IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.9286/2008 Decided on:30.6.2010 _____________________________________________ Dewan Chand Sharma. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Surinder Thakur, Advocate vice Mr. P.P. Chauhan, Advocate. For the Respondents: Mr. P.M. Negi, Deputy Advocate General, Advocate for respondents No.1 to 3. None for respondent No.4. _____________________________________________________ Rajiv Sharma, Judge ( oral ) . Petitioner was appointed as Sericulture Mulberry Sub-Inspector in the respondent-Department on 29.12.1962. The pay of the petitioner was revised under Assured Career Progression Scheme with effect from 1.1.1996. His pay was subsequently fixed on 22.10.1999 at Rs. 6600/- with effect from 1.1.1999. He received the same for a period of seven months. However, vide letter No. II-139/99-IND-II dated 13.6.2000, the pay of the petitioner was reduced from Rs. 6600/- to Rs. 6200/- with effect from 1.1.2000. He has retired on 28.2.2002. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2. Mr. Surinder Thakur appearing vice counsel for the petitioner has argued that his client was not served with any notice before the decision was taken by the respondent-Department to reduce the pay of the petitioner. According to him, his client has suffered civil and evil consequences and the respondents cannot reduce the pay of the petitioner unilaterally, which has also reduced the retiral/pensionary benefits of his client. 3. Mr. P.M. Negi, learned Deputy Advocate General has argued on behalf of respondents No.1 to 3 that the petitioner’s pay has been reduced after adjusting two proficiency increments already granted to him in the pre- revised scale. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Respondent-State has admitted in its reply that the higher scale was allowed by the Government under the Assured Career Progression Scheme with effect from 1.1.1996. Petitioner’s pay was fixed on 22.10.1999 at Rs. 6600/- with effect from 1.1.1999. He started drawing higher salary, however, without issuing any show cause notice to the petitioner, the same was reduced to Rs. 6200/- vide order dated 13.6.2000 with effect from 1.1.2000. Petitioner has suffered civil and evil consequences. 6. Petitioner served a legal notice upon the respondent-Department vide Annexure A-2 whereby he has given the details the manner in which he was granted the higher pay scale and the same was reduced. The action of the respondents to reduce the pay of the petitioner was wholly illegal and arbitrary, thus, violative of Articles 14 and 16 of the Constitution of India. He ought to have been heard before the issuance of letter dated 13.6.2000. He has neither misled nor misrepresented the authorities at the time when his pay was increased and fixed at Rs. 6600/-. He has retired from service on 28.2.2002. However, petitioner’s retiral/pensionary benefits have been worked out on the salary of Rs. 6200/- instead of Rs. 6600/-, which was fixed vide letter dated 22.10.1999. 7. Respondent-Department has also taken up the matter with the Principal Secretary (Finance). The Principal Secretary (Finance) has informed the Department on 7.8.2003 that the requisite clarification was sought from the Punjab Government, which was awaited. This letter is dated 7.8.2003. 8. The Court is of the considered view that the respondent-Department could not unilaterally reduce the pay of the petitioner without hearing him. The pay scale is a legitimate right of an employee and except for valid and proper reasons it cannot be varied. 9. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Jagdish Pandey and others, 2010 (6) Scale 651 have held as under: “8. The respondents in the present appeal had challenged the validity of the above order before the Tribunal on various grounds including that they have always been placed at parity with the goods driver, they have been given similar scales and there was no reason, whatsoever, for altering the pay scale to the prejudice of the respondents, which was in force for a considerable time. It will be useful for us to notice the findings recorded by the Tribunal. In paragraph 8 of its judgment the Tribunal noticed that both the parties have not placed on record any material to indicate as to what was the pay scale provided for the TWDs pursuant to the various Pay Commission Reports. The Tribunal specifically noticed and recorded the finding that for the last 40 years, i.e. right from 1959 the respondents were being paid the same pay scale as goods drivers. There was no disparity of pay scales between TWDs and goods drivers after Union of India and Railways had accepted recommendations of the IInd, IIIrd, IVth and even of Vth Pay Commissions. The Tribunal also specifically noticed vague denials of the Union of India and that such denials were hardly substantiated by any cogent material. Reliance was placed upon the judgment of the Calcutta High Court in relation to the grant of running allowance. In that Writ Petition, the only dispute raised by the parties related to the grant of running allowance and the Union of India did not raise the issue of disparity in pay scale. This order of the High Court had attained finality. We have already referred to the findings recorded by the Tribunal where it is specifically noticed that after acceptance of Vth Pay Commission Report by the Government, TWDs were given the salary in the pay scale of Rs. 5000-8000 w.e.f. 1.1.1996 and in the letter dated 15.4.1993 the concerned authorities noticed the disparity created even between the TWDs i.e. in Sealdah division out of 32 TWDs, 24 were getting pay scale of Rs. 1350-2200 (unrevised) and remaining 8 were getting the pay scale of Rs. 1320-2040 and it directed a uniform pay scale of Rs.1350-2200 should be given to all the TWDs. Another reason that weighed with the Tribunal was that no material has been produced to show as to what were the reasons or material on the basis of which the authorities had decided to discontinue the pay scale of Rs. 1350-2200 to these respondents. The above reasoning and discussion in the order of the Tribunal clearly shows that the action on the face of it was arbitrary. This order of the Tribunal was confirmed by the High Court and the respondents made no effort to place anything on record to show that they were different and distinct classes and were entitled to receive different pay scales. Even in the order dated 9th August, 2002 the Tribunal specifically noticed that it was not even averted that eligibility criteria for the post of TWDs was different than that for the goods driver and their duties were substantially different. In other words, either before the Tribunal or before the High Court the Union of India never pleaded the essential basis for justifying payment of different pay scales to two categories of drivers i.e. TWDs on the one hand and goods train drivers on the other. There has to be a substantial difference in method of recruitment, eligibility, duties and responsibilities before substantial disparity in scale can be justified. As far as recording of finding of facts is concerned, factual disputes can hardly be raised before this Court and in any case for the first time. Despite this the Union of India has failed to place any material to substantiate its decision before the Forum/Courts. The judgment of the Calcutta High Court, in relation to running allowances, has attained finality. At that time no other issue was raised by Union of India that they are different and distinct posts with different pay scales and as such identical running allowances could not be paid. In fact, the judgment of the Calcutta High Court has duly been implemented now for years together without objection. Not only this, same pay scale as that of the goods train driver has been paid to these respondents for years and there appears to be no justification on record for unilateral withdrawal of such a scale. Pay scale is a legitimate right of an employee and except for valid and proper reasons it cannot be varied, that only in accordance with law. None of these justifiable reasons exist in the present case. The impugned order itself does not give any reason. The expression `erroneously' used in the order can hardly justify withdrawal of such an existing right.” 10. Their Lordships of the Hon’ble Supreme Court in the case (supra) have also held that since the employees have retired, there was no justification for effecting any recoveries from their salaries as they have already worked and received their salaries as granted by the Union of India itself. 11. Accordingly, in view of the observations made hereinabove, the petition is allowed. Letter dated 13.6.2000 is quashed and set aside. Respondents are directed not to effect any recoveries from the retiral/pensionary benefits of the petitioner. Respondents are also directed to work out his retiral/pensionary benefits in the pay scale of Rs. 6600/-, which was paid to him with effect from 1.1.1999 vide order dated 22.10.1999. Needful be done within a period of two months from the date of production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 30.6.2010 *awasthi*