IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 16707 of 2008. Decided on: 11th November, 2010. Pramod Kumar. …Petitioner. -Versus- The State of H.P. and others. .…Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner : Mr. Dharamvir Sharma, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Material facts necessary for adjudication of this petition are that the petitioner was appointed as Camp Clerk in the year 1977 in the respondent-department. He was promoted to the post of Junior Scale Stenographer in the month of May, 1981 and was confirmed in the year 1991. He approached the learned erstwhile Himachal Pradesh Administrative Tribunal by way of Original Application No. 1011 of 1995, seeking directions to the respondents to up-grade the post of Junior Scale Stenographer to the post of Senior Scale Stenographer. The Original Application was disposed of by the learned Tribunal on 31.05.1995 by treating the same as representation to the Secretary (E & T), Government of Himachal Pradesh. The Additional Chief Secretary-Cum- Secretary (E&T) rejected the same on 25.08.1995. Petitioner has assailed the order dated 25.08.1995. According to him, the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - decision is contrary to law. Petitioner has also averred that the respondent-department has up-graded the posts of Sub- Inspectors to Inspectors, Assistant Excise and Taxation Officers to Excise and Taxation Officers and Excise and Taxation Officers to Assistant Excise and Taxation Commissioners. However, the category to which the petitioner belongs, has been discriminated against. 2. Case of the respondent-State, in a nut-shell, is that whether the post is to be up-graded or not, is a policy decision. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. Petitioner was promoted to the post of Junior Scale Stenographer in the month of May, 1981. Petitioner alongwith similarly situate persons had been making representations to the respondent-department to up-grade the post of Junior Scale Stenographer to the post of Senior Scale Stenographer. Petitioner has specifically averred in his representation that there are no sufficient promotional avenues available to the category of Junior Scale Stenographer as there is only one sanctioned post of Senior Scale Stenographer with the Excise and Taxation Commissioner, Himachal Pradesh. 5. Mr. Dharamvir Sharma, learned counsel for the petitioner has drawn the attention of the Court to Annexure –PD, whereby the Punjab Government has taken a decision to up-grade the post of Junior Scale Stenographer to Senior Scale Stenographer. The State of Himachal Pradesh follows the Punjab pattern as far as pay scales are concerned. In the instant case, once the Punjab Government has taken a decision to up-grade the - 3 - post of Junior Scale Stenographer to Senior Scale Stenographer w.e.f. 16.12.1992, there was no justification for not up-grading the post of Junior Scale Stenographer to Senior Scale Stenographer. It is admitted case of the parties that as far as the posts of Sub-Inspectors, Assistant Excise and Taxation Officers and Excise and Taxation Officers are concerned, these posts were up-graded to Inspectors, Excise and Taxation Officers and Assistant Excise and Taxation Commissioners, as is also evident from Annexures P-I and P-J, respectively. 6. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that it is not incumbent upon the State Government to follow the Punjab pattern. However, the posts of Sub-Inspectors, Assistant Excise and Taxation Officers and Excise and Taxation Officers have been up-graded on the Punjab pattern. In view of this, only the petitioner’s category has been discriminated against and they have not been treated in a just and fair manner. It is intriguing to note that it is the post of Junior Scale Stenographer alone, which has not been up-graded and numerous posts have been up-graded, as noticed above. The Additional Chief Secretary-Cum-Secretary (E & T) has rejected the case of the petitioner on 25.08.1995 arbitrarily without taking into consideration that the State of Himachal Pradesh had been following the Punjab pattern as far as release of pay scale is concerned. In fact, Annexure-PD has been issued in view of the recommendations of the 3rd Pay Commission as far as the State of Punjab is concerned. It is true that the decision as to what pay scale is to be released to a particular employee has to be taken primarily by the employer, however, it is equally true that while - 4 - taking the decision, there should not any arbitrariness or unreasonableness. 7. Their Lordships of the Hon’ble Supreme Court in K. T. Veerappa and others Versus State of Karnatka and Others, (2006) 9 Supreme Court Cases 406 have held that it is true that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. Their Lordships have held as under: “13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative - 5 - decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. 8. Mr. Dharamvir Sharma, learned counsel for the petitioner has also argued that his client should have been promoted to the post in the stream of Senior Scale Stenographer instead of Excise and Taxation Inspector. 9. Mr. P.M. Negi, learned Deputy Advocate General has drawn the attention of the Court to Annexure R-1, dated 20.12.2001, whereby the petitioner has categorically undertaken to forgo his promotion in the stream of Senior Scale Stenographer, in case he is promoted as Excise & Taxation Inspector. In fact, the petitioner has already been promoted to the post of Excise and Taxation Inspector in 2002 and he is to superannuate on 31.03.2011. In view of this, the petitioner at this belated stage cannot be permitted to change his promotional stream. He has given the categorical option and there is no material on record to suggest, even remotely that he has moved any application or representation to withdraw his option given on 20.12.2001. 10. Accordingly, in view of the observation made hereinabove, the petition is partly allowed. Respondents are directed to up-grade the post of Junior Scale Stenographer to the post of Senior Scale Stenographer w.e.f. 16.12.1992 till the promotion of petitioner to the post of Inspector with consequential benefits, within a period of two months from the date of - 6 - production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge November 11, 2010. (bhupender) - 7 -