IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 3838 of 2008 with CWP (T) No. 3839 of 2008 CWP (T) No. 3641 of 2008 Date of Decision: 8th October, 2009 1. CWP (T) No. 3838 of 2008 Dev Raj Sharma Versus State of H.P. & others 2. CWP (T) No.3839 of 2008 Ram Parkash Versus State of H.P. & others 3. CWP (T) No. 3641of 2008 Hem Raj Thakur Versus State of H.P. & others Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the petitioners : Mr. Tralok Chauhan, Advocate. For respondents No.1 & 2: Mr. R.K.Sharma, Sr. Addl. Advocate General and Mr. Vivek Thakur, Addl. Advocate General. For respondent No.3 : Mr.B.M.Chauhan, Advocate. Sanjay Karol, J. (Oral) The issue in all the three petitions is common, hence the same were heard together and are being disposed of by a common order. The petitions were originally filed before the H.P. Administrative Tribunal, Shimla, and by virtue of Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008 (No.14 of 2008), the same stands transferred to this Court and accordingly renumbered. Whether the reporters of Local Papers are allowed to see the Judgment? 2 The implementation of Notification dated 17.9.1996 (Annexure A-15) was stayed on 3.12.1996 which order continues till date. The petitions having matured for hearing are heard and decided now. For the purpose of deciding all the petitions, facts of CWP (T) No.3838 of 2008 are reproduced. 58 employees, including the three petitioners were working in different capacities with H.P. Agro Industries Corporation Limited. They were posted at the Workshop at Bhangrotu, District Mandi, H.P. The State of Himachal Pradesh took a conscious decision that the agricultural workshop at Bhangrotu which had been transferred to respondent No.3 - Corporation from the Agriculture Department of the State in the year 1977-78, be transferred back to the Agriculture Department of the State alongwith its assets and liabilities. With respect to the existing staff, a decision was taken that they be absorbed in the department of agriculture and in case there were some vacancies in the other departments of the State, the department of Agriculture would take action to transfer them to such departments. The decision of the State is evidently reflected from the proceedings of the meeting held on 28.2.1994 under the Chairmanship of the then Chief Minister and the Senior Officers of the State. The decision of the Government was formally communicated by the Additional Chief Secretary to the Government of H.P. to the Director of Agriculture in terms of letter dated 21.3.1994, wherein also it was reiterated that the existing staff of Bhangrotu workshop would be absorbed in the department of Agriculture. At the time of the said decision, undisputedly 58 employees were posted at the Agriculture Centre/Workshop. Undisputedly no formal orders of transfer were issued individually to the employees except 3 for a telegraphic communication dated 28.3.1994 (Annexure A-5), which is reproduced as under:- “GET SERVICE RECORD OF THE OFFICIALS POSTED AT BHANGROTU COMPLETED IN ALL RESPECT (.) ALL STAFF ALONGWITH WORKSHOP WILL STAND TRANSFERRED TO AGR. DEPTT. ON 31.3.94(.) HIMAGRO H.T.T. The Branch Manager, H.P. Agro Industries Corporation Ltd., Bhangrotu for information and n.a. It has been decided by the Government that all the existing staff of bhangrotu workshop, will be treated as transferred to the Department of Agriculture after 31.3.1994 as such you are requested to complete the service record of all the officials. Sd/- GENERAL MANAGER.” Consequently, petitioner gave his joining report on 31.3.1994 in the following terms:- “To The Agriculture Engineer, Himachal Pradesh, BHANGROTU. Sub:- Joining Report. R/Sir, With reference to H.O. telegram and further office letter No. AIC:5-1/93-1517-18, dt. 31.3.94, I hereby submit my joining report as Senior Accountant on 31.3.94 A.N. on same pay scale/status (equivalent). As till date terms & conditions are not clear, the condition of same scale and status (equivalent) will be 4 honoured, otherwise returned me to my parent Deptt. In the State H.O. It is for your kind information & n.a. please. Thanking you, Yours faithfully, Sd/- (Dev Raj Sharma) Sr. Acctt. 31/3/94. H.P. A.I.C. Ltd.,BHAGROTU.” Undisputedly the terms and conditions of absorption/ transfer were not settled by the Government and it was only after the petitioner repeatedly represented (representations Annexures A-7, A-8 and A-9), that some action was taken by the Director of Agriculture as, in terms of his letter dated 15.6.1995 (Annexure A-13), the State was informed of the petitioners’ plight, anguish, concern and view that they would not be willing to continue in the Agriculture Department and be repatriated to their parent department. Evidently, the Government in terms of Notification dated 17.9.1996 (Annexure A-14) formulated a Scheme incorporating the terms and conditions of transfer of Bhangrotu Workshop Unit back to the Agriculture Department of the State. With regard to service conditions of the employees, vide another Notification of the same date (Annexure A- 15), the State came out with the following terms and conditions:- “Terms and conditions governing the transfer of the staff attached to Bhangrotu Workshop, District Mandi, to the Department of Agriculture. 