Himachal Pradesh High Court

Sanjeev Kumar vs State Of H.P. And Others on 6 September, 2024

Author: M. S. Ramachandra Rao

Bench: M. S. Ramachandra Rao

( 2024:HHC:8007 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 6268 of 2020 a/w CWPOA Nos. 6257, 6264 and 6271 of 2020 Reserved on: 29.08.2024

Decided on: 06.09.2024

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1. CWPOA No. 6268 of 2020 Sanjeev Kumar .....Petitioner

Versus State of H.P. and others .....Respondents

Aruna Sharma ...Petitioner

Versus State of H.P. and others ....Respondents.

      Narsi                                                                              ...Petitioner

                               Versus

      State of H.P. and others                                                           ....Respondents


        Pawna Kumari                                              ...Petitioner
                                          Versus


        State of H.P. and others                                  ...Respondents.

------------------------------------------------------------------------------------- Coram

The Hon'ble Mr. Justice M. S. Ramachandra Rao, Chief Justice

The Hon'ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting?1 Yes.

For the Petitioner(s) : Ms. Archana Dutt, Advocate, in all the petitions.

For the Respondents: Mr. Anup Rattan, Advocate General, with Mr. Rakesh Dhaulta, Mr. Sushant Kaprate, Mr. Pranay Pratap Singh, Addl. A.Gs, with Mr. Arsh Rattan, Mr. Sidharth Jalta and Ms.

Whether reporters of print and electronic media may be allowed to see the order? Yes

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Priyanka Chauhan, Dy. A.Gs., for respondents No. 1 to 3/State, in all the petitions.

Mr. Manish Sharma, Advocate, for respondent No.4, in CWPOA No. 6268

of 2020.

Mr. Lovneesh Kanwar, Sr. Advocate with Mr. Tek Chand, Advocate, for

respondent No.4 in CWPOA No. 6257 of 2020.

Mr. Shivom Vashista, Advocate, for respondent No.4, in CWPOA No. 6264

of 2020.

Mr. Varun Rana, Advocate, for respondent No.4, in CWPOA No. 6271 r of 2020.

------------------------------------------------------------------------------------ Satyen Vaidya, Judge

All these petitions have been heard and are being

decided together as common questions of facts and law are

involved.

2. The petitioners in all the petitions are working as

Community Organizers in their respective Municipal

Committees/Corporations. Petitioner in CWPOA No. 6268 of 2020

is working with Municipal Committee, Rampur, District Shimla,

petitioner in CWPOA No. 6257 of 2020 is working with Municipal

Committee, Sarkaghat, District Mandi, petitioner in CWPOA No.

6264 of 2020 is working with Municipal Committee, Chamba and

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petitioner in CWPOA No. 6271 of 2020 is working with Municipal

Corporation, Solan.

3. The initial appointments of petitioners as Community

Organizer, was on contract basis. Their services were regularized

under the regularization policy after eight years in the pay scale of

Rs.5910 - 20200 + 1950 Grade Pay.

4. The State Government of Himachal Pradesh vide

notification dated 27.09.2012, revised the pay scales of its

employees. The employees of local bodies viz. Municipal

Committees and Municipal Corporations were also benefitted by

the aforesaid revision. However, no revision was allowed in the case

of Community Organizers.

5. The petitioners submitted representations to their

respective employers, which were forwarded with recommendation

favouring petitioners to the State Government. The Government did

not allow the benefit of revision of pay scale to the category of

Community Organizer, forcing the petitioners to file the instant

petitions.

6. The petitioners have challenged the rejection of their

proposals to revise the pay scales by the State Government, they

have also sought direction to grant revision in pay scales to the

category of Community Organizer at par with the category of

Clerks.

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7. It is contended on behalf of the petitioners that prior to

issuance of notification dated 27.09.2012, the category of

Community Organizer and Clerks were placed in the same pay

scale. It is further the case of the petitioners that the nature of job

of both the categories is identical. Whereas, the category of Clerks

has been granted the benefit of pay revision, the petitioners have

been discriminated.

8. Discrimination has also been alleged by the petitioners

on the ground that the same category of post in Municipal

Committee, Sarkaghat has been allowed the benefit of revision of

pay scale at par with the category of Clerks. As per the petitioners,

the State Government has discriminated the petitioners viz-a-viz

the incumbents holding the same category in Municipal

Committee, Sarkaghat without any lawful justification.

9. As far as the respondents-Municipal Committees/

Corporations are concerned, they have not opposed the claim of the

petitioners. According to said respondents, they had recommended

the case of petitioners to the State Government, but the State

Government had rejected the same.

10. The State Government has opposed the claim of the

petitioners by alleging that it is the prerogative of the State

Government to grant pay scale to a particular category of

employees keeping in view specific job profile and nature of duties.

It has also been stated that there cannot be any comparison with

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the category of Community Organizer and Clerks. As per the reply

of the State Government, the revision of pay allowed vide

notification dated 27.09.2012, was for limited categories and the

category of petitioners were to be considered for revision of pay

during general revision w.e.f. 01.01.2016.

11. We have heard learned counsel for the parties and have

also gone through the records of the case carefully.

12. It is reflected from the responses submitted by the

respondents-Municipal Committees/Corporations that the post of

Community Organizer exists in the Municipal cadre, however, the

Recruitment and Promotion Rules for such category have not been

framed.

