Civil Writ Petition No. 6827 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 6827 of 2009 Date of decision: 3.8.2009 Sant Lal Pachar, HCS ...petitioner Versus State of Haryana ...respondent. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr.G.S. Bal, Advocate for the petitioner. Mr. Yashwinder Singh, AAG, Haryana for the State. RANJIT SINGH J. The petitioner was appointed as Tehsildar in the year 1992. On the basis of his performance, work and conduct, the petitioner was nominated to Haryana Public Service Commission (Executive Branch) on 4.10.2004. This was done on due consideration and after consulting Haryana Public Service Commission. Upon his nomination to HCS the pay of the petitioner was fixed at Rs. 8,000/- in the pay scale of Rs. 8000-13500 w.e.f. 4.10.2004. This was on the basis of Rule 4.5-A of Punjab Civil Services Rules Volume-1 Part-1 as applicable to the Haryana. This pay was fixed despite the fact that the petitioner was drawing his salary as Tehsildar in the pay scale of Rs. 8000-13,500 with basic pay of Rs. 10,475/-. By relying on Rule 4.5-A of the rules, the petitioner made representations that his pay which he was drawing as Tehsildar was required to be protected. Copy of the representations filed by the petitioner is annexed with the petition as Civil Writ Petition No. 6827 of 2009 2 Annexures P-6 and P-7. The petitioner has also relied upon the case of one Sarita Malik who was also nominated to HCS and her pay drawn has been protected. Notice of motion was issued. Reply is filed. In the reply it is disclosed that the petitioner has filed Civil Writ Petition No. 14114 of 2008 to challenge the order No. 41/5/2006-5SII dated 5.8.2008 vide which the petitioner has been repatriated to his parent department. It is disclosed that the issue raised in the said writ petition is directly connected with the right of the petitioner to continue with the service of HCS. It is then stated that the benefit claimed by the petitioner cannot be granted, if the petitioner is in HCS (Executive Branch) and the decision of writ petition would depend on outcome of CWP No. 14114 of 2008. I am afraid, I cannot subscribe to this view. As Tehsildar, the petitioner was drawing salary of Rs. 10,475/-. The scale of pay of Tehsildar as well as of HCS appears to be same. The counsel for the petitioner has drawn my attention to Rule 4.5-A of the Rules with special emphasis on the proviso contained therein that if the presumptive pay of the permanent post other than the tenure post, on which a person holds a lien or would have held a lien had his lien not been suspended, should at any time be higher than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post. In support the counsel has relied upon a case of Zile Singh versus The State of Haryana and another 1994 (1) RSJ 123, where similar issue has been adjudicated by this Court while interpreting provisions of Rule 4.5 of the rules. It is clearly held in this case that the basic pay of the petitioner therein during the Civil Writ Petition No. 6827 of 2009 3 period of probation as Excise and Taxation Officer could not be less than what he was drawing as a Lecturer in English in HCS. The ratio of the law thus appears to be attracted to the facts of the present case. Even if the aspect of the right of the petitioner to seek protection of pay, last drawn by him as Tehsildar is kept aside, his claim as made in the petition cannot be denied. As per the best case of the respondent the petitioner will have to revert back to the post of Tehsildar. If that happens then also he will be entitled to draw his salary of Rs. 10,475/-, which he was drawing and will continue to draw. This is what he is seeking through the writ petition. The stand of the respondent in fixing the pay scale of the petitioner in the minimum of the scale of Rs. 8000-13500/- thus is not justified on either count and cannot be sustained. It is otherwise also unfair. State counsel at this stage points out that representations filed by the petitioner are pending. State counsel seems to suggest that the directions can be issued to decide the representations filed by the petitioner. In response, the counsel for the petitioner would say that such an approach will not be just and proper as these representations are pending decision since 2007 and would not brood any further delay. The petitioner is receiving less pay since 4.10.2004. Asking him again to go before respondent when the issues are fairly straight and settled would not be a fair approach. The petitioner is entitled to get pay of Rs. 10,475/- in any eventuality. The writ petition is accordingly allowed. The petitioner would be entitled to draw the pay w.e.f. 4.10.2004, which he was last drawing as Tehsildar. The arrears shall be released to the petitioner Civil Writ Petition No. 6827 of 2009 4 within a period of two months from the date of receipt of copy of this order. August 03, 2009 ( RANJIT SINGH ) rts JUDGE