CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 06, 2009 Dr.K.L.Kumar and others .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Puneet Bali, Advocate, for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Number of petitioners in these different petitions have approached this Court with the common grievance regarding wrong re-fixation of their pay in the scale of Rs.12000-16500/- with effect from 1.1.1996 in the revised pay scale. As per the petitioners, they are entitled to the pay scale of Rs.13500-17250/-. All the petitioners have retired from service. After re-fixation of their pay, recovery of the excess amount has also been ordered. Necessary facts to pass this order have been taken from Civil Writ Petition No.10506 of 2002 (Dr.K.L.Kumar and others Vs. CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 2 }: State of Haryana and others). Through this order Civil Writ Petition Nos.8661 of 2002 (Dr.O.P.Satija and others Vs. State of Haryana and others), 11221 of 2002 (Dr.Dharam Pal Singh and others Vs. State of Haryana and others), 11561 of 2002 (Dr.Balbir Singh Bains and others Vs. State of Haryana and others), 12391 of 2002 (Dr.Tilak Raj Aneja Vs. State of Haryana and others), 12845 of 2002 (Dr.J.P.Bansal and others Vs. State of Haryana and others), 17512 of 2002 (Dr.R.S.Panghal Vs. State of Haryana and others), 17884 of 2002 (Dr.Nawal Singh Yadav and others Vs. State of Haryana and others), 1698 of 2005 (Dr.M.L.Gupta and others Vs. State of Haryana and others) and 11367 of 2005 (G.P.Grover Vs. State of Haryana and others) will also be disposed of. The petitioners in these cases had joined the service as Veterinary Assistant Surgeons. Dr.K.L.Kumar (Petitioner No.1) joined the service as Veterinary Assistant Surgeon on 20.6.1961. Similarly, other petitioners in this writ petition as well as in the other writ petitions joined the service as Veterinary Assistant Surgeon on different dates in the Animal Husbandry Department, Haryana. In due course of their service career, the petitioners were promoted to higher posts of Assistant Director, Deputy Director and then Joint Director. As averred in the writ petitions, 20% of the posts of Veterinary Surgeons were converted to selection grade posts with effect from 1.4.1992. Their un-revised selection grade pay was Rs.4100-5300. 20% out of the Surgeons accordingly were entitled to draw the pay in this selection grade pay subject to the condition of CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 3 }: completion of 12 years of satisfactory service in the cadre. The Government issued notification on 7.1.1998 to revise the pay scale of Veterinary Surgeons with effect from 1.1.1996 on the basis of recommendation of 5th Pay Commission. 5th Pay Commission also gave higher pay scales corresponding to the earlier available pay scales. The case set up by the petitioners is that the selection grade, which was granted to them in the scale of Rs.4100-5300 would correspond to the revised pay scale of Rs.13500-375-17250/-. This schedule containing details of corresponding pay scale is annexed with the petition as Annexure P-3. Reference is also made to a letter dated 14.9.1998, Annexure P-4, through which it is clarified that wherever the selection grade existed in the pre-revised pay scale, then the same would carry selection grade in the revised pay scale. It is on the basis of this clarification that the petitioners were granted the revised pay scale of Rs.13500-17250 with effect from 1.1.1996. Like the petitioners, one Dr.M.P.Mohla, who was working as a Deputy Director in the same Department, was also granted the pay scale of Rs.4100-5300, being part of 20% vacancies ear-marked for selection grade. Though he was granted this pay scale but upon promotion as Deputy Director with effect from 29.3.1996, his scale was reduced to Rs.3000-4500. Aggrieved against the same, he filed a Civil Writ Petition No.9071 of 1999 before this Court on the ground that he was already drawing higher pay scale of Rs.Rs.4100-5300 even before his promotion as Deputy Director and, thus, his pay could not be reduced to Rs.3000-4500. Initially, in the written statement filed in the case of Dr.M.P.Mohla, the State conceded that Dr.Mohla had been fixed in the pay scale of Rs.13500-17250 being CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 4 }: the corresponding pay scale of Rs.4100-5300. On the basis of this stand, the writ petition filed by Dr.M.P.Mohla was allowed. State still filed Special Leave Petition against this order, which was dismissed by the Hon'ble Supreme Court. After dismissal of the Special Leave Petition, review petition was filed by the State to seek review of the order passed in Civil Writ Petition No.9071 of 1999. The review was sought on the ground that written statement filed earlier was by mistake and wrong reading of the provisions. It was sought to be contended that case of Dr.M.P.Mohla was governed by Haryana Civil Services (Assurance Career Progression) Rules, 1998 (for short, “ACP Rules”) and not by the revised Rules. Reference in this regard was made to the ACP Rules and on the basis thereof it was contended that ACP scale was required to be granted to the Veterinary Surgeons, who completed five years regular satisfactory service in the cadre. Such officers accordingly were required to be granted second ACP scale of Rs.12000-375-16500 after 11 years of regular service. On this basis, it was pleaded in the review application that pay scale of Dr.M.P.Mohla was required to be fixed in the scale of Rs.12000-375-16500 in accordance with the ACP Rules and was not required to be fixed as per the revised pay Rules. The Division Bench considered the submissions made on behalf of the State in detail and by a well reasoned order dismissed the review application filed by the State on 11.5.2004. It may need a notice that while deciding this writ petition, initially the Division Bench culled out a neat question of law, which arose for consideration before this Court in the case of Dr.M.P.Mohla. Could the pay scale be reduced on promotion was the CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 5 }: question which the Court posed in this case. Court observed that normally a person on promotion would either be given same pay scale or higher scale as otherwise junior would start getting more pay who might have been ignored for promotion. The logic adopted by the respondents was not only termed as illogical but arbitrary as well. The writ petition was accordingly accepted. The review petition was dismissed with observation that the order under review did not suffer from any ambiguity or error apparent warranting its review/modification. Against this order rejecting the review, the State again filed a Special Leave Petition, which came to be decided by the Supreme Court on November 10, 2006. The Hon'ble Supreme Court, however, again dismissed the S.L.P primarily on the ground that the review, as sought by the State, could not be entertained. The judgement is reported as State of Haryana and others Vs. M.P.Mohla, (2007) 1 Supreme Court Cases 457. While dismissing the S.L.P, the Hon'ble Supreme Court made some observations, which may need a notice and are as under:- “22. We, as at present advised, do not intend to go into the question as to whether the Revised Pay Rules or the ACP Rules will apply in the case of the respondent. The dispute between the parties has to be decided in accordance with law. What, however, cannot be denied or disputed is that a dispute between the parties once adjudicated must reach its logical conclusion. If a specific question which was not raised and which had not been decided by the High Court the same would not debar a party to agitate the same at an appropriate stage, subject, CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 6 }: of course, to the applicability of principles of res judicata or constructive res judicata. 23. It is also trite that if a subsequent cause of action has arisen in the matter of implementation of a judgment a fresh writ petition may be filed, as a fresh cause of action has arisen. 35. We, therefore, are of the opinion that this appeal has no merit and, thus, must be dismissed accordingly. However, the question as regards applicability of one or the other rules if arises in future, the same has to be determined on its own merit in accordance with law and having regard to the fact situation obtaining in each case. In the facts and circumstances of this case, there shall be no order as to costs.” Thus, the order passed by the Division Bench of this Court in the case of Dr.M.P.Mohla (supra) has been implemented. The petitioners, being similarly situated to Dr.M.P.Mohla, have also filed these writ petitions to seek fixation of their pay in the revised scale of Rs.13500-17250. It appears that the trouble arose for the petitioners when Financial Commissioner and Secretary to Haryana Government, Finance Department, issued a clarification on the basis of which placement pay scale of Rs.13500-17250 was granted to the petitioners. On this basis, their pension papers were also prepared and gratuity and other benefits like leave encashment due were released. It is only after 6 to 7 years of having continuously drawn their pension and other benefits that a notice was issued to the CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 7 }: petitioner that the scale of Rs.13500-17250 with