IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2009/2008 Decided on:25.3.2009 N.D. Kapoor. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No. For the petitioner : Mr.B.C. Negi, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Head Clerk in the Development Department of Himachal Pradesh. According to him, he was to be assigned Sr. No.2 in the seniority list of Head Clerks instead of Sr. No. 19. He approached this Court by way of CWP No. 302/1974. It was decided by this Court on 10.12.1985. The operative portion of the judgment dated 10.12.1985 reads thus: “In view of what has been stated above I allow this petition, quash the seniority list of the Head Clerks of the Development Department found at Ex.RE/1 and direct respondents No.1 and 2 to reframe such seniority 1 Whether the reporters of Local Papers may be allowed to see the judgment?No. 2 list after assigning the petitioner 1.10.1961 as the date of confirmation and thereafter to consider the case of the petitioner for his promotion to the post of Block Development Officer with effect from the date when his juniors were so promoted.” The petitioner was assigned seniority at Sr. No.2 vide letter dated 20.8.1986, however, no consequential benefits were paid to him. He filed a contempt petition in this Court and it stood decided on 23.7.1987. The Court issued following directions in contempt petition No. 45 of 1987 on 23.7.1987: 1. “The petitioner will be given promotion in the post of Block Development Officer from the due date and orders in that regard shall be issued on or before August 31, 1987. 2. All the monetary benefits flowing from the grant of such promotion upto the date of the retirement of the petitioner shall be worked out and paid to him on or before September 15, 1987, failure so to do will besides inviting other action, entitle the petitioner to the payment of the amount accordingly becoming due with interest at the rate of 12 per cent per annum from September 15, 1987 onwards till the date of payment. 3. The case for the revision of the pensionary benefits due and payable to the petitioner on the account of his promotion shall be finalized and moved on or before September 15, 1987, and the payment of the pensionary benefits due to him shall be made on or before October 30, 1987, failure so to do will, besides inviting other action, entitle the petitioner to the payment of the amount accordingly becoming due with interest at the rate of 12 per cent annum from October 30, 1987 onwards till the date of payment.” The directions issued by the Court according to the petitioner were not complied with and the persons junior to him in the feeder category of 3 Clerks were allowed to draw more pay than him. He was promoted as Block Development Officer with effect from 23.11.1974 vide order dated 24.8.1987. His pay was fixed at Rs. 450/- instead of Rs. 650/- as on 23.11.1974 as per averments contained in the petition. The pay of one Sh. Hari Ram Thakur, who was junior to the petitioner, was fixed at Rs. 650/- with effect from 1.1.1978. His further case is that his pay was required to be fixed at Rs. 1700/- with effect from 4.11.1984 instead of Rs. 1460/-. He was informed by the Deputy Secretary (RD) on 20.10.1987 that the service book of Sh. Hari Ram Thakur had been sent for from Managing Director Agro Industries, Himachal Pradesh where he was permanently absorbed and in case the facts narrated by him were proved true, his pay would be re-fixed accordingly. He was informed by the Deputy Secretary (RD) again on 1.3.1988 that his claim for stepping up of pay was required to be examined with reference to the pay of Sh. Hari Ram Thakur and the efforts were being made to locate the old relevant records to enable the Department to process his claim as early as possible. He was constrained to approach this Court again by way of contempt petition No. 39 of 1988. The same was decided by this Court on 11.8.1988. It was observed by the Court that in case the pay of the petitioner was not correctly fixed, the remedy lies otherwise than in the contempt jurisdiction. The representations made by the petitioner were rejected on 3.10.1988 (Annexure P-8). He assailed order dated 3.10.1988 before the learned Himachal Pradesh Administrative Tribunal by way of OA No. 440/1988. The original application was disposed of by the learned Himachal Pradesh Administrative Tribunal vide Annexure P-9 by passing the following order on 1.8.1991: “In the seniority list of Block Development Officers circulated on August 26, 1987 as it stood on January 1, 1987 filed by Shri H.K. Paul, the learned Assistant 4 Advocate General on July 5, 1991, the applicant is shown at Sl. No. 79 with his date of appointment on regular basis as November 15, 1985. But we find from Annexure P-4 that the applicant was promoted as Block Development Officer on regular basis with effect from November 23, 1974. The respondents are directed to correct the date of his regular promotion in the seniority list of Block Development Officers as it stood on January 1, 1987 in accordance with the notification dated April 28, 1987, Annexure P-4. In case the applicant is found to be senior to Shri Hari Ram, Block Development Officer since retired, then his case for pay fixation may be decided within three months in accordance with the Rules. In view of above, no other direction