IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 10324/2008 alongwith CWPs (T) No. 10329 and 10484 of 2008 Reserved on: 27.4.2011 Decided on: 05.05.2011 _____________________________________________ 1. CWP (T) No. 10324/2008 P.L. Gupta. …Petitioner. Versus H.P.S.E.B and another. …Respondents. 2. CWP (T) No. 10329/2008 P.L. Sharma. …Petitioner. Versus H.P.S.E.B and another. …Respondents. 3. CWP (T) No. 10484/2008 L.D. Gupta. …Petitioner. Versus H.P.S.E.B and another. …Respondents. ______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes (in all the petitions) For the petitioner : Mr. Raman Sethi, Advocate. For the Respondents: Mrs. Anjula Khajuria, Advocate. ___________________________________________________ Justice Rajiv Sharma, Judge. Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 However, in order to maintain the clarity, the facts of CWP (T) No. 10484/2008 are being taken into consideration. 2. Petitioner L.D. Sharma was inducted into S.A.S. in the respondent-Board on 27.2.1984. Respondent-Board has framed a Scheme dated 31.1.1991 called “Time Bound Benefit of Promotional Scales”. Petitioner was promoted to the post of Accounts Officer on 29.7.1992. He was granted second time bound promotional scale of ` 10350-14900 on 22.12.2000 with effect from 27.2.2000 vide Annexure R-2. He made a representation on 4.5.2002 seeking stepping up of pay vis-à-vis Sh. Jagat Ram Sharma, who was junior to him. The Representation made by the petitioner was favourably considered and his pay was stepped up on 9.4.2003 with effect from 8.11.1996 vide Annexure R-5. His pay was also re-fixed vide Annexure A-3 on 28.4.2003. The Chief Accounts Officer of the respondent-Board took up the matter with the Secretary of the respondent-Board seeking clarification with regard to second time bound promotional scale to Accounts Officers after stepping up of their pay at par with their juniors under the provisions of F.R. 27 vide letter dated 19.6.2003 (Annexure R-6). The Secretary of the respondent-Board vide Annexure A-4 dated 18.7.2003 clarified that senior officers are not entitled for their placement in the 2nd time bound 3 promotional scale on completion of 16 years of service on a later date since they have availed the benefit of F.R. Petitioner made a representation against Annexure A-4 dated 18.7.2003 alongwith a copy of letter dated 12.12.1996. The Chief Accounts Officer again took up the matter with the Secretary of the respondent-Board on 7.10.2003 vide Annexure R-7. The text of letter dated 7.10.2003 reads thus: “Please refer to your office letter No.HPSEB (Sectt)/Scale- 1-1/03-39118-19 dated 18.7.03 on the subject cited above. In this context it is pointed out that the benefit of time bound promotional scale on completion of 9/16 and 23 years of service under the scheme introduced vide your office order No.12 dated 31.1.1991 to their senior incumbents after stepping up of their pay equal to the pay of their junior, who had availed the benefit of promotional scale scheme was also contested by this Wing prior to the issuance of clarification vide your office letter No. HPSEB (Sectt)/6-68/96-134652 dated 12.12.96, but at that point of time the stand taken by this Wing was not agreed to by your office. On receipt of clarification dated 12.12.96, this office had fixed and vetted the pay in a number of cases in consonance with the above referred clarification in whose cases the pay was stepped up equal to the pay of their junior’s by allowing the benefit under the time bound promotional scale scheme. Now your office has issued clarification vide letter dated 18.7.2003 referred to above contrary to the stand taken earlier by your office vide letter dated 12.12.1996. The position with a detail background was put up to the Member (F&A) on a separate file by this office and observed as under:- 4 “Discussed, we may write to the Secretary to review the clarification dated 18.7.2003 to maintain uniformity in implementation of the promotional scheme.” You are, therefore, requested to take further action at your earlier possible so as to fix the pay of the effected officers accordingly.” 3. The Secretary of the respondent-Board did not revoke the earlier order dated 18.7.2003 vide letter 22.1.2004. In sequel to clarification dated 18.7.2003 and 22.1.2004, pay of the petitioner was re-fixed on 11.2.2004 vide Annexure A-8 to his detriment. 4. Petitioners, namely, Sh. P.L. Sharma and P.L. Gupta had also been granted the benefit of stepping up and their pay was also re-fixed on 28.4.2003 and the same has been re-fixed after the decision dated 18.7.2003 and 22.1.2004 on 21.2.2004 and 11.9.2003, respectively. 5. Mr. Raman Sethi has strenuously argued that his clients were rightly granted the second time bound promotional scale and the same could not be withdrawn after the pay was stepped up on 9.4.2003 to their detriment. He further argued that his clients were entitled to second time bound promotional scale as per Annexure A-1 dated 31.1.1991. According to him, there was no distinction between various Department/Wing of the respondent-Board, i.e. Ministerial/Technical or Financial. He also contended that 5 the similarly situate persons have been granted the benefits on the basis of letter dated 12.12.1996 (Annexure A-6). He also contended that the matter had been taken up by the Chief Accounts Officer with the Secretary of the respondent- Board on 7.10.2003 by specifically referring to letter dated 12.12.1996 but despite that earlier order dated 18.7.2003 was not revoked. He lastly contended that the petitioners have not been heard before the decision was taken to re-fix their pay. 6. Mrs. Anjula Khajuria has vehemently argued that since the petitioners had been granted the benefit of F.R. 27 by stepping up their pay, they were not entitled to second time bound promotional benefit. In other words, she has justified the re-fixation of pay of the petitioners. