IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 14381 of 2008 Judgment reserved on: 11.4.2011 Date of decision: 18.4.2011 Bhagi Rath …Petitioner. Versus H.R.T.C. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. S.R.Badhan, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. Kuldip Singh, Judge The petitioner has prayed for quashing of Annexure PC office order dated 10.7.1989, Annexure PD office order dated 9.5.1991 fixing the pay of the petitioner, Annexure PE office order dated 10.12.1991 re-fixing the pay of the petitioner, Annexure PF office order dated 9.3.2005 fixing the petitioner in the pay scale of ` 3120-6200 after proficiency step up and Annexure PG office order dated 14.3.2005 again re-fixing the pay of the petitioner. A direction has been sought against the respondents to re-fix the pay of the petitioner. The petitioner has claimed interest at the rate of 12% per annum on the arrears. 2. The brief facts of the case are that the petitioner was appointed as Conductor in the Mandi-Kullu Road Transport 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Corporation on 23.6.1970. The Mandi- Kullu Road Transport Corporation merged with Himachal Government Transport. Thereafter, Himachal Road Transport Corporation (for short ‘HRTC’) was established and the services of the petitioner were transferred to HRTC with all service benefits admissible under the rules. 3. The petitioner was not allowed efficiency bar at the stage of ` 130/- in the pay scale of ` 110-4-130/5-160-5-200. There was no order to withhold the efficiency bar, no inquiry was pending nor any penalty was imposed. As per rules the assessment to allow efficiency bar was to be made on the basis of preceding three years service. The efficiency bar was due to petitioner with effect from 1.6.1976. 4. The pay of the petitioner was again re-fixed vide office order dated 10.7.1989 Annexure PC at ` 495/- in the pay scale of ` 400-600 by allowing efficiency bar w.e.f. 1.5.1984 with next increment due on 1.6.1984, even though, that stage had already passed in the year 1982. This resulted wrong and incorrect fixation of pay of the petitioner. The pay of the petitioner was to be fixed at ` 555/- w.e.f. 1.1.1985 whereas it has been fixed at ` 525/- w.e.f. 1.4.1989 in Annexure PC. The pay of the petitioner was not fixed in accordance with the procedure laid down in the rules. 5. It has further been stated that again the pay of the petitioner was wrongly fixed in the revised pay scale of ` 1200-2100 (Senior Scale) vide office order dated 9.5.1991 Annexure PD. The pay in the old scale was to be fixed at ` 555/- w.e.f. 1.1.1985. 3 However, the pay of the petitioner on 1.1.1986 was fixed at ` 1200/- when the penalty period under the rules had expired on 31.5.1984, but the respondents illegally and wrongly protracted the same upto 1.7.1991. 6. The pay of the petitioner was once again re-fixed vide order dated 10.12.1991 Annexure PE at ` 1200/- w.e.f. 1.1.1987 by modifying the order dated 9.5.1991. The pay of the petitioner vide order dated 9.5.1991 was fixed at ` 1200/- w.e.f. 1.1.1986. 7. The proficiency step up increments on completion of 8 years, 18 years and 24 years service were due to petitioner on 1.1.1986, 1.1.1988 and 1.1.1996. After allowing proficiency step up increments, the pay of the petitioner was to be re-fixed. The respondents have wrongly and incorrectly allowed the same on 1.7.1991 and 1.1.1996. The Government of Himachal Pradesh revised the pay scales of the Government employees applicable to all the Corporations w.e.f. 1.1.1996 and the pay of the petitioner was to be re-fixed in the revised pay scale. 8. The respondents in pursuance to the judgment dated 9.12.2004 of the Tribunal has fixed the pay of the petitioner wrongly vide office order dated 14.3.2005 at ` 7220/- on 1.1.2005 whereas it should have been fixed at ` 7800/-. The petitioner had preferred the representation dated 16.5.2005 against wrong fixation of his pay from time to time. The respondent No.2 dealt with the case of the petitioner and rejected the representation and held that the order of respondent No.4 is correct. The petitioner has thus filed the petition. 4 9. The respondents have contested the petition by filing reply and took preliminary objections that corporation has complied with the order dated 9.12.2004 of the Tribunal and the petitioner was allowed to cross efficiency bar, the period of suspension was treated as on duty vide office order dated 8.2.2005. The pay fixation was made vide office order dated 14.3.2005 which is just and proper. On merits, it has been stated that the petitioner has been allowed to cross efficiency bar and other benefits have also been allowed to the petitioner as directed by the Tribunal in the order dated 9.12.2004. It has been denied that the pay of the petitioner has not been fixed correctly. The pay of the petitioner in revised pay scale after grant of efficiency bar has been fixed correctly vide office order dated 14.3.2005 Annexure PG. The order dated 9.12.2004 of the Tribunal has been implemented in letter and spirit. The petitioner has filed rejoinder to the reply of the respondents and has reiterated his case. 10. I have heard the learned counsel for the parties. On behalf of the petitioner it has been submitted that the petitioner had earlier filed O.A. No. 1755 of 1992 in the Tribunal and sought several directions against the respondents including a direction that the respondents be directed to grant permission to cross efficiency bar w.e.f. 1.6.1976 and grant annual increments accruing to the petitioner thereafter. The respondents contested the said petition. The Tribunal disposed of the said petition with the direction to respondents to consider the case of the petitioner for grant of permission to cross efficiency bar w.e.f. 1.6.1976 and also pass necessary orders whether the period from 28.7.1979 to 5 6.12.1979 is to be treated as period spent on duty or not. The consequential benefits including proficiency step up increment would automatically follow. It has been submitted that in the teeth of directions given in the order dated 9.12.2004 the respondents have wrongly fixed the pay of the petitioner. The petitioner has relied order dated 9.12.2004, F.R. 24 and Rule 11 of the CCS (CCA) Rules, 1965. The learned counsel for the respondents has supported the office order dated 14.3.2005 Annexure PG and has submitted that the fixation of the pay of the petitioner is in accordance with the order dated 9.12.2004. 