IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP-T Nos. 2173 and 8958 of 2008. Decided on 31.3.2011 CWP-T No.2173 of 2008. Mehar Chand Shukla ..…Petitioner. Versus State of Himachal Pradesh and another. …. Respondents. CWP-T No.8958 of 2008. Purshotam Chand ..…Petitioner. Versus State of Himachal Pradesh and another. …. Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. CWP-T No. 2173 of 2008. For the petitioner : Ms. Praitma Malhotra, Advocate For the respondents : Mr. Anil Jaswal, Deputy Advocate General. CWP-T No. 8958 of 2008. For the petitioner : Mr. Vinod Gupta, Advocate For the respondents : Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, Judge (Oral) Since common questions of law and facts are involved in these petitions, the same have been connected and are being disposed of by a common judgment. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 2. CWP (T) No.2173 of 2008 has been filed on the following prayers vide para 7 (a) and (b) : “ a) That the respondents be directed to pay/release pay scale of Rs.510-940 to the applicant since his appointment with arrears along with interest at the rate of 18 % upon the arrears as is being given to his juniors. b) That the respondents be directed to promote to the next higher post with all consequential benefits of salary and seniority since his appointment with the respondent department as is being given to the juniors of the applicant by the respondents.” 3. CWP (T) 8958 of 2008 has been filed for grant of the following reliefs vide para 7 (1) to (3): “ 1. That the respondents may kindly be directed to give the benefit of FR 22 (I) (a) (1) to the applicant and step up his pay to a figure equal to the pay fixed for his junior. 2. That the respondents may kindly be directed to re-fix the pay of the applicant w.e.f. 16.1.82 with all consequential benefits including arrears. 3. That the respondents may be directed to pay the interest @ 18 % p.a on the arrears.” 4. On 22.6.2010, the following order was passed in CWP (T) No.2173 of 2008 : “ Respondents are directed to file supplementary affidavit as to what action has been taken in case of Lekh Ram 3 pursuant to the judgment passed by the Erstwhile Tribunal in OA No.33 of 1990 decided on 16.3.2000 and also to clearly state whether Purshotam Chand is getting revised pay scales as it was given to Lekh Ram and what is the present status of the aforesaid employees with respect to their pay scales.” 5. In compliance of the above order dated 22.6.2010, supplementary affidavit dated 19.7.2010, has been filed by the Director Health Services, Himachal Pradesh, wherein it is stated as under vide paras 1 to 8 : “ 1. That the above case is pending adjudication and decision before this Hon’ble Court. The same was lastly heard on 22.6.2010 when the respondents were directed to file Supplementary Affidavit as to what action has been taken in case of Lekh Raj in pursuant to the judgment passed by the erstwhile Tribunal in O.A No.33/90 decided on 16.3.2000 and also to clearly state whether Purshotam Chand is getting revised Pay Scales as it was given to Lekh Raj and what is the present status of the aforesaid employees with respect to their pay scales. 2. That the present deponent has assumed the charge of Director Health Services, HP only on 1.7.2010. However, after perusal of the old record of the Directorate of Health, the requisite affidavit is being filed on the basis of the said record. 3. That as per record, after passing of judgment/order dated 16.3.2000 by the 4 erstwhile Tribunal in OA No.33/90, Sh. Lekh Raj was heard in person by the then Director Health Services on 30.5.2000 where after, directions were passed to the CMO Chamba to do the needful strictly in accordance with the judgment/orders dated 16.3.2000, vide Directorate Health letter No. HFW-H (1) (PH) Court/91 dated 30.5.2000. 4. That after the receipt of letter dated 30.5.2000 from the Directorate of Health, the CMO Chamba had proposed the fixation of pay of Sh. Lekh Raj in the pre- revised pay scale of Rs.510-940, subsequently revised to Rs.1350-2400 w.e.f. 1.1.1986 vide his office order No. M- Estt.PF/81-10156-58, dated 20.6.2000, which was also approved by the then Director Health Services, HP on the face/margin of the said order itself. Accordingly, Sh. Lekh Raj continued to draw his pay in the pre-revised scale of 510-940, subsequently revised to Rs.1350-2400 w.e.f. 1.1.1986. 