Himachal Pradesh High Court
Dr. Anil Kumar vs State on 20 May, 2022
Bench: Satyen Vaidya
Reportable/Non-Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITON (ORIGINAL APPLICATION) No. 8077 of
2019
Between:-
1. DR. ANIL KUMAR
SON OF SHRI GOVIND RAM,
RESIDENT OF VILLAGE AND POST OFFICE SEOH,
TEHSIL SARKAGHAT, DISTRICT MANDI,
HIMACHAL PRADESH.
2. DR. GEETIKA DHARMANI
WIFE OF SHRI ASHISH ASHISH JASWAL,
RESIDENT OF PREET NAGAR, BAIJNATH,
DISTRICT KANGRA, HIMACHAL PRADESH.
3. DR. RITESH KUMAR
SON OF SHRI S.S. SHARMA,
RESIDENT OF SHRI KUNJ,
VILLAGE AIMA, NEAR KALI BAR MANDIR,
POST OFFICE AND TEHSIL PALAMPUR,
DISTRICT KANGRA, HIMACHAL PRADESH.
....PETITIONERS
(BY MR. SANJEEV BHUSHAN, SENIOR ADVOCATE
WITH MR. RAJESH KUMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH
PRINCIPAL SECRETARY (AYURVEDA) TO THE
GOVERNMENT OF HIMACHAL PRADESH.
2. DIRECTOR, AYURVEDA, HIMACHAL PRADESH,
SHIMLA-9.
..RESPONDENTS
(MR. P.K. BHATTI, ADDITIONAL
ADVOCATE GENERAL)
Reserved on: 13.05.2022
Decided on: 20.05.2022
::: Downloaded on - 20/05/2022 20:07:31 :::CIS
2
__________________________________________________________________
This petition coming on for orders this day, the
Court passed the following:-
.
ORDER
Petitioners approached H.P. State Administrative
Tribunal by way of Original Application No. 3892 of 2016,
praying for the following substantive reliefs:-
"i That notification dated 13.09.2012 (Annexure A-8)
may very kindly be quashed and set aside to the
extent whereby pay scale of Rs.15,6000-39,100
plus 5400 as grade pay has been made applicable
only to those officers who have rendered two years
regular service by further directing the respondents
to grant pay scale of Rs.15,600-39,100 plus 5400
grade pay to the applicants from August, 2015 i.e.
dates of their regular appointment with arrears and
interest @ 12% per annum with all; the allowances
and Non-practicing Allowance @ 25%.
b) That the respondents may very kindly be directed to
grant Rs.15,600-39,100 plus Rs.5400 as grade pay
to the applicants after two years of their contractual
appointment by granting arrears of pay alongwith
12% interest per annum."
2. After abolition of the H.P. State Administrative
Tribunal, the Original Application No. 3892/2016 came to
be transferred to this Court as CWPOA No. 8077 of 2019.
3. Petitioners are Ayurvedic Medical Officers (for
short 'AMOs') serving the respondents. Petitioner No.2 was
initially appointed on contract basis through direct
recruitment, whereas petitioners No. 1 and 3 were
.
appointed on batch-wise basis also on contract. The
services of petitioners were regularized as AMOs vide
Notification dated 10.08.2015. Petitioner No.2 joined as
regular AMO on 13.08.2015, whereas petitioners No. 1 and
3 joined as such on 12.08.2015.
4.
The contention of petitioners is that they were
initially fixed in the pay band of Rs.10300-34800/- with
5000/- as grade pay plus 25% non practicing allowance
(NPA). By applying the general conversion table and also
relevant fitment table, the petitioners vide office order
dated 5.10.2015, Annexure A-6 were allowed
Rs.13450+5000/- grade pay equal to Rs.18450/- (initial
pay). However, petitioners were paid only Rs.15300/- i.e.
10300/- (minimum of the pay band) plus 5000/- as grade
pay.
5. It is further contended on behalf of the petitioners
that vide Notification dated 13.09.2012, AMOs, who had
rendered two years regular service, were granted pay-scale
of Rs.15600-39100 plus 5400 as grade pay. The
petitioners claim scale of Rs.15600-39100 with 5400 as
grade pay from the date of their regular appointment as
AMOs.
