IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 9899 of 2008. Decided on: 6.1.2011. ___________________________________________________________ Shyam Lal Sharma and another. … Petitioners. Versus State of Himachal Pradesh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Raj Negi, Advocate vice Mr. B.C. Negi, Advocate. For the respondents : Mr. Anil Jaswal, Dy.A.G. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The petition has been filed on the following prayers vide paras No. 7 (I) to (VII):- “7 (I). That the orders dated 23.5.2003 and 2.8.2003, so far as the same pertain to grant of revised pay scale to the contract teachers/lecturers, may be declared to be validity issued and the applicants may be held entitled for all consequential benefits along with interest at some nationalized bank rate. (II). That the Annexure A-1 and A-2 may kindly be quashed and set aside. (III). That the respondents may kindly be directed to revise the salary of the applicants w.e.f. the date of initial appointment on the basis of pay scale of the post i.e. Rs. 5800-8200, existing at the time of appointment of the applicants and also to quash Rule 2 (f) of the notification dated 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 20th April, 1998 appended along with as Annexure A-5. (IV). That respondent be directed to pay the salary of seven days summer/winter break to the applicants. (V). That the respondents may kindly be directed to grant the applicants the earned, maternity and paternity leaves and also to pay salary of winter/summer vacations. (VI). That respondents may kindly be directed not to give fictional break at the end of session and/or during the winter/summer vacations. (VII). That the respondents may kindly be directed to pay the applicants the perks and allowances as admissible and to give the benefit of office memo No. Fin (C )-B (7)-3/98, dated 8.11.1999, 5.4.2000, 27.7.2000, 18.11.2000, 21.7.2001, 10.4.2002, 13.6.2002, 26.12.2002 and subsequent memos pertaining to the grant of Dearness Allowance and also pay the same for the vacation periods.” 2. In reply on behalf of respondent No. 3, the following stand has been taken vide paras 6 (I) to (IV):- “6 (I) to (IV). The facts regarding the qualification and eligibility of the applicant for the post of lecturer (school cadre) relates to Education Department, hence no comments. However, it is denied that revised pay scale w.e.f. 1.1.1996 automatically applied to the applicant or similarly situated other employees. In this regard, H.P. Civil Services (Revised Pay) Rules, 1998, as providing for grant of new pay scales to the State Government Employees, clearly prescribe that these rules shall not apply to the persons employed on contract 3 basis (Annexure=R2/B). Hence it is wrong to claim that applicant was also entitled for new pay scales like the regular Government employees, unless specific orders to this effect were/are issued by the State Government. As such, the letter No. Shiksha-II-Kha (12) 2/99 dated 23.5.2003 & letter of even No. dated 30.7.2003 was contrary to the provisions of the H.P. Civil Services (Revised Pay) Rules, 1998 and was issued by respondent No. 1 in contravention and without prior concurrence of the Finance Department of H.P. as is mandatory under Rule 9 and Rule 34 of the Rules of Business of Govt. of H.P. 1971, which read as under:- Rule 9 (1). No department shall, without previous consultation with the Finance Department, authorize any orders (other than orders pursuant to any general delegations made by the Finance Department) which:- (a) either immediately or by their repercussions, will affect the finance of the State or which, in particular- (i) involve any grant of land or assignment of revenue or concession, grant, lease, or licence of mineral or forest rights or a right to water power or any assessment or privilege in respect of such concessions; or (ii) in any way involve any relinquishment or revenue; or (b) relate to the number or grading or cadre of posts or the emoluments or other conditions of service of posts. (c )(i) involve the delegation of financial powers to subordinate authorities; and 4 refer to reports of financial irregularities made by the Accountant General or administrative authorities; and (ii) relate to audit reports of the Examiner of Local Fund Accounts when the reports mention serious irregularities or when the Administrative Department differs from the Examiner of Local Fund Accounts or when the Examiner of Local Fund Accounts specifically requests that the reports should be seen by the Finance Department also. Provided that no orders of the nature specified in clause (b) shall be issued in respect of the Finance Department without the previous concurrence of the Department of Personnel. (2) Subject to the general provisions of these Rules, no proposal, which requires the previous consultation of the Finance Department under this Rule but in which the Finance Department has not concurred, may be proceeded with unless a decision to that effect has been taken by the Council. (3) No re-appropriation shall be made by any department other than the Finance Department except in accordance with such general delegations as the Finance Department may have made. (4) Except to the extent that power may have been delegated to the department under rules approved by the Finance Department, every order of an Administrative Department conveying a sanction to the enforced in audit, shall be communicated to the audit authorities by the Finance Department. 5 (5) Nothing in this rule shall be construed as authorizing any department including the Finance Department, to make re-appropriation from one grant specified in the Appropriation Act to other such grant. Rule 34: “The Finance Department shall be consulted before the issue of orders upon all proposals which affects the finances of the State and in which its previous concurrence is necessary under these Rules.” The said instructions dated 23.5.2003 & 30.7.2003 have now been withdrawn by Secretary (Education) vide letter No. Shiksha- II-Kha (12) 2.99 dated 5.11.2003 (Annexure R3/C). The applicant being an employee on contract basis cannot claim the salary & allowances at par with the regular employee under rules and also in light of original contract agreement. It is denied that the respondents have exploited the applicants as alleged. Rather, the applicants cannot claim a benefit, which was wrongly given to them and is not permissible under the rules. The respondents are within their rights to rectify a mistake and the applicants do not get any vested right due to the same. It is denied that there is any violation of Article 14 and 39 (d) of Constitution of India.” 3. The learned vice counsel appearing on behalf of the petitioners submits that the case of the petitioners is covered under judgment dated 20.11.2010 rendered by a learned Single Judge of this Court in CWP (T) No. 10218 of 2008, titled Sanjeev Dharmani 6 and others versus State of H.P. and others, text whereof is as under:- “The petitioners were placed in the pay scale of Rs. 6400-10,400 on the basis of Annexure A-1 dated 23.5.2003. However, the same has been withdrawn on the basis of Annexure A-2 dated 22.10.2003. The petitioners have not been issued any show cause notice. The salary of the petitioners has been reduced without hearing them. 2. Consequently, the writ petition is allowed. The action of the respondents to reduce the salary of the petitioners on the basis of Annexure A-2 is declared illegal. However, the liberty is reserved to the respondents to proceed with the matter in accordance with law.” 4. In view of the above, if on facts the case of the petitioners is covered under the judgment referred to hereinabove and they are also similarly situate as the petitioners in the said case, they shall be treated similarly without any discrimination and benefit of the said judgment shall also be extended to them within three months from the date of production of a copy of this judgment by the petitioners. 5. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. January 6, 2011. (cr)