Kesar Singh Rawat vs State Of Uttarakhand & Others
2021 Latest Caselaw 37 UK

                                             Reserved Judgment

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Writ Petition No. 1079 of 2009 (S/S)

Kesar Singh Rawat                         .....          Petitioner

                               Versus

State of Uttarakhand & others .....                   Respondents


Mr. Rakesh Thapliyal, Senior Advocate assisted by Ms. Niti Rana,
Advocate for the petitioner.
Mr. S.N. Babulkar, Advocate General with Mr. Paresh Tripathi, Chief
Standing Counsel, Ms. Anjali Bhargava & Mr. P.C. Bisht, Addl. Chief
Standing Counsel and Mr. N.P. Sah, Standing Counsel for the respondent
State.

List of cases referred:

        1.       (2010) 12 SCC 538, State of Madhya Pradesh &
                 others Vs Yogendra Shrivastava
        2.       1986 (Supp) Supreme Court Cases 584, T.R. Kapur
                 and others Vs State of Haryana & others
        3.       (1984) 3 SCC 281, Ex. Captain K.C. Arora & another
                 Vs State of Haryana & others
        4.       (1972) 4 SCC 765, Ex. Major N.C. Singhal Vs
                 Director General, Armed Forces Medical Services &
                 another
        5.       (1980) 1 SCC 149, M.S. Shivananda Vs Karnataka
                 State Road Transport Corporation & others
        6.       (1994) Supp (1) Supreme Court Cases 39, Union of
                 India & others Vs P.C. Misra.


Hon'ble Lok Pal Singh, J.

Petitioner has filed instant writ petition seeking following reliefs:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned Clause 13 of the amended G.O. dated 17.10.2008 (Annexure 5 to the writ petition) and the order issued pursuant to this Clause of 10.07.2009 (Annexure 9 to the writ petition) by the respondents.

ii) Issue a writ, order or direction in the nature of mandamus commanding respondent to fix the salary of petitioner for the purpose of recommendation of pay fixation committee

on the promotional pay scale of Rs.8000-

275-13500 which was granted to him pursuant to the G.O. dated 12.03.2001 (Annexure no. 3 to the writ petition).

iii) Issue any other order or direction which this Hon'ble Court may deed fit and proper under the facts and circumstances of the case in favour of the petitioner.

2) Brief facts, leading to filing of the writ petition, are that the petitioner is presently working on the post of Draftsman in the Geological and Mine Works Unit, Directorate of Industry, Uttarakhand, Dehradun. Petitioner was granted second promotional pay scale vide order dated 15.10.2008 after completion of continuous 24 years of satisfactory service in the department. The aforesaid second promotional pay scale was granted to the petitioner in view of the Government Order dated 02.12.2000 issued by erstwhile State of Uttar Pradesh, which was also adopted by the State of Uttarakhand on 12.03.2001. It is averred that the petitioner was granted second promotional pay scale w.e.f. 01.10.2008 in the pay scale of Rs.8000-275- 13500 and prior to this scale petitioner was getting his salary on the pay scale of Rs.5000-150-8000. Subsequently, after recommendation of the Sixth Pay Commission, the pay scale of Rs.8000-275- 13500 was revised to Rs.15600-39100 and, as such, the petitioner became entitled to the pay scale of Rs.15600-39100 on the basis of his revised pay scale of Rs.8000-275-13500 which was granted to him vide order dated 15.10.2008 by the order of Deputy Director of Geological and Mines Works Unit, Directorate of Industries, Uttarakhand.

3) It is further averred that State of Uttarakhand took a decision to implement the recommendations of Sixth Pay Commission for which a Pay Fixation Committee was constituted by the State of Uttarakhand, who submitted its recommendation to the State Government. Thereafter, the State of Uttarakhand on 17.10.2008, issued a G.O. for its adoption for fixing pay bands to different employees in the State. It is stated that the recommendation of Pay Fixation Committee, which was adopted by the State of Uttarakhand on 17.10.2008, was enforced by the State of Uttarakhand vide memorandum dated 22.10.2008. On 17.10.2008 an amended Government Order was issued by the State Government whereby on the basis of the recommendations of the Pay Fixation Committee revised pay scales to the government employees were sanctioned w.e.f. 01.01.2006, but vide paragraph 13 of the aforesaid G.O. granting of the time scale to the employees of the State Government was abolished. It has been specified in the said amended Government Order that an incumbent to whom time scale has already been granted prior to 31.08.2008 shall be considered for the purpose of fixation of his pay scale as per recommendation of the Pay Fixation Committee.