6. In response, it has been contended on behalf of
.
the respondents that the State Government has its own
staffing pattern, service, R&P Rules, method of recruitment
etc. The pay-scales and revision thereof is allowed by the
State of Himachal Pradesh independently in exercise of its
power under proviso to Article 309 of the Constitution of
India. The Himachal Pradesh Civil Services (Category/Post
Wise Revised Pay) Rules, 2012 (for short '2012 Rules') have
overriding effect over the Recruitment and Promotion
Rules, which require suitable amendment to be made in
conformity with the 2012 Rules. The State Government re-
revised the pay structure of the category of AMOs vide
Notification dated 13.09.2012 by granting pay-scale of
Rs.15600+39100+5400 grade pay after rendering two years
of regular service. The time scale of the post of AMO
remained the same as Rs.10300-34800+5000 as grade
pay. It was on account of fixation formula under the
revised pay Rules 2012, the pay of all the AMOs, who were
regularized after 01.10.2012 was fixed at the minimum of
pay band plus grade pay i.e. 10300+5000 grade pay,
without any initial pay as mentioned in the revised pay
Rules, 2019. The fixation of pay of the petitioners initially
at Rs.15300 has thus been justified.
7. I have heard learned counsel for the parties and
.
have also gone through the record carefully.
8. At the out set, Mr. Sanjeev Bhushan, learned
Senior Advocate assisted by Mr. Rajesh Kumar, Advocate
representing the petitioners has submitted that this Court
vide judgment dated 02.05.2022 passed in CWPOA Nos.
6401 of 2019 and 2223 of 2020 has allowed grant of
Rs.18450/- as initial pay to the petitioners therein who
were similarly situated to the petitioners in the instant
petition and they would be contended in case the same
and similar benefits are allowed to the petitioners as
allowed to the petitioners in CWPOA No. 6401 of 2019.
9. This Court while deciding CWPOA No. 6401 of
2019 titled as Dr. Sanjay Guleria and others vs. State
of H.P and others, vide judgment dated 02.05.2022 has
held as under:-
"14. The controversy involved in these petitions is in
narrow encompass. The contention raised on behalf of
the petitioners is that the Himachal Pradesh Civil
Services (Category/Post wise Revised Pay) Rules, 2012
applied only to such categories of Himachal Pradesh
Government employees as mentioned in the Schedule
annexed to these rules. As per petitioners, the category
of AMOs has never been included in the Schedule
appended to the aforesaid rules, therefore, said rules
cannot be a valid source for issuance of communication
dated 27.11.2015, Annexure A-1.
15. Rules 1 & 2 of Himachal Pradesh Civil Services
.
(Category/Post wise Revised Pay) Rules, 2012, read as
under: -
"1. Short title and commencement: -
(i) These rules may be called the
Himachal Pradesh Civil Services
(Category/Post-wise Revised Pay)
Rules, 2012.
(ii) They shall come into force
with effect from the date as mentioned
in Column 6 of the "Schedule"
appended to these rules.
2. Application: - Save as otherwise
expressly provided by or under these rules;
they shall apply to only such categories of
Himachal Pradesh Government employees
as mentioned in the aforesaid Schedule;
Provided that the Himachal Pradesh Civil
Services (Revised Pay) Rules, 2009 notified
vide No. Fin-(PR)B(7)-1/2009 dated:26th
august, 2009 and subsequent amendment(s)
thereto shall not apply to the category/post
of employees as mentioned in the 'Schedule"
with effect from the date mentioned in
Column No.6 of the said Schedule."
16. The plain reading of these rules clearly suggests
only one inference that for applicability of these rules to
a category of Himachal Pradesh Government
employees, the inclusion of such category in Schedule
appended to these rules is sine qua non. It is only from
the date of inclusion of any category of Himachal
Pradesh Government employees in such schedule, these
rules would be applicable.
17. It is evident from the rules and Schedules
appended thereto from time to time that the category of
.
AMOs has not been included in any of the Schedules.
That being so, the contention of respondents regarding
applicability of 2012 Rules to the category of AMOs
cannot be sustained and consequently the
communication dated 27th November, 2012, Annexure
A-1 and its consequence deserves to be quashed.
18. Mr. Desh Raj Thakur, learned Additional
Advocate General has raised an argument that the
effect of communication dated 27.11.2015, Annexure A-
1, is only to draw parity with all other employees of the
State Government covered under 2012 Rules.
