Madan Lal And Others vs State Of H.P. And Another
2022 Latest Caselaw 11787 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. 7531 of 2019 Reserved on : 23.12.2022

.

Date of decision: 30.12.2022

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      Madan Lal and others                                                Petitioners

                               Versus





      State of H.P. and another                                           Respondents

------------------------------------------------------------------------------------- Coram :-

Ms. Jyotsna Rewal Dua, Judge

Whether approved for reporting? 1 Yes ____________________________________________________

For the Petitioners : Mr. Bhuvnesh Sharma, Senior Advocate, with

Mr. Parav Sharma, Advocate

For the Respondent : Ms. Ritta Goswami, Additional Advocate General, with Mr. Ram Lal Thakur, Assistant Advocate General

------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge

In LHLJ 2009 (2) 887 (Paras Ram Vs. State of Himachal

Pradesh and another), it was held that ad-hoc service followed

without break by immediate regularization is to be counted towards

annual increments. While arriving at this decision, the Court noted

Office Letter dated 27.09.1977 which reads as under :-

"I am directed to refer to your letter No. EDN-H(2) B (2) 6/88-III dated the th 12 September, 1977, on the above subject and to say that where there is a break in Ad-Hoc service and regular appointment, the period of Ad-Hoc

service will not count towards increment, but where the ad-Hoc appointment in following by immediately regular appointment and there is no break in service, the AD-Hoc service will be counted towards increment in the normal course."

.

The above decision was followed by the Division Bench of this

Court in its judgment dated 15.07.2010 rendered in LPA No. 36 of

2010 (Sita Ram Vs. State of H.P.) wherein benefit of ad-hoc service in

addition to grant of increments was also allowed for the purpose of

pension. Relevant extract from the judgment reads thus :-

"....However, this court in Paras Ram's case had laid down the law that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments. It is also settled principle of

law that any service that is counted for the purpose of increment, will count

for pension also. To that extent the appellant is justified in making submission that period may be treated as qualifying service for the purpose of pension also. However, so far as the seniority is concerned, the basic norms of seniority will be counted on the date of appointment in regular

service, qua those who are already in regular service as on that date. If the claim of the petitioner-appellant is to be accepted, it will unsettle the settled

seniority of those regular teachers. It may also not be out of context to note that none of the affected teachers is before us. Be that, as it may. Since the

petitioner-appellant under law is entitled only for counting the ad hoc service, followed by regular service for the purpose of increments and pension, there is no merit in the appeal and the same is dismissed subject to the above

modification that the period that is counted for the purpose of increment, will count for pension also."

2. Relying upon the above decisions, petitioners have raised

further contention in the instant writ petition that (i) increments given

for such ad-hoc service should also be counted towards bunching

benefits and (ii) to count ad-hoc service for grant of Assured Career

Progression (ACP). The substantive reliefs prayed for by the

petitioners are as follows :-

.

"i) That the impugned rejection dated 19.10.2015, Annexure A-3, may kindly be quashed and set aside and the applicants may kindly be held entitled for the benefit of their ad-hoc service

towards seniority, promotion, ACP, bunching and stagnation Scale w.e.f. due date with all consequential benefits.

ii) That the arrears accrued to the applicants on account of

bunching, ACP and stagnation scale after revision of pay, may kindly be ordered to be paid with interest."

Respondent No. 2 has rejected petitioners' representation

seeking bunching of increments and grant of ACP for the ad-hoc

service vide order dated 19.10.2015 (Annexure A-3)). This order has

also been assailed in the petition.

3. On completion of 10 years of ad-hoc service, the petitioners'

services were regularized by the respondents by awarding them

special JBT certificates. In terms of the judgments passed in Paras

Ram and Sita Ram's cases (supra), the benefit of ad-hoc service has

been granted to the petitioners for the purpose of releasing them

annual increments. It is also not in dispute that the ad-hoc service

rendered by the petitioners is also to be counted towards due and

admissible pension to the petitioners. In view of law laid down in

aforesaid decisions, ad-hoc service cannot be counted towards

seniority [Re: (2021) 12 Scale 159 Malook Singh and others Vs.

State of Punjab and others] wherein it was held that initial stop gap

arrangement being not in accordance with the rules and the ad-hoc

.

service cannot be counted for the purpose of seniority.

