CIVIL WRIT PETITION NO.12290 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 18, 2010 Krishan Kumar .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sanjay Mittal, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Whether a pay protection would mean protection of a scale or only a pay, which was drawn by an employee is a question raised in the present writ petition. The issue apparently appears to be uncovered, as counsel for the parties could not lay hand to any precedent in this regard. Counsel for the petitioner would maintain that pay protection once granted would mean protection of the pay scale whereas the State counsel would urge to the contrary and would submit that it is only the last pay drawn, which would be protected and the petitioner would not be entitled to the scale more than where he is absorbed. CIVIL WRIT PETITION NO.12290 OF 2008 :{ 2 }: The factual matrix noticed in brief is that the petitioner having been appointed in the year 1974 as Octroi Moharir in Municipal Committee, Farukhnagar, Gurgaon in the year was transferred to Municipal Committee, Narnaul, in the year 1987. At that time, the petitioner was drawing basic pay of Rs.5000/- in the pay scale of Rs.5000-7850/-. The post of Octroi Moharir was abolished on 24.12.1999. The petitioner was then absorbed as Gram Secretary with Block Development and Panchayat Officer, Narnaul (respondent No.5). As per the terms and conditions of the appointment, the pay was ordered to be protected. The scale of pay for Gram Sachiv where the petitioner stood transferred was Rs.3050- 75-3950-EB-80-4590 with usual allowances. The appointment of the petitioner was made on following terms and conditions:- “1. His appointment is against purely temporary Posts which are likely to be abolished at any time and carries no promise of subsequent employment. No offer of a permanent vacancy can be made to him at present in this respect. 2. If at any stage, he desires to resign, he will be required to give one month's notice or deposits/forfeit in lieu thereof his one month's salary including allowances of for the period by which the notice falls short of one month in case he is temporary and three months notice or salary including allowances in case, he is permanent/confirmed. Such notice will also be given to him by the competent authority in case it is proposed to terminate his services except as a result of disciplinary CIVIL WRIT PETITION NO.12290 OF 2008 :{ 3 }: action or for the reasons other than that mentioned in clause (1) above. 3. This appointment will be subject to the decision of the Hon'ble Punjab and Haryana High Court in Civil Writ Petition No.16376 of 1999 Devinder Kumar Versus State. 4. He will not claim the benefit of their past service towards seniority and other matters and are placed below the employees working in this department. Their inter-se seniority will be determined separately but their pay will be protected. 5. No TA/DA will be admissible for joining the post. 6. He has to abide by such rules and regulations as may be issued by the Haryana Government of by this department governing the conditions of its employees from time to time. 7. He will not undertake higher studies of any kind without obtaining the prior permission of the competent authority. 8. It is also made clear that their status of service will remain the same as they were enjoining in their parent department, meaning thereby that an adhoc employee will remain on adhoc basis.” It is, thus, clear that the petitioner could not claim the benefit of his past service towards seniority but his pay was to be protected. This condition was besides other conditions. On this basis, the counsel for the petitioner would urge that the pay of the petitioner CIVIL WRIT PETITION NO.12290 OF 2008 :{ 4 }: has to be fixed in a scale which he was last drawing as Octroi Moharir and so he could not be fixed in the scale meant for Gram Sachiv. As per the counsel, this would be the effect of the terms and conditions protecting his pay and may be that he was not entitled to count this service for the purpose of seniority. The respondents, however, would seriously join issues with the petitioner in this regard. For the same cause, the petitioner had served a legal notice, which was directed to be disposed of, when the petitioner had approached this Court by way of Civil Writ Petition No.14667 of 2007. The legal notice, making a claim for grant of scale of Rs.5000-7850/- with all arrears and consequential benefits alongwith the interest @ 12% per annum has been declined by the respondents. The reasons as given in the impugned order rejecting claim would show that the petitioner was declared surplus in the Municipal Committee due to abolition of octroi and he accordingly was appointed as Gram Sachiv. The pay scale of Gram Sachiv concededly is Rs.3050-4590/-. This scale was mentioned in the order appointing the petitioner with the condition that his pay shall be protected. On this basis, the respondents would urge that only last pay drawn was protected and not the old pay scale, which the petitioner was drawing. It is accordingly stated that the petitioner is not entitled to the old pay scale. When an audit objection in this regard