IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No.: 149 of 2011. Decided on: 22.12.2011. _________________________________________________________ Baldev Dass son of Shri Sukh Ram, resident of village Beitharan, Post Office Jhandutta, District Bilaspur, Himachal Pradesh. … Appellant. Versus 1. State of Himachal Pradesh through Chief Electoral Officer, Himachal Pradesh, SDA Complex, Kasumpti, Shimla – 171009. 2. District Election Officer, Hamirpur, District Hamirpur, H.P. 3. Naib Tehsildar (Election), Hamirpur, District Hamirpur, H.P. … Respondents. Appeal under clause 10 of the Letter’s Patent Appeal of Delhi High Court as applicable to the State of Himachal Pradesh against the judgment dated 16.3.2011 passed in CWP(T) No.13199 of 2008 by Hon’ble Single Judge. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. For the Appellant : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Ankush Dass Sood, Additional Advocate General. Justice Rajiv Sharma, Judge (Oral): The appellant who is petitioner in the writ petition, has assailed the judgment dated 16.3.2011 passed by the learned single Judge of this Court in CWP(T) No.13199 of 2008. - 2 - 2. The petitioner is an ex-serviceman. He was appointed as Clerk in the office of District Election Officer, Hamirpur on 8.10.1984. The Himachal Pradesh Civil Services (Revised Pay) Rules, 1988 as notified vide notification dated 7.11.1988 were amended by the Rules called the Himachal Pradesh Civil Services (Revised Pay) (First Amendment) Rules, 1988 vide notification dated 23.7.1990. These Rules have come into force with effect from January 1, 1986. The following amendment was made in the first schedule pertaining to the cadre of Clerks:- II. MINISTERIAL ESTABLISHMENT 1(a) Clerks (b) Senior Clerks 400-600 510-800 50:50 (i) Rs.950-1800 with an initial start of Rs.1000/- Basic entry scale. This scale is to be given to the total number of posts in a cadre minus the posts which are to be placed in the scales of pay of Rs.1200-2100 and Rs.1500-2640 specified in items. (ii) and (iii) After the ---------------- issue notification, the academic qualifications for recruitment as clerk shall be Matriculation Second Division or 10+2. (ii) 1200-2100 This scale is to be given to about forty percent of the total number of posts of Clerks in cadre after a minimum period of five years service as clerk in the cadre and the incumbents are to be designated as Senior Clerks. (iii)1500-2640 This scale is to be given upto forty - 3 - percent of the total number of posts of Clerks in a Cadre after a minimum period of ten years of service taken together as clerk and Senior Clerk in the cadre and the incumbents are to be designated as Junior Assistants. Note. 1 The method of working out the percentage of posts of clerks in q Cadre in the aforesaid thee scales viz. rupees 950-1800, 1200-2100 and 1500- 2640 is given in the Annexure to these Rules. 3. An adverse entry was recorded in the Annual Confidential Reports of the petitioner for the year 1987-88. The case of the petitioner was not considered for grant of senior scale after completion of five years service on the ground that adverse entry was recorded in his Annual Confidential Reports for the year 1987-88 when the Departmental Promotion Committee met on 8.10.1989. The petitioner filed original application assailing the recording of adverse entry in his Annual Confidential Reports, bearing Original Application No.1101 of 1990 before the erstwhile learned Himachal Pradesh Administrative Tribunal. The same was dismissed by the learned Tribunal on 30.5.2000. Thereafter, the petitioner assailed the judgment dated 30.5.2000 passed by the learned Tribunal before this Court by filing CWP No.927 of 2000. The same is pending before this Court. - 4 - 4. The petitioner also made a representation for the release of higher pay-scale. The same was rejected by the competent authority on 6.3.2006. Petitioner has assailed this order dated 6.3.2006 before the erstwhile learned Himachal Pradesh Administrative Tribunal by way of filing O.A. No.885 of 2006. This O.A. No.885 of 2006 filed by the petitioner was transferred to this Court and the same was assigned CWP(T) No.13199 of 2008. The learned single Judge dismissed the petition on 16.3.2011 by holding that since adverse entry existed in the Annual Confidential Reports of the petitioner and the same has not been set aside, the petitioner was not entitled to higher pay scale. The petitioner has assailed this judgment of the leaned single Judge, dated 16.3.2011 by way of the present Letter Patent Appeal. 5. Mr. Ajay Sharma, learned counsel for the appellant has strenuously argued that his client was entitled to get senior scale immediately after completion of five years service in the ratio prescribed as per Annexure R-1, dated 23.7.1990 and he was required to be designated as Junior Assistant. He further argued that there was no requirement of satisfactory completion of 5/10 years service as per notification dated 23.7.1990 and the instruction dated 23.9.1991, now brought to the notice of the - 5 - Court, will apply prospectively. He then argued that the instructions could not be issued in violation of the rules which have been framed under Article 309 of the Constitution of India. He lastly contended that the remarks recorded in the Annual Confidential Reports of the petitioner for the year 1987-88 cannot be termed as adverse. He has drawn the attention of the Court to the judgment dated 30.5.2000 wherein the entry for the year 1987-88 has been recorded. 