4. The questions for consideration propounded in the instant

petition are:-

(i) Whether the increments granted to the petitioners for the

period of ad-hoc service rendered by them (in terms of decisions

rendered in Paras Ram & Sita Ram's cases supra), can also be

considered for grant of bunching benefits or not ?

(ii) Whether the ad-hoc service can be considered for grant of

Assured Career Progression ?

5. I have heard learned counsel on both sides on the questions

involved in the instant petition. In my considered view the increments

earned by the petitioners during the period of ad-hoc serevice in terms

of decisions in Paras Ram & Sita Ram's cases supra, are liable to be

considered for the grant of bunching benefits. However, ad-hoc

service is not liable to be counted for grant of ACP. The reasons for

holding so are as under :-

5 (i) Bunching occurs in fixation of pay when pay at two or more

consecutive stages in a pay scale/grade pay in the pre-revised scale

gets fixed at the same stage in the corresponding pay scale/level in

the revised pay structure. In other words, bunching occurs when two

or more stages gets bunched and benefit of one increment is to be

.

given for every two or more stages bunched.

5 (ii) The Himachal Pradesh Civil Services (Revised Pay) Rules,

1998 came into force from 01.01.1996. Rule 7 of these rules provided

fixation of pay in the revised scale. The proviso to the rule provided for

bunching of stages in the existing scale. The relevant part of this rule

is extracted hereinafter :-

"7. Fixation of Pay in the Revised Scale.- The pay of a Government

employee who opts or is deemed to have opted for the revised scale in terms

of the provisions of these rules shall, unless in any case the Government by special order otherwise directs, be fixed in the following manner, namely:-

(j) an amount representing forty percent of the basic pay in the existing scale

shall be added to the "Existing Emoluments" of the employee; and

(ii) after the existing emoluments have been so increased, the pay shall thereafter be fixed in the revised scale at the stage next above the amount of

the existing emoluments so computed, if it falls between two stages and it the amount so computed is equal to a stage in the revised scale, then the pay

shall be fixed at such equal stage;

Provided that:-

(a) if the minimum of the revised scale is more than the amount so arrived at, the pay shall be fixed at the minimum of the revised scale;

(b) If the amount so arrived at is higher than the maximum of the revised scale, the amount in excess of the maximum of the revised scale shall be treated as personal pay which shall be absorbed in future increments and shall be reckoned as pay for all purposes;

Provided further that where in the fixation of pay, the pay of Government employees drawing pay at more than three consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised scale at the same

stage, the pay in the revised scale of such of those government employees who are drawing pay beyond the first three consecutive stages in the existing scale shall be stepped up by grant of increment (s) in the revised scale in the following manner, namely :-

.

(a) for the Government employees drawing pay from the fourth upto

the sixth stage in the existing scale- by one increment;

(b) for the Government employees drawing pay from the seventh upto the ninth stage in the existing scale, if there is bunching beyond

the sixth stage- by two increments;

(c) For the Government employee drawing pay from the tenth upto the twelfth stage in the existing scale if there is bunching beyond the ninth stage- by three increments;

(d) For the Government employees drawing pay from the thirteenth upto the fifteenth stage in the existing scale, if there is bunching beyond the twelfth stage- by four increments;

If by stepping up the pay as above, the pay of a Government

employee gets fixed up at a stage in the revised scale which is higher than the stage at which the pay of a government employee who was drawing more pay in the same existing scale is fixed, the pay of the latter shall also be

stepped up to the level at par with the former;

Provided further that the fixation thus made shall ensure that every Government employee shall get at least one increment in the revised scale

for every three increments (inclusive of ex-gratia increment (s), if any) in the existing scale; NOTE:- See Illustrations 1 to 7 appended to these rules for

guidance..........".

On 07.11.1998, State Finance Department issued

clarifications (Annexure MA-1) concerning Himachal Pradesh Civil

Services (Revised Pay) Rules, 1998. Some of the relevant

clarifications pertaining to bunching of increments read as under :-

" .....3. As per second proviso below Benefit of bunching and stepping up of rule 7 of the Revised Pay Rules, ibid, pay in such cases is to be allowed after wherein the fixation of pay, the pay of identifying the particular Government employee, drawing pay at officers/officials in the cadre.

more than 3 consecutive stages in the existing scale gets bunched i.e. to say gets fixed I the revised scale at the same stage, the pay in the revised scale of such of the employees, who are drawing pay beyond the first three

.

consecutive stages and so on in the existing scale, shall be stepped up by

grant of increments according to number of stages.

