IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 1885/2008 Reserved on : 24.12.2009 Decided on:4.1.2010 _____________________________________________ Hardyal Singh Bhardwaj. …Petitioner. Versus Himachal Pradesh Vidhan Sabha and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Shrawan Dogra, Advocate. For the respondents: Mr. Ashok Sharma, Advocate for respondent No.1 Mr. R.K. Sharma, Senior Additional Advocate General for respondent No.2. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that a proposal was mooted by respondent No.1 to the Government i.e. respondent No.2 for creation of one post of Public Relation Officer in the year 2002. A memorandum for consideration for Council of Ministers was prepared by the Secretary (GAD) on 4.2.2004. Cabinet decided to create one post of Public Relation Officer on fixed emoluments of Rs. 8000/- per month on contract 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 basis for a period of one year. The decision was conveyed to respondent No.1. In sequel thereto, a public notice was issued by Secretary, Vidhan Sabha on 17.2.2004 whereby applications were invited from the persons possessing the requisite qualifications for filling up the post of Public Relation Officer. Petitioner was selected on 30.5.2004. He was appointed on 3.7.2004. It was proposed to designate the post of Public Relation Officer to the post of Public Relation Officer-cum-Protocol Officer. This proposal was also approved by the Speaker. Consequently, the matter was placed before the Council of Ministers vide memorandum dated 23.11.2004. Necessary approval was accorded for the creation of post. In sequel thereto, the Departmental Promotion Committee met and made recommendation of the petitioner’s name for the post of Public Relation Officer-cum-Protocol Officer on 24.12.2004. Petitioner made a detailed representation for the grant of pay scale Rs. 7200-11660 on the analogy of Information and Public Relation Department of the Government of Himachal Pradesh and other public undertakings. Respondent No.1 forwarded the proposal to respondent No.2 on 18.12.2006. A Cabinet memorandum was placed before the Council of Ministers relating to revised pay scale to the post of Public Relation Officer-cum-Protocol Officer on 13.9.2007. The Government took a decision to grant the revised pay scale of Rs. 7200-11660 plus Rs. 400/- secretariat allowance for the post of Public Relation Officer-cum-Protocol Officer. The pay of the petitioner was re-fixed in the pay scale of Rs. 7200-11660 vide office order dated 1.10.2007. Respondent No.2 wrote two 3 letters dated 2.2.2008 and 16.2.2008 to the Speaker, Himachal Pradesh Vidhan Sabha. Letters dated 2.2.2008 and 16.2.2008 were replied by respondent No.1 on 3.3.2008. Thereafter a proposal was given in the memorandum dated 11.3.2008 pursuant to which the Cabinet approved the proposal. In sequel to the decision taken by the Cabinet, the pay of the petitioner was reduced from Rs. 7200-11660 to Rs. 6400-10640 with effect from 19.3.2008 vide letter dated 11.4.2008. Petitioner made a detailed representation to respondent No.1 on 16.4.2008. He approached this Court by way of CWP No. 834/2008. The same was disposed of by permitting the petitioner to make fresh representation to the State Government and the same was directed to be considered and disposed of within a period of one month by a speaking order. He submitted detailed representation on 18.7.2008 to the Chief Secretary, Government of Himachal Pradesh in sequel to order dated 4.7.2008. The representation made by the petitioner was rejected by Secretary (GAD) on 12.8.2008. Mr. Shrawan Dogra has vehemently argued that once a conscious decision has been taken to grant pay scale of Rs. 7200- 11660 plus Rs. 400/- as secretariat allowance to his client, the same could not be reduced on the basis of Annexure P-34 dated 11.4.2008. He then argued that his client has not been heard before the decision was taken to reduce the salary of his client. He then contended that the decision to reduce his client’s salary is arbitrary on the ground that the same has been taken after the change of Government. He further contended that the decision to 4 review earlier decision has been taken by the Chief Minister and not by the Council of Ministers. He lastly contended that the pay scale has been granted to his client on the basis of parity with the Information and Public Relation Department, Himachal Pradesh. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the decision of the State Government dated 12.8.2008. Mr. Ashok Sharma has also argued on the similar lines. I have heard the learned counsel for the parties and gone through the pleadings carefully. Petitioner was appointed on contract basis to the post of Public Relation Officer pursuant to interview held on 30.5.2004 on 3.7.2004. The Cabinet has accorded permission for the creation of post of Public Relation Officer-cum-Protocol Officer on 6.12.2004. The Departmental Promotion Committee met on 24.12.2004 and name of the petitioner was recommended for the post in question. He made a representation for revision of pay scale from existing pay scale of Rs. 6400-10640 to 7200-11660. The matter was placed before the Cabinet vide memorandum dated 13.9.2007. The decision was taken by the Cabinet to allow increase of pay scale from Rs. 6400-10640 to Rs. 7200-11660. The same was released and the petitioner’s pay was fixed in the pay scale of Rs. 7200-11660 plus Rs. 400/- secretariat allowance. New Chief Minister took oath on 30.12.2007. Two letters were addressed by respondent No.2 dated 2.2.2008 and 16.2.2008 to respondent No.1. The same were replied by respondent No.1 on 3.3.2008. 