1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.10 of 2005 Date of decision 25.11.2008 Hira Singh Thakur & others Petitioners Vs. State of HP and anr. Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, Judge The Hon’ble Mr. Justice Surjit Singh , Judge. Whether approved for reporting?1 For the Petitioners: Ms. Jyotsna Rewal Dua, Advocate. For the respondents: Mr. P.K. Sharma, Addl, Advocate General with Mr. P.M.Negi, Dy. Advocate General. Per Surjit Singh, J (Oral) The present writ petition, under article 226/227 of the Constitution of India has been filed to seek judicial review of order dated 16th August, 2004 of H.P. State Administrative Tribunal, whereby miscellaneous application No. 3358/2001 filed by the petitioner in Execution petition No. 13/1996 in OA No. 216/1994, has been dismissed. 2. The case has a long chequered history. Petitioners were appointed as Tehsildars A Grade directly in the year 1962. The 1 Whether reporter of local papers is allowed to see the judgment? 2 cadre of Tehsildar-A is manned by direct recruits as also promotees. Promotions are made to the cadre from amongst Naib Tehsildars and Tehsildars Grade-B. Petitioners felt that promotees had been given more posts in the cadre than permissible under the rules. They felt that had the promotees not been given more posts than their share according to the rules, their names would have appeared in the seniority list at much higher level than shown in such list which was circulated in the year 1969. They made representations to the respondents which were dismissed. Ultimately, two writ petitions being C.W.Ps. No 182 and 183 of 1971 were filed. This court allowed the writ petitions, vide judgment dated 30.11.1973. The court accepted the plea of the writ petitioners and directed the respondents to refix the seniority of the petitioners in terms of the observations made and directions given in the said judgment of 30.11.1973. Respondents filed LPAs against the aforesaid judgment of 30.11.1973. Applications were moved for staying the operation of the said judgment. Those applications were allowed. However, ultimately the LPAs were dismissed vide judgment dated 11th March, 1982. When process started for implementation of the aforesaid judgment of 30th November, 1973, some promotee Tehsildars filed writ petition, being CWP No. 108/1983. They also moved application for staying the operation of the judgment dated 30.11.1973. That application was allowed and the operation of the judgment was stayed, pending disposal of the writ petition. That writ petition was ultimately dismissed on 21.7.1992. Then the process for implementation of the judgment dated 30.11.1973 again started. 3 Petitioners’ seniority was brought above many promotee Tehsildars and because of that they were inducted into HAS cadre on officiating basis from the year 1974 and on regular basis from 1976. Petitioners were not satisfied, as they felt that they were entitled to induction into HAS cadre from still earlier dates, therefore, they filed an Original Application before the Tribunal which was registered as OA No. 216/1994. That original application was allowed on 7th August, 1995 and petitioners were ordered to be given full benefit of the judgment of 30.11.1973. Respondents then again revised the seniority list and as a consequence thereof, petitioners were inducted into HAS cadre from the year 1971, on officiating basis and on regular basis from 1974 vide order dated 30th April, 2001. During the pendency of the aforesaid litigation, revision of pay scales took place thrice effective from 1.1.1978, 1.1.1986 and 1.1.1996. Petitioners pay in the revised pay scale was fixed by the respondents on the basis of option exercised by them initially in the year 1980, in respect of revision effective from 1.1.1978, option of 1988 in respect of revision effective from 1.1.1986 and in 1998 in respect of revision effective from 1.1.1996. Petitioners were aggrieved by this action. According to them, they were required to be given fresh option for choosing dates for switching over to revised scales, on account of their having been promoted to HAS cadre with retrospective effect. So they moved miscellaneous application No. 3358/2001 in the execution petition pending before the Tribunal. That application was dismissed vide impugned order with the 4 observation that petitioners’ were not entitled to exercise fresh option. 3. It may be noticed that during the pendency of the execution petition, respondents issued notification dated 30th April, 2001 granting officiating promotions to the petitioners from the year 1971 and regular promotion from the year 1974. Then vide order dated 30th June, 2001, the petitioners were granted selection grade of HAS cadre w.e.f. 1983. On the basis of this order of 30th June, 2001, pay of the petitioners was refixed vide order dated 12.7.2001 (Annexure R-5 ) without asking for fresh options. While re-fixing their pay, even their initial dates of switching over to revised pay scales opted by them were changed without giving them a chance for fresh option. 