CWP No. 6867 of 1988. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 6867 of 1988. [O&M] Date of Decision: 23rd February, 2011. Om Parkash Sharma & Ors. Petitioners through Mr. Alok Jain, Advocate Versus Punjab & Haryana High Court & Anr. Respondents through Mr. R.N.Raina, Advocate for respondent No.1. Ms. Sudeepti Sharma, DAG, Punjab. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL] The petitioners who were serving as Readers on the establishment of the High Court at the relevant time, seek quashing of the Punjab Government Circular dated 29th February, 1980 [Annexure P-3] as well as the order dated 17th April, 1988 [Annexure P-5] passed by Hon'ble the Chief Justice rejecting their representation for re-fixation of their pay after protecting the 'special pay' as was being drawn by them before the Punjab Civil Service [Revised Scale of Pay] Revised Rules, 1979 came into force. [2]. The posts of Readers held by the petitioners were equated with those of Private Secretaries in the Punjab Civil Secretariat by the Government of India vide Memo dated 24th April, 1970 for the purposes of pay scale[s]. Consequent upon the said equation, the petitioners were allowed the grade of 500-900 at par with the Private Secretaries of the Punjab Civil Secretariat besides CWP No. 6867 of 1988. ::-2-:: `100/- as a 'special pay' in lieu of arduous nature of their duties. [3]. Hon'ble the Chief Justice in exercise of his powers under Article 229 of the Constitution of India framed the High Court Establishment [Appointment and Conditions of Service] Rules, 1973 and in terms of the proviso to Rule 34 thereof, Chief Justice is the competent authority to revise from time to time scales of pay and allowances of the employees of the High Court so as to bring them on par with the scales of pay and allowances which may be sanctioned by the Government of Punjab from time to time for the corresponding or comparable categories of employees. [Emphasis applied]. [4]. The pay scales of the employees of the Punjab Government came to be revised retrospectively w.e.f. 1st January, 1978 under the Punjab Civil Services [Revised Scales of Pay] Revised Rules, 1979 which were promulgated in exercise of the powers under proviso to Article 309 of the Constitution. For the purposes of fixation of pay in the corresponding revised scale, Rule 3 of these Rules defines the phrases like, 'basic pay', 'existing scale', 'existing emoluments' and 'special pay' etc., to the following effect:- “[b] 'basic pay' means pay as defined in rule 2.44[a][i] of the Punjab Civil Services Rules, Volume I, Part I; [c] 'existing scale' means the scale of pay of a Government employee in respect of the post held by him in substantive or officiating capacity on the appointed day; [d] 'existing emoluments' means aggregate of – [i] basic pay of a Government employee in the existing scale on the appointed day; [ii] Dearness allowance, dearness pay, additional relief, CWP No. 6867 of 1988. ::-3-:: additional dearness allowance sanctioned up to 12 monthly average consumer price index – 320 [1960=100] i.e. Up to and including the installment of additional dearness allowance sanctioned with effect from the first day of January, 1978. [iii] ad hoc pay, if any, where such ad hoc pay is abolished with effect from the appointed day; and [iv] special pay or part of special pay, if any, which was granted in lieu of a higher time scale and has been abolished as a separate component in the revised scale with effect from the appointed day”. [Emphasis applied] [e] 'revised pay' means basic pay of a Government employee in the revised scale appropriate to the existing emoluments; [f] 'revised scale' means the scale of pay specified for a post as the revised scale in Schedule 'B', 'C' and as spelt out in detail in Schedule 'A'”. [5]. The pay of the petitioners in lieu of the pre-revised pay scale of 500-900 was required to be fixed in the corresponding revised scale of 825-1580 [time scale] and 1200-1700 [selection grade @20%]. The petitioners' case is that their basic pay was initially fixed correctly at `1080/- and so was done in the case of the Superintendents of the High Court who were also placed in the revised pay scale of 825-1580. The basic pay of the petitioners was subsequently re-fixed and reduced to `1000/- on receipt of the impugned 'clarification' from the Punjab Finance Department suggesting that the element of 'special pay' was to be excluded while fixing the 'basic pay' in the revised scale of pay. The petitioners represented but their claim having been turned down that they have