IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 6637 of 2008 Decided on : 07.12.2010. 1. CWP (T) No.6637 of 2008. Inder Mohan Sharma and others ..…Petitioners. Versus Himachal Pradesh State Electricity Board. .… Respondent. 2. CWP (T) No. 6836 of 2008. M.L. Sharma and others ….Petitioners. Versus. Himachal Pradesh State Electricity Board. …..Respondent. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. In Both the Petitions For the Petitioners : Mr. Dilip Sharma, Advocate. For Respondent : Ms. Anjula Khajuria, Advocate. V.K. Sharma, Judge (Oral) Since common questions of law and facts are involved in both the above title petitions, the same are being disposed of by a common judgment. Further, since both the cases are based on similar averments, facts of the case in CWP (T) No.6637 of 2008, Inder Mohan Sharma and others Versus Himachal Pradesh State Electricity Board are being noticed. 2. The petition has been filed for grant of the following substantive reliefs vide para 7 (i) to (vi) : 1 Whether reporters of the local papers may be allowed to see the judgment? No, 2 “(i) That the impugned Point No.3 in the clarification of Annexure A-15 and Point No.2 in the clarification at Annexure A-16 may be struck down as violative of Articles 14 and 16 of the Constitution of India as also Regulations at Annexure A-2. (ii) That the impugned pay fixation of the applicants vide orders dated 27.5.1999, Annexure A-5 and Annexure A-6 may kindly be quashed and set aside. (iii) That the respondent may be restrained from effecting any recoveries from the salary of applicants pursuant to impugned orders at Annexure A-5 and A-6 respectively. (iv) That if during the pendency of impugned orders at Annexure A-5 and 6 respectively any recoveries are effected from the salary of applicant, the respondent Board may be directed to refund the same with interest at market rate. (v) That if it is found that the respondent Board has reduced the salary of applicants pursuant to impugned orders at Annexure A-5 and 6, the respondent may be directed to make payments of arrears on account of such reduction till the same is restored to them. (vi) That keeping in view the proviso under Regulation 7 of the Regulations at Annexure A-2, respondent Board may be directed to allow the applicants the benefit of 4 increments with arrears on account of such fixation and interest at market rate on delayed payments.” .3. On 3.9.2010 the following order was passed by this Court in this matter : “ It cannot be disputed that Annexures A-15 and A-16, letters dated 23.6.1998 and 3.4.1999 are clarificatory in nature. It 3 can also not be disputed that the respondent has regulations (Annexure A-2) which are statutory in nature. Prima facie it appears that while according benefits to the employees of regulations (Annexure A-2), by issuing clarifications (Annexure A-15 and A-16), respondents have diluted the benefits to be accorded to the employees. Before the matter is heard on merits it is only desirable that respondent itself considers the matter. The decision to be taken by the Principal Secretary concerned within a period of two weeks from today. “ 4. In compliance of the above order dated 3.9.2010, the matter was considered by the respondent-Board and decided vide order dated 17.9.2010 relevant portion whereof is extracted below : “ AND, THEREFORE, the Himachal Pradesh State Electricity Board Limited taking into account the facts and circumstances of the case as also pleas advanced by their writ petition coupled with the orders/directions dated 23.8.2010 passed by Hon’ble Court proceed to decide the case of petitions as follows :- (i) That the Respondent Board vide its office order No. 2/ HPSEB (Sectt) / 98 dated 22.5.98 revised the pay scales that have been made effective from 1.1.96. (ii) That the Respondent Board vide above office order has provided that where in the fixation of pay, the pay of Board employees drawing pay at more than three consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised scale at the same stage, the pay in the revised scale of such of those Board employees who are drawing pay beyond the first three consecutive stages in the existing scale shall be stepped up by the grant of increment (s) in the revised scale in the following manner, namely :- 4 (a) for the Board employee drawing pay from the fourth upto the sixth stage in the existing scale by one increment; (b) for the Board employees drawing pay from the seventh upto the ninth stage in the existing scale, if there is