5 Thereafter the matter was placed before the Cabinet and the decision to grant pay scale of Rs. 7200-10660 was reviewed. The petitioner’s pay was reduced vide letter dated 11.4.2008 with effect from 19.3.2008. The decision to grant pay scale of Rs. 7200-11660 plus Rs. 400/- secretariat allowance to the petitioner had been taken after due application of mind. Vidhan Sabha had sought the information from the Information and Public Relations Department, Himachal Pradesh University and Himachal Pradesh Electricity Board before considering the proposal to increase the pay of the petitioner from Rs. 6400-10640 to Rs. 7200-11660. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the State Government follows the Punjab pattern for the release of pay scales to its employees. He further contended that in Punjab Vidhan Sabha, the pay of Public Relation Officer with Hon’ble Speaker was Rs. 6400-10640. The Court has gone through the Rules called “the Punjab Vidhan Sabha Secretariat Service Rules, 2007” (Annexure P-40). In Punjab Vidhan Sabha, the post of Public Relation Officer with Speaker is ex-cadre tenure post. These posts co-terminate with the demitting of office of Speaker and Deputy Speaker. The petitioner is holding the post of Public Relation Officer-cum-Protocol Officer. In the Information and Public Relation Department, the post of Public Relation Officer carries pay scale of Rs. 7200-11660. In the Himachal Pradesh University, the same post carries the pay scale of Rs. 8000-13500 and in Himachal Pradesh State Electricity 6 Board Rs. 7500-12500. Mr. Shrawan Dogra has drawn the attention of the Court to averments contained in para 40 of the petition. A bare perusal of para 40 of the petition reveals that there was deviation in the pay scales admissible to different posts in Himachal Pradesh Vidhan Sabha vis-à-vis their counterparts in Punjab Vidhan Sabha. In Himachal Pradesh Vidhan Sabha, the post of Editor of Debates carries pay scale of Rs. 12000-15500 and the pay scale of his counterpart in Punjab Vidhan Sabha is 10025- 15100 plus Rs. 800/- secretariat allowance. Similarly, the pay scale of the Chief Reporter in the Himachal Pradesh Vidhan Sabha is Rs. 10025-15100 whereas the pay scale of his counterpart in Punjab Vidhan Sabha is 9200-13900 plus Rs. 400/- secretariat allowance. Mr. Dogra has also relied upon Annexure P-41. The pay scale of Male/Female Multipurpose Health Workers in the State of Himachal Pradesh is Rs. 4400-7000 and in the State of Punjab this post carries pay scale of Rs. 3330-6200. The decision to create the post of Public Relation Officer on contract basis was taken by the Cabinet vide memorandum dated 4.2.2004. The decision to upgrade/create the post to Public Relation Officer-cum-Protocol Officer was also taken by the Cabinet. The decision to enhance the pay scale from Rs. 6400- 10640 to Rs. 7200-11660 was also taken by the Cabinet. These decisions have been taken on the basis of prolonged correspondences which had been exchanged between respondents No.1 and 2. The governance is a continuous process. There ought to be certainty in its affairs. Rather certainty is sine qua non 7 to maintain rule of law. The rights of the parties must crystallize after decision making process culminated into a final decision. The earlier decision has been taken by the Vidhan Sabha on the basis of the approval of the Council of Ministers. Now, it is not permissible for the learned counsel appearing on behalf respondent No.1 to argue before this Court that the earlier decisions taken were not in accordance with law. Mr. Ashok Sharma has also argued that the petitioner had approached the Chief Minister for the redressal of his grievance before exhausting the official channel. It may be true that the petitioner has approached the Chief Minister for the redressal of his grievance, however, the fact of the matter is that the decision has been taken after going through the necessary procedure. Mr. R.K. Sharma has also argued that it was open to the Cabinet to review its earlier decision in view of rule 14 of the Rules of Business of the Government of Himachal Pradesh. It is true that the decision can be reviewed under rule 14, however, there has to be cogent and convincing reasons for doing the same. The decision to review earlier decision is required to be taken after considering all the pros and cons. The respondents have not placed any tangible evidence on record to suggest even remotely that the procedure prescribed was not followed at the time when the decision was taken to increase the salary of the petitioner. In these circumstances, the decision to revise the salary of the petitioner was arbitrary thus violative of Articles 14 and 16 of the Constitution of India. Since the court has declared the decision nullity, it need 8 not go into the other contention raised by Mr. Shrawan Dogra whether the decision has been taken by the Chief Minister individually or by the Council of Ministers after taking oath on 8.1.2008. Mr. Shrawan Dogra has also argued that in sequel to the directions issued by this Court, the representation was required to be decided by the State. The State Government discharges its functions in hierarchy. The instrument of the Government can be signed either by the Secretary/Special Secretary/Additional Secretary/joint Secretary/Deputy Secretary/Under Secretary to the State Government or such other officer, as may be, specified/empowered in this behalf. The court had directed the representation to be decided by the State Government. The decision has been taken by the Secretary (GAD) on 12.8.2008. The same cannot be