4)            It    is        contended        that    Clause   13    of
amended            G.O.          dated         17.10.2008       clearly

distinguishes the employees to whom time scale was granted prior to 31.08.2008 and the other set of employees who were entitled to the time scale after the cut off date i.e. 31.08.2008. Thus, the said

Clause 13 of the G.O. dated 17.10.2008 is violative of article 14 of the Constitution of India.

5) It is contended that time scale is granted to an employee in pursuance of G.O. issued by the State Government on 12.03.2001 and by virtue of the impugned Clause 13 of the amended G.O. the earlier G.O. dated 12.03.2001 has not been superseded, as such, Clause 13 is ultra vires to the condition of earlier G.O. dated 12.03.2001, whereby time scale has been granted to an employee. Subsequently, another Government Order was issued by the State Government on 28.02.2009, whereby Assured Carrier Progression (ACP) scheme was implemented by the State Government and from the date of implementation of this G.O., the provision for granting time scale to an employee came to an end. It is also contended that granting of time scale remained unenforceable after issuance of last G.O. dated 28.02.2009 and therefore, the petitioner is entitled to get his revised pay scale fixed on the basis of his second promotional pay scale of Rs.8000-275-13500, which was granted to him vide order dated 15.10.2008.

6) Feeling aggrieved by wrongful pay fixation, the petitioner submitted representations before respondent no. 4 on 15.12.2008, 12.01.2009 and 15.05.2009, but no heed was ever been paid by the respondent on such representations made by the petitioner. Lastly, the petitioner submitted a representation dated 25.06.2009 before the respondents and a copy of the same was also sent to the Secretary, Industrial Development

Department. On the representation dated 25.06.2009, the Director sought appropriate directions from the State Government vide letter dated 06.07.2009 and in reply thereof the State Government vide letter dated 10.07.2009 refused to provide the benefit of the recommendation of Sixth Pay Commission as per schedule annexed with the order dated 17.08.2008. On 10.07.2009, a letter was communicated by the Joint Secretary, State of Uttarakhand to the respondent no 4 that the revised pay scale of the petitioner cannot be fixed at his new promotional pay scale as the provision for according time scale to an incumbent came to an end on 31.08.2008.

7) It is averred that the petitioner was getting second promotional pay scale of Rs.8000- 275-13500 w.e.f. 01.10.2008 pursuant to the order passed by the Director on 15.10.2008 and the pay band for fixation of salary as per recommendation of Sixth Pay Commission has been given at item no. 15 of Schedule (A) to the order dated 17.10.2008 and as per the Schedule (A) the petitioner is entitled to get his salary fixed at pay band no. (3) i.e. Rs.15600-39100. Lastly, it is contended that the impugned order dated 10.07.2009 passed by the Joint Secretary, State of Uttarakhand is contrary to the Government Orders dated 17.10.2008 and 22.10.2008 for the reason that petitioner got his second promotion pay scale on 15.10.2008, whereas as per the order of the Joint Secretary same provisions for granting promotional pay scale came to an end w.e.f. 31.08.2008, which is in violation of Article 14 of the constitution of India.