remains to be given and as such, the application is disposed of accordingly.” The case of the petitioner was again rejected on 28.10.1991 (Annexure P-10). Mr. B.C. Negi, Advocate has strenuously argued that despite the petitioner’s writ petition being allowed by this Court bearing CWP No. 502/1974 on 10.12.1985, he was not granted consequential benefits and his pay was not stepped up vis-à-vis Sh. Hari Ram Thakur, who was junior to him. His further contention is that despite the peremptory order passed by this Court as well as by the learned Tribunal on 1.8.1991, the case of the petitioner was turned down without a speaking order on 28.10.1991. He lastly contended that the respondents have misconstrued the instructions issued from time to time while rejecting the case of the petitioner for stepping up of his pay. Mr. R.K. Sharma, learned Senior Additional Advocate General has relied upon the decision dated 28.10.1991 and the reply filed to the writ petition. 5 I have heard the learned counsel for the parties and perused the record carefully. The Court vide judgment dated 10.12.1985 rendered in CWP No. 502/1974 had directed the respondents in to reframe the seniority list and thereafter to consider his case for promotion to the post of Block Development Officer with effect from the date when his juniors were so promoted. In sequel thereto he was promoted to the post of Block Development Officer vide order dated 24.8.1987 with effect from 23.11.1974. His pay was fixed in the scale of Rs. 350-800 at Rs. 450/-, however, the pay of Sh. Hari Ram Thakur was fixed at Rs. 650/-. It is not in dispute that the petitioner ranked senior to Sh. Hari Ram Thakur. The petitioner was assigned Sr. No. 2 in the revised seniority list pursuant to direction issued by this Court. The learned Senior Additional Advocate General has strenuously argued that Sh. Hari Ram Thakur was promoted on ad hoc basis on 1.2.1963 and as per the existing seniority list, the petitioner’s case could not be considered. In these circumstances, Sh. Hari Ram Thakur was permitted to work on ad hoc basis as Block Development Officer with effect from 1.2.1963 to 22.11.1974. The seniority-list was revised after the direction issued by this Court and the petitioner was assigned Sr. No.2 and the name of Sh. Hari Ram Thakur appeared at Sr. No.7. In old seniority-list, the petitioner was shown at Sr. No. 19 and Sh. Hari Ram Thakur was shown at Sr. No. 16. It is intriguing to note that despite the seniority being altered/re-framed, the petitioner has not been given his dues to which he was legally entitled. It was on the basis of the wrong seniority list that Sh. Hari Ram Thakur was promoted on ad hoc basis to the post of Block Development Officer on 1.2.1963 and the petitioner was ignored. It was incumbent upon the respondents to do justice to the petitioner immediately after reframing the seniority list where 6 the petitioner has been assigned the correct seniority. He has been denied the monetary benefits. His pay was required to be fixed at Rs. 650/- as on 23.11.1974 instead of Rs. 450/-. Sh. Hari Ram Thakur was junior to the petitioner and the petitioner could not be paid lesser salary than him. The fact of the matter is that senior cannot be paid lesser salary than his junior and this principle has been reiterated by their Lordship of the Hon’ble Supreme Court in Er. Gurcharan Singh Grewal and another versus Punjab State Electricity Board and others, 2009 (1) Scale 535. Their Lordships have held as under: “Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be said lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2” Accordingly, it is held that the petitioner was to be fixed at Rs. 650/- in the pay scale of Rs. 350-800 on 23.11.1974 at par with Sh. Hari Ram Thakur. The learned Tribunal had issued a well reasoned order on 1.8.1991. The text of the same has already been reproduced hereinabove. In view of the peremptory directions issued by the learned Tribunal it was necessary for the Secretary to pass a speaking order. Annexure P-10 is a non-speaking order. It is settled law that the order which has civil consequences must be passed in conformity with the 7 principles of natural justice. The necessity to pass speaking order arises, more particularly, when these orders are assailable before the competent courts of law. It is not borne out from Annexure P-10, which order/instruction has been taken into consideration while rejecting the claim of the petitioner. Annexure RA-1 has been annexed with the reply. Annexure RA-1 could not be applied mechanically without taking into consideration the factual matrix of the case and the decision rendered by this Court in CWP No. 502/1974, the orders passed in the contempt petition and the order passed by the Tribunal in OA No. 440/1988 on 1.8.1991. Accordingly, the writ petition is allowed. Impugned Annexure P-10 is quashed and set aside. The respondents are directed to fix the pay of the petitioner at Rs. 650/- with effect from 23.11.1974 and at Rs. 1700/- with effect from 24.11.1984. The petitioner is held entitled to all the consequential benefits. The arrears shall be paid with interest @ 9% per annum. The entire exercise be undertaken by the respondents within a period of eight weeks from today. There shall, however, be no order as to costs. 25.3.2009 (Rajiv Sharma ), J. *awasthi*