termed as illegal as contended by Mr. Shrawan Dogra. The same has been passed by an authorized person. Now, the Court will advert whether the petitioner has been dealt with in just and fair manner by the respondents or not. He has been granted revised pay scale of Rs. 7200-11660 plus Rs. 400/- secretariat allowance after the same was approved by the Council of Ministers. The same has been withdrawn/reduced to Rs. 6400-10640 vide Annexure P-34 dated 11.4.2008. Admittedly, the petitioner has not been heard before the issuance of order dated 11.4.2008. He has suffered civil and evil consequences. It was necessary for the respondents to at least hear the petitioner before taking decision to reduce his salary. However, the Court has 9 already held hereinabove that the petitioner was rightly granted the pay scale of Rs. 7200-11660 plus Rs. 400/- as secretariat allowance. The Secretary (GAD) had decided the representation on 12.8.2008. He has not dealt with the grounds taken by the petitioner in the representation in detail. Rather the order passed by the Secretary (GAD) is non-speaking order. He has only discussed two letters dated 2.2.2008 and 16.2.2008, which were sent by the Secretary (GAD) to the Speaker Vidhan Sabha. Nothing substantial has changed after the pay scale of Rs. 7220- 11660 was granted to the petitioner except that new Government had come into power on 30.12.2007. The tendency to review the earlier decisions of the previous Government is not very healthy practice. It will always cause uncertainty and administrative chaos while running the affairs of the Government. The opinion given by the Speaker has already been quoted verbatim in the order dated 12.8.2008. How and in what manner the petitioner has been favoured is not discernible. It can safely be presumed that the decision to grant pay scale of Rs. 7200-11660 to the petitioner has been taken, as noticed above, after due application of mind. The same was taken after taking into consideration the pay scale which is being paid to the counterparts of the petitioner working in other departments and also taking into consideration the qualifications, workload, responsibilities etc. of the post The Cabinet on the basis of opinion of the Speaker has reviewed the decision. The records do not disclose whether the earlier decision of the Cabinet including 10 the prolonged correspondence entered into between respondents No.1 and 2 has been brought to the notice of the Cabinet vide memorandum dated 11.3.2008. It is also not factually correct, as noticed by Secretary (GAD) that the pay scale of Rs. 7220-11660 plus Rs. 400/- secretariat allowance to the petitioner in deviation of Punjab pattern. The Court has already taken into consideration the pay scale of Public Relation Officer in the Punjab Vidhan Sabha. In the Punjab Vidhan Sabha, the post is co-terminus with the demitting of the office by the Speaker. There has been deviation while granting the pay scale in Himachal Pradesh Vidhan Sabha vis-à-vis the Punjab Vidhan Sabha, as noticed in earlier portion of the judgment. The decision could not be reversed only on the ground that the similarly situated persons will raise demand for higher pay scale. In case any person is entitled to higher pay scale, there is no reason why he should not be granted the same. The Secretary (GAD) has also stated that the petitioner has been favoured/benefited. However, there are no reasons assigned in what manner the petitioner has been favoured or benefited. In the present case, the employer remained the same i.e. respondent No.1. It is reiterated that there should be consistency in the affairs of public institutions. Mr. Ashok Sharma has lastly contended that the Departmental Promotion Committee met on 24.12.2004 without the permission of the Speaker. There is no material on record to suggest that the-then Speaker has disapproved the convening of the meeting of Departmental Promotion Committee. In fact, the 11 recommendations made by the Departmental Promotion Committee were acted upon and the petitioner was appointed to the post of Public Relation Officer-cum-Protocol Officer. The decision to convene the Departmental Promotion Committee within a short span cannot be treated as arbitrary. There is no averment in the reply filed by respondent No.1 that the constitution of Departmental Promotion Committee was not in accordance with law. Vidhan Sabha is an August Body under the constitutional scheme. The Secretariat of the Vidhan Sabha is independent of the executive Government. It is insulated from out side influences. It will be apt to quote excerpts from Constituent Assemble Debate Volume IX (30.7.1949) pages 2 and 3, which read thus: “This is indeed essential for the independence of Parliament from the Executive and it has already been pointed out that even in England, the staff of the House of Commons are servants of the House and are not subject to the control of the Executive like other civil servants, even though they may have to qualify themselves at the tests prescribed for the civil service. The same situation is envisaged by the present Article of our Constitution, vis, that the servants of the Parliament Secretariats shall form a class apart from the civil servants of the Union and would be under a separate system of control and regulations. The Secretariat of Parliament shall thus be independent of the Executive Government.” 12 Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Annexures P-34 dated 11.4.2008 and P-43 dated 12.8.2008 are quashed and set aside. Petitioner is held entitled to pay scale of Rs. 7220-11660. No costs. [[ (Rajiv Sharma), Judge January 04, 2010. *awasthi*