IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.55 of 2001 Decided on : September 15, 2008 C.P. Pal and another …Petitioners. Versus H.P. Khadi and Village Industris Board and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Dilip Sharma, Advocate. For the Respondents : Ms Rita Goswami, Advocate, for respondents No.1 & 2. Mr. P.M. Negi, Depty Advocate General, for respondent No.3. Ms Jyotsna Rewal Dua, Advocate, for respondents No.4 & 5. Per Surit Singh, Judge( Oral ) By way of the present writ petition, under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the legality and validity of order dated 1st November, 2000, passed in Original Application No.19 of 1989, by the H.P. State Administrative Tribunal, whereby the aforesaid Original Application, filed by the writ petitioners, has been dismissed. 2. Writ petitioners approached the Tribunal by filing the aforesaid Original Application, for issuance of a direction to Whether reporters of the local papers may be allowed to see the judgment? …2… respondents No.1 to 3 that they (writ petitioners) be promoted as Head Assistants from the date, i.e. 30th December, 1988, from which respondent No.4 Arjun Singh was so promoted, claiming that they, being Assistants, alone were entitled to be considered for promotion as Head Assistants and respondent No.4 Arjun Singh, being from a different cadre, that is of Accountants, was not eligible or entitled to be considered for the higher post of Head Assistant, as the cadre of Accountants was not a feeder cadre for the cadre of Head Assistants. 3. Relevant facts, which are admitted by both the sides, may be noticed. Writ petitioners and private respondents were the employees of H.P. Khadi and Village Industries Board, respondent No.1 herein. Writ petitioners were appointed as Assistants in the year 1980. Private respondent No.4 was appointed as Accountant-cum-Store Keeper in the year 1974. Prior to the revision of the pay scales, effective from 1st January, 1978, both the Assistants and the Accountants-cum-Store Keepers were in the pay-scale of 225-500. Revision of pay scales effective from 1st January, 1978 took place somewhere in the year 1980 and both the categories were placed in the pay scale of 570-1080. Lateron, the Government issued an order dated 5th August, 1981, vide which the pay scale of Assistants was further revised to 600-1120. However, the pay scale of Accountants-cum-Store Keepers remained 570-1080. This anomaly was noticed by the Board, i.e. respondent No.1, and, therefore, Resolution dated 16th October, 1984, Annexure P-9, was passed by the Board of Directors of respondent No.1, …3… equating the pay scales of Assistants and Accountants-cum- Store Keepers, by granting the pay scale of 600-1120 to the Accountants-cum-Store Keepers, w.e.f. 1st January, 1978. By the same Resolution, the Board of Directors resolved to integrate the cadres of Assistants, Accountants-cum-Store Keepers and Auditors. Acting upon the aforesaid Resolution, Board granted pay scale of 600-1120 to the Accountants-cum-Store Keepers and Auditors and also integrated the three cadres into a common cadre and a common seniority list was prepared and issued in the year 1988. After the issuance of the aforesaid seniority list, respondent No.4 was promoted on adhoc basis as Head Assistant against a vacancy that became available, on account of retirement of the previous incumbent of that post. 4. Writ petitioners, who were in the cadre of Assistants prior to the integration of the three cadres into a common cadre, felt aggrieved by the promotion of respondent No.4, because they felt that the post of Head Assistant was meant to be filled only by promotion of Assistants and not the officials holding the posts of Accountants-cum-Store Keepers or Auditors. They took the plea that the Resolution of the Board, dated 16th October, 1984, Annexure P-9, was illegal, inasmuch as it had the effect of affecting the service conditions of the employees of the Board and in view of the provision of Section 36 of the H.P. Khadi and Village Industries Board Act, 1966, which reads as under, no decision could be taken by the Board, with regard to the service conditions and pay scales of the employees of the Board without …4… the prior approval of the Government but the Board took the aforesaid decision without the prior approval of the Government: “36. Power to make regulations.- (1) The Board may, with the previous sanction of the (Government of Himachal Pradesh) by notification in the Official Gazette, make regulations nor inconsistent with this Act and the rules made thereunder, for enabling it to perform its functions under this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters namely:- (a) the terms and conditions of appointment and service and the scales of pay of officers and other employees of the Board other than the Secretary, including the payment of travelling and daily allowances in respect of journeys undertaken by such officers and employees for the purposes of this Act; (b) xxxx (c) xxxx (d) xxxx (e) xxxx (f) xxxx (g) xxxx (h) xxxx” 5. Respondents pleaded that an anomaly had occurred due to further revision of pay scale of Assistants from 570-1080 to 600-1120 and that to remove that anomaly the pay scales of Accountants-cum-Store Keepers and Auditors were also revised to bring the same on par with that of the Assistants. 6. Learned Tribunal dismissed the Original Application holding that the pay scales of all the three categories were similar from the very beginning and, hence, there was nothing wrong with the decision of the Board in integrating the three …5… cadres, for the purpose of promotion to the higher cadre of Head Assistants and other equivalent posts. 