8) Counter affidavit has been filed by respondent no. 1 in which it is admitted that petitioner was provided the benefit of second promotional / next pay scale of Rs.8000-275-13500 after completion of 24 years satisfactory service w.e.f. 01.10.2008. It is stated that subsequently vide G.O. no. 395 dated 17.10.2008, issued by the Finance Section-7 of Government of Uttarakhand, the State employees have been granted revised pay scale w.e.f. 01.01.2006. It is further stated that para 13 of the said G.O. provides that time scale pay scale system in the State services shall be stopped forthwith. The selection / promotion pay scale will be allowed on that level where the grade pay scale or pay band is going to change. The time scale matter which has been granted till 31.08.2008 will be converted into pay band and after the said date no benefit under time scale system will be provided. Thus, in pursuance of the said G.O. dated 17.10.2008, no benefit of time scale system i.e. payment of pay scale of Rs.8000-275-13500 after completion of 24 years of service was possible. It is also stated that after taking further action on the representation dated 15.06.2009 submitted by the petitioner, the matter was referred to the State Government for necessary directions vide letter dated 26.05.2009. In response, the State Government vide letter dated 10.07.2009 observed and instructed that the time scale pay scale system was enforced till 31.08.2008 and thereafter vide G.O. dated 28.02.2009, Assured Carrier Progression (ACP) scheme has been implemented w.e.f. 01.09.2008. Thus, after 31.08.2008, ACP will be granted to the petitioner and not the promotional

pay scale under time scale pay scale. As vide G.O. dated 17.10.2008, the time scale pay scale system was abolished w.e.f. 31.08.2008; therefore, the time scale pay scale which was granted after the said cut off date i.e. 31.08.2008, being against the prevailing system and accordingly at the time of pay revision in the State Government services, the department has rightly made fixation of the petitioner's salary (pay scale of Rs.5000-150-8000) in revised pay scale of Rs.9300-34800, Grade Pay Rs.4200 w.e.f. 01.01.2006.

9) In the rejoinder affidavit, it has been stated that legal and enforceable right accrued in favour of the petitioner to get the second promotional pay scale after completion of 24 years continuous service w.e.f. 01.10.2008, which was subsequently granted to him w.e.f. 01.10.2008 by order dated 15.10.2008 and the said benefit was provided to the petitioner w.e.f. the said date. It has been further stated that so far as the affect of the G.O. dated 17.10.2008 is concerned, certainly the affect of this G.O. is prospective one. However, in Clause 13 of the G.O. dated 17.10.2008 a cut off date i.e. 31.08.2008 was fixed and the promotional pay scale upto 31.08.2008 were taken into consideration for fixation of the scales as per the recommendations of the Sixth Pay Commission.

10) Heard learned counsel for the parties and perused the counter affidavit, rejoinder affidavit & other documents brought on record.

11) Learned Senior counsel appearing on behalf of the petitioner vehemently argued that the petitioner is aggrieved by the cut off date i.e. 31.08.2008 as the said benefit of second promotional pay scale was granted to the petitioner w.e.f. 01.10.2008 after completion of 24 years of service. Learned Senior counsel would argue that there is no reasonable classification for fixing cut off date for representation of the scale as per the Sixth Pay Commission and once a person is legally entitled to get the benefit of second promotional pay scale after completion of 24 years of service, then that benefit cannot be taken away by a subsequent Government Order. Learned counsel would further submit that in the case of the petitioner the said benefit was already paid to him, thus the fixation of this cut off date in Clause 13 of the amended G.O. dated 17.10.2008 is totally arbitrary and is liable to be struck down, as it deprives the fixation of the scale of the petitioner as per the recommendations of Sixth Pay Commission.

12) Learned Senior counsel appearing on behalf of the petitioner would also submit that on 01.10.2008, the pay sale of the petitioner was revised to Rs.8000-13500 with Grade Pay of Rs.5400. It is contended that now by the impugned order, the petitioner is being down graded to the Grade Pay of Rs.4200 which is in respect of pay scale of Rs.5000-8000 and as per new ACP scheme it will be upgraded to the Grade Pay of Rs.4600 as the first ACP and then it will be upgraded to Grade Pay of Rs.4800 as the second ACP and thereafter to Grade Pay of Rs.5400 as third ACP, whereas the

petitioner is already getting the Grade Pay of Rs.5400 w.e.f. 01.10.2008.