approached this Court. [6]. The only question that requires determination is as to CWP No. 6867 of 1988. ::-4-:: whether or not the 'special pay' of `100/- drawn by the petitioners in the pre-revised pay scale in lieu of the arduous nature of duties being performed by them, was liable to be excluded for the purposes of fixation of their basic pay in the revised pay scale of 825-1580? [7]. The expression 'special pay' has got two distinct ingredients, namely, the one expressly contained in the 1979 pay revision Rules [already reproduced] and the other under Rule 2.52 of the Punjab Civil Service Rules, Volume I, Part I which reads as follows:- “2.52 Special Pay means an addition, of the nature of pay, to the emoluments of a post or of Government employees, granted in consideration of :- [a] the specially arduous nature of duties; [b] a specific addition to the work or responsibility and includes non-practising allowance granted to doctors in lieu of private practice. Explanation.- xx” The 'special pay' of `100/- was admittedly granted to the petitioners [Readers] under Rule 2.52[a] of the Punjab Civil Service Rules in lieu of the arduous nature of their duties. It was not a 'special pay' granted 'in lieu of “higher time scale”' nor the 'special pay' granted to the petitioners was abolished as a 'separate component' while promulgating the 1979 Rules. [8]. It is trite that the employees were entitled to be placed in the revised scale of pay corresponding to the existing pay scale in terms of Rule 3[c] of the 1979 Rules and entitled to be fixed at a 'basic pay' which could not be less than the 'existing emoluments' defined under Rule 3[d] of the 1979 Rules. The 'existing emoluments' CWP No. 6867 of 1988. ::-5-:: for the purpose of 'pay fixation' under the 1979 Rules included all those components which have been expressly mentioned in Rule 3[d] [i] and [ii] of the 1979 Rules, namely, 'basic pay' in the existing scale of pay, 'Dearness Allowance', 'Dearness Pay', 'Additional relief' etc. An employee would be entitled to be placed at the corresponding 'basic pay' which must essentially protect his 'existing emoluments' also. It can not be over-looked that the very object of the 1979 Rules is to further revise the pay structure and not to adversely affect the existing conditions of service of the employees. [9]. It may be true that in terms of Rule 3[d][iv] of the 1979 Rules, 'special pay' has been abolished but to the extent of which was granted 'in lieu of higher time scale' and not the 'special pay' as defined or granted under Rule 2.52 of the Punjab Civil Service Rules ibid. [10]. In other words, the 1979 Rules have abolished/excluded the additional/special pay or increment etc. granted to an employee in lieu of 'higher time scale' and not the additional/special pay granted in lieu of the 'arduous nature of duties'. The distinction is logically sound and stands to the test of reasonable classification as with the revision of pay scale the nature of duties are not necessarily altered. [11]. Keeping this in mind, if one applies the clarificatory instructions issued by the Government of Punjab vide Annexure P-3, it may be seen that there were following four queries dealt with vide this Circular:- [i] Cases in which Special Pay was granted in lieu of higher time-scale and has now been abolished as a CWP No. 6867 of 1988. ::-6-:: separate component. [ii] Cases in which Special Pay was not in lieu of higher time-scale but has been abolished in the revised scale. [iii] Cases in which Special Pay was admissible in the existing scale and has also been sanctioned in the revised scale as a separate component. [iv] Cases in which special pay was being drawn by an employee by virtue of having been appointed against a specific post carrying special pay and such special pay was to be discontinued as soon as he is transferred from that post.” [12]. These queries have been answered in Para 2 of the same circular in the following manner:- “[i] In cases covered under category [i] special pay is to be treated as part of the existing emoluments in terms of sub-clause [iv] of clause [d] of rule 3 of the Punjab Civil Services [Revised Scales of Pay] Rules, 1979. The pay is to be fixed with reference to the basic pay in the un- revised scale of pay plus special pay plus DP, DA, IR/AR and ADA admissible on the total of the pay plus special pay as on 1st January, 1978. [ii] In cases falling in category [ii] special pay will not form part of existing emoluments in view of the provisions of the aforesaid clause. The element of DP, DA, IR/AR and ADA