Decided On : 2.1.2023 vs State Of H.P. & Another
2023 Latest Caselaw 22 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. 157 of 2019 Reserved on 22.12.2022

.

Decided on : 2.1.2023.

    Desh Raj Awasthi                                           ...Petitioner.
                               Versus





    State of H.P. & another                                    ...Respondents

    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Mr. Subhash Sharma, Advocate.

For the respondents : Mr. Desh Raj Thakur, Addl. A.G.

with Mr. Narender Thakur, Dy.

A.G.

Satyen Vaidya, Judge:

By way of instant petition, petitioner has prayed for

the following substantive reliefs:-

"i). Annexure A-8 may kindly be quashed and set

aside.

ii) That the respondent department may kindly be directed to rectify the above said anomalous position with respect to the grant of PGT Scale in favour of the applicant.

iii) That the respondent department may kindly be further directed to grant the same pay scale to the applicant retrospectively from the date

Whether reporters of Local Papers may be allowed to see the judgment?

when the above said juniors, i.e. Roshan Lal and Gian Chand have been granted with all consequential benefits."

.

2. Petitioner was appointed as Trained Graduate

Teacher (TGT) along with other incumbents vide office order

dated 6.10.1975. The petitioner approached the H.P. State

Administrative Tribunal by filing O.A. No. 957 of 2003, with a

grievance that he was being paid less pay than his juniors in

the same cadre. His representation to the competent authority

had been rejected on untenable grounds.

3. Petitioner averred that his name figured at Sr. No.

36 of office Order dated 6.10.1975, whereas, the names of

S/Sh. Roshan Lal and Gian Chand figured at Sr. No. 42 and 54

respectively of the same office order. In all the subsequent

seniority lists of TGTs, petitioner was placed higher than the

said S/Sh. Roshan Lal and Gian Chand. Despite the fact that

the said S/Sh. Roshan Lal and Gian Chand were juniors to

petitioner, they were drawing higher pay than the petitioner.

Petitioner represented his grievance to the Director of

Education vide representation dated 18.8.1999 and

21.12.2000, through proper channel. His representation was

forwarded by District Education Officer to the Director of

Education vide communication dated 29.1.2001. However, the

Director of Education vide letter dated 22.3.2001 rejected the

claim of petitioner in following terms:-

.

"On perusal of the detail furnished/given in the letter

referred to above it is found that the anomaly has

arisen due to the option exercised by the junior w.e.f.

1.11.1979 on the grant of PGT scale, therefore, the

pay of Sh. Desh Raj, Lecturer cannot be stepped up

against Sh. Roshan Lal, Lecturer. The service book of

Sh. Roshan Lal Lecturer is returned herewith."

4. The petitioner again made a request on 29.8.2001

for reconsideration of his grievance but the same remained

unanswered. The Original Application of the petitioner came to

be transferred to this Court and was registered as CWPOA No.

157 of 2019 on abolition of the Tribunal.

5. Respondents have contested the claim of petitioner

on the grounds firstly that it was a highly belated attempt. The

representation of the petitioner was rejected on 12.3.2001,

whereas petitioner approached the erstwhile Tribunal on

4.5.2003 and secondly, it has been submitted that the juniors

of petitioner, as referred to in the petition had opted for grant of

PGT scale and as such, they were placed in higher pay scale

than the petitioner. As per respondents, petitioner did not

exercise the option for grant of pay scale of PGT, hence he was

not entitled to any relief.

.

6. I have heard the learned counsel for the parties and

have also gone through the record carefully.

7. As regards the objection in respect of belated claim,

it can be noticed that the petitioner raised the grievance when

he came to know about the anomaly. Thereafter, he

represented and his representation was rejected on 12.3.2001.

Petitioner again made a representation for reconsideration of

his case on 29.8.2001, which remained pending and undecided

and in this view of the matter, the O.A. preferred by the

petitioner on 4.5.2003 cannot be said to be inordinately

delayed. It is not the case of the respondents that the

petitioner was aware about the grant of higher pay scale to his

juniors from the very beginning. Keeping in view the conduct of

petitioner, it cannot be said that the petitioner had slept over

the matter or was grossly negligent in pursuing his remedy.

Accordingly, the objection with respect to the belated claim of

petitioner cannot be sustained.

8. The respondents have accused the petitioner of not

having exercised the option for grant of PGT Scale. There is

nothing in the reply of the respondents that the petitioner was

ever afforded with such an option. On the other hand, it is

categoric case of the petitioner that no such option was given to

.

him. Petitioner has rightly contended that had such option

been given to him, there was no reason why he should not have

opted for higher scale.

9. The facts of the case clearly suggest existence of an

anomalous situation having been created for which, the

petitioner cannot be blamed. The incumbents serving in the

same category of TGT, are being paid higher scale than the

petitioner despite being juniors to him.

10. The denial of the right of petitioner to have the same

pay scale as his juniors is unsustainable, especially in absence

of any legal and justifiable reason. As the petitioner was never

afforded any option to opt the PGT Scale, the reason for

rejection of the representation of the petitioner vide Annexure

A-8 also cannot be sustained.

11. The Hon'ble Supreme Court of India, in Gurcharan

& another vs. Punjab State Electricity Board & others

reported in 2009 (3) SCC, 94 has observed that as a settled

principles of law, senior cannot be paid lesser salary than his

juniors and, in such circumstances, even if, there was

difference in incremental benefits in the scale given to the

government servant, such anomaly should not be allowed to

continue and ought to be rectified by fixing the pay in parity

.

with the juniors.

12. The respondents have not been able to justify their

action. The State Government cannot ignore the principle of

equality and also cannot discriminate without showing rational

of its administrative decision.

13. In result, the petition is allowed. Respondents are

directed to grant the same pay scale to the petitioner, as his

juniors S/Sh. Roshan Lal and Gian Chand mentioned at Sr. No.

42 and 54 of office order dated 6.10.1975 (Annexure A-1) were

paid and from the same date when the said S/Sh. Roshan Lal

and Gian Chand were made entitled thereto. The needful be

done within six weeks from the date of production of a copy of

this judgment. The arrears will be payable to the petitioner

from three years prior to filing O.A..

14. The petition is disposed of. Pending applications, if

any, also stand disposed of.

                                                 (Satyen Vaidya)
    2nd January, 2023                                 Judge
              (kck)