13) Learned Senior counsel for the petitioner placed reliance on following judgments in support of his contention:

(i) T.R. Kapur and others Vs State of Haryana & others, 1986 (Supp) Supreme Court Cases

(ii) Ex. Major N.C. Singhal Vs Director General, Armed Forces Medical Services & another (1972) 4 SCC 765

(iii) Ex. Captain K.C. Arora & another Vs State of Haryana & others, (1984) 3 SCC 281

(iv) State of Madhya Pradesh & others Vs Yogendra Shrivastava, (2010) 12 SCC 538.

14) In the decision rendered in T.R. Kapur2, Hon'ble Apex Court in paragraph nos. 5 and 16 has held as under:

"5. Shri Shanti Bhushan, learned counsel for the petitioners has put forward a threefold contention. First of these submissions is that the impugned notification which purported to amend Rule 6(b) of the Class I Rules with retrospective effect from July 10, 1964 making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service constitutes a variation in the conditions of service applicable to officers belonging to Class II service who are diploma holders like the petitioners prior to the appointed day i.e. November 1, 1966, to their disadvantage as it renders them ineligible for promotion to the post of Executive Engineer in Class I service was ultra vires the State Government having been made without the previous approval of the Central Government as enjoined by the proviso to Section 82(6) of the Punjab Re-organisation Act, 1966. It is urged that any rule which affects the promotion of a person relates to his conditions of service, although mere chances of promotion may not be. The contention, in our opinion, must prevail. The second is that it was not permissible for the State Government to amend Rule 6(b) of the Class I Rules with retrospective effect under the proviso to Article 309 of the Constitution so as to render ineligible for promotion to the post of Executive Engineer in

Class I service, the members of Class II service who are diploma holders although they satisfy the condition of eligibility of eight years' experience in that class of service. It is said that the unamended Rule 6(b) conferred a vested right on persons like the petitioners which could not be taken away by retrospective amendment of Rule 6(b). The third and the last submission is that the action of the State Government in issuing the impugned notification making retrospective amendment of Rule 6(b) of the Class I Rules was wholly arbitrary, irrational and mala fide and thus violative of Articles 14 and 16(1) of the Constitution. It is submitted that the impugned notification was calculated to circumvent the direction given by this Court in its order dated February 24, 1984 on the basis of the undertaking given by the learned Additional Solicitor-General that the State Government would consider the cases of all eligible officers belonging to Class II service for promotion to the Class I service.

16. It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect: B.S. Vadhera v. Union of India, AIR 1969 SC 118; Raj Kumar v. Union of India (1975) 4 SCC 13; K. Nagaraj v. State of A.P. (1985) 1 SCC 523 and State of J & K v. Triloki Nath Khosa (1974) 1 SCC 19. It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualification and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of Article 14 and 16(1) of the Constitution : State of Mysore v. M.N. Krishna Murty (1973) 3 SCC 559; B.S. Yadav v. State of Haryana 1980 (Supp) SCC

524; State of Gujarat v. Raman Lal Keshav Lal Soni (1983) 2 SCC 33 and Ex-Captain K.C. Arora Vs State of Haryana (1984) 3 SCC 281."

15) In the case of Ex. Major N.C. Singhal4, the Hon'ble Apex Court was dealing with the case of an Ex. Army officer whose services of 6 years 11 months and 13 days were not being counted for promotion at the pretext of new instructions which superseded the earlier instructions. It has been held that the service was rendered prior to the issuance of the administrative instructions and the services rendered acquiring the condition of the service, consequently the same cannot be altered or modified to the prejudice of the appellant by a subsequent administrative instruction with retrospective effect.

16) Hon'ble Supreme Court in Yogendra Shrivastava1, in paragraph no. 15 of the judgment, has held as under:

"15. It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing Rules cannot be taken away by amending the Rules with retrospective effect. (See N.C. Singhal Vs. Armed Forces Medical Services (1972) 4 SCC 765; K.C. Arora Vs. State of Haryana (1984) 3 SCC 281 and T.R. Kapur Vs. State of Haryana 1986 Supp SCC

584). Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the amended rules. The right to NPA @ 25% of the pay having accrued to the respondents under the unamended Rules, it follows that respondent employees will be entitled to non- practising allowance @ 25% of their pay up to 20.05.2003."