It may be elucidated whether the

benefit of bunching in such cases has to be allowed after identifying the particular officers or on presumptive basis, with reference to stages bunched.

4. An officer exercises option for As is clear in Second Proviso under fixation of pay in the revised scales Rule 7 bunching is to be done by w.e.f. 1.1.96 without getting annual counting increments in the existing increment due on 1.1.1996 in existing scale only. The pay actually drawn by

scale, as per note (1) under rule-7 of an employee is to be taken into the H.P. Civil Services (Revised Pay) consideration. The pay of an

Rules, 1998. It needs to be clarified employee, therefore, is to be fixed in whether in such a case, the officer is to the revised scale without taking annual be first granted the normal increment due on 1.1.96 into consideration. due on 1.1.96 in the revised scale, before allowing him the benefit of

bunching admissible, if any, or whether he is to be considered for the benefit of bunching before."

5 (iii) Vide office letter dated 24.12.2010 (Annexure R-1), the

respondent-State circulated the advice given by the Finance

Department that "the benefit of bunching increment shall not be

admissible on the initial ad-hoc service". This letter was strongly

pressed into service by the learned Additional Advocate General

while opposing the writ petition.

5 (iv) It is beyond comprehension that when ad-hoc service

(rendered in the manner prescribed in Paras Ram & Sita Ram's

cases supra) is to be counted for grant of pension and increments,

.

then why it is to be denied for the purpose of bunching of

increments. The increments already earned by an employee are to

be taken into consideration for grant of bunching benefit for fixation

of his pay in the revised scale. Grant of increments and bunching of

such increments is not dependent upon nature of service, be it ad-

hoc or regular. It is the pleaded case of respondents in the reply that

"in the bunching provisions of pay revision Rules, only the term

"stages" or increment earned" on the post in previous scale is

mentioned and it is nowhere mentioned that the service should be

on regular or ad-hoc basis." Bunching of increments is purely

dependent upon number of increments earned by the employee in

the existing scale. It is an admitted fact that in accordance with

decisions rendered in Paras Ram & Sita Ram's cases supra, the

petitioners have earned and have been granted increments for the

ad-hoc service rendered by them immediately before their

regularization. Having earned increments for the ad-hoc service, the

petitioners are certainly entitled for bunching benefit of counting

these increments for fixation of their pay in the revised pay scale.

5 (v) The next relief prayed for by the petitioners is for

counting the ad-hoc service rendered by them for the purpose of

.

allowing Assured Career Progression (ACP). No basis for claiming

this relief has been put forth. The only argument raised is that this

benefit was granted by the respondents to a couple of employees,

hence, on the same analogy, the benefit of ACP by counting the ad-

hoc service should also be allowed to the petitioners. The

respondents have pleaded that the benefit of ACP was wrongly

passed on to a couple of employees, however, the mistake has

since long been rectified and the benefit of ACP erroneously

released in favour of some of the employees now stands adjusted. It

is well settled that negative parity cannot be claimed. Ground of

discrimination cannot be urged citing wrong orders passed in favour

of others. No other reason has been put forth by the petitioners for

releasing them the benefit of ACP. Assured Career Progression

(ACP) Scheme has not been placed on record. Benefit of ACP is

usually allowed to those regular government servants who do not

have promotion avenues and stagnate for long time on the post held

by them. The objective of an Assured Career Progression Scheme is

to ensure financial upgradation, enhancements/promotions to a

regular employee in his entire service career. Petitioners have

neither placed on record the Assured Career Progression Scheme

nor any of its clauses are under challenge. By nature of applicability

and the object of ACP, it cannot be granted for the ad-hoc service

.

rendered by the petitioners.

No other point was urged.

5. In view of the above discussion, it is held that the

increments earned by the petitioners for the duration of their ad-hoc

service in terms of decisions rendered in Paras Ram & Sita Ram's

cases (supra) are liable to be bunched for the purpose of fixation of

their pay in the revised pay scale. The respondents are directed to

grant the benefit of bunching of increments earned by the petitioners

during ad-hoc service and fix their pay accordingly within a period of

six weeks from today. The relief of counting their ad-hoc service

towards grant of ACP claimed by the petitioners is declined.

The writ petition stands disposed of in the aforesaid

terms alongwith the pending applications, if any.

    30th December, 2022 (K)                        ( Jyotsna Rewal Dua ),
                                                            Judge