IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 12640 of 2008 Decided on : 24.2.2011 Raj Kumar Mishra and another ..… Petitioners. Versus State of Himachal Pradesh and others …… Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr. K.B. Khajuria, Advocate. For the Respondents : Mr. Anil Jaswal, Dy. Advocate General V.K.Sharma, Judge (Oral) The petition has been filed on the following prayers vide para 7(I) and (II):- “I-That the present O.A. may kindly be allowed and the salary as ordered to be fixed vide Annexure A-2 may kindly be declared as void ab initio and set aside. II-That the respondents be directed to pay the revised pay scale from the initial date of appointment.” 2. The respondents have taken the following stand Vide para 3 of the reply:- “That the applicant ahs no cause of action to file the present original application as they are not 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 entitled fro the benefit of merger of 50% Dearness Allowance with Basic pay. It is submitted that the service rules as applicable to the regular employees are not applicable to the contract employees. It is submitted that the applicants at the time of accepting contract appointment has entered into an agreement with his employer whereby it was agreed upon that they shall be paid pre-revised pay scale of Rs.1800-3200, therefore, there services are governed by the contract policy as well as terms and conditions of contract agreement. It is further submitted that pay scale of regular employees were revised w.e.f 1.1.1996 vide notification dated 20.1`.1998 which clearly provides tht it shall not be applicable to the :- “Persons employed on contract basis except when the contract provides otherwise.” It is further submitted that contract agreement nowhere provides that contract appointees shall be granted revised pay scale from time to time copy of agreement of applicant No.2 is annexed as annexure R-1 for the kind perusal of this Hon’ble Tribunal. Therefore, the parties to the contract are bound by the agreement, which determines the liabilities and duties of the parties. As such, the Finance Department office memorandum dated 1-6-2005 is also not applicable in case of contract employees, who are governed by the specific conditions of their contracts governing their appointments. It is worth mentioning that the applicants were engaged on contract basis after the revised pay scale was given to the regular employees of Himachal Pradesh. However, the applicants voluntarily agreed to serve on the honorarium of 1800-3200 and they are estoped 3 from repudiating the very clause which was agreed to by the applicants. The sub clause 5 of clause 4 is reproduced herein below for the kind perusal of the Hon’ble Tribunal. “The Govt. of Himachal Pradesh shall pay the teachers so long as the teachers shall remain in the service and actually perform his/her duties monthly honorarium equal to of the basic pay in the pay scale of Rs. 1800-3200 and other allowances admissible at the station on the basic pay including HRA and CCA. The teachers shall not be entitled for any further benefit.” In view of the position as stated above the applicants are not entitled to the revised pay scale as per specific notification issued in this behalf and the consequence of merger of D.A. is flowing from the said scheme of revised pay scale.” 3. The learned counsel for the petitioners submits at the very outset that the case of the petitioners is covered under judgment dated 17.11.2009, rendered by a Division Bench of this Court in CWP(T) No. 14232 of 2008, titled Nek Ram and others vs. State of Himachal Pradesh and others, operative part whereof contained in last two paragraphs of the judgment is as under:- “Cumulatively, what emerges by harmonizing clarifications No. 1 and 2 of letter dated 8.8.2006 is that the petitioners’ option was to be sought whether they would like to be paid their emoluments as per letter dated 9.5.2006 or they would like to be governed by the terms and conditions of their contract already executed. Since the petitioners have entered into agreement before 9.5.2006, their 4 emoluments were to be protected and individually determined under the contract after permitting them to exercise their option. The individuals who have entered into agreement before 9.5.2006 constitute a special class and the endeavour has also been made in clarifications No. 1 and 2 to ensure that their emoluments are not reduced. The Teachers belong to a noble profession. Their emoluments must commensurate with their status. Consequently, the writ petition is allowed. Annexure A-2 dated 24.9.2005 is quashed and set aside. The respondents are directed to permit the petitioners to exercise their option whether they would like to be regulated under letter dated 9.5.2006 or as per the terms and conditions of their contract which they have entered into in the year 2000. It is made clear on the basis of clarifications No. 1 and 2 that the emoluments which the petitioners were getting before 9.5.2006, including merger of 50% dearness allowance with basic pay shall not be reduced. In case the petitioners exercise their option to be governed under order 9.5.2006, the consequences would ensue and they will be paid their salary as per this letter dated 9.5.2006. No costs.” 4. In view of the above, if on facts, the case of the petitioners is covered under the aforesaid judgment dated 17.11.2009, in CWP(T) No. 14232 of 2008 and they are also similarly situate, they shall be treated similarly without any discrimination and the benefit of the said judgment be extended to them, within three months from the date of production of 5 copy of this judgment by the petitioners. Needless to say consequential benefits, if any, would follow. 5. The petition as also pending CMPs, if any, stand disposed of in the above terms. (V.K. Sharma) Judge 24th February, 2011. Lsp*