17) Their Lordships of the Hon'ble Apex Court in Ex. Captain K.C. Arora3 while dealing with the question of taking away of 'vested rights' has held that the vested rights cannot be taken away by amending the Rules that too with retrospective effect.

18) Per contra, learned Advocate General for the State placed reliance on the following judgments:

(i) M.S. Shivananda Vs Karnataka State Road Transport Corporation & others, (1980) 1 SCC 149

(ii) Union of India & others Vs P.C. Misra, (1994) Supp (1) Supreme Court Cases 39.

19) Hon'ble Apex Court in M.S. Shivananda5 in paragraphs nos. 13 and 20 of the judgment has held as under:

"13. It is settled both on principle and authority, that the mere right existing under the repealed Ordinance, to take advantage of the provisions of the repealed Ordinance, is not a right accrued. Sub-Section (2) of Section 31 of the Act was not intended to preserve abstract rights conferred by the repealed Ordinance. The legislature had the competence to so restructure the Ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services. It could re-enact the Ordinance according to its original terms, or amended or alter its provisions.

20. The very fact that all these various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. When the Ordinance came to be replaced by the Act, the Corporation felt that the number of the employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore, stepped in and reduced the scale of absorption in the

proviso to sub-section (3) of Section 19 from 7.9 per vehicle to 4.45 per vehicle."

20) In P.C. Misra6, it has been held by Hon'ble Supreme Court as under:

"11. As regards eligibility for appointment to the Junior Administrative Grade it may be stated that the Memorandum dated November 26, 1987 whereby the Junior Administrative Grade was introduced with effect from January 1, 1986, prescribed that in order that a person could be appointed to the Junior Administrative Grade he should have 12 years' service with at least four years in Selection Grade. The same requirement is prescribed in the Note appended below sub-rule (2) of Rule 31, inserted by the 1988 Amendment, which provides that for vacancies occurring up to December 31, 1991, an officer with at least four years' regular service in Grade I shall also be eligible for being considered for appointment to the Junior Administrative Grade provided he has got a minimum 12 years of combined regular service in Grade I and Grade II. This will show that both under memorandum dated November 26, 1987 and the Rules as amended by the 1988 Amendment, in order to be eligible for appointment to the Junior Administrative Grade it was necessary for an officer to have 12 years' service and at least four years' service in Grade I. Reference, in this context, may also be made to the Note appended below sub-rule (3) of Rule 31 inserted by the 1988 Amendment. In sub-rule (3) it is provided that the crucial date for determining the eligibility of officers for promotion to Junior Administrative Grade shall be 31st December of the year in which the vacancy has occurred. In the Note appended below sub-rule (3), it is provided that for promotion to the Junior Administrative Grade yearwise panel will be prepared from the year 1986, i.e., with effect from the year in which the Junior Administrative Grade has been created and the crucial date will be 31st December of the year to which the panel pertains. The memorandum dated November 26, 1987 has to be read along with sub-rule (3) of Rule 31 and if thus read it would cover cases of officers who were eligible on January 1, 1986, the date of introduction of the Junior Administrative Grade.

In other words officers who fulfilled the conditions of eligibility contained in the said memorandum on December 31, 1985 were to be appointed on

the Junior Administrative Grade with effect from January 1, 1986 on the basis of the said memorandum and the officers who acquired the eligibility for such appointment after December 31, 1985 would be governed by the Rules in view of the note appended below sub-rule (3) of Rule 31 and they could be appointed to the Junior Administrative Grade in accordance with the provisions of Rule 31. Neither of the respondents fulfilled the criterion for eligibility mentioned in the memorandum because both of them did not have four years' service in Selection Grade on January 1, 1986. They came to satisfy the said requirement of eligibility only after January 1, 1986. Since they could not satisfy the conditions of eligibility up to January 1, 1986, they could not be deemed to have been regularly appointed to the Junior Administrative Grade with effect from January 1, 1986, the date when the Junior Administrative Grade was introduced and the Selection Grade post specified as falling in the Junior Administrative Grade in Schedule I are said to have been upgraded to the Junior Administrative Grade. They could be appointed to the Junior Administrative Grade only by way of promotion in accordance with the Rules, as amended by the 1988 Amendment. Their cases were duly considered for such promotion but they were not found suitable for appointment and were not selected. The respondents have not been able to show any infirmity in the said selection. Under sub-rule (1) of Rule 31 appointment of members of the Service to the Junior Administrative Grade is required to be made by promotion on selection basis. Since the respondents were not found suitable for appointment to the Junior Administrative Grade they cannot claim appointment to the Junior Administrative Grade on the basis that officers junior to them have been appointed to the Junior Administrative Grade.

