IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP (T) No. 4302 of 2008. Reserved on :23.02.2010. Decided on 20.04.2010. Dr. A.C. Shandil. …..Petitioner. Versus State of H.P. and others. .…Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for Reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, J.: Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Deputy Director, Agriculture in sequel to advertisement dated 22nd January, 1987. The pay scale of the post was Rs.1200-1850/-. He joined his duties on 15.01.1988. The State Government has issued a notification vide Annexure A-4, dated 13th April, 1989, whereby the pay scale of Deputy Director in Agriculture department was revised from Rs.1200-1850/-/Rs.1400-2000/- 1 Whether reporters of Local Papers may be allowed to see the judgment?Yes. 2 (S.G.) to Rs.2400-4000/-. The pay scale of the feeder category, i.e., District Agriculture Officer and other equated posts was revised from Rs.825-1580/-/Rs.1200-1700/- (S.G.) to Rs.2000- 3500/-. The pay scale of Assistant Development Officer was revised from Rs.700-1200/-/Rs.800-1400/-(S.G.) to Rs.1640- 2925/-. In pursuance to notification dated 24th April, 1993, three existing different categories of posts, i.e., Assistant Development Officer, District Agriculture Officers and other Class-II posts and also the post of Deputy Director of Agriculture, which were in the pay scale of Rs. 2000-3500/-, Rs.2100-3700/- and Rs.2400-4000/-were merged and brought into a single cadre with entry scale of Rs.2200-4000/-, scale of Rs.3000-4500/- after 8 years of service and scale of Rs.3700- 5300/- after service of 18 years. Petitioner was fixed in the pay scale of Rs.2200-4000/- w.e.f. 01.01.1991 vide order Annexure A-6 in May, 1994. His basic pay was fixed at Rs.2580/-. He made representation for re-fixation of his pay taking into consideration that he was recruited against a Class-I gazetted post. The same was rejected on 14th July, 1994. He submitted another representation on 17th August, 1994. The same was also rejected on 24th April, 1996. Mr. Dilip Sharma, learned counsel for the petitioner has vehemently argued that the action of the respondents of initially clubbing the three categories of posts, i.e., Assistant Development Officer, District Agriculture Officers and Deputy Director, Agriculture vide notification dated 24th April, 1993 (Annexure A-5) into one single cadre with the entry scale of 3 Rs.200-4000/- is illegal, unjust, discriminatory and, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that his client is entitled to pay scale of Rs.3700-5300/- taking into consideration that the post of Deputy Director Agriculture was gazetted post at the time of appointment of petitioner and it was highest in the hierarchy at the time of decision dated 24th April, 1993. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that it is the prerogative of the State to create, bifurcate and merge the cadres, and this Court cannot go into this aspect. I have heard the learned counsel for the parties and gone through the pleadings carefully. The advertisement was issued on 22nd January, 1987. The post of Deputy Director, Agriculture (Class-I) was to be filled up as per the Recruitment and Promotion Rules, i.e., 50% by direct recruitment and 50% by promotion. Petitioner joined his duties on 15th January, 1988. 50% posts by promotion were to be filled up from amongst District Agriculture Officers and other posts of equivalent status indicated in Column-11 with five years service in the grade. Petitioner’s pay was fixed at Rs.2580/- in the entry scale of Rs.2200-4000/- vide order issued in May, 1994. The post of Agriculture Inspector was re-designated as Assistant Development Officer (Agriculture) and thereafter, further re-designated as Agriculture Development Officer. It was a Class –III post. However, as a result of their re-designation as Assistant 4 Development Officers (Agriculture), they were given Class-III gazetted status. As a result of merger of these posts in the common cadre, they were given Class-I gazetted status. The post of Agriculture Inspector was in the feeder category for the post of District Agriculture Officer. The post of District Agriculture Officer was also carrying Class-II gazetted status. The Agriculture Inspector had to put in minimum three years service to become eligible for promotion to Class-II gazetted post. The person in feeder post of District Agriculture Officer had to put in minimum five years service to become eligible for promotion to the post of Deputy Director. The minimum essential qualification for promotion to the post of Deputy Director was B.Sc., whereas for direct recruitment as Deputy Director, Agriculture, essential qualification was M.Sc. (Agriculture) and Ph. D (Agriculture) as desirable qualification. The pay scale of Assistant Development Officer was revised from Rs.700-1200/-800-1400 (SG) to Rs.1640-2925/- w.e.f. 1.1.1986. The pay scale of District Agriculture Officer was revised from Rs.825-1580/- and Rs.1200-1700/- (SG) to Rs.2000-3500/- w.e.f. 1.1.1986. The pay scale of the post of Deputy Director Agriculture was revised from Rs.1200-1850/- and Rs.1400-2000(S.G.) to Rs.2400-4000/- w.e.f. 1.1.1986. After the issuance of notification dated 24.04.1993, a single cadre was formed with the entry scale of Rs.2200-4000/-and Rs.3000-4500/- after eight years of service and scale of Rs.3700-5300/- after eighteen putting in eighteen years of service. 