Himachal Pradesh High Court
Suresh Kapoor Son Of Sh. H.R. ... vs Punjab State Electricity on 18 October, 2022
Bench: Satyen Vaidya
REPORTABLE/NONREPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18th DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 6605
of 2019.
Between:
1. SURESH KAPOOR SON OF SH. H.R. KAPOOR,
MOHALLA KANTNA, WARD NO.8, UNA TOWN,
TEHSIL & DISTRICT UNA (HP).
2. NARINDER SINGH SON OF SH. SITA RAM,
EXECUTIVE ENGINEER, HPPWD HAMIRPUR
DIVISION, HAMIRPUR (HP).
3. VIKAS SUD SON OF SH. G.C. SUD, VPO RAJPUR,
TEHSIL PALAMPUR, DISTRICT KANGRA (HP).
4. AJAY KAPOOR SON OF SH. T.C. KAPOOR,
EXECUTIVE ENGINEER, HPPWD THEOG
DIVISION, DISTRICT SHIMLA (HP)
5. SANJAY KUMAR SON OF SH. MILAP CHAND SONI,
VPO NAGROTA GAZIAN, TEHSIL BHORANJ,
DISTRICT HAMIRPUR (HP).
6. DIWAKAR SINGH PATHANIA, EXECUTIVE
ENGINEER, HPPWD SALOONI DIVISION, CHAMBA,
DISTRICT CHAMBA, (HP).
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7. MOHAMMAD AYUB CHAUDHARY SON OF SH. D.M.
CHAUDHARY, CHAUDHARY HOUSE, BELOW
MEHTA PETROL PUMP, SNAJAULI, SHIMLA6.
8. RAJ KUMAR VERMA SON OF SH. ISHWAR DASS
.
VERMA, SET NO.8, BLOCK C, SOCIETY COMPLEX,
BHARARI, SHIMLA (HP).
9. VIJAY KUMAR SON OF SH. RAJU RAM, VPO RAJA
KABAGH, TEHSIL NURPUR, DISTRICT KANGRA
(HP)
10. ANITA VAIDYA D/O SH. L.K. VAIDYA, LOWER
BIJNI, PO BIJNI, MANDI, DISTRICT MANDI (HP).
...PETITIONERS
(BY MR. DILIP SHARMA, SENIOR ADVOCATE, WITH
MR. BHARAT THAKUR, ADVOCATE,)
AND
1. STATE OF HP THROUGH PRINCIPAL SECRETARY
(FINANCE) TO THE GOVERNMENT OF HP,
SHIMLA2.
2. PRINCIPAL SECRETARY (PUBLIC WORKS) TO THE
GOVERNMENT OF HP, SHIMLA2.
....RESPONDENTS.
(BY MR. DESH RAJ THAKUR, ADDL. ADVOCATE
GENERAL WITH MR. NARENDER THAKUR, DEPUTY
ADVOCATE GENERAL)
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RESERVED ON: 21st SEPTEMBER, 2022.
DECIDED ON: 18th OCTOBER, 2022.
_____________________________________________________________
.
This petition coming on for hearing this day, the
Court, passed the following:
ORDER
By way of instant petition, the petitioners have
prayed for following substantive reliefs:
"(i) That the impugned cutoff date of 19.07.2013 fixed for
Executive Engineer for the admissibility of pay band of
Rs.37,40067000+ 8600 GP on completing 14 years of
regular service including service as Assistant Engineer
vide Annexure A4 dated 19.07.2013, may be declared
to be unconstitutional and in violation of Articles 14 and
16 of the Constitution of India.
(ii) That for the purpose of pay band of Rs.37,40067000 +
8600 GP for Executive Engineers on completing 14 years
of regular service including service as Assistant
Engineer, the date of admissibility may be read down
and treated at par with Assistant Engineers i.e.,
27.8.2009 on notional basis and 9.8.2012 on actual
basis, as prescribed in letter dated 26.8.2013, Annexure
A5 read with corrigendum dated 18.9.2013, A6, with
all consequential benefits.
(iii) That the applicants may be held entitled to pay fixation
at the initial pay of Rs.46,000/ in the pay band of
Rs.37,40067000 + 8600 GP on completing 14 years of
regular service including service as Assistant Engineer,
.
with effect from 1.1.2011 on notional basis and
9.8.2012 on actual basis with all consequential benefits
including arrears of salary and interest at market rate
on delayed payments."
2. Brief facts necessary for adjudication of
petition are that petitioners along with 9 others were directly
recruited as Assistant Engineer in October, 1996. The State
Government vide notification dated 01.09.1998 amended
H.P. Civil Services (Revised Pay) Rules, 1998 (for short "1998
Rules") and thereby allowed Assistant Engineers in HPPWD
and IPH department four tier pay scales i.e. higher pay
scales on completion of 4, 9 and 14 years of service as
Assistant Engineers. The Executive Engineers in both the
aforesaid departments were also granted the benefit of two
tier pay scales i.e. entry scale 1200015500 and scale of
Rs.14,30018150 after completing 14 years of regular service
including service as Assistant Engineer.