bunching beyond the sixth stage- by two increments; ( c ) for the Board employees drawing pay from the tenth upto the twelfth stage in the existing scale, if there is bunching beyond the ninth stage-by three increments. (d) for the Board employees drawing pay from the thirteenth upto the fifteenth stage in the existing scale, if there is bunching beyond the twelfth stage-by four increments. (iii) That the Respondent Board vide order No.HPSEB (SECTT)/Scale-1/98-29021-241dated 23.6.1998 issued clarification that in case (s) of AE/AEEs who have been allowed Ist time bound promotional scale of Rs.3000-5600 with initial start of Rs.3500/-, the increments earned in the existing pay scale may be counted from Rs.3500/- and not from Rs.3000/-. (iv) That the Respondent Board vide order No.HPSEB(SECTT)/Scale-1/98-1058-1258 dated 3.4.99 issued clarification for ensuring the benefit of at least one increment for three increments in existing scale, the benefit is to be counted from the stage at which the pay of an employees is fixed on promotion in the existing scale since the pay of an employee only in one existing scale can be taken into consideration. (v) That the Respondent Board in terms of the above clarification has fixed the pay of the 5 applicants which has resulted the fixation of the pay of the petitioners at lower stage. In nutshell, the claim of the petitioners are that for calculating the bunching increments the stage of Rs.3000/- instead the stage at which the pay of an employee is fixed on promotion in the existing scale, may be taken into count, by scrapping the provision contained in the clarification communication issued on dated 23.6.1998 and 3.4.99 by the Respondent Board. On critical analysis of the matter as also taking into account the material on record, the competent authority of the HPSEB Ltd, reached at the following conclusion : That the HP State Electricity Board Ltd, follows the Punjab State Electricity Board in the matter of pay scales to its employees. The Scales of the employees of HPSEBLtd were revised on and w.e.f. 1.1.1996 on the analogy of the PSEB vide Office Order No.2 dated 22.5.1998. The said regulation of pay were called the HPSEB (Revised Pay Regulation), 1998 which came into in operation on had w.e.f. 1.1.1996. The petitioners belong to the cadre of AEE/AE (Civil/Mech). The basic pay scale prior to 1.1.1996 of this cadre was Rs.2200-4250 with initial start of Rs.2400/-. The next time bound promotion scale of Rs.3000-5600 with initial start of Rs.3500/- was also granted to them in the pre-revised pay scale on completion of 9 years service. The petitioners were placed in the Ist time bound promotional scale of Rs.3000-5600 with initial start of Rs.3500/- on 2.11.1991, 20.12.1991 and 10.12.1993 on completion of 9 years service. The Respondent Board vide clarificatory order No. HPSEB (SECTT)/Scale-1/98-29021-241 dated 6 23.6.1998 issued clarification that in cases of AE/AEEs who have been allowed Ist time bound promotional scale of Rs.3000-5600 with initial start of Rs.3500/-, the increment earned in the existing pay scale may be counted from Rs.3500/- and not from is Rs.3000/- with stipulation that the clarifications are on most conservative basis and any clarification on these points from Punjab State Electricity Board will supersede these clarifications. The PSEB during the month of 1/99 issued a memo No.1009/2309/PRC- 111 dated 6/1/1999 (Annexure –A) adopting the clarifications issued by the Punjab Govt. vide No.7/44/98-FPI/11778 dated 21/10/1998 (Annexure – B) in the matter. Subsequently on receipt of above adoption/clarification from PSEB these were also adopted in HPSEBL vide order No.HPSEB (SECTT)/98-1058-1258 dated 3.4.99 (Annexure –C) as the HPSEBL follows the PSEB in the matter of Pay Scale. The pay of the officers were required to be fixed strictly in terms of the clarification issued by the HPSEBL vide order dated 3.4.99 on PSEB pattern. It is pertinent to state that the HP Govt. has also followed/adopted these clarifications vide memo No. FIN (PR)B (7)-2/98 dated 7/11/1998. (Annexure – D). The order issued on dated 23.6.98 stand automatically superseded in terms of the stipulation contained in this letter as well as the clarification issued on dated 3.4.99. As such by fixing the pay as per the provision contained in the relevant Regulation read with subsequent clarification/orders issued by the PSEB and adopted in HPSEBL correctly by revising the incorrect pay fixed earlier, the respondent Board has not erred at any stage of time. In as much as the petitioners are seeking reliefs beyond the 7 Rules/Regulations/Clarifications issued by the HPSEB Ltd. on PSEB pattern. Even otherwise the counting of stage of Rs.3000/- shall be in deviation to PSEB which the HPSEBL follows in the matter of Pay Scale and shall make two sets of rules operative in HPSEBL and may create anomalies in the pay fixation and open a Pandora’s box. Therefore, reliefs prayed for by the petitioners can not be allowed being devoid of merits and consequently same deserve only rejection in the facts and circumstances of the case. The claim is thus rejected.” 