IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1122 of 2010 Judgment reserved on 14.7.2010 Date of decision: 24. 7. 2010 Narinder Singh Chauhan ….. Petitioner. Vs. State of H.P. and others …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : Mr. Adarsh K. Vashista, Advocate. For the Respondents : Mr. R.K.Sharma, Sr. Additional Advocate General. Justice Kuldip Singh, Judge The petitioner has prayed for quashing Annexure P-13 dated 20.1.2010 rejecting the representation of the petitioner to give him benefit of fixation of pay under FR 22 (1) (a) (I) with a direction to the respondents to grant him benefit of pay fixation under FR 22 (1) (a) (I) with effect from due date and also to pay and release him uniform (dress) allowance as admissible to similarly placed persons in the Department of Himachal Pradesh Public Works Department and Department of Irrigation and Public Health. 2. The case of the petitioner is that after completing his LL.B. degree he was appointed as Clerk in the Department of Agriculture, Government of Himachal Pradesh in the year 1992. In the year 1997 he was appointed as Legal Assistant in the Department of Agriculture. ________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes The petitioner was promoted as Law Officer on 24.6.2004 vide Annexure P-2. The pay scales of Legal Assistant and Law Officer were clubbed in the year 1996. The petitioner joined as Law Officer and submitted his option for grant of benefit of pay fixation as available to him under FR 22. The post of Legal Assistant is a Class III post whereas the post of Law Officer is a Class II post (now Class-1 gazetted and selection post). The nature of duties of the two posts are not identical. The petitioner made representations for granting him benefit of FR 22 (1) (a) (I) and also for paying him uniform (dress) allowance. Both the representations of the petitioner were not considered favourably. He filed CWP No. 2313 of 2009 in this Court and on 13.7.2009 this Court directed the State that since the petitioner had already made representation, therefore, State was directed to decide the representation of the petitioner within eight weeks. The representation of the petitioner has been rejected vide order dated 20.1.2010 and, therefore, the petitioner has filed the present writ petition. 3. The petition has been contested by the respondents 1 to 3 by filing joint reply and in preliminary objection it has been submitted that the post of Legal Assistant is Class III post and the post of Law Officer is Class II post (now Class-1 gazetted and selection post) and is having higher responsibilities. However, pay scale of both posts is same i.e. Rs. 6400 – 10640, therefore, on promotion the pay was fixed under FR 22 (III). On merits also similar plea has been taken. As regards uniform (dress) allowance, it has been pleaded that respondent No.1 took up the matter with respondent No.2. On the advice of respondent No.2, the competent authority rejected the representation of the petitioner. The respondents prayed for dismissal of the writ petition. 4. We have heard the learned counsel for the parties. The learned counsel for the petitioner has submitted that the Law Department on 26.4.2005 recommended for grant of benefit of FR 22 (1) (a) (I) to the petitioner, similarly Secretary (Agriculture) on 8.9.2009 recommended to Finance Department to concur the AD’s (Administrative Department) proposal to grant benefit of FR 22 (1) (a) (I). It has been submitted that in CWP No. 124 of 2001 decided on 5.5.2008 a Division Bench of this Court upheld the decision of erstwhile Tribunal on the point of grant of FR 22 (1) (a) (I) where similar issue was involved. It has been submitted by the learned counsel for the petitioner that petitioner is discharging similar duties as his counter-parts are discharging in Himachal Pradesh Public Works Department and Irrigation and Public Health, but uniform (dress) allowance has not been given to petitioner whereas the Law Officers of those two departments are being paid uniform (dress) allowance. It has been submitted that without justifiable cause the respondents have discriminated with the petitioner for not paying him uniform (dress) allowance even though he is discharging the similar duties which his counter-parts are discharging in the aforesaid two departments. The learned Senior Additional Advocate General has supported the stand of respondents in rejecting the claim of the petitioner for granting him benefit of FR 22 (1) a (1) and also rejecting his claim for uniform (dress) allowance. 5. In CWP No. 124 of 2001 Division Bench on 5.5.2008 has considered FR 22 (1) (a) (I) and FR 22 (2) (III) which is as follows:- “For the purpose of this rule, the appointment shall not be deemed to involve the assumption of duties and responsibilities of greater importance if the post to which it is made is on the same scale of pay as the post other than a tenure post, which the Government servant holds on a regular basis at the time of his promotion or appointment or on a scale of pay identical therewith.” It was held that presumption raised in the aforesaid rule is rebuttable. In that case the respondent was working as Superintendent Grade-I in Himachal Pradesh Public Works Department and was promoted to the post of Vigilance Officer but he was not granted any monetary benefit in view of the fact that post of Vigilance Officer carried identical scale of pay as that of Superintendent Grade-I. The erstwhile Tribunal accepted the plea of respondent for grant of benefit of FR 22 (1) (a) (I) which was upheld by the Division Bench. 6. In the present case the presumption raised in FR 22 (2) (III) has been rebutted by the stand of the respondents themselves when they have taken the plea in the reply by pleading that the post of Law Officer Class –II (now Class-I gazetted and selection post) is having higher responsibilities. In order dated 20.1.2010 it has been observed that the benefit of fixation of pay under FR 22 (1) (a) (I) is admissible only in the case of promotion to a post which carries higher duties and responsibilities. The respondents themselves have admitted in the reply that the post of Law Officer carries higher responsibilities. In these circumstances, the petitioner is entitled to benefit of FR 22 (1) (a) (I) with effect from the date when he was promoted to the post of Law Officer and order dated 20.1.2010 Annexure P-13 is not sustainable. 7. In so far as the payment of uniform (dress) allowance is concerned, the case of the petitioner has been contested only on the ground that matter was taken up by respondent No.1 with respondent No.2 and on the advice of respondent No.2, the competent authority rejected the claim of the petitioner for dress allowance. In the reply or at the time of hearing no reasons have been given why the petitioner is not entitled to dress allowance when his counter-parts in Himachal Pradesh Public Works Department and Irrigation and Public Health are getting the uniform (dress) allowance. The respondents have not refuted the case of the petitioner that he is discharging similar duties as his counter-parts are discharging in the aforesaid two departments. The respondents have placed nothing on record to distinguish the case of the petitioner for grant of uniform (dress) allowance from the case of his counter-parts who are getting the uniform (dress) allowance in the two Departments. The State being the model employer cannot discriminate similarly situated employees / officers of same rank discharging similar functions for grant of particular allowance, more particularly in the present case. In these circumstances, the petitioner is also entitled to uniform (dress) allowance equal and in the same manner as has been allowed to his counter-parts in the aforesaid two departments. 8. In view of the above discussion, the petition is allowed, Annexure P-13 order dated 20.1.2010 is quashed. The respondents are directed to give benefit of FR 22 (1) (a) (I) to petitioner from due date and pay him uniform (dress) allowance at par with the uniform (dress) allowance paid to his counter-parts in the Himachal Pradesh Public Works Department and Irrigation and Public Health Department in three months. No costs. (Justice Kurian Joseph), Chief Justice July 24, 2010 (Justice Kuldip Singh), (GR) Judge.