4. Writ petitioners have assailed the order of Tribunal on the ground that the same is contrary to the basic principles of interpretation of rules. It is submitted that options which had been exercised by the petitioners in respect of the revised pay scales of 1978, 1986 and 1996 were in respect of the posts and pay scales of Tehsildar Grade-A and officers of HAS cadre in the time scale, whereas on account of the subsequent orders issued by the government while implementing the judgment of 30.11.1973, petitioners stood inducted into HAS cadre from the year 1971 or say much before the pay revision of 1978, for which the option was exercised by the petitioners in the capacity of Tehsildar Grade-A and in respect of pay scale of such Tehsildar. Similarly, it is stated that in respect of the pay revision of 1986 and 1996, options were 5 exercised when the petitioners were in the time scale of HAS but they were granted selection grade with retrospective effect that is from the year 1983, vide order dated 30th June, 2001 and thus their options in respect of revision of pay scales of 1986 and 1996 were also not in respect of their selection grade in HAS but only in respect of time scale. 5. We have considered the aforesaid submissions made on behalf of petitioner. Admittedly, when the petitioners had exercised their option for switching over to the pay scales revised in the year 1978, they were in the pay scale of Rs. 350-800 (pre revised). The revised scale of the posts of Tehsildar A grade was Rs. 825-1580/-. These revised scales were effective from 1.1.1978. After exercise of the option by the petitioners, they were promoted to HAS cadre with retrospective effect that is from the year 1971. The pre revised scale of HAS was Rs. 400-1250/- and its revised version, effective from 1.1.1978, was Rs. 940-1850/-. Option which had been exercised by the petitioners was in respect of unrevised scale of Rs. 350-800/- which stood revised to Rs. 825-1580/-. However, on account of their having been promoted with retrospective effect, that is from the year 1971, they were entitled to give fresh option, in respect of pre revised scale of Rs. 400-1250/- which had been revised to Rs. 940-1850/-. Opportunity for exercising option in respect of these old and revised scales of HAS became available to them only when they were promoted to HAS retrospectively from the year 1971, vide order dated 30th April, 2001. Option which had been exercised earlier was in respect of the pay scales (old and 6 revised both) of Tehsildar. Therefore, it cannot be said by any principle of interpretation of rules that the option which had already been exercised by the petitioners had become final and because of that the right of the petitioners to exercise fresh option in respect of these pay scales of the higher post stood sealed. 6. Similarly, even though, the petitioners had been in the cadre of HAS when the revision of pay took place from 1.1.1986 and 1.1.1996, yet they were only in the time scale. The revised time scale of HAS effective from 1.1.1986 was Rs. 2200-4000/- and the selection grade was Rs. 4125-5600/-. Petitioners had exercised their option in respect of pay scale of Rs. 2200-4000/-, because by that time, selection grade had not been granted to them. It was granted to them with effect from 1983, vide order dated 30th June, 2001 and, therefore, in view of the aforesaid reasoning, fresh option was required to be given to them even for choosing the date of switching over to the revised scale, in respect of the selection grade of HAS also, which was granted in the year 2001. The same is the case with regard to pay revision of 1996. When the option was exercised by the petitioners, they were only in the time scale and so the option was in respect of time scale. Later on, they were granted the selection grade effective from 1983 and so they ought to have been afforded an opportunity to exercise the option afresh. 7. Relevant facts for electing a date for switching over to revised pay scale are the pay and the pay scale in which the concerned employee is getting the pay, at the time of exercise of option. If these facts undergo a change, on account of some 7 subsequent action taken or order passed by the employer either suomotu or in the compliance with some order or direction of the Court, the option exercised earlier becomes irrelevant and ineffective and the employee concerned has to be given an opportunity to exercise the option fresh. 8. In view of the above stated position, we allow the present writ petition and direct the respondents to re-fix the pay of the petitioners in the revised pay scales, effective from 1.1.1978, 1.1.1986 and 1.1.1996, after giving them fresh options for choosing dates for switching over to the aforesaid revised pay scales, in accordance with the observations made here-in-above. Four months’ time is given from the date of passing of this order for complete compliance of this direction of ours. Writ petition stands disposed of accordingly. Pending applications, if any, become infructuous. ( R.B.Misra ), J. ( Surjit Singh ), J. 25th November, 2008 (sl)