5. The controversy raised by the petitioners relates to interpretation of the Regulations known as Himachal Pradesh State Electricity Board (Revised Pay) Regulations, 1998 (in short ‘The Regulations”), Annexure A-2. Regulation 7 whereof is as under : Fixation of Pay in the Revised Scale :- The pay of a Board employee who opts or is deemed to have opted for the revised scale in terms of the provisions of these regulations shall, unless in any case the Board by special order or otherwise directs, be fixed in the following manner, namely :- (i) an amount representing forty percent of the basic pay in the existing scale shall be added to the “Existing emoluments” of the employee, and (ii) after the existing emoluments have been so increased, the pay shall thereafter be fixed in the revised scale at the stage next above the amount of the exiting emoluments so computed, if it falls between two stages. Provided that :- a) if the minimum of the revised scale is more than the amount, so arrived at, the pay shall be fixed at the minimum of the revised scale; 8 b) If the amount so arrived at is higher than the maximum of the revised scale, the amount in excess of the maximum of the revised scale shall be treated as personal pay which shall be absorbed in future increments and shall be reckoned as pay for all purposes; Note : The pay scale as applicable on 31/12/1995 will only be taken into account for the purpose of fixation of pay in the revised scale. Provided further that where in the fixation of pay, the pay of Board employees drawing pay at more than three consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised scale at the same stage, the pay in the revised scale of such of those Board employees who are drawing pay beyond the first three consecutive stages in the existing scale shall be stepped up by the grant of increment (s) in the revised scale in the following manner, namely :- a) for the Board employee drawing pay from the fourth upto the sixth stage in the existing scale by one increment; b) for the Board employees drawing pay from the seventh upto the ninth stage in the existing scale, if there is bunching beyond the sixth stage- by two increments; c) for the Board employees drawing pay from the tenth upto the twelfth stage in the existing scale, if there is bunching beyond the ninth stage by three increments. d) for the Board employees drawing pay from the thirteenth upto the fifteenth stage in the existing scale, if there is bunching beyond the twelfth stage by four increments. If by stepping up the pay as above, the pay of a Board employee gets fixed up at a stage in the revised scale, which is higher than the stage at which the pay of a Board employee who was drawing more pay in the same existing scale is fixed, the pay of the latter shall also be stepped up to the level at the par with the former. 9 Provided further that the fixation thus made shall ensure that every Board employee shall get at least one increment in the revised scale for every three increments (inclusive of ex-gratia increment(s), if any, in the existing scale.” 6. Per contra, as per the stand taken on behalf of the respondent-Board, pursuant to the clarification issued by letter dated 23.6.1998 Annexure A-15, the case of the petitioner is governed under clarification at Sr. No.3 thereof which is to the following effect : In the cases of A.E/AEEs who have been allowed Ist time bound promotional scale of Rs.3000-5600 with initial start of Rs.3500/- whether the stages of increments earned in the existing pay scale are to be counted for the purpose of allowing bunching increments in the revised pay scale from the initial pay scale of Rs.3000/- or from the higher start of Rs.3500/- The increments earned in the existing pay scale may be counted from Rs.3500/- and not from Rs.3000/-. 