3. The State Government revised pay scales of its
employees vide notification dated 26.08.2009 and the
revision was made applicable retrospectively w.e.f.
.
01.01.2006. Vide notification dated 31.08.2009, the benefit
of ACPs, three/two tier pay structure, applicable under the
prerevised pay scales, was put in abeyance w.e.f.
26.08.2009 till further orders on the ground that no such
structure.
4.
Petitioners
scheme had been formulated/notified under the revised pay
were promoted as Executive
Engineers on different dates before completion of 14 years of
service as Assistant Engineer. Rest of 9 Assistant
Engineers recruited in the same process were promoted on
different dates after completion of 14 years of service as
Assistant Engineers.
5. Vide notification dated 19.07.2013, the State
Government decided to reintroduce two tier pay structure in
the case of Executive Engineers in HPPWD and IPH
department which had been held in abeyance after
26.08.2009 as per letter dated 31.08.2009. Accordingly,
the benefit was restored, but from prospective date i.e.
19.07.2013. As a result, petitioners became entitled to
.
Rs.31,320/ as initial pay in the pay band of Rs.15,600
39100 +7600 GP. On completion of 14 years of regular
service including service as Assistant Engineer, they were
held entitled to pay band of Rs.37,40067000 + 8600 Grade
Pay with initial pay of Rs.46000/.
6. On 26.08.2013, the State Government restored
the benefit of granting four tier pay scales to the Assistant
Engineers w.e.f. 27.08.2009 on notional basis and from
26.08.2013 on actual basis. Letter/corrigendum was issued
on 18.09.2013 and the actual benefit to the beneficiaries of
notification dated 26.08.2013 was made applicable
retrospectively w.e.f. 09.08.2012.
7. Resultantly, petitioners were allowed initial
pay of Rs.46,000/ w.e.f. 19.07.2013, whereas other 9
Assistant Engineers, who were recruited along with the
petitioners in the same selection process and were promoted
after completion of 14 years service as Assistant Engineer,
were allowed initial pay of Rs.46,000/ w.e.f. 01.01.2011.
On their promotion as Executive Engineer after completion
.
of 14 years of service, the said 9 persons were given
consequential benefits of pay fixation also.
8. Thus, the precise grievance of petitioners is
that the above noticed fact situation has created anomaly in
pay scale of category of Executive Engineers as against the
Assistant Engineers. The Assistant Engineers, junior to the
petitioners were granted benefit of higher pay scales earlier
in time than the petitioners, which according to petitioners
amount to hostile discrimination. The impugned action of
the respondents has thus been challenged to be
unreasonable, arbitrary, irrational, capricious and violative
of Articles 14 and 16 of the Constitution of India.
9. Respondents have contested the claim of
petitioners on the ground that the State Government has
exclusive jurisdiction to legislate or issue the executive
instructions on State Public Services as per Entry 41 of
State list of Schedule 7 of the Constitution of India. The
H.P. Civil Services Pay Rules are framed and notified by the
State Government in exercise of its power under proviso to
.
Article 309 of the Constitution. On the strength of said
empowerment, the respondents have sought to defend their
action as being intra vires of Constitution. It is further
submitted on behalf of the respondents that the cut off for
releasing of any financial benefits to its employees is the
prerogative of the State Government.
r It can specify the
revision of pay scales or other benefits to be applicable from
the dates prospectively or retrospectively. As per
respondents, the State Government restored the pay scale
structure prospectively with clarification that the benefit
thereof will be measure personal to the employee and shall
have not relevance to his seniority and would also not be
admissible for stepping up of the pay. The claim of the
petitioner has also been stated to be time barred. Non
impleadment of Assistant Engineers, who were benefited by
the action of respondents was also taken as defence.
10. I have heard Mr. Dilip Sharma, Senior
Advocate, for the petitioners and Mr. Desh Raj Thakur,
Additional Advocate General, for the respondents and have
.
also gone through the record carefully.
11. There is not much dispute as far as factual
aspect of the matter is concerned. The question is whether
the petitioners have been put to disadvantageous position by
the administrative action of respondents?
12. Petitioners along with 9 others were recruited
as Assistant Engineers by the State Government by same
selection process. Petitioners being seniors were promoted
as Executive Engineers prior to the other 9 incumbents.
