IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.2179/2008 Reserved on:18.5.2009 Decided on:19.6. 2009 Ashok Shandil and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioners : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. Rajiv Sharma, J. The petitioners were working as Child Development Project Officers at the time of filing of the petition. The precise case of the petitioners is that the Child Development Project Officers are placed in the pay scale of Rs. 2000-3500 with effect from 1.1.1986 whereas the District Welfare Officers and Superintendents Grade-1 of the Welfare Department, who are in the feeder category for promotion to the post of Child Development Project Officer had been given the higher pay scale of Rs. 2100-3700 and Rs. 2200-4000 vide notifications dated 30.5.1991 and 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 23.7.1990. The Recruitment and Promotion Rules for the post of Assistant Director Welfare, Special Officer (N) and Child Development Project Officer are placed as Annexure A-1. The posts of Child Development Project Officers as per Annexure A-1 are to be filled up 90% from District Welfare Officers-cum-Probation Officers and remaining 10% from Superintendents in the pay scale of Rs. 400-650. Mr. D.P. Gupta, Advocate has strenuously argued that the pay scale of higher post of Child Development Project Officers could not be less than the pay scale of the employees, who were in the feeder category, namely, District Welfare Officer and Superintendents. According to him, the pay scale of the Child Development Project Officers was revised with effect from 1.1.1986 from Rs.825-1580 to Rs. 2000-3500. However, the pay scale of the District Welfare Officers was revised with effect from Rs. 1.1.1986 from Rs. 800-1400 to Rs. 2100-3700 and the pay scale of the Superintendents Grade-1 was revised from Rs. 825-1580 to Rs. 2200-4000. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that this anomaly has arisen due to the Recruitment and Promotion Rules framed for the post of Child Development Project Officer and according to him, the rules have been framed separately for Child Development Project Officers and notified on 10.7.1996 whereby for filling up the post of Child Development Project Officers, the feeder category will be from amongst the Assistant Child Development Project Officers to the extent of 40% and 40% by promotion from amongst the Tehsil Welfare Officers and 20% by way of direct recruitment. I have heard the learned counsel for the parties and have perused the pleadings carefully. 3 It is not in dispute that as per Annexure A-1, the posts of District Welfare Officer and Superintendent Grade-1 is in the feeder category for promotion to the post of Child Development Project Officer in the ratio of 90% and 10%, respectively. The pay scale of Child Development Project Officer before 1.1.1986 was Rs. 350-800 and the pay scale of District Welfare Officer and Superintendent Grade-1 was Rs. 300-700 and Rs. 400-650, respectively. The pay scale of Child Development Project Officer was Rs. 825-1580 with effect from 1.1.1978 and the pay scale of District Welfare Officer was Rs. 800-1400 whereas the pay scale of Superintendent Grade-1 was Rs. 825-1580. Surprisingly, the pay scale of Child Development Project Officer was revised to Rs. 2000-3500 with effect from 1.1.1986 while the pay scale of District Welfare Officer was revised from Rs. 800-1400 to Rs. 2100-3700. Similarly, the pay scale of Superintendent Grade-1, which was at par with the pay scale of Child Development Project Officer with effect from 1.1.1978, was revised to Rs. 2200-4000. The pay scale of the promotional post/higher post cannot be less than the feeder category. The petitioners were getting pay scale of Rs. 2000-3500 and the persons who were to be promoted from the feeder post of District Welfare Officer and Superintendent Grade-1 are in the pay scale of Rs. 2100-3700 and Rs. 2200-4000, respectively. The pay scale of the higher post should have been more than the post of feeder category. The only reason for not granting the higher pay scale to the petitioners is that anomaly has arisen due to provisions of the Recruitment and Promotion Rules, which were being suitably modified/amended inconsonance with the pay scales involved. The qualification for filling up the post of Child Development Project Officer is higher than the feeder category. Since the post in question i.e. Child Development Project Officer 4 is a higher post, it pre-supposes onerous and responsible duties. The petitioners ought to have been granted the higher pay scale vis-à-vis the persons who are in the feeder category i.e. District Welfare Officer and Superintendent Grade-1. The learned Senior Additional Advocate General has drawn the attention of the Court to the newly framed rules called “the Himachal Pradesh Social and Women’s Welfare Department, Child Development Project Officer (Class-II, Gazetted) Recruitment and Promotion Rules, 1996” whereby now instead of District Welfare Officer and Superintendent Grade-1, the feeder category is 40% from Assistant Child Development Project Officer and remaining 40% by promotion from amongst the Tehsildar Welfare Officers. The rules have come into force on 10.7.1996 and would apply prospectively. The petitioners have been paid less pay than the District Welfare Officer and Superintendent Grade-1 with effect from 1.1.1986 till the date of framing of new rules. The case of the petitioners was also recommended by the Director on 29.7.1993. It is evident from the pleadings that the pay scale of the petitioners with effect from 1.1.1978 was Rs. 825-1580 which was revised to Rs. 2000-3500 with effect from 1.1.1986. However, the District Welfare Officers who were in the lower pay scale of Rs. 800-1400 have been placed in the higher pay scale of Rs. 2100-3700. Similarly, Superintendent Grade-1, who were granted the pay scale of Rs. 825-1580 were, however, placed in the higher pay scale of Rs. 2200-4000 with effect from 1.1.1986. It is primarily for the employer to decide what pay scale has to be given to its employee. However, if there is arbitrariness and unreasonableness in the decision of the employer, the Court can always interfere. 5 The rights of the petitioners have crystallized on the basis of the Recruitment and Promotion Rules Annexure A-1 to get the higher pay scale. Their right to get the higher pay scale vis-à-vis the feeder categories i.e. District Welfare Officer and Superintendent Grade-1 cannot be defeated by the issuance of new rules for the post of Child Development Project Officer on 10.7.1996. The persons, who are appointed under the new rules, their condition of service are to be regulated under this new notification. The District Welfare Officer and Superintendent Grade-1 have been granted higher pay scale on the basis of notifications dated 30.5.1991 and 23.7.1990. The petitioners have been granted the pay scale of Rs. 2000-3500 on the basis of Annexure A-6 dated 17.3.1993. No other point raised by the learned counsel for the parties. Accordingly, the petition is allowed. Annexure A-6 dated 17.3.1993 is quashed and set aside. The petitioners are held entitled to revised pay scale of Rs. 2200-4000 being given to the Superintendent Grade-1, respectively within a period of eight weeks from today. The pay scale will be released to the petitioners with effect from 1.1.1986. No costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*