7. Another clarification issued vide letter dated 3.4.1999 Annexure A-16 has also been pressed into service on behalf of the respondent-Board in support of its stand and the same reads as under : 2. Where for ensuring the benefit of at least one increment for three increments in the existing scale, the increments are to be counted from the initial start of the scale or from the stage at which the pay of an employee in the pre- revised scale. Since the pay of an employee only in one existing scale can be taken into consideration the benefit is to be counted from the stage at which the pay of an employee is fixed on promotion in the existing scale. 10 8. In order to repel the above contention raised on behalf of the respondent-Board, the petitioner falls back on the averments set up vide para 6 (6) (E) of the petition as under : “E. That a perusal of the Regulations at Annexure A- 2 would show that these are statutory in nature as these have been issued under that the Electricity (Supply) Act, 1948. It appears that for revising the pay of applicants, initially the respondent Board relied on clarification dated 23.6.1998, Annexure A-15 herewith. According to clarification No.3 the increments earned in the existing pay scale are to be counted from Rs.3500/- and not from Rs.3000/-. It is submitted that clarification at Annexure A-15 is not in the nature of an amendment to the Regulations at Annexure A-2. The clarification at Annexure A-15 is only in the nature of executive instructions, which cannot have the effect of modifying the Regulations at Annexure A-2 which are statutory in character. Moreover, clarification can be of something which is not clear. The Regulations at Annexure A-2, which have been sought to be clarified vide clarification at Annexure A-15 do not admit of any ambiguity, which may warrant any clarification. The situation envisaged by the proviso referred to supra, clearly mentions the benefit of increments to be granted keeping in view the stage in which an employee may be drawing salary in the existing pay scale. It does not refer to the manner in which a person might have reached at a particular stage in the existing pay scale. Thereafter, to say that pay for the purpose of counting increments in the existing scale is to be taken into account from Rs.3500/- and not from 3000/- in the existing scale of Rs.3000-5600/- is tantamount to saying that for the purpose of revised pay scales, the scale of Rs.3000-5600/- is to be read as 3500-5600/-. This is in substance a statement that the pay scale gets modified or repealed to the extent stated in the impugned clarification. This is an absurd 11 proposition, which cannot be sustained legally. If the board in its wisdom allowed the benefit of pay fixation at the stage of Rs.3500/- in the existing scale of 3000-5600, that is to be taken into account in the same spirit in which it was granted earlier. While taking into account this pay fixation in the revised pay scale the advantage which was given at the stage of initial pay fixation cannot be nullified under the garb of impugned clarification. As such Point No.3 referred to in the clarification at Annexure A-15 is liable to be declared as un-constitutional and against spirit of Regulations at Annexure A-2. As such the clarification being without jurisdiction and against statutory rules, cannot be used against the interest of applicants.” 9. Though, the matter with regard to the grant of Pay Scales etc. falls within the domain of the executive powers and the Court has very limited roll to look into the same by taking resort to the power of judicial review, yet since the dispute between the parties herein relates to interpretation and implementation of the Regulations referred to hereinabove and the clarifications issued by the respondent-Board, suffice it to say, that the Regulations being statutory in nature would certainly have precedence over clarificatory instructions which can only supplement the Regulations and not override the same. In this regard the fact that by giving effect to the above clarifications an anomalous situation would arise where the pays of persons junior to the petitioners would also be fixed at the same stage of Pay Scale. 10. In view of the above, the petition is allowed with a direction to the respondent-Board to give effect to the revised Pay Scale in relation to the petitioners strictly in accordance with Regulation 7, 12 supra and fix their pay accordingly within three months from today along with the consequential benefits. 11. In view of the above, the petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge. 7th December, 2010 CS