effect from 1.1.1996 was erroneously fixed. As per the notice, the pay was required to be fixed in the scale of Rs.12000-16500, which is the actual correspondent scale of Rs.4100-5300 selection grade. The petitioners were also asked to show cause as to why recovery of the excess payment be not made. The petitioners submitted their explanation and pointed out to the admission made by the respondents in the written statement filed in the case of Dr.M.P.Mohla (Supra), while filing response to notice in Civil Writ Petition No.9071 of 1999. Despite this position, which had even been settled by the decision of this Court, the respondents passed an order re-fixing the pay of the petitioners in the scale of Rs.12000- 16500 with effect from 1.1.1996. A recovery of nearly Rs.1.5 lacs excess payment was also ordered. It is pointed out that the scale of Rs.12000-16500 is not exceeding in the corresponding scale in the revised pay scale and that the corresponding pay scale of unrevised pay scale of Rs.4100-5300 was Rs.13500-17250/-. The fixation of their pay accordingly was impugned through the present writ petitions. The respondents have filed reply where the action in fixing the pay of the petitioners in the pay scale of Rs.12000-16500 with effect from 1.1.1996 is justified. The claim made by the petitioners is termed as misconceived and it is stated that pay scale of veterinary cadre, to which the petitioners belonged, has been rightly fixed. The respondents would make reference to the Veterinary Surgeons working in the cadre of Joint Director, who would be entitled to second assured progression scale of Rs.12000- CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 8 }: 16500 limited to 20% of the total cadre posts. On this basis, it is stated that this scale is the placement scale of Rs.4100-5300 under the provisions of ACP Rules, which would apply to the case of the petitioners. On this basis, the pay fixation of the petitioners is justified. The controversy involved in this writ petition accordingly is short and crisp. The petitioners would contend that they were all such persons working in the Animal Husbandry Department, who had been granted selection grade scale entitled to 20% of the posts in the cadre. By making reference to the selection grade in the unrevised scale, which was Rs.4100-5300, the petitioners would seek fixation of their pay in the revised scale corresponding to this selection grade scale. The respondents, however, would contest this. Rather Mr.Rathee has made a very valiant attempt to justify the fixation of pay of the petitioners in the scale of Rs.12000-16500, being a scale which is entitled to those 20% of the posts in the selection grade. The justifications offered by Mr.Rathee proceeds on the basis that the functional pay scale of the petitioners would correspond to the revised pay scale of Rs.12000-16500 and accordingly they were required to be fixed in the scale. On this the counsel for the petitioner would join issue with State counsel and would say that the selection grade scale, which was granted to the petitioners, could not be ignored while fixing the pay in the revised scale. In fact, Annexure P- 4 says so in so very clear terms that selection grade is required to be kept in view while fixing the revised pay scale. Counsel for the petitioners has drawn my attention to the Haryana Gazette notification dated 7.1.1998 and would point out to a particular entry CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 9 }: at Sr.No.23 where the existing pay scale in Haryana of Rs.4100-125- 4850-150-5300 is replaced by the scale of Rs.13500-375-17250. Not only that, the petitioners would rely upon the case of Dr.M.P.Mohla (supra), who was also working in the same cadre and was identically placed. Counsel would contend that there is no reason to distinguish the case of Dr.M.P.Mohla from that of the petitioners. Rather, the petitioners would claim to be on better footing on the ground that Dr.M.P.Mohla was the junior-most officer in the Department and if he is said to be rightly fixed in the scale of Rs.13500-17250, the same could not be denied to the petitioners. Once the issue of functional pay scale was raised by Mr.Rathee to justify the fixation of scale of the petitioners in Rs.12000-16500, he was asked to answer as to what is the selection grade scale in the revised pay scale now provided. On proper instructions, Mr.Rathee states that there is no separate selection grade now available in the revised pay scale and this scale has been merged in the functional pay in the revised scale. That being the position, the functional pay scale now available in the revised scale is to be the one which is corresponding to the scale, which