IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 593 /2005 Reserved on:9.5.2008 Decided on.:6.6.2008 Kapil Vaid. …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Rajnish Maniktala, Advocate. For the respondents : Mr. Rajinder Dogra, Additional Advocate General for respondents No. 1 and 2. Mr. K. D. Sood, Advocate for respondents No.3 & 4. Rajiv Sharma, J. The brief facts necessary for the disposal of the writ petition are that the petitioner was appointed as Lecturer (Mathematics) in respondent-college on 10th August, 1984. He was granted the senior scale on 10th August, 1991. The selection grade was granted to him with effect from 27.7.1998. He submitted representation after the completion of five years for the grant of selection grade. The case of the petitioner was recommended by the Principal of the respondent-college on 2nd August, 2003. He submitted two reminders dated 14.11.2003 and 12.3.2004 for fixing his pay at Rs. 14,940/- in the pay scale of Rs. 12,000- 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 18,300/-. The Joint Controller (F&A) of the Directorate of Education informed the Principal of the respondent-college on 23rd September, 2004 that the matter under reference had already been taken up with the Government and further directions were awaited. He submitted his representation to the Director Education through the Principal on 22nd December, 2004. The pay of one Sh. Dharuv Kumar, Lecturer was fixed at Rs. 14,940/- vide office order dated 8.10.2002. In case of the S.C. Khitta, Lecturer (Botany), DAV College Kangra, his pay was also fixed at Rs. 14,940/- in the pay scale of Rs. 12,000-18,300 vide letter dated 25.2.2004. Mr. Rajnish Maniktala, Advocate had strenuously argued that the pay of his client is to be fixed at Rs. 14,940/- in the pay scale of Rs. 12,000-18,300 since according to him, his client has completed five years after the grant of selection grade. He also contended that as per the Himachal Pradesh Aided Colleges (Security of Service of Employees) Act, 1994, his client is entitled to the same pay and other allowances and privileges as specified by the State Government. He had also drawn the attention of the Court to the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 more particularly to Rule 8 dealing with the quantum of grant-in-aid. Mr. Rajinder Dogra, Additional Advocate General had strenuously argued that though the case of the petitioner stood recommended by the Departmental Promotion Committee, his pay is to be re-fixed by the Management on the basis of letter dated 6th August, 2002. Mr. K.D. Sood, Advocate appearing on behalf of the Management had argued that the College had already recommended the case of the petitioner, but the same has not been accorded necessary permission by the State Government. 3 I have heard the learned counsel for the parties and perused the record carefully. What emerges from the fact enumerated hereinabove is that the petitioner had already completed five years service after the release of selection grade to him with effect from 27.7.1998 and his pay was to be fixed at Rs. 14,940/- in the pay scale of Rs. 12,000-18,300 with effect from 27th July, 2003. The case of the petitioner stood recommended by the Departmental Promotion Committee. It will be apt at this stage to consider the true import of rule 6 of the Himachal Pradesh Aided Colleges (Security of Service of Employees) Act, 1994, which reads thus: “The scales of pay and other allowances and privileges of the employees of a College shall be such as may, from time to time, be specified by the State Government.” It will also be pertinent at this stage to consider rule 8 of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994, which reads thus: “Quantum of the Grant-in-aid.- (a) The amount of grant- in-aid to be released to a College shall be limited to 95% of the deficit of the estimated income (as detailed under) and the expenditure likely to be incurred on payment of the salary of the approved staff (Teaching and non- teaching) during one financial year subject to adjustments of over and under payments, in accordance with the norms at which the salary is being paid to the staff in Government Colleges. The requirements of Grant-in-aid in respect of the Colleges for the ensuing year shall be submitted by each College in the form of budget to the Director of Education by 31st October (on a date notified by the Director) of each year, stating numbers of post of Principal, Lecturers (subject-wise), Superintendent, Assistant, Clerks and others and financial implications along with similar statistical data 4 for at least two previous years with reasons to justify each increase and decrease. It is evident from the bare reading of rule 8 of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 that 95% aid is to be released to the Colleges towards the payment of salary of the approved staff (Teaching and non-teaching) during one financial year subject to adjustments of over and under payments in accordance with the norms at which the salary is being paid to the staff in Government Colleges. The pay of the Lecturers’ teaching in the Government Colleges is fixed pay at Rs. 14,940/- in the pay scale of Rs. 12,000-18,300 as per the recommendations made by the University Grants Commission and adopted and followed by the State of Himachal Pradesh. The case of the petitioner as discussed hereinabove stood recommended by the Departmental Promotion Committee in accordance with law. Once the Departmental Promotion Committee has made the recommendations finding the petitioner suitable, his pay was bound to be fixed at Rs. 14,940/- in the pay scale of Rs. 12,000-18,300. It is also evident from the reply of respondents No.3 and 4 that the case of the petitioner was sent to the State Government in accordance with law and certain queries were raised by the State, which were answered by the Management. Respondents No.1 and 2 have categorically admitted in their reply that the petitioner is eligible for the pay scale of Rs. 12,000- 18,300 in the selection grade as he has completed five years of service in July, 2003. The basis of denial of the pay scale of Rs. 12,000-18,300 to the petitioner is one communication dated 6th August, 2002 whereby the grant in aid liability was frozen to the extent of Rs. 7.10 crore and it was further decided by the Government that any incremental expenditure will have to be met by the institutions by raising resources at their own level. 