduction of his pay scale. Private respondent
should have been put to notice before reducing his salary.
11. Mr. Ashwani Sharma, learned Additional Advocate
General, has laid great emphasis on the fact that the private
respondent had exercised his option for revision of pay scale.
However, the said argument is fallacious as the private
respondent had exercised his option in pursuance to
Notification dated 20.01.1998 (Annexure PF to the writ petition),
wherein, he would have got the pay scale of Rs.5000-8100.
The said option was exercised by the private respondent in
June, 1998. It is only vide Notification issued on 01.09.1998,
the pay scale of the private respondent was sought to be
reduced from Rs.5000-8100 to Rs.4400-7000 without seeking
any option from the private respondent. It is also evident from
the Notification dated 01.09.1998 (Annexure PG attached to the
writ petition) that so far as the Senior Clerks and Junior
Assistants are concerned, their pay scales and designations
were protected as on 01.01.1996 as a measure personal to
them. Private respondent had also been granted the
.
designation and pay scale of Junior Assistant with effect from
28.01.1997 and there is no reasonable explanation as to why
the same was not liable to be protected at the time of revision
of pay scales ordered vide amended Notification dated
01.09.1998. Private respondent had already been granted the
revised pay scale of Rs.5000-8100 much before the issuance of
Notification dated 01.09.1998. By issuing Notification dated
01.09.1998, the rights which had already accrued to the private
respondent, vis-a-vis, his designation and pay scale, could not
have been withdrawn by taking benefit of the fact that the
Notification dated 01.09.1998 had become effective with effect
from 01.09.1998. It appears that at the time of giving
retrospective effect to the revision of pay scales while issuing
Notification dated 01.01.1998, the fact that it might cause
hardship to the employees placed like the private respondent,
had not been taken in consideration. The vested rights and
accrued rights of an employee could not have been altered
from an earlier date and thereby taking away the benefits
granted to the employee in terms of the rules which were in
force at the time of grant of such rights.
12. In this factual background, learned Single Judge
.
rightly allowed the writ petition filed by the private respondent.
Learned Single Judge has based reliance on various decisions
of the Hon'ble Supreme Court while allowing the writ petition
filed by the private respondent. Accordingly, the appeal is
dismissed. The impugned judgment passed by the learned
Single Judge, is upheld.
13. Pending miscellaneous application(s), if any, shall
also stand disposed of.
( Sabina )
Judge
( Sushil Kukreja )
August 30, 2022 Judge
(Yashwant)