had been allowed to the petitioners in the unrevised pay scale. It is not a matter of dispute that the petitioners were rightly fixed in the pay scale of Rs.4100-5300 in the un-revised pay scale. Whether it was a selection grade or otherwise, their revised scale is now to be fixed by taking this scale into consideration. This would be so, when now there is no selection grade provided under the new revised scale. It is only the functional pay scale now available in the revised scale. A simple method to fix their scale now is to see the corresponding scale CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 10 }: available to the un-revised scale drawn by the petitioners. As per the entry in the Gazette notification referred to above, the pay scale of Rs.4100-5300 is is now replaced by Rs.13500-17250. The submission that ACP Rules are to apply to the case of the petitioners would not appear sound. The petitioners are the one who were fixed in the scale on the basis of their promotion as Joint Director. Not only that, their pay had been fixed in the selection grade, which is available only to 20% of the posts existing in the cadre. Once they had been considered and granted promotion or the selection grade, obviously they would not be governed by the ACP Rules. Assured Career Progression basically is to take care of the situation where the one is not able to earn a promotion in the normal course of his service career. Accordingly, the plea that ACP Rules would be applicable to the case of the petitioners can not be accepted. Since there is no selection grade now available, the pay of the petitioners required to be fixed by taking into consideration the scale drawn by them in the un-revised pay scale. This un-revised pay scale clearly is now revised to Rs.13000-17250. This was perhaps the reason for the respondents to take this stand in the case of Dr.M.P.Mohla (supra). This would be an added reason not to distinguish the case of the petitioners in any manner as is being sought to be done. Similarly situated person in the Department has been allowed a scale, which has been up-held upto the Hon'ble Supreme Court. It would not be fair to treat the petitioners in any different manner. In any case, the case set up by the petitioners is not only based on being equated with the decision in the case of Dr.M.P.Mohla (supra) but is also based on the merits in the writ CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 11 }: petitions. The submission made on behalf of the State the judgment of the Supreme Court would not be of any help to the petitioners in view of the observations made in Para 35 of the judgement as reproduced above would also not make much difference. The decision rendered by the Division Bench of this Court in the case of Dr.M.P.Mohla (supra) was taken before the Supreme Court on two occasions. Initially, when the writ petition was allowed, the order was challenged by filing SLP, which was dismissed. Thereafter the review was sought, which was again impugned by filing the Special Leave Petition. The order passed by the Hon'ble Supreme court while dismissing the Special Leave Petition against the order dated 4.12.2000, initially passed by the Division Bench is not placed before me. Obviously, there are no observations in the said order while dismissing the S.L.P that it would not apply to the cases of similarly situated persons. Even on merits, the petitioners have been able to make good their pleas. The respondents have not been able to substantiate the plea that ACP Rules would apply for fixing the pay scale of the petitioner. Once the functional pay scale corresponding to the selection grade pay scale drawn by the petitioners is provided in the revised pay scale, it would be fair to fix the pay scale of the petitioners in the said scale, which was done but is sought to be undone. I am of the considered opinion that the petitioners have made out a case for fixing their pay scale in the scale of Rs.13000- 17250. Accordingly, the writ petitions are allowed. Order, Annexure P-1 (in CWP No.10506 of 2002) and the similar impugned orders in the connected writ petitions whereby the pay of the CIVIL WRIT PETITION NO.10506 OF 2002 (O&M) :{ 12 }: petitioners was fixed in the pay scale of Rs.12000-16500 are set- aside. The order fixing the pay of the petitioners in the scale of Rs.13000-17250 as was earlier done shall stand and is up-held. The recovery ordered against the petitioners shall also be quashed. There shall, however, be no order as to costs. Any amount with-held in case of any of the petitioner shall be released within a period of three months from the date of receipt of copy of the order. October 06, 2009 ( RANJIT SINGH ) khurmi JUDGE