13. The fact that petitioners were regularized on the posts

of Community Organizer in their respective Municipal Committees,

also evidences the existence of the post of (Community Organizer)

in Municipal cadre. Absence of R & P Rules for above category,

appears to have created anomalous situation. The obligation to

frame R & P Rules rests with the State Government, the petitioners

cannot possibly be put in disadvantageous position only for non-

framing of Rules.

14. The entire thrust of respondent-State Government has

been on its power and discretion to choose any category of

employees for revision of pay on the premise that equivalence of

categories is its sole domain. No doubt, the discretion in the

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matters of equivalence between different categories of employees

for the purposes of pay scales lies with the State Government

(Employer), however, such an administrative action cannot be said

to be immune from judicial review though on limited grounds. The

judicial review can be exercised if the administrative decision is

unreasonable, unjust and prejudicial to a section of the employees.

15. In Union of India and another vs. S. Thakur (2008)

13 SCC 463, it has been held by the Hon'ble Supreme Court in

para-8 of the judgment as under:

"8. The plea that as restructuring of cadre and redistribution of posts was involved in so far as the

Assistant Directors were concerned and therefore the

policy decision taken by the State Government to give benefit of upgraded scale to an Assistant Director (Executive) with effect from October 01, 1997 should not

have been interfered with by the Tribunal and by the High Court is devoid of merits. There is no dispute nor

there can be any, to the principle that fixation of pay and date from which the benefit of revised pay scale would

be admissible is the function of the Executive and the scope of judicial review of such an administrative

decision is very limited. However, it is equally well- settled that the Courts would interfere with the administrative decisions pertaining to pay fixation and pay parity as well as the date from which the revised pay scales would be made applicable if it is found that such a decision is unreasonable, unjust and prejudicial to a section of employees."

7 ( 2024:HHC:8007 )

16. Obviously, one of the factors for revising pay scales is

the rise in price index. Such an assumption cannot be said to be

unfounded and unreasonable. It being so, it is not understandable

as to how the category of petitioners could be left out from revision

of pay scales, whereas, it was allowed to the others. No material

has been placed on record by the respondent-State Government, to

justify carving out an exception in the cases of petitioners.

17. In the facts of the case in hand, the administrative

action of denying the revision of pay scale to the petitioners is

clearly arbitrary and discriminatory for another reason. The

respondent-State has neither denied the factum with respect to

revision of pay scale in the case of Community Organizer in

Municipal Committee, Sarkaghat nor has any explanation been

rendered to justify such a discriminatory administrative action. It

being so, the petitioners also being similarly placed to their

counter-parts working with Municipal Committee, Sarkaghat

cannot be treated differently.

18. It has also been shown on record that the Community

Organizer working with Municipal Committee, Sarkaghat has been

granted the pay scale equivalent to that of Clerk, which also

strengthens the plea of petitioners that they are entitled for the

same pay scale as granted to the Clerks. Such claim of the

petitioners otherwise also cannot be said to be unjustified for the

reasons, firstly, that the State Government has not been able to

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place any quantifiable data to show any substantial disparity in the

job profile of Community Organizers and Clerks, secondly, the

Community Organizer in the Municipal Committee, Sarkaghat has

been paid the pay scale of the Clerks and lastly, the pay scale of

Community Organizer and Clerks prior to issuance of notification

dated 27.09.2012, was also identical. Reference can gainfully be

made to the judgment passed by Hon'ble Supreme Court in State

of Punjab and others vs. Senior Vocational Staff Masters

Association and others, reported in (2017) 9 SCC 379. In para-

27 of the above judgment, it has been observed as under:

"27. We are conscious of the fact that a differential scale on

the basis of educational qualifications and the nature of

duties is permissible. However, it is equally clear to us that if two categories of employees are treated as equal initially, they should continue to be so treated unless a different

treatment is justified by some cogent reasons. In a case where the nature of duties is drastically altered, a differential scale of pay may be justified. Similarly, if a higher

qualification is prescribed for a particular post, a higher scale

of pay may be granted. However, if the basic qualifications and the job requirements continued to be identical as they were initially laid down, then the Court shall be reluctant to

accept the action of the authority in according a differential treatment unless some good reasons are disclosed. Thus, the decisions relied upon by the learned Senior Counsel are clearly distinguishable and are not applicable to the facts of the present case."

19. Noticeably, the State Government has rejected the case

of the petitioners, though recommended by the Municipal

9 ( 2024:HHC:8007 )

Committees, without detailing any reasons therefor. It is well

settled that the administrative decision, more particularly, when it

deals with substantive rights of citizens need to be expressed with

reason. Since, in the instant cases the decisions are without any

reasons, the impugned action of the respondents cannot be

sustained for such reason also.

20. In State of Punjab vs. Bandeep Singh and others

(2016) 1 SCC 724, the Hon'ble Supreme Court has observed as

under:

"4. There can be no gainsaying that every decision of an administrative or executive nature must be a composite

and self-sustaining one, in that it should contain all the

reasons which prevailed on the official taking the deci- sion to arrive at his conclusion. It is beyond cavil that any Authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned ac- tion. If precedent is required for this proposition it can

be found in the celebrated decision titled Mohinder Singh Gill v. The Chief Election Com- missioner, New Delhi [1978] 1 SCC 405, of which the

following paragraph deserves extraction: (SCC p. 417, para 8)

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be

judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by addi- tional grounds later brought out. We may here draw attention to the observations of Bose J. in Commissioner of Police vs. Gordhandas Bhanji [AIR 1952 SC 16): (AIR p.18, para 9) '9. ....public orders publicly made, in exercise of a statutory authority cannot be construed in the

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light of Explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objec-