6. Mr. Ankush Dass Sood, learned Additional Advocate General has argued that since the petitioner had not completed five years satisfactory service, his case could not be considered for release of higher pay scale. He has also argued that in fact the petitioner has been designated as Junior Assistant on 13.7.1998 and the higher pay scale has been paid to him with effect 8.10.1994 after completion of ten years satisfactory service. He lastly contended that though the rules were amended as per Annexure R-1, but the instructions were issued on 23.9.1991 whereby Annual Confidential Reports of the petitioner were required to be seen. 7. We have heard learned Advocates and gone through the pleadings. - 6 - 8. The record, as directed, has also been produced and perused by us. 9. The petitioner was appointed as Clerk on 8.10.1984. His case was required to be considered for granting him the higher pay scale after completion of 5/10 years service. It has been stated in the reply that though the case of the petitioner was considered in the Departmental Promotion Committee held on 8.10.1989, however, since there was adverse entry recorded in his Annual Confidential Reports for the year 1987-88, the petitioner was not granted the higher pay scale after five years. We have gone through the rules, placed on record vide Annexure R-1 minutely. Expression ‘satisfactory’ is not mentioned in the rules. What is not mentioned in the rules, could not be insisted upon by the respondents while considering the case of the petitioner for release of higher pay scale after five years service. We have also gone through the adverse entry recorded in the Annual Confidential Reports of the petitioner for the year 1987-88. What has been stated there in is that “He remains sick. He is required to be encouraged and requires superintendence. He was warned and thereafter he has improved”. This can hardly be termed as an adverse entry. - 7 - 10. Mr. Ankush Dass Sood, learned Additional Advocate General has brought to the notice of the Court instructions dated 8.10.1990. These instructions only pertain to Assured Career Progression Scheme and not the release of higher pay scale after 5/10 years as per Annexure R-1. He has also brought to the notice of the Court that as per instructions issued vide letter dated 23.9.1991 while releasing higher pay scale after completion of five years service, the record of the employee was required to be seen. These instructions will apply prospectively. The case of the petitioner was required to be considered immediately after completion of five years service, i.e. in 1989. These instructions are in contravention to the rules issued vide Annexure R-1. In case this condition is required to be put, further amendment was required in Annexure R-1. The petitioner though has assailed the recording of the Annual Confidential Reports for the year 1987-88 by filing original application before the erstwhile learned Himachal Pradesh Administrative Tribunal, the same was rejected by the learned Tribunal vide judgment dated 30.5.2000 and CWP No.927 of 2000 filed by the petitioner against the judgment dated 30.5.2000 is pending before this Court. However, the fact of the matter is that though the adverse entry recorded in the Annual - 8 - Confidential Reports of the petitioner for the year 1987-88 has remained on record, the petitioner has been granted higher pay scale with effect from 8.10.1994 and has been designated as Junior Assistant on 13.7.1998 after completion of ten years satisfactory service. The respondents themselves have stated that the petitioner has been paid the higher pay scale after completion of ten years satisfactory service, meaning thereby that the adverse entry for the year 1987-88 has been overlooked and the petitioner has been paid now the higher pay scale with effect from 8.10.1994 and designated as Junior Assistant with effect from 13.7.1998. The petitioner has a right to be considered for grant of higher pay scale on the basis of length of service. The persons junior to him have been granted the higher pay scale, but the petitioner has been overlooked. The petitioner, as per rules placed on record vide Annexure R-1, was only required to put in five years service. The instructions cannot supersede the rules. What has been given to the petitioner and similarly situate persons vide rules Annexure R-1, dated 23.7.1989 could not be taken away by merely issuing executive instructions. The executive instructions can supplement, but cannot supplant the rules. - 9 - 11. The learned single Jude has only referred to office order dated 6.3.2006 and has not gone into the rule position and the instructions issued by the State Government from time to time and their applicability in the present case. 12. Accordingly, in view of the observations and discussions made hereinabove, the appeal is allowed. Judgment dated 16.3.2011 rendered by the learned single Judge in CWP(T) No.13199 of 2008 is set aside. The respondents are directed to consider the case of the petitioner for the release of higher pay scale immediately after completion of five years in 1989 with all consequential benefits, within a period of eight weeks after production of a certified copy of this judgment by the petitioner before the competent authority. The pending application(s), if any, also stands disposed of. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. December 22, 2010. (sck).