5. That the record of the Directorate Health further reveals that in the year 2001 after filing of the present CWP (T) No.2173/2008 (OA No.3226/2001) by the present petitioner/applicant and after filing of OA No.3225/2002 by Sh. Purshotam Chand, Family Planning Field Worker in the year 2002, the matter of receiving the in admissible higher pay scale of Rs.510-940 (pre-revised) by Sh. Lekh Raj than the admissible scale of Rs.400-600 (400-600) (pre-revised) to the category of Family Planning Field Worker 5 again came into the notice of the Authorities. After coming into the notice of the above matter, the facts were accordingly verified whereafter to rectify the error so occurred, a show cause notice in compliance to the orders of erstwhile Tribunal passed in OA No.33/90 was issued and served upon Sh. Lekh Raj to explain his position with regard to proposed pay fixation in the actual admissible pay scale of Rs.400-600, vide Directorate of Health letter No. HFW-H (1) (Court) PH/91 dated 6.9.2007, in response whereto the above official has also submitted his reply dated 22.9.2007, further forwarded by CMO, Chamba to the Directorate of Health vide his letter No. M- Estt. (PF)/86-11946 dated 27.9.2007. In the meanwhile, the O/o CMO Chamba was also directed to inform about the reasons for allowing the higher in admissible erroneous pay scale to Sh. Lekh Raj right since his initial appointment in the department in the year 1982 with the names of the erring officers/officials. The matter being still under correspondence, decision on show cause notice as served upon Sh. Lekh Raj is still pending with the Department. 6. That as regarding the pay of Sh. Purshotam Chand, Family Planning Field Worker, it is submitted that as per record, he was initially appointed in the admissible pay scale of Rs.400-660 in the year Feb, 1981. At the time of revision of the pay scale w.e.f. 1.1.86, his pay had erroneously been fixed in the revised scale 6 of Rs.1350-2400 as on 27.2.86 instead of actual admissible revised pay scale of Rs.1350-2400 as on 27.2.86 instead of actual admissible revised pay scale of Rs.950-1800. Further more in the year 2002, despite drawing the higher in admissible pay scale of Rs.1350-2400 w.e.f. in the year 1986, the above official, Sh. Purshotam Chand, had alslo filed an original application No. 3225/2002 before the erstwhile Hon ‘ble H.P Administrative Tribunal for granting him the benefit of step up with all consequential benefits and interest by increasing his pay at par with his junior, Sh. Lekh Raj who was drawing higher in admissible his pay right since his initial appointment on 16.1.82. It was only at the time of filing reply to OA No.3225/2002 that the fact of having been granted the higher in admissible revised pay scale of Rs.1350-2400 w.e.f. the year 1986 to the above official in an erroneous manner came into the notice of the higher authorities whereafter the inquiry into this matter had/has also been ordered to be made, which as per record, is also pending. The detailed reply to the OA No.3225/2002 was also filed by the State and the Department and the same is still pending adjudication and decision before this Hon’ble Court after being registered as CWP (T) No.8958/2008. 7. That as regarding the present status of Sh. Lekh Raj and Sh. Purshotam Chand with respect to their pay scales, it is submitted that both the above officials are Family Planning Field Workers and the 7 actual admissible pay scale of the category of Family Planning Field Worker was Rs.400-600 (400-660) pre-revised, subsequently revised to Rs.950-1800 w.e.f. 1.1.86 on account of revision of pay scale. However, both the above officials are receiving pay in higher in admissible pay scale in an erroneous manner i.e. Sh. Lekh Raj is receiving higher in admissible pay scale right since his initial appointment w.e.f. 16.1.82 and Sh. Purshotam Chand is receiving higher in admissible pay scale w.e.f. 27.2.86, as also explained in detail in paras supra. 8. That the CWP (T) No.8958/08 (OA No.3225/02) as filed by one Sh. Purshotam Chand, Family Planning Field Worker, before the erstwhile Hon’ble H.P Administrative Court is also pending adjudication and decision before this Hon’ble Court. It is very humbly prayed that the above petition may also kindly be clubbed with the present petition, heard together and a common judgment passed in the matter.” 6. In reply to the above supplementary affidavit, it is stated as under vide paras 1 to 8 : “ 1. That para-1 of the affidavit is admitted as it pertain to the record of Hon’ble Courts order dated 22.6.2010. 2. That para-2 is admitted. 3. That the contents of para-3 is admitted to the extent that directions were given after passing the judgment/order dated 16.3.2000 in the O.A No.33/90 8 whereby Shri Lekh Raj was heard in person by the then Director Health on 30.5.2000 and his revised pay was released to him since then as admitted. 