IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 5761/2008 Decided on:5.10.2010 _____________________________________________ Jyoti Swaroop. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. S.R. Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General with Mr. R.P. Singh, Asstt. Advocate General. _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Material facts necessary for the adjudication of this petition are that petitioner started getting pay at Rs. 276/- with effect from 1.2.1975 in the old pay scale of Rs. 220-8- 300/10-400/20-500. The next date of increment of the petitioner was 1.2.1976. However, on the basis of Annexure A-2 dated 15.3.1997, the pay of the petitioner was revised and he was fixed at Rs. 280/- in the new pay scale of Rs. 220- 12-340/15-400/20-500. Orders to this effect were passed on 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 30.7.1998. However, his next date of increment was fixed as 1.7.1976 instead of 1.2.1976. Petitioner made representation on 1.9.1998 to the competent authority that his next date of increment should be fixed as 1.2.1976 instead of 1.7.1976. His representation was forwarded by the Principal of the Senior Secondary School to the Secretary (Education). The same was rejected by the Secretary (Education) on 28.10.1998. Petitioner retired from service on 31.1.1999. 2. Mr. S.R. Sharma has strenuously argued that the action of the respondents to fix the next date of increment of the petitioner as 1.7.1976 instead of 1.2.1976 is illegal, arbitrary, unconstitutional and thus violative of Articles 14 and 16 of the Constitution of India. According to him, respondents have not taken into consideration instruction No.1 issued below FR 22 and the audit instructions issued on the subject. 3. Mr. P.M. Negi, learned Deputy Advocate General has justified the next date of increment, i.e. 1.7.1976 instead of 1.2.1976. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. It is evident from Annexure A-1 that the petitioner’s pay was to be fixed as per instruction No.1 issued 3 below FR 22. Petitioner’s next date of increment was fixed as 1.2.1976 in the old scale. However, on the basis of Annexure A-2, the date of increment was changed from 1.2.1976 to 1.7.1976 though his pay was fixed at Rs. 280/- in the revised pay scale of Rs. 220-12-340/15-400/20-500. The respondents while re-fixing the pay scale of the petitioner on the basis of Annexure A-2 have over looked the audit instructions issued below FR 22. The representation made by the petitioner has been rejected without due application of mind on 28.10.1998. Respondents could not arbitrarily fix the next date of increment of the petitioner as per Annexure A-3 with effect from 1.7.1976 instead of 1.2.1976. Petitioner has lost increment for the period of five months that too with cascading effect. In fact, the petitioner has highlighted this fact in his representation. In case the next date of increment had been fixed as on 1.2.1976, his pay ought to have been fixed at Rs. 292/- instead of Rs. 280. Respondents have also over looked that the pay scale of Rs. 276/- granted to the petitioner as on 1.2.1975 was intermediate between two stages in the new pay scale. Respondents have not granted the benefits to the petitioner for five months with effect from 1.2.1976 to 1.7.1976 for the purpose of increment. This has also caused monetary hardship to the petitioner at the time of 4 revision of next pay scale revised with effect from 1.1.1996. In case the petitioner’s pay had been fixed with effect from 1.2.1976 he would have started getting higher pay. Moreover, the petitioner has not been heard before the decision was taken by the respondents to alter the date of next increment from 1.2.1976 to 1.7.1976. 6. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Jagdish Pandey and others, 2010 (6) Scale 651 have held that pay scale is a legitimate right of an employee and except for valid and proper reasons it cannot be varied. Their Lordships have held as under: “8. The respondents in the present appeal had challenged the validity of the above order before the Tribunal on various grounds including that they have always been placed at parity with the goods driver, they have been given similar scales and there was no reason, whatsoever, for altering the pay scale to the prejudice of the respondents, which was in force for a considerable time. It will be useful for us to notice the findings recorded by the Tribunal. In paragraph 8 of its judgment the Tribunal noticed that both the parties have not placed on record any material to indicate as to what was the pay scale provided for the TWDs pursuant to the various Pay Commission Reports. The Tribunal specifically noticed and recorded the finding that for the last 40 years, i.e. right from 1959 the respondents were being paid the same pay scale as goods drivers. There was no disparity of pay scales between TWDs and goods drivers after Union of 5 India and Railways had accepted recommendations of the IInd, IIIrd, IVth and even of Vth Pay Commissions. The Tribunal also specifically noticed vague denials of the Union of India and that such denials were hardly substantiated by any cogent material. Reliance was placed upon the judgment of the Calcutta High Court in relation to the grant of running allowance. In that Writ Petition, the only dispute raised by the parties related to the grant of running allowance and the Union of India did not raise the issue of disparity in pay scale. This order of the High Court had attained finality. We have already referred to the findings recorded by the Tribunal where it is specifically noticed that after acceptance of Vth Pay Commission Report by the Government, TWDs were given the salary in the pay scale of Rs. 5000- 8000 w.e.f. 1.1.1996 and in the letter dated 15.4.1993 the concerned authorities noticed the disparity created even between the TWDs i.e. in Sealdah division out of 32 TWDs, 24 were getting pay scale of Rs. 1350-2200 (unrevised) and remaining 8 were getting the pay scale of Rs. 1320- 2040 and it directed a uniform pay scale of Rs. 1350-2200 should be given to all the TWDs. Another reason that weighed with the Tribunal was that no material has been produced to show as to what were the reasons or material on the basis of which the authorities had decided to discontinue the pay scale of Rs. 1350-2200 to these respondents. The above reasoning and discussion in the order of the Tribunal clearly shows that the action on the face of it was arbitrary. This order of the Tribunal was confirmed by the High Court and the respondents made no effort to place anything on record to show that they were different and distinct classes and were entitled to receive different pay scales. Even in the order dated 9th August, 2002 the Tribunal specifically noticed that it was not even averted that eligibility criteria for the post of TWDs was different than that for the goods driver and 6 their duties were substantially different. In other words, either before the Tribunal or before the High Court the Union of India never pleaded the essential basis for justifying payment of different pay scales to two categories of drivers i.e. TWDs on the one hand and goods train drivers on the other. There has to be a substantial difference in method of recruitment, eligibility, duties and responsibilities before substantial disparity in scale can be justified. As far as recording of finding of facts is concerned, factual disputes can hardly be raised before this Court and in any case for the first time. Despite this the Union of India has failed to place any material to substantiate its decision before the Forum/Courts. The judgment of the Calcutta High Court, in relation to running allowances, has attained finality. At that time no other issue was raised by Union of India that they are different and distinct posts with different pay scales and as such identical running allowances could not be paid. In fact, the judgment of the Calcutta High Court has duly been implemented now for years together without objection. Not only this, same pay scale as that of the goods train driver has been paid to these respondents for years and there appears to be no justification on record for unilateral withdrawal of such a scale. Pay scale is a legitimate right of an employee and except for valid and proper reasons it cannot be varied, that only in accordance with law. None of these justifiable reasons exist in the present case. The impugned order itself does not give any reason. The expression `erroneously' used in the order can hardly justify withdrawal of such an existing right.” 7. In view of the observations made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. Annexures 7 A-3 dated 30.7.1998, A-5 dated 28.10.1998 and A-6 dated 17.2.1999 are quashed and set aside. Respondents are directed to fix the date of increment of the petitioner in the revised pay scale as on 1.2.1976 at Rs. 292/- instead of 1.7.1976 with all the consequential benefits. Needful be done within a period of two months from the date of production of certified copy of this judgment by the petitioner. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 5.10.2010 *awasthi*