was raised, a recovery of the excess amount so paid amounting to Rs.44,910/- has been directed. While appointing the petitioner, the pay scale of the post was clearly mentioned in the order and this pay scale was Rs.3050- CIVIL WRIT PETITION NO.12290 OF 2008 :{ 5 }: 4590/-. If the intention was to protect the pay scale of the petitioner and not the last pay drawn, then this was required to be mentioned in the appointment order as such. In that event, the appointment order could have been differently worded by disclosing that that the scale mentioned was for the post to which the petitioner was appointed whereas by granting the protection of his pay scale, his pay would be fixed in the pay scale he was drawing earlier. This is not so mentioned in the order of appointment. What all is mentioned as one of the terms and conditions of the appointment is that “....pay will be protected.” The appointment letter, thus, gives a clear indication that it was only the pay which was protected and not the scale. In fact, there was a clear recital in the appointment letter that the petitioner if willing to accept the offer on the terms and conditions as mentioned, he should report to Block Development and Panchayat Officer after receipt of the appointment letter. It is on this basis that the petitioner took up this appointment. It appears that the pay of the petitioner was wrongly fixed at Rs.5450/- in the scale of Rs.5000-7850/- instead of the scale in which he was required to be fixed i.e. Rs.3050-4590. When this error was detected, the same was corrected and the pay of the petitioner was fixed in the scale of the post. Once the petitioner has been appointed to a post, he would be legally entitled to the pay meant for the post and his pay can not be fixed in any scale, which is not meant for the post. The pay protection has to be granted in the scale, which is meant for the post and his pay was required to be fixed in the scale of Rs.3050-4590 and having done so and the last pay drawn was to CIVIL WRIT PETITION NO.12290 OF 2008 :{ 6 }: be then protected. This position would emerge from Rule 4.1 and 4.4 (a)(ii) of Punjab Civil Service Rules, Volume I, Part 1. Rule 4.1 of the Rules provides that a competent authority may fix the pay of a Government employee but his pay shall not be so increased as to exceed the pay sanctioned for his post without the sanction of the authority competent to create a post in the same cadre on a rate of pay equal to his pay when increased. Rule 4.4 provides that a Government employee who was appointed substantively to a post on time scale of pay, then his initial substantive pay is to be regulated as follows:- (a). If he holds a lien on a permanent post other than a tenure post or would hold a lien on such a post and his lien not being suspended, then when the appointment to a new post does not involve such assumption, he will draw as initial pay the stage of prime scale, which is equal to his substantive pay in respect of the old post or if there is no such stage, the stage next below the pay plus personal pay equal to the difference. Reference here may also be made to the provisions of Rule 4.10, which says that an authority may grant a premature increment to a Government employee on a time scale of pay, if it has a power to create a post in the same cadre on the same scale of pay. It is to be noted that Rule 4.1 is not intended to give an authority, the power to grant less pay or to grant pay in excess of what is permissible under Rule 4.4. Rule 4.4 apparently regulates the grant of pay, which is equal to his substantive pay in respect of the old post and where there is no such stage, then the stage next below that pay CIVIL WRIT PETITION NO.12290 OF 2008 :{ 7 }: plus personal pay equal to the difference. This obviously means that the pay of the petitioner is to be fixed in a scale to which he is appointed and since there is no pay equivalent to the old post, the petitioner may have to be granted personal pay equal to the difference. Obviously, the petitioner can not be fixed in the scale of pay, which he was drawing earlier. Even Rule 4.6 provides that holder of a post, the pay of which is changed, shall be treated as if he was transferred to a new post or a new pay, subject to such restrictions as the competent authority may in each case lay down. The condition laid down in this case is that the pay of the petitioner, which he was last drawing was protected and not the scale. Accordingly, the prayer made in the writ petition is without merit and therefore, can not be allowed. However, since there was no misrepresentation on the part of the petitioner, the recovery as directed may not be legally permissible in terms of the law laid down in Budh Ram and others Vs. State of Haryana and others, 2009 (3) SCT 333. Thus, the respondents are entitled to correctly fix the pay of the petitioner, which is done through the impugned order and the same is sustained. However, the direction to recover the amount of Rs.44,910/- is quashed. The petitioner would draw the pay in the scale, which is legally permissible and which is being upheld. With the above observations, the writ petition is disposed of. August 18, 2010 ( RANJIT SINGH ) khurmi JUDGE