IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:537/2004 Reserved on: 20.6.2008 Decided on.: 10.7.2008 Narinder Gupta …Petitioner. Versus Hon’ble High Court 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. K.S. Thakur, Advocate. For the respondents : Ms. Jyotsna Rewal Dua, Advocate for respondents No.1 and 2. Mr. Rajinder Dogra, Additional Advocate General for respondent No.3. Rajiv Sharma, J. The brief facts necessary for the disposal of this writ petition are that the petitioner was appointed as a Clerk on temporary basis in the pay scale of Rs. 400-600 and was posted as Civil Ahlmad in the Court of Sub Judge-cum-SDJM, Kandaghat. He was granted pay scale of Rs. 1200- 2100 of Senior Clerk with effect from 28.1.1992 after completion of 5 years service. He was granted pay scale of Junior Assistant in the pay scale of 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Rs. 1500-2700 on 21.2.1997 with effect from 28.1.1997. The office order dated 21.2.1997 reads thus: “Pursuant to the instructions contained in Notification No.Fin(C) 8(7)6/88-II dated 23rd July, 1990 of the Govt. of H.P., the following eligible class-III officials (clerks) of this Civil and Sessions Division, are hereby, granted pay scale of Rs. 1500-30-1560-40-2000-50-2400-60-2640 (revised from 1.1.1993 as 1500-50-2000-60-2060-75-2550- 75-2700) of the Junior Assistants with effect from the dates mentioned against their names:- Sr.No. Name of the official with designation and present place of posting. Date of release of the grade of Junior Assistant. 1. Shri Rajinder Kumar, Court Nazir to Addl. District and Sessions Judge, Nahan. 30.1.1997 2. Sh. Narinder Kumar Civil Ahlmad to Senior Sub Judge-cum-C.J.M. Nahan. 28.1.1997. In sequel to Annexures PE and PF, he was placed in the pay scale of Rs. 5000-8100 with effect 28.1.1997 and his basic pay on 1.1.1998 was fixed at Rs. 5160/- per month (Annexure PF-1). He was promoted and designated as Junior Assistant on 6th October, 1998 in the pay scale of Rs. 4400-7000 with effect from 1.1.1996 (Annexure PH). In fact, after the issuance of Annexure PH, his basic pay was revised to Rs. 4700/- from Rs. 5160/- with effect from 1.1.1998. He made a representation on 17.4.2001 to respondent No.2 against the reduction of his pay scale from Rs. 5000-8100 to 4400-7000 with effect from 1.1.1996. His representation was rejected by respondent No.2 and conveyed to him on 18/19.10.2001. Thereafter he made a representation to respondent No.3 on 15.1.2002. The same was rejected on 16th April, 2004. The petitioner by way of 3 present petition has assailed the office order dated 6.10.1998 whereby he has been shown in the pay scale of Rs. 4400-7000 instead of 5000-8100. He has also prayed for quashing of Annexure PJ dated 18/19.10.2001 and Annexure PL dated 16.4.2004. He has also sought quashing of Annexure PG dated 1.9.1998 which according to him gives retrospective effect to the extent of bifurcation of the cadre of Clerks and Junior Assistant in the ratio of 50:50 with effect from 1.1.1996. The petitioner was permitted to amend the writ petition by this Court. The respondents have filed replies to the amended writ petition. Mr. K.S. Thakur, Advocate had strenuously argued that the issuance of Annexure PH dated 6.10.1998, Annexure PJ dated 18/19.10.2001 and Annexure PL dated 16.4.2004 is illegal, arbitrary, unconstitutional and thus violative of Article 14 of the Constitution of India. He also contended that his client has been granted the pay scale of Rs. 1500-2700 with effect from 28.1.1997 on the basis of Himachal Pradesh Civil Services (Revised Pay) (First Amendment) Rules, 1990 notified on 23.7.1990 after his client had completed 10 years service. He further contended that his client was granted the pay scale of Rs. 5000-8100 as per Annexures PE and PF dated 9.1.1998 and 20.1.1998 in accordance with the conversion table. Alternatively, he had prayed that once the pay scale has been granted to his client as is evident from Annexure PF-1, the same could not be taken away on the basis of Annexure PG by giving retrospective effect to it. In other words his contention is that the right of his client had crystalised on the basis of Annexures PE and PF and the same could not be taken away on the basis of Annexure