admissible on the pay plus special pay in the un- revised scale be taken into account for determining pay in the revised scale of pay. The special pay admissible in the existing scale be treated as personal pay to be absorbed in future increments in order to avoid any possible loss to the affected employees. [iii] In respect of the cases falling in category [iii], the pay in the revised scale be determined with reference to the basic pay plus the element on account of D.P., D.A., I.R./A.R. And A.D.A. admissible on 1st January, 1978 on existing pay plus special pay. The employees be allowed CWP No. 6867 of 1988. ::-7-:: special pay in addition to the pay as fixed in the revised scales of pay under the rules. [iv] In respect of cases falling in category [iv] above the employee shall be allowed pay and special pay as determined in [iii] above for so long as he holds the post carrying special pay. On transfer/reversion to the post carrying no special pay he will draw the pay in the revised scale which he would have drawn from time to time had he not been holding the post carrying special pay on the appointed day”. [13]. It is so explicit from queries [i] and [ii] and their respective answers that wherever the 'special pay' was granted in lieu of 'higher time scale' and has now been abolished as a separate component, such 'special pay' shall be treated as a part of the 'existing emoluments' for the purposes of fixation of pay in the revised scale. Similarly, if the 'special pay' was being drawn by an employee by virtue of his appointment on a specified post carrying the special pay [Query No. [iv], such employee was entitled for inclusion of the 'special pay' as a part of the 'existing emoluments'. The Circular dated 29.02.1980 merely classifies the categories of 'special pay' and further clarifies as to in what situation the 'special pay' granted in lieu of the 'higher time scale' or otherwise can be included as a part of the 'existing emoluments'. [14]. The 'special pay' admissible under Rule 2.52 of the Punjab Civil Service Rules is an addition to the emoluments of “a post” or of a “government employee” granted in consideration of the arduous nature of duties or due to specific addition to his work or responsibility. The petitioners in Para 3 of the writ petition have specifically averred that the Readers in the High Court were granted CWP No. 6867 of 1988. ::-8-:: 'special pay' of `100/- “in lieu of arduous nature of duties” and this fact has been specifically admitted by the High Court in its written statement. The petitioners, thus, got the 'special pay' by way of addition to the emoluments 'of the post' of 'Readers' occupied by them and not in their individual capacity as 'the government employees'. To put it differently, a Reader on his transfer in administrative exigencies to some other post was not entitled to draw such 'special pay'. The claim of the Readers to whom 'special pay' was made admissible on account of arduous nature of their duties attached to the post held by them, falls in the category of Query No. [iv] of the Circular dated 29.02.1980 and as per the answer to Query No. [iv], such like 'special pay' was to be included as a part of the 'existing emoluments' so long as the incumbent was holding that post. The 'special pay' drawn by the petitioners was rightly treated as a part of their 'existing emoluments' but later on was erroneously excluded on misconstruction and misapplication of the clarificatory Circular dated 29.02.1980. [15]. In my considered view, the challenge laid by the petitioners against the Circular dated 29.02.1980 is also misplaced as the said circular does not run in conflict with the provisions of the 1979 Rules. The Circular is clarificatory in nature and merely supplements the 1979 Rules wherever required. It does not take away the benefit of 'special pay' granted by Hon'ble the Chief Justice to the incumbents of the post of Readers on account of arduous nature of their duties. [16]. For the reasons afore-stated, the writ petition is allowed. The impugned order dated 17th April, 1988 [Annexure P-5] is quashed CWP No. 6867 of 1988. ::-9-:: and the respondents are directed to re-fixed the pay of the petitioners after treating the 'special pay' drawn by them, as a part of the 'existing emoluments' for the purposes of fixation of their pay in the revised pay scale granted w.e.f. 1st January, 1978. The needful shall be done within a period of six months from the date a certified copy of this order is received. [17]. Disposed of. Dasti. February 23, 2011. ( SURYA KANT ) dinesh JUDGE