5 This plea raised by the respondent-State is contrary to the rule position as discussed hereinabove. The petitioner is entitled to be paid the salary as per the norms fixed for the Lecturers serving in the Government Colleges. If the Lecturers serving in the Government Colleges are entitled to be fixed in the pay scale of Rs. 12,000-18,300, there is no reason why the same scale should not be released to the petitioner and similarly situate persons, who have put in qualifying service after the receipt of selection grade. The State itself has fixed the pay of one Sh. Dharuv Kumar on 8.10.2002 at Rs. 14,940/-. This office order dated 8.10.2002 has been issued after the issuance of letter dated 6.8.2002. Similarly, in case of S.C. Khitta, Lecturer (Botany) serving in the same institution, his pay has been fixed at Rs. 14,940/- in the pay scale of Rs. 12,000-18,300 on 25.2.2004 on the basis of the judgment rendered by this Court on 25.11.2003. Sh. S.C. Khitta has been granted the pay scale of Rs. 12,000-18,300 on the basis of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 as per the contents of order dated 25.2.2004. It will be apt at this stage to reproduce the order dated 25.2.2004, which reads thus: “Sh. S.C. Khitha, Lecturer (Botany) DAV College Kangra, Himachal Pradesh has filed a Civil Writ Petition before the Hon’ble High Court of Himachal Pradesh, which was listed by the Hon’ble High Court on 25.11.2003 when the Hon’ble Court was pleased to dispose of this petition with the directions to the Director of Education Himachal Pradesh to treat this petition as a representation and decide the same within four weeks. On the directions of the Hon’ble High Court the petition of the applicant was considered and the petitioner was given opportunity of personal hearing on 9.1.2004, after the petitioner in person and going through all relevant record pertaining to the petitioner, the applicant has sought for the main relief that:- 6 The petitioner may be granted the benefit of selection grade w.e.f. 14.7.96 instead of 22.7.98. The benefit was granted to the applicant w.e.f. 14.7.96. But the applicant further demanded that when he completes five years service in the selection grade his pay may be fixed at Rs. 14940 on 14.7.2001. I have gone through the relevant record and as per grant in aid rules, notified by the Government vide its letter dated 6.5.1994 the pay of Sh. S.C. Khitha, Lecturer DAV College, Kangra is hereby fixed Rs. 14940/- on completion of five years of service in the selection grade of Rs. 12000-18300.” The other aspect which needs consideration by this Court is: Whether the rigours of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 could be diluted on the basis of letter dated 6th August, 2002 (Annexure R-1)? The answer is no. The Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 have been notified on 6th May, 1994. The petitioner and similarly situate Lecturers are getting their salaries on the basis of notification dated 6th May, 1994. These Lecturers have to be paid the salary as per the norms prescribed for the Lecturers serving in the Government Colleges. What has been prescribed and laid down by way of the Himachal Pradesh Non- Government Affiliated Colleges Grant-in-Aid Rules, 1994 duly notified could not be taken away on the basis of the communication dated 6th August, 2002. The terms and conditions of the Lecturers like the petitioner are strictly regulated under the Himachal Pradesh Aided Colleges (Security of Service of Employees) Act, 1994 read with the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 notified on 6th May, 1994. The petitioner has vested right to 7 receive his salary including release of selection grade on the basis of notification dated 12th June, 1995 read with notification dated 6th May, 1994. His right cannot be impaired on the basis of letter dated 6th August, 2002. The learned Additional Advocate General was also granted time on 18th March, 2008 by this Court to seek instructions whether the rules can be amended merely by issuance of notification dated 6th August, 2002. This position has not been explained by the learned Additional Advocate General at the time of hearing of this petition. The position which emerges from the above discussion is that: i) The petitioner is duly eligible for the release of pay scale of Rs. 12000-18300 and to get his pay fixed @ 14940/-; ii) His case was duly recommended by the Departmental Promotion Committee after he had completed five years of service after the receipt of selection grade; iii) The case of the petitioner is squarely covered under notification dated 6th May, 1994; iv) The State could not dilute the clauses of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in- Aid Rules, 1994 merely by issuing letter dated 6th August, 2002; v) In case of Sh. S.C. Khitta, Lecturer (Botany) serving in DAV College, Kangra, the Government has granted him pay scale of Rs. 12000-18300 on the basis of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 notified by the Government as is evident from the text of order dated 25.2.2004 already reproduced hereinabove. vi) Sh. Dharuv Kumar, Lecturer has also been granted pay scale of Rs. 12000-18300 on 8.10.2002 after the issuance of letter dated 6th August, 2002; vii) The petitioner and similarly situate persons vis-à-vis Sh. S.C. Khitta cannot be discriminated against for the purpose of release of selection grade of Rs. 12000- 18300. 8 Consequently, the writ petition is allowed. The respondents are directed to release the pay scale of Rs. 12000-18300 to the petitioner and fix his pay at Rs. 14940/- with effect from 27th July, 2003. The respondents are directed to undertake this exercise within a period of three weeks by ignoring letter dated 6th August, 2002. There shall be no order as to costs. June 6, 2008 (Rajiv Sharma ), J. *awasthi*