5 What emerges from the above enumerated facts, is that the petitioner was appointed against Class-I gazetted post and the two categories merged into single cadre were Class-II and Class-III gazetted status posts, and were carrying the lower pay scales. Petitioner started getting the pay scale of Rs.2400-4000/- w.e.f. 1.1.1986 and the other categories of Class-II and Class-III posts got the revised pay scales of Rs.2000-3500/- and 1640- 2925/- respectively. It is true that it is for the employer to create, bifurcate and merge the cadres. However, the decision to create, split and merge the cadres has to be taken in a rational and reasonable manner. The employer at the time of merging the cadre is required to take into consideration the administrative convenience and exigency of service. There shall not be any violation of Articles 14 and 16 of the constitution of India at the time of creation, merger and bifurcation etc. of the cadres. In the present case, the respondents vide notification dated 24th April, 1993, had decided to merge the posts of Assistant Development Officer, District Agriculture Officer and Deputy Director of Agriculture into one common cadre. Respondents have not taken into consideration the higher status and higher salary which was attached to the post of Deputy Director, Agriculture alongwith higher qualification as far as direct recruitment is concerned. The post of Assistant Development Officer was in feeder category for promotion to the post of District Agriculture Officer. The post of District Agriculture Officer was in feeder category for promotion to the post of Deputy Director, Agriculture. Respondents have clubbed these 6 three posts into one common cadre. In other words, respondents have treated the ‘un-equals as equals’. Now, a person, who has joined as Agriculture Development Officer on 15th January, 1988 would also be entitled to the scale of Rs.3000-4500/- on completion of eight years of service and would be further entitled to pay scale of Rs.3700-5300/- on completion of eighteen years of service. The entire exercise undertaken by the respondents is arbitrary, irrational and unreasonable. It is a case of invidious discrimination. The respondents while issuing Annexure A-5, dated 24th April, 1993 have not taken into consideration the powers, nature of duties of the post of Deputy Director, Agriculture, the minimum qualification as well as salary of the post. The Deputy Director, Agriculture was discharging higher duties and used to exercise powers more than the powers exercised by the District Agriculture Officer and Assistant Development Officer. The minimum qualification for filling up the post of Deputy Director, Agriculture was M.Sc. and the pay scale was Rs.2400-4000/-. The pay scale of Agriculture Development Officer was Rs.2000- 3500/- and pay scale of District Agriculture Officer was Rs.1640-2925/-. These factors have not been taken into consideration by the respondents at the time of issuing Annexure A-5, dated 24th April, 1993. It is true that the decision to merge, fuse, integrate, restructure the cadres is a policy matter, however, this decision has to be taken in conformity with Articles 14 and 16 of the Constitution of India in a rational and reasonable manner. The State at the time of merging, 7 splitting or restructuring the cadres, cannot give favourable treatment to one set of employees and take unfavourable decision qua others. Their Lordships of the Hon’ble Supreme Court in S.P. Shivprasad Pipal versus Union of India and others, (1998) 4 Supreme Court Cases 598 have carved out the factors, which are required to be taken into consideration in determining the merger of cadres and equation of posts for merger of cadres. Their Lordships have held as under: “5. However, when different cadres are merged certain principles have to be borne in mind. These principles were enunciated in the case of State of Maharashtra v. Chandrakant Anant Kulkarni (1982) 1 SCR 665 at page 678 : (AIR 1981 SC 1990 at pp. 1994-95) While considering the question of integration of government