PG dated 1.9.1998. Mr. Rajinder Dogra, Additional Advocate General and Ms. Jyotsna Rewal Dua, Advocate had strenuously argued that the petitioner has been 4 put in the pay scale of Rs. 4400-7000 on 6.10.1998 on the basis of Annexure PG dated 1.9.1998. They also contended that the petitioner had already given his option for new pay scale which had come into force with effect from 1.1.1996. Ms. Jyotsna Rewal Dua had defended that the representation made by the petitioner had rightly been rejected after due application of mind on 18/19.10.2001 and 16.4.2004. She also contended that no vested right has accrued to the petitioner on the basis of Annexure PE and PF. She further contended that the petitioner was not entitled to issuance of show cause notice since the petitioner has been placed in the pay scale of Rs. 4400-7000 on the basis of Annexure PG dated 1.9.1998. I have heard the learned counsel for the parties and perused the pleadings of the parties carefully. The facts which emerge from the pleadings of the parties are that the petitioner was appointed as a Clerk on 28.1.1987. He was granted the pay scale of Rs. 1200-2100 with effect from 28.1.1992. He was confirmed in Clerical cadre. It will be apt at this stage to reproduce the relevant extract of the rules called “The Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1990”, which reads thus: (a) Clerks. 400-600 510-800 50:50 (i) 950-1800 with an initial start of Rs. 1000/- basic entry scale. This scale is given to the total No. of posts. No. of posts in a cadre minus the posts which are to be placed in the scales of pay Rs. 1200-2100 and Rs. 1500-2640 as specified in items (ii) and (iii) after the date of issue of notification, the minimum academic qualifications for recruitment as 5 clerk shall be matriculation second Division or 10+2. (ii) 1200-2100 This scale is to be given to about forty per cent of the total number of posts of clerks in cadre after a minimum period of five years service as clerk in the cadre and the incumbents are to be designated as Senior Clerks. (iii) 1500-2640 This scale is to be given to about forty per cent of the total number of posts of clerks in a cadre after a minimum period of ten years of service taken together as clerk and senior clerks in the cadre and the incumbents are to be designated as Junior Assistants. Note:1. The method of working out the percentage of posts of clerks in a Cadre in the aforesaid three scales viz rupees 950-1800, 1200-2100 and 1500-2640 is given in the Annexure to these rules. The petitioner was appointed on 28.1.1987 and had completed 10 years service as per the Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1990. He was placed in the revised scale of Rs. 1500-2700 with effect from 28.1.1997. The FC-cum-Secretary (Finance) to the Government of Himachal Pradesh had issued Annexure PE on 9th January, 1998. It is evident from the conversion table annexed to Annexure PE that the pay scale of Rs. 1500-2700 was revised to Rs. 6 5000-8100. The State has notified the rules called “The Himachal Pradesh Civil Services (Revised Pay) Rules, 1998. Rule 3 thereof defines the terms basic pay, existing scale, existing emoluments, master scale, revised pay and revised scale. Rules 5 and 6 reads thus: “5. Drawal of Pay in the Revised Scale.- (i) Save as otherwise expressly provided in these Rules, a Government employee shall draw pay in the revised scale; Provided that a Government employee may opt to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or ceases to draw his pay in that scale; Provided further that the right to exercise option shall not be available to a person appointed to a post on or after the First day of January, 1996, (whether for the first time in Government service, or by transfer or promotion from another post) and he shall be allowed pay only in the revised scale, without any benefit of pay fixation in the revised scale. (ii) The option to retain the existing scale under this rule shall be available only in respect of one existing scale. 