IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No: 1118 of 2005 Decided on: 29th May, 2009 Hira Lal Gupta …...Petitioner VERSUS State of H.P. and another …..Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Bhuvnesh Sharma, Advocate For the Respondents : Mr.R.K. Bawa, Advocate General, with Mr. P.K. Sharma, Additional Advocate General and Mr. P.M. Negi, Deputy Advocate General Per Surjit Singh, Judge (Oral) Petitioner is aggrieved by the order, dated 7.7.2005, of the then H.P. State Administrative Tribunal, whereby his Original Application No. 85 of 1997, which he filed for quashing memorandum, dated 15.10.1996, issued by respondent No.1 and also for a direction to the respondents to refund a sum of Rs. 3,074/-, allegedly recovered from him illegally, has been disallowed, though a right has been given to the petitioner to opt for the revised scale of the post of 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 Superintendent Grade IV from any date between 1.1.1986 to 14.2.1986. 2. Petitioner was working as Superintendent Grade-IV on 1.1.1986, from which date the pay scales of the employees of Himachal Pradesh Government were revised by Notification dated 7.11.1988. Rule 5 of the said rules provided for the manner of the fixation of pay in the revised rules. The said rule is reproduced for ready reference:- “5. Drawal of pay in the revised scale: (1) Save as otherwise expressly provided in these rules, a Government employee shall draw pay in the revised scale applicable to the post to which he is appointed; Provided that a Government employee may opt to continue to draw pay in the existing scale until he vacates his post or ceases to draw pay in that scale; Provided further that:- (i) a person appointed for the first time to a post on or after Ist January, 1986 shall not be eligible to exercise option and his pay in the revised scale will be fixed in the revised scale; (ii) a person appointed to a higher post on or after Ist January, 1986 by promotion or by transfer shall not be eligible to exercise option against such higher post, though such option can be exercised against the lower post and the consequential refixation of pay against the higher post in the revised scale will be done under the Fundamental Rules; and 3 (iii) a person appointed by transfer to an equivalent post on or after Ist January, 1986, in the identical existing scale and revised scale shall also be eligible to exercise his option in the new Office, subject to the condition that he will exercise the option only once, either in the old post or in the new one. (2) A Government employee shall have the option to come over to the revised scale from the date of his next increment or subsequent increment falling after the first day of January, 1986 but not later than the 31st day of December, 1987 in respect of the post held by him on the first day of January, 1986. (3) In case of employees on deputation or on foreign service or on leave on 1.1.1986, the option to retain the existing scale under this rule shall be available only in respect of the post that would have been held by the Government employee, but for being on deputation or on foreign service or on leave.” 3. Petitioner opted for switching over to the revised pay of Superintendent Grade-IV w.e.f. 1.9.1986. His pay was accordingly re-fixed in the revised scale and payment was made. As a result of a favourable judicial verdict in favour of the petitioner and some other similarly situated persons, promotion was given to the petitioner to the post of Superintendent Grade-II with retrospective effect, i.e. 15th February, 1986. On account of this retrospective promotion, the petitioner, according to him, became entitled to exercise fresh 4 option for switching over to the revised pay scale of Grade-IV Superintendent in view of proviso (ii) of Sub Rule (1) of Rule 5. He exercised option for switching over to revised pay scale of Superintendent Grade-II w.e.f. 1.9.1986. His pay was fixed as per fresh option, exercised by him. However, during the course of audit, it was pointed out that he was not entitled to fresh option, on account of his having been promoted as Superintendent Grade-II after 1.1.1986. On the basis of that audit objection, impugned memorandum, dated 15th October, 1996 was issued and the pay of the petitioner was re-fixed to his this advantage and a sum of Rs. 3,074/- was ordered to be recovered from him. 4. Petitioner challenged this action of the respondents by filing Original Application. Learned tribunal has disallowed the Original Application, but has observed that the petitioner is entitled to exercise fresh option in respect of revised pay scale of Superintendent Grade-IV upto the date he had been working as Superintendent Grade-IV, i.e. 14.2.1986, but not after that, as he had been promoted on 15.2.1986 to the post of Grade-II Superintendent. 4. Petitioner is aggrieved by the order of learned tribunal. Learned counsel for the petitioner, after going through the provision of Rule 5, as reproduced hereinabove, submits that the petitioner would be satisfied in case the order of the 5 learned tribunal is modified so as to give the petitioner an option to switch over to the revised scale of Superintendent Grade-IV from a date not beyond 31.12.1987 in accordance with the provisions of Rule 5, particularly proviso (ii) of Sub Rule (1) read with sub rule (2). 5. From a bare reading of proviso (ii) to sub rule (1), it is clear that a person, who is appointed to a higher post, by promotion after the effective date of pay revision, i.e. 1.1.1986, he is not entitled to exercise the option in respect of higher post, but he can exercise the option in respect of the lower post in the revised pay scale and consequently fixation of pay, against the higher post in the revised scale, will be done in accordance with the fundamental rules. Sub rule (2) says that a government servant shall have the option to come over to revised scale from the date of his next increment or a subsequent increment falling due after Ist day of January, 1986, but not later than 31st day of December, 1986 in respect of the post held by him on the Ist day of January, 1986. From a combined reading of proviso (ii) to sub rule (1) and sub rule (2) of rule 5, it is clear that a person, who is promoted to a higher post on or after 1.1.1986, cannot exercise option in respect of the pay scale of higher post, but he can exercise the option in respect of the lower post, from which he is promoted and while doing so, he may opt for a date on which he would have earned his next increment or subsequent 6 increment, falling after 1.1.1986, but not later than 31st December, 1987. Therefore, the learned tribunal was not right in holding that the petitioner is free to opt for switching over to the scale of Superintendent Grade-IV upto a date not beyond 14.2.1986. 6. Consequently, we accept the aforesaid submission(s) made by the learned counsel for the petitioner and dispose of this writ petition with a direction to the respondents that the petitioner shall be allowed to opt for switching over to the revised pay scale of Superintendent Grade-IV from the date when he would have earned next increment or any subsequent increment in the pay scale of Superintendent Grade-IV, i.e. the lower post, had he not been promoted to the post of Superintendent Grade-II, but such date shall not be prior to 1.1.1986 and beyond 31st December, 1987. We give one month’s time, from today, to the petitioner to exercise such option. ( R. B. Misra ), J. May 29, 2009(K) ( Surjit Singh ), J.