servants allotted to the services of the new States when the different States of India were reorganised. This Court cited with approval the principles which had been formulated for effecting integration of services of different States. These principles are : In the matter of equation of posts, (1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts :- (a) Nature and duties of a post; 8 (b) Powers exercised by the officers holding a post the extent of territorial or other charge held or responsibilities discharged; (c) The minimum qualifications, if any, prescribed for recruitment to the post and; (d) The salary of the post. This Court further observed that it is not open to the Court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate.” Mr. Dilip Sharma, learned counsel for the petitioner has also argued that one Shri Tashi Daba, who was junior to the petitioner, has been granted pay scale of Rs.3700-5300/- as per office order dated 3rd June, 1993. Similarly, one Shri Hari Ram Noor, who was also junior to the petitioner has been granted pay scale of Rs.3700-5300/- as per order dated 31st May, 1993. Mr. R.K. Sharma, learned Senior Additional Advocate General has argued that Shri Tashi Daba was inducted/joined as Agriculture Development Officer in the year, 1964 and had rendered more than 18 years of service on the date of revision, i.e., 1.1.1991 and he was drawing pay at the 9 stage of Rs.3200/-, therefore, he was fixed in the pay scale of Rs.3700-5300/-. According to him, petitioner has only rendered three years of service till 1991. His pay was fixed at the stage of Rs.2580/-. As far as Mr. Hari Ram Noor is concerned, submission of Mr. R.K. Sharma is that he was recruited as Agriculture Inspector (ADO) in the year, 1974 and he had also rendered more than seventeen years’ service as on 1.1.1991 and was rightly held entitled to scale of Rs.3000-4500/-, and after eighteen years of service, his pay was fixed at Rs.3700- 5700/- w.e.f. 8.1.1992. Shri Tashi Daba and Shri Hari Ram Noor were junior to the petitioner. They cannot draw higher salary than the petitioner. Their Lordships of the Hon’ble Supreme Court in Commissioner and Secretary to Govt. of Haryana V. Ram Sarup Ganda, (SC), 2007 (2) S.C.T. 476 have held that giving higher pay scale to a junior than his senior results in anomaly. If there is any anomaly to the effect that the senior Government servants are receiving lesser pay than their juniors, such anomaly has to be rectified by giving step up to the seniors also to bring them on par with the salary which is being received by their juniors. Their Lordships have held as under: “8. Rule 9 quoted above only says that the senior Government servants, who are direct recruits, are not entitled to get any stepping up in case any anomaly arises regarding the receipt of lesser pay by them. However, the same is not applicable to the respondents herein who joined the service as Group 10 “D” employees and later got promotion to Group “C” post by selection. If there is any anomaly to the effect that the senior Government servants are receiving lesser pay than their juniors, who entered the service from a different source of recruitment, certainly such senior Government servants are entitled to stepping up of their pay in order to bring them on par with the salary which is being received by their juniors. There is no clause in the scheme which prohibits such stepping up of salary which is a common practice applicable to all Government employees in case there is anomaly in the pay structure of the employees. By the impugned judgment, the High Court has held that the respondents are entitled to get the ACP scales that are applicable to Group “C” post, but the Rules, as such, do not provide for that. The Rules say, that if there are already to upgradations, then the concerned employees are not entitled to the benefit of ACP scales. Nevertheless, if ACP scales are higher, they are certainly entitled to the ACP scales at the starting point. The date of giving such ACP scales is the date of entry into the service and though these respondents are entitled to get ACP scales and get fixation of the ACP scales as applicable to Group “D” employees and in case there are anomalies to the effect that they receive 11 lesser pay than their juniors working in the same cadre/post, such senior Government servants are entitled to step up of their salary to get it on par with the salary which is being received by their juniors. In the result, all the appeals are partly allowed. The appellants shall revise the pay scales of the respondents. In case of any anomaly, if the employees who, on fixation of ACP scales, are in receipt of lesser salary than their juniors in the same cadre/post, then their salary shall be stepped up accordingly. Revised orders shall be passed within a period of two months of the receipt of the copy of this order by the Government. In a similar situation, their Lordships of the Hon’ble Supreme Court in Gurcharan Singh Grewal and another versus Punjab State Electricity Board and others, (2009) 3 Supreme Court Cases, 94 have held that a senior cannot be paid a lesser salary than his junior. Their Lordships have held as under: “17. Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales in which Appellant 1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and 12 ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant 2.” There is no merit in the submission of Mr. R.K. Sharma, learned Additional Advocate General that the decision to merge the cadres has been taken on Punjab pattern. The respondent-State is required to take a rational decision at its own level instead of following the Punjab pattern blindly. Respondent-State has not placed on record any material qua Recruitment and Promotion Rules of the posts of Assistant Development Officer, District Agriculture Officer and Deputy Director, Agriculture serving in the State of Punjab. Their Lordships of the Hon’ble Supreme Court in State of H.P. versus P.D. Attri and others, (1999) 3 Supreme Court Cases, 217 have held that each State has its own individualistic way of governance under the Constitution and one State is not bound to follow the rules and regulations applicable to the employees of the other State or if it had adopted the same rules and regulations, it is not bound to follow every change brought in the rules and regulations in the other State. Their Lordships have held as under: “5. The case of the respondents is not based on any constitutional or any other legal provisions when they claim parity with the posts similarly designated in the Pubjab and Haryana High Court and their pay scales from the same date. They do not allege any violation of any constitutional provision or any other provision of 13 law. They say it is so because of “accepted policy and common practice” which, according to them, are undisputed. We do not think we can import such vague principles while interpreting the provisions of law. India is a union of States. Each State has its own individualistic way of governance under the Constitution. One State is not bound to follow the rules and regulations applicable to the employees of the other State or if it had adopted the same rules and regulations, it is not bound to follow every change brought in the rules and regulations in the other State. The question then arises before us is whether the State of Himachal Pradesh has to follow every change brought in the States of Punjab and Haryana in regard to the rules and regulations applicable to the employees in the States of Pubjab and Haryana. The answer has to be in the negative. No argument is needed for that as anyone having basic knowledge of the Constitution would not argue otherwise. True, the State as per “policy and practice” has been adopting the same pay scales for the employees of the High Court as sanctioned from time to time for the employees of the Pubjab and Haryana High Court and it may even now follow to grant pay scales but is certainly not bound to follow. No law commands it to do so.” Petitioner had made representation, as noticed above, for the redressal of his grievance on 17.5.1994. The same stood rejected on 14.7.1994. He made another representation, which was also rejected by the Joint Secretary (Agriculture) on 24.4.1996 without due application of mind and without taking 14 into consideration the factors necessary to be taken into consideration while merging the cadres. The upshot of the above discussion is that decision of the respondents to create common cadre by merging the posts of Assistant Development Officer, District Agriculture Officers and Deputy Director of Agriculture without taking into consideration the Recruitment and Promotion Rules of these posts/pay scales attached to these posts, functionalities of these posts and gazetted status of these posts, is declared illegal and arbitrary. By giving higher salary to the juniors, the respondents have created an anomaly. The same is required to be removed by stepping up the salary of the petitioner. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-5, dated 24.4.1993 is quashed and set aside. Respondents are directed to keep the post of Deputy Director, Agriculture distinct and separate in a higher pay scale. Respondents are further directed to remove the anomaly by stepping up the salary of petitioner, vis-à-vis Shri Tashi Daba and Shri Hari Ram Noor. Needful be done within a period of eight weeks from today. No costs. ( Rajiv Sharma), Judge. April 20, 2010. bhupender