Simultaneously, Mr. Desh Raj Thakur, learned
Additional Advocate General has fairly submitted that
an exception has been carved for the employees of
Agriculture Department. In support of his contention
Shri Thakur has relied upon a decision of the Hon'ble
Supreme Court in a case titled as K.T. Veerappa and
others vs. State of Karnataka and others, (2006)9
SCC 406, wherein it has been held that:
"13. He next contended that fixation of pay and
parity in duties is the function of the Executive
and financial capacity of the Government and the
priority given to different types of posts under the
prevailing policies of the Government are also
relevant factors. In support of this contention, he
has placed reliance in the case of State of
Haryana and Anr. v. Haryana Civil Secretariat
Personal Staff Association (2002) 6 SCC 72 and
Union of India and Anr. v. S.B. Vohra and Ors.
(2004) 2 SCC 150. There is no dispute nor can
there be any to the principle as settled in the case
of State of Haryana & Anr. v. Haryana Civil
Secretariat Personal Staff Association (supra) that
fixation of pay and determination of parity in
duties is the function of the Executive and the
scope of judicial review of administrative decision
in this regard is very limited. However, it is also
equally well-settled that the courts should
interfere with administrative decisions pertaining
to pay fixation and pay parity when they find
.
such a decision to be unreasonable, unjust and
prejudicial to a section of employees and taken in
ignorance of material and relevant factors."
19. No doubt, fixation of pay and determination of
parity in duties is a function of the executive and the
scope of judicial review is limited. However, the writ
court cannot be a mute spectator even in the cases
where the administrative action is found unreasonable,
unjust and prejudicial to a section of employees or such
action is otherwise harsh and arbitrary. In the facts of
the present case, the respondents have come up with a
specific defence that communication dated 27.11.2015,
Annexure A-1, was issued on the strength of 2012
Rules. No other explanation has been rendered. In
view of this, the argument raised by learned Additional
Advocate General cannot be countenanced as the same
would be in conflict with the pleaded case of the
respondents. 2012 Rules have been framed by the
State Government in exercise of powers emanating from
the proviso to the Article 309 of the Constitution of
India. Once the State Government had omitted to
include the category of AMOs in the Schedule appended
to the said rules, it cannot be allowed to turn around
and try to justify its action of so-called equitable
consideration. As noticed above, the categories of
employees in Agriculture department of the State have
also been exempted from the rigors of these rules.
There was nothing to prevent the State Government to
include the category of AMOs in the Schedule appended
to the 2012 Rules. Communication dated 27.11.2015
Annexure A-1 being mere administrative instructions
will not supersede 2012 rules framed under Article 309
of the Constitution of India. The argument so raised by
the learned Additional Advocate General is thus
.
rejected.
20. In the light of above discussion, both these
petitions are allowed and the impugned communication
dated 27.11.2015 (Annexure A-1) as also the order
dated 9.12.2015 (Annexure A-14) in CWPOA No. 6401
of 2019 are quashed and set aside. The respondents
are directed to fix the initial pay of petitioners in both
the petitions at Rs.18450/- from the respective dates of
their regularization. Needless to say, consequential
benefits, if any, accrued to the petitioners shall follow.
No order as to the costs. All pending applications also
stand disposed of."
10. Petitioners in CWPOA No. 6401 of 2019 and
petitioners in the instant petition were regularized by a
common order dated 10.08.2015 in the pay-scale of
Rs.10300-34800+5000 grade pay plus admissible NPA.
Their pay was fixed in terms of Himachal Pradesh Civil
Services (Category/Post wise pay) Rules, 2012 and the
general conversion table as also fitment table 17 included
in the schedule to such Rules were applied. Accordingly,
initial pay of Rs.18450/- (13450+5000) was allowed to be
paid to all these petitioners. However, subsequently, pay
of AMOs in CWPOA No. 6401 of 2019 and the instant
petition was placed at the minimum of Rs.10300-
34800+5000 grade pay without any initial pay start. Their
.
pay accordingly was reduced to Rs.15300/- per month in
place of Rs.18450/- as originally fixed.
11. Thus, petitioners in the instant petition are also
entitled to the same relief as has been granted to the
petitioners in CWPOA No. 6401 of 2019 vide judgment
dated 02.05.2022 by
this Court. Accordingly,
respondents are directed to fix the initial pay of petitioners
at Rs.18450/- from the date of their regularization.
the
Needless to say, consequential benefits, if any, accrued to
the petitioners shall follow.
12. The petition is disposed of in the aforesaid terms.
Pending applications, if any, also stand disposed of.
May 20, 2022 ( Satyen Vaidya )
Judge
(naveen)