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. It is not in dispute that the petitioners were entitled to second time bound promotional scale after completion of 16 years. In fact, they had been granted the time bound promotional scale as per Annexure R-2 on 22.12.2000 with effect from 22.2.2000 and they were put in the pay scale of Rs. 10350-14900. It is also not in dispute that one Sh. Jagat Ram Sharma was junior to the petitioners 6 but he was getting higher pay. In view of this, the petitioners made representations for stepping up of their pay. The same was acceded to and a conscious decision was taken to step up their pay vide letter dated 9.4.2003 with effect from 8.11.1996. Their pay was re-fixed on 28.4.2003. Surprisingly, despite the conscious decision, Chief Accounts Officer vide Annexure R-6 raised objection, which led to issuance of Annexure A-4 dated 18.7.2003. Petitioners made detailed representation to the Secretary of the respondent- Board by highlighting letter dated 12.12.1996 whereby similarly situate persons, whose pay was stepped up, had been granted the benefit of the Scheme framed on 31.1.1991. It is also evident from the contents of Annexure R-7 dated 7.10.2003 that the Chief Accounts Officer had taken up the matter with the Secretary of the respondent-Board by specifically referring to letter dated 12.12.1996. However, as noticed above, the Secretary of the respondent-Board refused to modify the decision vide letter dated 22.1.2004 (Annexure A-7). There is no mention in Annexure A-7 about the earlier decision taken vide letter dated 12.12.1996. The Secretary of the respondent-Board has only mentioned that the matter was re-examined in consultation with the F&A Wing of the Board 7 and it was decided that the clarification issued on 18.7.2003 was in order. 9. It is evident from the facts enumerated hereinabove that in the respondent-Board different decisions have been taken qua similarly situate persons. Some of the incumbents have been given the benefit on the basis of letter dated 12.12.1996, as is evident from the contents of letter dated 7.10.2003, however, the petitioners have not been given similar treatment though their cases had been taken by the Chief Accounts Officer with the Secretary of the respondent-Board. 10. Mrs. Anjula Khajuria has failed to substantiate that there was any distinction in various categories of employees for the purpose of implementation of Annexure A- 1. The Scheme was integral and was required to be implemented uniformly to all the employees. There was no distinction in the various categories of employees for the implementation of the Scheme. The wholesome principle of the Scheme dated 31.1.1991 was to remove the stagnation in order to improve the efficiency in public service. Merely that the petitioners have been granted stepping up, second time bound promotional scale granted to them on 22.12.2000 could not be withdrawn. Petitioners have drawn second time bound 8 promotional scale on the basis of their qualifying service of 16 years, as per Scheme. However, since they were drawing less pay than Sh. Jagat Ram Sharma, they had rightly made representation, which was acceded to by stepping up their pay vide letter dated 9.4.2003 with effect from 8.11.1996. Stepping up of pay could not result in denial of second time bound promotional scale to the petitioners. Consequently, Annexure A-4 dated 18.7.2003 and A-7 dated 22.1.2004 are purely and surely arbitrary. 11. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “20. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 9 12. It is settled law by now that senior cannot be paid lesser salary than his junior. Their Lordship of the Hon’ble Supreme Court in Er. Gurcharan Singh Grewal and another versus Punjab State Electricity Board and others, 2009 (1) Scale 535 have held as under: “17. Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be said lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2” 13. The matter is required to be considered from another angle. The pay of the petitioners was re-fixed after giving them stepping up on 28.4.2003. Petitioners started drawing higher pay on the basis of re-fixation of their pay on 28.4.2003. However, the same has been reduced on 11.9.2003 and 11.2.2004 to their detriment. Admittedly, the petitioners have not been heard before the decision was taken to re-fix their salary on the basis of Annexure A-8. They have suffered civil and evil consequences. They were required to be heard before the decision to revise their pay was taken to 10 their detriment. Petitioners have neither misled nor misrepresented the facts at the time when they were granted second time bound promotional scale and also their pay was stepped up on 9.4.2003. A conscious decision had been taken by the respondent-Board to grant these benefits to the petitioners. It has been stated in the reply that on the basis of Annexure A-8, the recoveries are liable to be effected from the salary of the petitioners. This is not permissible under law without hearing the petitioners. 14. It is also evident from the contents of rejoinder filed to the reply filed by the respondents that similarly situate persons, namely, Sh. O.P. Garg, Sh. Puran Chand, Sh. T.R. Gupta and Sh. Anant Ram have been granted second time bound promotional scale on completion of 9/16 years though their pay was also stepped up. Thus, the petitioners have been discriminated against. If the persons, as noticed above, have been granted stepping up and have also been granted second time bound promotional scale, the petitioners are also liable to be treated similarly. 15. Accordingly, in view of the observations and discussions made hereinabove, the petitions are allowed. Annexures A-4 dated 18.7.2003, A-7 dated 22.1.2004 and A-8 (dated 11.9.2003 in petition No.10324/2008 and dated 11 21.2.2004 in petitions No. 10329/2008 and 10484/2008) are quashed and set aside. Order dated 28.4.2003, i.e. Annexure A-3 is restored. Petitioners’ Pensionary/retiral benefits are directed to be worked out on the basis of Annexure A-3 dated 28.4.2003. No costs. (Justice Rajiv Sharma), Judge. May 05, 2011 *awasthi*