4. That the contents of para-4 are admitted that after receiving a letter, the pay of Shri Lekh Raj was fixed in the pre- revised pay scale of Rs.510-940 subsequently revised to Rs.1350-2400 w.e.f. 1.1.1986 along with Shri Purshotam Chand. It is also submitted that Shri Lekh Raj who is junior to the petitioner is still drawing higher pay and the pay of the petitioner has to be stepped up as Shri Lekh Raj is drawing higher pay scale since 1982 being junior most. 5. That the contents of para-5 are admitted to the extent being matter of record. It is further submitted that any correspondence regarding the pay scale of Shri Lekh Raj is of no significance as the Hon’ble Administrative Tribunal had decided the matter on 16.3.2000 and any further show cause notice or correspondence will be res judicata and will be illegal. 6. That the contents of para-6 are admitted to the extent being matter of record, the rest is wrong and denied. The Chief Medical Officer had ordered the higher pay scale to Shri Purshotam in the pay scale of Rs.510-940 against Rs.400- 600 in the category of the family planning field worker. The petitioner is also entitled to the pay of Rs.510-940 and further revised pay of Rs.1350-2400 from 1.1.1986. It is also submitted that the 9 Government authority has increased the pay to bring it at par by stepping up as Junior Shri Lekh Raj was drawing. It is submitted that both the respondents are still getting the higher pay scale as per law. According to Annexure R-1/II family Planning Social Workers nomenclature was changed to family Planning field worker and the post of the family Planning Social workers was abolished and the same scale had to be given to the earlier family Planning Field workers which was given to the family planning social workers. The petitioner is entitled to the same benefit of higher pay scale since 16.1.1982. These scales are not given erroneously by the respondents. The petitioner is not aware of any Writ filed by Shri Purshotam Chand which can be decided separately. 7. That the contents of para-7 are admitted to the extent that both the family planning field workers Shri Lekh Raj and Purshotam Chand are receiving higher pay scales legally till today which are admissible under the rules and petitioner is also entitled to the same higher pay scale since 16.1.1982 along with interest as junior are getting. 8. That the contents of para-8 are denied for want of knowledge as petitioner is not a party in those proceedings and the case of Shri Purshotam Chand can be adjudicated separately after passing the judgment in this case.” 10 7. As per final seniority list of Family Planning Field Workers in the pay scale of Rs.400-600/-, as on 31.12.1984, Annexure A-1, whereas Shri Mehar Chand Shukla, petitioner in CWP (T) No.2173 of 2008 figures at Sr. No.5, Shri Lekh Raj, petitioner in OA No.33/90, titled Lekh Raj vs. State of Himachal Pradesh & others, decided by the erstwhile Himachal Pradesh State Administrative Tribunal, on 16.3.2000, is immediately below him at Sr. No.6. However, Shri Purshotam Chand, petitioner in CWP (T) No.8958 of 2008 is above both of them at Sr. No.3. 8. Vide office order dated 20.6.2000, Annexure A-2, the aforesaid Shri Lekh Raj was granted the pay scale of Rs.510-940/-, with effect from 16.1.1982, that is from the date of his initial appointment, in terms of the aforesaid order dated 16.3.2000, passed by the Administrative Tribunal in OA No.33 of 1990 titled Lekh Raj vs. State of H.P and others. Admittedly, Shri Purshotam Chand, petitioner in CWP (T) No.8958 of 2008, has also been granted the same pay scale. 9. Now the stand on behalf of the respondent-department is that both the said Shri Lekh Raj and Shri Purshotam Chand have been granted the higher pay scale of Rs.510-940/-, which has further been revised from time to time, erroneously and proceedings have been initiated to rectify the error after affording an opportunity of being heard to them. However, the fact remains that the order dated 16.3.2000, passed by the Administrative Tribunal (since abolished) was never challenged by the respondent-department by way of appropriate proceedings 11 before any Court and has thus attained finality and has also been implemented albeit the fact that the same is now sought to be reconsidered. 10. In view of the facts and circumstances of the case, the petitions are disposed of with a direction to the respondents/competent authority that both the petitioners herein, namely, Shri Mehar Chand Shukla in CWP (T) No.2173 of 2008 and Shri Purshotam Chand in CWP (T) No.8958 of 2008, who are senior to the said Shri Lekh Raj, petitioner in OA No.33 of 1990, decided by the Administrative Tribunal on 16.3.2000, shall also be treated similarly in the matter of grant of pay scale of Rs.510-940/- as revised from time to time without any discrimination after affording an opportunity of being heard to them, if so desired. This exercise shall be carried out within six months from the date of production of copies of this judgment by the petitioners. 11. Both these petitions stand disposed of, so also pending CMP (s), if any. (V.K. Sharma) Judge 31st March, 2011. cs