IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 7729 of 2008 Decided on : 21.2.2011 Anant Ram Rathor ..… Petitioner. Versus State of Himachal Pradesh and others …… Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Ms Ranjana Parmar, Advocate. For the Respondents : Mr. J.S. Guleria, Asstt. Advocate General. V.K.Sharma, Judge (Oral) The petition has been filed on the following prayer:- “(a) That the order dated 4.1.2001 may be quashed and set aside in as much as it fix the pay of the applicant on notional basis in the higher pay scale of Rs. 10025-15100 and 12000-16350. The order dated 11.4.2001 Annexure A-3 may further quashed and set aside and the respondents may be directed to review the recovery made from the applicant with interest.” 2. The respondents have taken the following stand vide paras 6(iii) and 6(iv) to (vii):- “6(iii) The contents of this para are wrong and denied. It is submitted that the 3 tier pay scale viz. Rs. 7220- 11660 entry scale Rs. 10025-15100 after 8 years of 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 regular service in the entry scale and Rs. 12000-16350 (after 16 years of regular service in the entry scale) w.e.f 1.1.96 have been released on revision to the officers of Agriculture Class I Gazetted of the Deptt. of Agriculture vide Notification No. Fin(PR) (B)(&)1/98 dated 1.9.1998. The higher pay scale of Rs. 10025-15100 and 12000- 16350 after completion of 8 and 16 years of service respectively is required to be released to the incumbents of the cadre in consonance to Rule 17 of the HP Agricultural services (Class I Gazetted) Non Ministerial Recruitment and Promotion Rule 1995 (notified on 3.6.95) Accordingly every member of the service shall pass a Departmental examination as prescribed in the Departmental examination Rules 1976 as amended from time to time efficiency bar/proficiency increment/placement in the higher scale after completion of 8 and 16 years of service provided further that an officer for whom no departmental examination was prescribed prior to the notification of these rules i.e Rules 1976 and who had not attained the age of 45 years on 1.3.1976 shall not be required to qualify the Departmental examination prescribed under these Rules after attaining the age of 50 years for the purpose of grant of higher scale of Rs. 3000-4500 and Rs. 3700-5300 now revised to Rs. 10025-15100 and Rs. 12000-16350, confirmation in the service after completion of probationary period etc. Further the suitability of the persons is required to be adjudged on the basis of objective assessment of the service record interalia following the procedure laid down by the personnel department vide instructions issued from time to time by convening the Departmental promotion committee. The case of the applicant including others considered and the higher pay scale of Rs. 12000-16350 was allowed to the applicant from the date he completes 16 years service i.e 9.1.1996 and fixed his pay at Rs. 12000 with next date of 3 increment 1.1.97 which is further modified vide Annexure A-4 dated 4.1.2001 to the application in pursuant to the advice tendered by the personnel Deptt. to the Horticulture Department in the similar matter vide letter No. Per (AP-II)B(2)3/94-1576 dated 26.2.96 copy of which is annexed as Annexure R.I and further clarification from the Jt. Secretary (Trg.) to the Govt. of HP vide his U.O. No. PER (TR and FA) B(12) 134/86 dated 12.12.2000 itneralia the clarification for grant of proficiency step-up issued by the Department of Personnel (Trg & Foreign Assignment) vide letter No. Per (Trg. &FA) B(12) 12/86 copy of which is annexed as Annexure R-2. Accordingly the applicant and similar situate were entitled to the higher scale from the date of completion of 8/16 years service on notional basis till the date of passing the Departmental Examination, which is one of the pre-requisite essential qualification for allowing the higher scale. However this condition will not be applicable to them on attaining the age of 50 years. The applicant completed his 16 years service on 9.1.1996 and passed the Departmental examination on 15.12.1998. Therefore the pay of the applicant has been fixed in the higher scale of Rs. 12000-16350 at the stage of Rs. 12000/- w.e.f 9.1.1996 on notional basis with next date of increment on 1.1.1997 and is entitled to the financial benefit from 15.12.98 while he passed the Departmental examination as such no reduction in the pay has been made. Therefore the annexure A.4 is legal, just and deserved to be upheld in the public interest and fair play. 6(iv to vii) The contents of these paras are wrong and denied in view of the facts and submission made in reply to para 6(iii) supra. It is further submitted that no right of the applicant has been infringed. The applicant is only entitled for the financial benefit in the higher scale granted in accordance with the procedure, instructions and rules 4 Annexure R.1 R.2 referred to, from the date he passed the departmental examination which is an essential qualification interalia service conditions prescribed in the rules by following the procedure laid down for adjudging the suitability. The applicant completed the 16 years service on 9.1.96 and notional benefit from this date has been granted but the applicant passed the departmental examination on 15.12.1998 from which date he become entitled for financial benefit which has been allowed without any prejudice. The applicant made his representation which is considered by the Govt. but could not be acceded to. No unfair and unjudicious manners has been down. That the Annexure A.4 has been modified in consistent to the instructions/rules but not a measure of penalty etc. The pay of the applicant has not been reduced as such the question to give any show cause notice or opportunity of being heard does not arise. It is prerogative to the Govt. to cure the mistake in the interest of State exchequer etc. The applicant is liable to remit the recovery as pointed/worked out by Dy. Director of Agriculture Bilaspur vide Annexure A.3 who has not been arrayed as party. The respondent 3 ahs been arrayed as party illegally with wrong notion. As such the annexure A.2 is legal, just and deserves to be upheld. Neither any discrimination nor violation of any rules or law has been committed rather modified the orders (Annexure A.2) under the statutory instructions. The application is devoid of any merit and deserves to be dismissed and prays for.” 3. The learned counsel for the petitioner submits at the very outset that the case of the petitioner is covered under judgment dated 18.11.2010, rendered by a learned Single Judge of this Court in CWP(T) No. 8336 of 2008, titled Yogeshwar Kumar Mahajan vs. State of H.P. and others. 5 4. In view of the above, if on facts, the case of the petitioner is covered under the aforesaid judgment in CWP(T) No. 8336 of 2008 and he is also similarly situate person, he shall also be treated similarly without any discrimination and the benefit of the said judgment shall also be extended to him within three months from today. 5. The petition as also pending CMPs, if any, stand disposed of in the above terms. (V.K. Sharma) Judge 21st February, 2011. Lsp*