12. We are unable to appreciate the view of the Tribunal that the 1988 Amendment could only govern vacancies arising after the coming into force of the 1988 Amendment and that the vested rights and legitimate expectations could not be taken away by retrospective amendment of the Rules. Since the Junior Administrative Grade was introduced for the first time with effect from January 1, 1986 the rule-making authority was competent to make provision for appointment to the Junior Administrative Grade after it was introduced. Amendments introduced in Rule 31 by the 1988 Amendment make provision for such

appointments and we do not find any legal infirmity in the said provision."

21) Learned Advocate General of the State would submit that in all the cases relied upon on behalf of the petitioner the benefits were already provided to the petitioners / appellants of those cases and those benefits which they have actually received were being withdrawn, while in the instant case, benefits were not provided rather only a determination was made. It is argued that the decision regarding the cut of date has been taken by the Government considering the financial position of the State and policy matter as such, no discrimination has been made towards the petitioner. It is contended that Clause 13 of the G.O. dated 17.10.2008 does not suffer from any illegality, nor the same in any manner is ultra vires to the G.O. dated 12.03.2001 which provides for grant of time pay scale and was later on stood abolished vide G.O. dated 17.10.2008. It is contended that the grievance of the petitioner is wholly misconceived and the writ petition is liable to be dismissed.

22) Indisputably, the petitioner after completing 24 years of service was granted second promotion pay scale w.e.f. 01.10.2008 vide order dated 15.10.2008 by which the scale of the petitioner was revised from Rs.5000-150-8000 to Rs.8000-275-13500. The aforesaid second promotional pay scale was given to the petitioner pursuant to the G.O. dated 12.03.2001 by which the G.O. dated 02.12.2000 was adopted. Paragraph

4 of the G.O. dated 02.12.2000 pertains to second promotional pay scale which will be permissible to an employee after completion of 24 years of service. Government Order dated 17.10.2008 was issued which was notified by Office Memorandum dated 22.10.2008 and by this G.O. recommendations of Sixth Pay Commission were implemented. While implementing the recommendations of the Sixth Pay Commission by G.O. dated 17.10.2008, a provision was made in Clause 13 whereby the provision regarding time scale applicable in the State Government was abolished w.e.f. 31.08.2008, meaning thereby that those who got time scale prior to 31.08.2008 will not be affected and their scale will be fixed in their respective pay band and only those incumbents who are entitled to get benefit of time scale from 01.09.2008 to 16.10.2008 will be affected. Thereafter on 28.02.2009, another G.O. was issued whereby ACP scheme was implemented, which is payable after completion of 10 years, 20 years and 30 years of service. By G.O. dated 18.02.2009, the G.O. dated 12.03.2001 by which the G.O. dated 02.12.2000 was adopted which pertains to grant of time scales was abolished. The benefit of ACP scheme is payable w.e.f. 01.09.2008. In fact, by impugned order dated 10.07.2009, the benefit of time scale was taken away and at its place ACP scheme was implemented. By G.O. dated 17.10.2008, a cut off date i.e. 31.08.2008 was fixed and the benefit of ACP scheme was provided w.e.f. 01.09.2008, which resulted into down grade in the Grade Pay of the petitioner to Rs.4200, which is in respect of pay scale of Rs.5000-8000, whereas the

petitioner is already getting Grade Pay of Rs.5400 w.e.f. 01.10.2008.