1. The staff attached to Bhangrotu will be entitled the pay scales of the post against which their adjustment is expected though they will get benefit of pay protection. 2. In order to count the past services towards pensionary benefits, the employees share of C.P.F. 5 shall have to be deposited in the C.P.F. account whereas the employer share of contribution of C.P.F. alongwith interest shall be deposited in Govt. Treasury. 3. While calculating their past service for pensionary benefit or otherwise, the benefit will be provided as admissible to the employees of the Government. 4. The employees who are not willing to get their services transferred to Agriculture Department shall be deemed to have been retired from the service under the Corporation, as a result of abolition of the posts held by him/them, with such benefits as may be available to him given their option in this behalf within three months of the issue of this notification. 5. The seniority of the staff transferred from the Corporation to Agriculture Department will be determined at the lowest stage in the cadre they have absorbed in the Agriculture Department. 6. the daily rates to the daily paid staff will be admissible as fixed by the Government from time to time and their past services rendered under the Corporation will not be counted for regularization. 7. The officials working in the Corporation as Senior Assistants, Senior Accountant and Store Keeper will be absorbed in the Department of Agriculture against the posts of clerks with pay protection benefits. 8. All the persons transferred to the Agriculture Department shall be governed by such service rules and conditions as may be fixed by the Government for this purpose from time to time. 9. Some surplus staff will have to be absorbed in other Govt. Departments/ Corporations/ Boards against vacancies. But followed by the above terms and 6 conditions, but the transferred employees will governing by their own service rules.” (Emphasis supplied) In terms of order dated 17.9.1996 (Annexure A-16), the Government also accorded its sanction for creation of 58 posts in order to “absorb/adjust” the transferred staff. It is the pleaded case of the petitioners that except for them all the employees of the Unit were absorbed in their respective, corresponding and similar posts but however, even though the petitioners who were initially working as Senior Accountant Grade-I and Junior Assistants, respectively, were absorbed as Clerks in the pay scale of Rs.950-1800. On 31.3.2009 in CWPs (T) No. 3839 and 3838 of 2008, this Court had passed the following order:- “It is the petitioner(s) case that except for three petitioners, namely, Ram Parkash, Dev Raj Sharma & Hem Raj Sharma, all other employees have been adjusted by the State on the same equivalent post with equivalent scale. The petitioners have been meted out with this hostile discrimination. Let Secretary (Agriculture) file his personal affidavit explaining the circumstances as to why the petitions be not allowed. The affidavit be filed within one week from today. Mr. Chauhan further submits that another petition No. OA (M) 1444/96, titled as Hem Raj vs. State of H.P. has also to be heard along with the present petitions as the facts and the questions of law are same in all the matters. Subject to the permission of the Hon’ble the Chief Justice, the said petition be also listed alongwith the present petitions.” 7 Pursuant to the same, the State Government filed its affidavit, perusal of which would show that there is no denial to the fact of discrimination as pleaded by the petitioners. However, alongwith the affidavit, the respondent-State placed on record an Office order dated 4.5.2009 and further in terms of affidavit dated 30.6.2009 an attempt was made to justify the fixation of the petitioners pay in terms of the said office order having been passed in compliance of O.M. issued by the Government of India under F.R.-22. The petitioners herein are on the verge of retirement and in fact would be retiring within a period of one year from today. In this view of the matter, Mr. Tarlok Chauhan, learned counsel for the petitioners submitted that rather then pressing for the reliefs as originally prayed in the petition, the petitioners would be happy if orders protecting their pay in terms of Notification dated 17.9.1996 are passed. Undisputedly since 1994 till the passing of the interim order and even thereafter the petitioners have continued to receive the pay as was originally fixed and being paid to them prior to their absorption/transfer in the Agriculture Department. The dispute in the present petition is thus narrowed down to the issue as to whether the order dated 4.5.2009 is in consonance with the terms of absorption and the Notifications issued by the State Government with regard to absorption/transfer of employees posted at Bhangrotu Workshop. Evidently vide order dated 4.5.2009 petitioner’s pay of Senior Accountant Grade-I, as on 31.3.1994, was protected but however, 8 after the revision of pay with effect from 1.1.1996 there is a reduction in the same as a scale of a Clerk