11. F.R. 24 provides that an increment shall ordinarily be drawn as a matter of course unless it is withheld. The increment may be withheld from a Government servant by the Government or by any authority to whom the government may delegate this power under Rule 6, if his conduct is not good or his work is not satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. Rule 11 of CCS (CCA) Rules describes penalties which are minor and major. The combined reading of F.R. 24 and Rule 11 of the CCS (CCA) Rules, makes it clear that the increment is to be allowed as a matter of course unless it is withheld, the withholding of the increment is a minor penalty under Rule 11 of the CCS (CCA) Rules which can be ordered after following due process provided in Rule 16 of the CCS (CCA) Rules. 6 12. In OA No. 1755 of 1992 the petitioner had prayed mainly the following reliefs besides others:- a) The respondents be directed to grant permission to cross efficiency bar w.e.f.1.6.1976 and grant annual increments accruing to him thereafter; b) The period from 28.7.79 to 6.12.79 be treated as spent on duty and arrears be paid to the applicant; c) The respondents be further directed to grant advance increments on account of completion of 8 years and 16 years of service as per pay scale admissible to him. The respondents vide office order dated 8.2.2005 allowed the petitioner to cross efficiency bar w.e.f. 1.6.1976 raising his pay from ` 130/- to ` 135/- in the pay scale of ` 110-4-130/5-160/5-200. The suspension period w.e.f. 28.7.79 to 6.12.79 was treated as duty period for all intents and purposes. The office order dated 14.3.2005 Annexure PG is the last pay fixation order of the petitioner. In para 6 (vi) of the reply, it has been stated that the pay of the petitioner in the revised pay scale(s) after grant of efficiency bar has been fixed correctly and rightly vide office order dated 14.3.2005 Annexure PG keeping in view the penalties imposed upon the petitioner from time to time. This stand is not correct in view of the order dated 9.12.2004 of the Tribunal. The Tribunal in the order dated 9.12.2004 has held as follows:- “Admittedly, no departmental enquiry is pending against the applicant at present. Now, the short point which requires consideration is whether the applicant can be allowed to cross the efficiency 7 bar w.e.f. June 1, 1976. It is also stated that no specific order has been passed by the competent authority whereby he has not been allowed to cross the efficiency bar nor any order for stopping his increment has been passed by the competent authority. Thus, the case of the applicant is also to the effect that the period w.e.f. 28.7.1979 to 6.12.79 i.e. the period of suspension may be treated as spent on duty and arrears for that period may also be released though he has been getting subsistence allowance but no order has been passed by the authority to treat this period as spent on duty. In view of aforesaid, this Original Application is disposed with the direction to the respondents to consider his case for grant of promotion (sic permission) to cross efficiency bar w.e.f. June 1, 1976 and also pass necessary orders whether the period from w.e.f. 28.7.1979 to 6.12.1979 is to be treated as period spent on duty or not. The consequential benefits including proficiency step up increment would automatically follow. Needful be done within a period of four months from the date of the receipt of the copy of order.” 13. The perusal of office order dated 14.3.2005 indicates that while re-fixing the pay of the petitioner, reference has been made for withholding efficiency bar due to departmental proceedings, stoppage of increments due to penalties. The respondents before the Tribunal in OA No. 1755 of 1992 had projected the case that there was no specific order passed by the competent authority whereby the petitioner was not allowed to cross 8 efficiency bar nor any order for stopping the increment of the petitioner had been passed by the competent authority. In view of this stand of the respondents in O.A. No. 1755 of 1992, how reference of withholding of efficiency bar due to departmental proceedings and stoppage of increments due to penalties has been stated in the office order dated 14.3.2005 that has not been explained. Thus, re-fixation of pay of the petitioner vide office order dated 14.3.2005 Annexure PG is not in accordance with order dated 9.12.2004 of the Tribunal and thus Annexure PC office order dated 10.7.1989, Annexure PD office order dated 9.5.1991, Annexure PE office order dated 10.12.1991, Annexure PF office order dated 9.3.2005 and Annexure PG office order dated 14.3.2005 are liable to be quashed. 14. In view of above discussion, the petition is allowed, Annexure PC office order dated 10.7.1989, Annexure PD office order dated 9.5.1991, Annexure PE office order dated 10.12.1991, Annexure PF office order dated 9.3.2005 and Annexure PG office order dated 14.3.2005 are quashed. The competent authority in the light of observations made above is directed to re-fix the pay of the petitioner within two months from the date of supply of copy of this judgment by the petitioner to the competent authority and pay arrears, if any, to the petitioner in another two months. April 18, 2011 ( Kuldip Singh ), (GR) Judge.