7. Writ petitioners have challenged the decision of the learned Tribunal, on the ground that the vital aspect of the matter, viz. the pay scales of Accountants-cum-Store Keepers and Auditors having been revised by the Board without prior approval of the Government, in violation of Section 36 of the H.P. Khadi and Village Industries Board Act, has not even been touched. 8. We have heard the learned counsel for the writ petitioners as also the learned counsel representing the respondents. 9. Admitted factual position that has emerged during the hearing is like this. Assistants, Accountants-cum-Store Keepers and Auditors were in the same pay scale even prior to the revision of pay scales of 1978. When the pay revision, effective from 1st January, 1978, took place, all the aforesaid three categories were placed in the same pay scale of 570-1080, but lateron pay scale of Assistants was further revised to 600- 1120. The Board, with a view to removing this anomaly, passed a Resolution on 16th October, 1984, and brought the pay scales of Accountant-cum-Store Keepers and Auditors on par with that of the respondents and also resolved to integrate the three posts into a common cadre. Admittedly, this was done without obtaining prior approval of the State Government, under Section 36 ibid. Pay scales of the three categories were further revised to 1800-3200, w.e.f. 1st January, 1986. This was pursuant to …6… the instructions of the Government and it is not in dispute that this pay scale of 1800-3200, in respect of all the three posts, was lawfully granted. Revision of pay scales again took place, which was effective from 1st January, 1996 and this time again the pay scales of all the three posts were revised to 5800-9200. About this revision also, there is no dispute. It has also been admitted that at the time when the promotions were made, there were no recruitment and promotion rules. Some draft rules had been drawn and submitted to the Government for approval, but they remained pending with the Government till 2nd April, 1996, when they were finalized and notified. It is also admitted by the parties that the promotion of respondent No.4 was made on adhoc basis. This promotion was made on 30th December, 1988. As already noticed, pay scales of all the three posts were revised to 1800-3200, w.e.f. 1st January, 1986. It is true that this revision had taken place subsequent to the issuance of the promotion order of respondent No.4, but the fact remains that the revision was effective from 1st January, 1986 or say prior to 30th December, 1988, when respondent No.4 was given adhoc promotion. 10. From the abovestated position, it is clear that the pay scales of the posts of Assistants, Accountants-cum-Store Keepers and Auditors had throughout been the same, except for a short span, between 1st January, 1978 and 1st January, 1986, when the pay scale of Assistants, after initially being revised to 570-1080, was further revised to 600-1120, but the pay scale of the other two categories, for some unexplained and unknown …7… reason, remained 570-1080. This anomaly was noticed by the Board of Directors of respondent No.1 and was also removed, even though without prior approval of the Government. There is nothing on the record indicating that this action of respondent No.1 in bringing the pay scales of Accountants-cum-Store Keepers and Auditors on par with that of the Assistants had been undone, even though it was contrary to the provisions of Section 36 ibid. That means, the pay scale of the three categories remained the same throughout, though for a short period this parity was brought about unauthorizedly. 11. Another fact, which emerges from the aforesaid admitted facts, is that respondent No.4 Arjun Singh was appointed in the year 1974, whereas the petitioners were appointed in the year 1980 in the same pay scale. Also, it is clear from the record that at the relevant time there were no recruitment and promotion rules and, therefore, the writ petitioners cannot claim that they alone were entitled and eligible to be considered for promotion to the higher post of Head Assistants. On being confronted with this aspect of the matter, learned counsel representing the writ petitioners has argued that the past practice had been to promote Assistants alone to the post of Head Assistant and this ought to have been followed in the absence of rules. This submission does not change the factual aspect of the matter that rules were not there and promotions were being made only on adhoc basis, even prior to the impugned promotion of respondent No.4. Promotion of respondent No.4 was also on adhoc basis and probably it was …8… because of the reason that rules were not there. Admittedly, rules were framed and notified in April 1996 and, according to those rules, a common cadre of Assistants, Accountants-cum- Store Keepers and Auditors has been created and the officials manning this cadre are eligible for promotion to the cadre of Head Assistants. 12. Taking into account the abovestated position as also the fact that respondent No.4 has since retired and the writ petitioners have now been promoted to the higher posts of Superintendents Grade I and II, we feel that no injustice has been caused to the writ petitioners, on account of promotion of respondent No.4 to the post of Head Assistant. Respondent No.4, admittedly, had been in the same pay scale, as the petitioners, more than six years, when he was given the impugned adhoc promotion and, therefore, even on the basis of equity writ petitioners cannot have any grievance. 13. For the foregoing reasons, writ petition is dismissed. ( R.B. Misra ), J. September 15, 2008(sd) ( Surjit Singh ), J.