6. (1) The option under rule 5 to elect the existing scale or the revised scale shall be exercised in writing in the Form of Option appended to these Rules, so as to reach the authority specified in sub rule (2) within a period of six months from the date of issue of these rules or where an existing scale has been further revised by any subsequent order then another option may be exercised within six months of the date of such order, except that for employees posted in tribal and notified backward/hard areas, the period for exercising option shall be one year: Provided that:- 7 (i) in the case of Government employee who is, on the date of issue of these orders or such subsequent orders, as the case may be, out of India or on leave or on deputation or on foreign service, the option shall be exercised, in writing, so as to reach the authority specified in sub rule (2) within a period of six months (one year for those posted in tribal or notified backward/hard areas) from the date of his taking charge of his post under the State Government; and (ii) Where a Government employee is under suspension on that date, the option shall be exercised within a period of six months of the date of his return to his duty if that date is later than the date specified in this sub-rule. (2) An option exercised under sub-rule (1) shall be final and shall be intimated by the Government employee to the Head of Office. (3) If the intimation regarding option is not received within the time mentioned in sub-rule (1), it shall be deemed that the Government employee has opted for the revised scale on and with effect from the First day of January, 1996. (4) Failure to opt for a most beneficial date by an employee will not give him a right under these rules for stepping up of his pay in the Revised Scale over the pay of another employee who may have opted for such a date even if the former was drawing pay equal to or more than the latter in the same existing scale. Note:1. Persons, whose services were terminated on or after the First day of January, 1996, but before the issue of these rules and who could not exercise the option within the prescribed time limit, on account of death discharge on the expiry of sanctioned post, resignation dismissal or discharge on disciplinary grounds, are entitled to the benefits of this rule. Note:2. Persons, who have died on or after the First day of January, 1996 and have not exercised option within the prescribed time limit, shall be deemed to have 8 opted for the revised scale on and from the First day of January, 1996, or such later date under these rules as is most beneficial in their case.” The petitioner had given his option on 11.6.1998. Consequently his pay was fixed at Rs. 5160/- on 1.1.1998. Thereafter the State had amended the Himachal Pradesh Civil Services (Revised Pay)) Rules, 1998 by way of The Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1998. The effect of the amendment carried out vide notification dated 1.9.1998 was that the existing Schedule of the earlier rule was re-numbered as First Schedule and thereafter the Second Schedule was added to the following effect: “THE SECOND SCHEDULE (See rule 3 (b), (g) and rule 4) Revised Scales of Pay for Common Categories/posts as specified hereunder: Sr.No. Designation/Name of Category Existing Pay scale (In Rupees) Revised Pay Scale in Rupees Remarks. 1. 2. 3. 4. 5. 1. GENERAL HELPERS AND MAINTENANCE STAFF 1. Peon, Chowkidar, Frash, Mali, Bhishti and Sweeper (with comibed designation within the above designation such as Peon-cum- Chowkidar, Sweeper-cum- Frash etc.) and other Class-IV in the existing Scale mentioned in column-3 except those mentioned at Item No.2 and 3 of this serial number. 770-1410 2520- 4140 - 2. Head Mali, Jamadar and Record Lifter. 800-1455 2720- 4260 - 3. Daftri 800-1455 2820- 4400 - II. MINISTERIAL STAFF 9 1. Clerk i) 950-1800 with initial start of Rs. 1000/- (Clerk) (20%) ii) 1200- 2130 (Senior Clerk) (40%) iii) 1500- 2700 (Junior Assistant (40%) 3120- 5160 (50%) 4020- 6200 5000- 8100 (60%) The rate of typewriting allowance to the Typist Clerks in the Scales of 3120-5160 deployed on full time basis shall be Rs. 75/- p.m. with effect from 1st Sept. 1997 and for sanctioning typewriting allowance a certificate to the effect that the concerned Clerks working actually deployed on typing work from the Head of Office will be required every month. The designation and the revised equivalent of the unrevised pay scale of officials working as Senior Clerks and