Petitioners, who were promoted as Executive Engineers from
the cadre of Assistant Engineers were being paid less than
their juniors only because they got a chance to be promoted
by putting lesser years of service in the cadre of Assistant
Engineers. They cannot be blamed for such situation. It
was not in the hands of petitioners to get the promotion at
their will. The promotions to the posts of Executive
Engineers were regulated by relevant service Rules,
therefore, their promotions obviously were dependent upon
the availability of vacancies on the higher posts of Executive
.
Engineers.
13. The State Government had kept in abeyance
the benefits of ACPs, 3/2 tier pay structure vide letter dated
31.08.2009, according to which abeyance was to have effect
from 26.08.2009. Meaning thereby, the benefits under the
aforesaid schemes available to the petitioners as well as 9
others recruited Assistant Engineer by the same selection
process were affected similarly by the same stroke. The
benefits were only kept in abeyance and were not
withdrawn. The reason for such administrative action was
non formulation/notification of such beneficial scheme
under the revised pay structure having come into effect from
0.1.01.2006.
14. The State Government, however, restored the
benefits of ACPs, 3/2 tier pay structure from different dates
for different categories. The petitioners had been promoted
as Executive Engineers by then before rendering 14 years
service as Assistant Engineers. For them, the date of
restoration was prescribed as 26.08.2013, whereas, other 9
.
Assistant Engineers, who had not been able to get promotion
as Executive Engineers before rendering 14 years of services
as Assistant Engineers, were allowed benefit of restoration of
scheme from retrospective date. Consequently, the other 9
persons, who were juniors to the petitioners got higher pay
scale earlier in time as compared to the petitioners and as a
result they got additional benefit when they got promoted as
Executive Engineers. Undeniably, the anomalous situation
as arisen where the juniors are paid higher pay than the
seniors.
15. The Hon'ble Supreme Court in Gurcharan
Singh Grewal and another vs. Punjab State Electricity
Board and others, reported in (2009)3 SCC 94, has
observed that it is well settled principle of law that senior
cannot be paid lesser salary than his junior and, in such
circumstances, even if, there was difference in incremental
benefits in the scale given to government servant, such
anomaly should not have been allowed to continue and
ought to have been rectified by fixing the pay in parity with
.
the junior officers.
16. The respondents have not been able to justify
their action. Merely, because the respondent is empowered
under the Constitution to frame service Rules does not mean
that the State Government can ignore the principle of
equality. It is more than settled that the power of State to
frame service Rules is circumscribed by the mandate of
Articles 14 and 16 of the Constitution. The State
Government cannot discriminate without showing the
rationale of its administrative. In the facts of instant case,
there is nothing to suggest as to what objective is sought to
be achieved by discriminating the petitioner, visavis the
other 9 incumbents selected in the same process and who
admittedly are juniors to the petitioners.
17. As regards objection as to nonjoinder of
necessary parties, it is held to be misconceived. The
petitioners have not prayed for any benefit over and above
the benefits granted to 9 other incumbents recruited as
Assistant Engineers in the same selection process, rather
.
they have sought parity with such persons on the basis of
rights vested in them. The outcome of the instant petition
will not affect the rights of those 9 other persons adversely.
18. The respondents have also taken exception to
the claim of petitioners being time barred. It is alleged that
cause of action accrued to the petitioners on 26.8.2009 and
as such the petition was beyond limitation. The instant
petition is presently considered in exercise of powers under
Article 226 and the claim therein can be defeated by delay
and laches. The case of petitioners is that they were affected
by the discriminatory administrative action of the
respondents dated 18.9.2013 whereby the 9 other Assistant
Engineers were allowed the benefits retrospectively and also
the order dated 26.8.2013 whereby the petitioners were
allowed the benefit of restoration of ACPs, 2/3 tier pay scale
prospectively. Petitioners were also affected by the
consequent pay fixation order issued on 23.8.2014. The
petition was preferred by petitioners in January 2016
without much undue delay before erstwhile State
.
Administrative Tribunal and therefore cannot be sad to be
barred by delay and laches.
19. Resultantly, the petition deserves to be
allowed. The cutoff date i.e. 19.07.2013 fixed for Executive
Engineers for the admissibility of pay band of Rs. 37400
67000 + 86000 GP is declared to be discriminatory and in
violation of Articles 14 and 16 of the Constitution.
Petitioners are held entitled to fixation at the initial pay of
Rs.46,000/ in the pay band of Rs. 3740067000 + 8600 GP
on completion of 14 years of regular service as Assistant
Engineers w.e.f. 01.01.2011 on notional basis and on
09.08.2012 on actual basis with all consequential benefits
including the arrears of salary. The respondents are
directed to do the needful including all payments of arrears,
if any, to the petitions within two months from the day of
passing of this judgment. The petition is accordingly
disposed of, so also, the pending application(s), if any.
.
(Satyen Vaidya)
18th October, 2022 Judge
(Jai)
r to