23) Clause 9 of G.O. no. 395 / XXVII / (7) / 2008 dated 17.10.2008 clearly stipulates that when an employee would reach to the maximum level of his pay band, then he will be placed on the next higher pay band after one year of his reaching to the maximum level. Benefit of one increment shall be given on the existing basic pay at the time of fixation on the higher band, but the grade pay of the post shall remain the same. The rise will be made in the higher pay band till it reaches the highest level of the pay band-4 and thereafter no other increment shall be provided to the employee.

24) Clause 15 stipulates that the option for salary structure to be amended from 01 January 2006 shall be given in writing on the form appended with Annexure 3. Aforesaid option shall be submitted by the concerned government employee to his Head of the Officer / Head of the Department / Appointing Authority / Officer issuing the pay slip within 90 days of issuance of this G.O.

25) Clause 17 provides that if the written option as aforementioned of the government employee has not been received within the time stipulated then it will be presumed that he had opted for new amended pay scale and he will be provided salary from 01 January 2006 as per the amended salary structure.

26) Having considered the pleadings of the parties and on perusal of the documents brought on record, it is apparent that the grievance of the petitioner is that he was granted benefit of second promotion pay scale of Rs.8000-275-13500 w.e.f. 01.10.2008 vide order dated 15.10.2008 passed by respondent no. 4. On 01.10.2008, the pay sale of the petitioner was revised to Rs.8000-13500 with Grade Pay of Rs.5400. Now by the impugned order, the petitioner is being down graded to the Grade Pay of Rs.4200 which is in respect of pay scale of Rs.5000-8000. It is evident that the petitioner was granted second promotional pay scale of Rs.8000- 275-13500 w.e.f. 01.10.2008 and prior to this scale petitioner was getting his salary on the pay scale of Rs.5000-150-8000. Subsequently, in view of the recommendations of the Sixth Pay Commission, the pay scale of Rs.8000-275-13500 was revised to Rs.15600-39100 and as the petitioner became due, the revised pay scale of Rs.8000-275-13500 was granted to him vide order dated 15.10.2008 passed by the Deputy Director of Geological and Mines Works Unit, Directorate of Industries, Uttarakhand. The said recommendations of the Sixth Pay Commission were adopted by the State of Uttarakhand on 17.10.2008 and the same were enforced vide memorandum dated 22.10.2008. Subsequently, on 17.10.2008 an amended Government Order was issued by the State Government whereby on the basis of the recommendations of the Pay Fixation Committee revised pay scales to the government employees were sanctioned w.e.f. 01.01.2006, but vide Clause 13 of the aforesaid G.O. granting of the time scale to

the employees of the State Government was abolished. It has been specified in the said amended Government Order that an incumbent to whom time scale has already been granted prior to 31.08.2008 shall be considered for the purpose of fixation of his pay scale as per recommendation of the Pay Fixation Committee. Thereafter, by way of another G.O. dated 28.02.2009, ACP scheme was implemented by the State Government, wherein it has been provided that the provision for granting time scale to an employee shall come to an end from the date of implementation of this G.O. On the representation dated 25.06.2009, the Director sought appropriate directions from the State Government vide letter dated 06.07.2009 and in reply thereof the State Government vide letter dated 10.07.2009 refused to provide the benefit of the recommendation of Sixth Pay Commission as per schedule annexed with the order dated 17.08.2008. On 10.07.2009, a letter was communicated by the Joint Secretary, State of Uttarakhand to the respondent no 4 that the revised pay scale of the petitioner cannot be fixed at his new promotional pay scale as the provision for according time scale to an incumbent came to an end on 31.08.2008 after the implementation of G.O. dated 28.02.2009, whereby the ACP scheme was implemented w.e.f. 01.09.2008.

27) The writ petition, accordingly, stands disposed of. The respondent no. 1 is directed to consider the claim of the petitioner for fixation of his salary as per the recommendation of Pay Fixation Committee on the promotional pay scale of Rs.8000-

275-13500 granted to the petitioner pursuant to the G.O. dated 12.03.2001 by way of a reasoned and speaking order within a period of eight weeks from the date of production of certified copy of this order.

28) However, there will be no order as to costs.

(Lok Pal Singh, J.)

Dt. January 06, 2021.

Negi