has been applied while fixing the pay. The decision taken by the Government to absorb the employees in the Department of Agriculture is evidently clear from Notification dated 17.9.1996 alongwith minutes of the meeting (Annexure A-15), letter dated 21.3.1994, and letter dated 17.9.1996 (Annexure A- 16). No doubt Clause (4) of the terms and conditions as notified vide Notification dated 17.9.1996 provides that such of those employees who are not willing to get their services transferred shall be deemed to have been retired from service as a result of abolition of the posts, but, however, in my considered view this clause cannot be pressed against the petitioners for the reason that no option was sought for from them within the stipulated period of three months as was so required. In fact there was no question of seeking an option as the employees had already joined their places of posting way back in the year 1994 itself. Secondly, the Government had consciously taken the decision to protect the benefits of “pay” and more particularly in the cases of the petitioners and a Store Keeper. Their pay having been protected, the petitioners were satisfied and thus continued to discharge their duties. In my considered view, there is no conflict, as is sought to be urged by the respondents, between the Notification and the Fundamental Rules. In view of the specific Notification, Office Memorandum (Annexure R/G) issued under FR-22 would be inapplicable. Moreso, for the reason that the same would be applicable only to those employees, who while working in the autonomous bodies were “recruited’ 9 directly in the Government. The stand taken by the State thus is contrary to its own Notifications. Further the issue of settlement of terms and conditions including the pay was taken in the year 1994 itself. Prior to 2009, the applicability of O.M. issued under F.R.-22, was never raised, either with the petitioners or before this Court. The petitioner’s joining report was also conditional and the Government not having responded to the same only leads to the conclusion that it was the State’s own understanding and reading of the Notification that the petitioner’s pay, as it was payable prior to 1994 was to be protected. In this view of the matter, it would not be correct on the part of the State to urge that the petitioners themselves had sought quashing of Annexure A-15 and Annexure A-16, therefore, fixation of pay was never an issue even with the petitioners. Needless to observe that the petitioners were aggrieved of their posting as Clerks in the Department of Agriculture. They were forced to accept the lower post as a consequence of transfer/absorption. At the time of making submissions, the State has sought to make a distinction between the expression “pay” and “pay scale”. The Apex Court in State Bank of India and others vs. K.P.Subbaiah and others, 2003 (11) SCC 646, had the occasion to deal with such an issue. The Court was dealing with a case where the employees were urging that their pay packet should not be less than the total pay fixed at the time of the employees joining the Bank. Some of the employees had retired from the defence services and their basic pay and the Dearness Allowance drawn by them, while in military service was to be protected while fixing 10 their pay on absorption into the public sector banks. The Court was of the view that word ‘pay’ and ‘pay scale’ in service jurisprudence are conceptually different connotations as there could be different types of pay like substantive pay, special pay, additional pay, personal pay and presumptive pay and pay of an employee in that background is fixed with reference to a pay scale as public services comprised of different grades and, therefore, different pay scales were provided for different grades. However, while deciding so the Court observed as under:- “As noted above, a pay scale has different stages starting with initial pay and ending with ceiling pay. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage, but also the additional amounts to which he is entitled as allowances e.g. DA etc. Therefore, when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced.” Thus, keeping in view the aforesaid observation made by the Apex Court as also the attending circumstances, it cannot be held that the petitioners’ pay is to be fixed in accordance with Office Memorandum No.12/1/8 dated 7.8.1989 (Annexure R/G).. In view of the aforesaid the decision of the State Government as placed on record in terms of Office Order dated 4.5.2009 (Annexure S/I) is held to be bad in law. The office order is quashed. The respondents are directed to fix the pay of all the petitioners in accordance with Clause (7) of the terms and conditions of the Notification dated 17.9.1996. The petitioners shall be entitled to pre-revised scale of the post 11 which they were holding and the last pay drawn prior to their absorption. The necessary order shall be passed within a period of 8 weeks from today. All consequential benefits shall be accorded to the petitioners within a period of 4 weeks thereafter. For the aforesaid reasons, the present petitions are allowed. 8th October, 2009 (Sanjay Karol) (C) Judge.