IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8123/2008 Reserved on: 28.6.2010 Decided on:23.7. 2010 _____________________________________________ B.L. Dhiman. …Petitioner. Versus Chaudhary Sarwan Kumar Krishi Vishva Vidyalaya. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. Jagdish Thakur, Advocate. _____________________________________________________ Rajiv Sharma, J Material facts necessary for the adjudication of this petition are that the services of the petitioner were taken on deputation as Deputy Registrar (Accounts) by the respondent-University in the pay scale of Rs. 3700-5700 revised to Rs. 12000-18300 with effect from 9.1.1995. Respondent-University issued advertisement for filling up the post of Deputy Comptroller in the pay scale of Rs. 3700-5700. Petitioner also submitted application through proper channel and after his suitability was adjudged by the Selection 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Committee, he was appointed on 24.12.1996. He applied for absorption by tendering his technical resignation as per rule 37 of the Central Civil Services (Pension) Rules, 1972. Case of the petitioner was decided by the State Government vide letter dated 29.8.1997 for absorption with effect from 1.8.1997. However, the University absorbed him with effect from 7.1.1999. He opted to receive the pro-rata pensionary benefits with effect from 24.12.1996. His pay was fixed after absorption with effect from 1.1.1997 by the Registrar vide letter dated 10.6.1999. His pay fixation order was sent to the-then Joint Comptroller (LA) in the University. He pointed out that since the petitioner took retirement; his pay was to be fixed under the relevant rules applicable to re- employed pensioners. The-then Comptroller clarified the position that the pay of the petitioner was rightly fixed under the normal rules as per the decision of the Board of Management on the recommendations of the Finance Committee vide item No. 13 (5) in its meeting held on 27.4.1987. The Registrar sought clarification from the State Government vide letter dated 1.7.2000. State Government clarified the matter on 26.6.2001. Thereafter petitioner made representations vide Annexures A-12, A-13 and A-14. However, the fact of the matter is that pay of the petitioner was re- fixed as per Annexure A-15 dated 23.11.2001. He made representation against Annexure A-15 on 26.11.2001. Mr. Rakesh Jaswal has strenuously argued that pay of the petitioner was correctly fixed as per the decision of the Board of Management dated 27.4.1987 under normal rules. He then 3 contended that once the decision has been taken by the highest decision taking body, i.e. Board of Management, it was not appropriate for the Registrar of the University to seek clarification vide letter dated 1.7.2000 from the State Government. He has further contended that the petitioner is entitled to the benefit of FR 49 as he has worked against the higher post of Comptroller with effect from 15.10.1999 to 27.1.2000 and 13.11.2000 to 24.9.2001. Mr. Jagdish Thakur has vehemently argued that the petitioner was required to be treated as re-employed for the purpose of pay fixation since the University Statutes were silent on the issue and the same was required to be decided in accordance with rules laid down by the State of Himachal Pradesh for its employees as per Statute 7.2. I have heard the learned counsel for the parties and have perused the pleadings carefully. Petitioner’s services were availed on deputation by the respondent-University as Deputy Registrar (Accounts). He was appointed pursuant to advertisement issued by the respondent- University as Deputy Comptroller on 24.12.1996. He was absorbed in the respondent-University on 7.1.1999. His pay was fixed on 10.6.1999. However, it was objected to by way of audit reference No.54 by the Joint Comptroller vide letter dated 17.8.1999. The Comptroller has clarified by referring to the decision taken by the Board of Management on the basis of the recommendations made by the Finance Committee that the pay of the petitioner has rightly been fixed under the operation of normal rules. However, the 4 Registrar sought clarification from the State Government. State Government clarified the same on 26.6.2001, which led to issuance of Annexure A-15 dated 23.11.2001. It will be apt at this stage to look into the salient features of the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986. Section 12 thereof provides that the Chancellor shall constitute a Board of Management for the University. The functions to be discharged by the Board of Management are stipulated under statute 2.5. Statute 7.27 reads thus: “7.27. Any matter regarding conditions of service not covered by the provisions of this Statute may be decided in accordance with the rules laid down by the Himachal Pradesh Government for its own employees or in such other manner as the Vice Chancellor with the approval of the Board or under the powers delegated to him by the Board may deem fit.” It is not in dispute that the highest decision making body of the respondent-University is the Board of Management. The Board of Management in its meeting held on 27.4.1987 was pleased to approve the criteria as per Annexure for regulating the past and also the future cases in respect of the employees, who joined the University services on deputation/Foreign Service. The copy of the notification dated 20.3.1989 is Annexure A-8. Para 7 of Annexure A-8 annexed with notification dated 20.3.1989 reads thus: “7. The pay of such employee in the HPKVV will be fixed not as a re-employed pension but under the normal rules. The matter will also be taken with the State Government concerned Departments.” 5 It is on the basis of this decision that the petitioner’s pay was fixed as per Annexure A-5. The Comptroller also reiterated that the pay of the petitioner has rightly been been fixed as per Annexure A-8 dated 20.3.1989. Once the decision had been taken by the highest decision making body of the respondent, i.e. Board of Management, the matter was not required to be sent for clarification. It is only in those cases where the respondent- University has not framed its own Statute/instructions etc. that it can apply the rules, which are applicable to the State Government employees as per Statute 7.27. The plain reading of Statute 7.27 also reveals that in those cases where conditions of service are not covered by the provisions of Statute, the conditions of service are required to be decided in accordance with the rules laid down by the Himachal Pradesh Government for its own employees or in such other manner as the Vice-Chancellor with the approval of the Board or under the powers delegated to him by the Board may deem fit. In the present case, the Board of Management has also taken a decision vide notification dated 20.3.1989 to regulate the pay in old cases and future cases of the employees who joined the University on deputation/Foreign Service. The notification dated 20.3.1989 alongwith Annexure has not been rescinded till now. In these circumstances, it is reiterated that it was not open to the Registrar to seek clarification from the State Government. The decision taken by the respondent-University on the basis of notification dated 20.3.1989 was to be made applicable in letter and spirit. 6 Now, the Court will advert whether the petitioner is entitled to benefit of FR 49 while officiating as Comptroller for two spells, i.e. 15.10.1999 to 27.1.2000 and 13.11.2000 to 24.9.2001. The respondent-University has not denied that the petitioner has officiated on the higher post as Comptroller for this period. Since the petitioner has worked on the post, which admittedly is a higher post, he is entitled to benefit under FR 49. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-15 dated 23.11.2001 is quashed and set aside. The effect of quashing Annexure A-15 dated 23.11.2001 is that Annexure A-5 stands revived and pensionary benefits are required to be worked out as per Annexure A-5. Respondent is directed to release the higher pay to the petitioner for the period he has officiated against the post of Comptroller, i.e. 15.10.1999 to 27.1.2000 and 13.11.2000 to 24.9.2001. Needful be done within a period of ten weeks from the date of production of certified copy of judgment by the petitioenr. No costs. (Rajiv Sharma), Judge 23.7. 2010. *awasthi*