Junior Assistant as on 1st January, 1996 shall be protected as a measure personal to them. For future, the total number of posts of Clerk including Senior Clerk and junior Assistant in a cadre existing on 1st January, 1996 shall be divided into the posts of Clerk in the scale of Rs. 3120-5160 and Junior Assistant in the scale of Rs. 4400-7000 in the ratio of 50:50. The new posts of Junior Assistant shall be created on the basis of actual requirements. The posts of Junior Assistant shall be filled up by promotion to the extent of 100% from amongst the Clerks who have an experience of working as such for a minimum period of 5 years in the cadre of the department in which he is working at the time of promotion. Respondent No.2 on the basis of Annexure PG dated 1.9.1998 again promoted and designated the petitioner as Junior Assistant in the pay scale of Rs. 4400-7000 instead of Rs. 5000-8100 with effect from 10 1.1.1996. He made a representation as noticed above but the same was rejected by the District and Sessions Judge on 18/19.10.2001 without assigning any reasons. He made a representation to the Registrar General of this Court on 15.1.2002. The same was rejected without assigning any reasons. It was necessary for the Registrar General as well as the District and Sessions Judge, Sirmaur at Nahan to assign reasons why the representation of the petitioner was rejected. The assigning of reasons is necessary since the person has to assail the order passed on representation. Now, the Court has to consider whether the petitioner, who was granted the pay scale of Rs. 5000-8100, could be reduced to pay scale of Rs. 4400-7000 with effect from 1.1.1996. The petitioner was appointed Clerk with effect from 28.1.1987. He had completed 10 years of service in the year 1997. He was placed in the pay scale of Junior Assistant with effect from 28.1.1997 on the basis of the Himachal Pradesh Civil Services (Revised Pay (First Amendment) Rules, 1990. The relevant extract of the rules has already been reproduced hereinabove. The pay scale of the Junior Assistant was Rs. 1500-2700. The pay scale of Rs. 1500-2700 was to be revised to Rs. 5000-8100 as per Annexures PE and PF dated 9.1.1998 and 20.1.1998 respectively. His pay was fixed in the pay scale of Rs. 5000-8100. The petitioner started drawing his salary in the pay scale of Rs. 5000-8100. It was only on 6.10.1998 that his pay was reduced from the pay scale of Rs. 5000-8100 to the pay scale of Rs. 4400-7000. This purportedly has been done on the basis of notification dated 1.9.1998 whereby the total number of posts of Clerks, including Senior Clerk and Junior Assistant in a cadre existing on 1st January, 1996 were divided into the posts of Clerk in the pay scale of Rs. 3120-5160 and Junior Assistant in the pay scale of Rs. 4400-7000 in the ratio of 50:50. 11 The post of Junior Assistant was to be filled up by promotion to the extent of 100% from amongst the Clerks who have an experience of working as such for a minimum period of 5 years in the cadre of the Department in which he was working at the time of promotion. The amendment carried out has been given retrospective effect with effect from 1st January, 1996. Mr. K.S. Thakur, Advocate had submitted that Annexure PG dated 1.9.1998 could not be given retrospective effect from 1.1.1996 since according to him his client has acquired the right to be placed in the pay scale of Rs. 5000-8100 after the revision of pay scale of Rs. 1500-2700 to the scale of Rs. 5000-8100 as per Annexures PE and PF dated 9.1.1998 and 20.1.1998. The submission of Mr. K.S. Thakur had been vehemently contested by Ms. Jyotsna Rewal Dua and according to her the petitioner has rightly been placed in the pay scale of Rs. 4400-7000 as per Annexure PG. There is a fallacy in the submission of Mr. Jyotsna Rewal Dua and the same cannot be accepted. The petitioner has been granted the pay scale of Rs. 5000-8100 with effect from 28.1.1997 on the basis of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1990 after he had completed 10 years of service. The pay scale of Rs. 1500-2700 was revised as noticed above to Rs. 5000-8100 as per Annexures PE and PF. In fact, the petitioner had been granted the pay scale of Rs. 5000-8100 but it was only on the basis of Annexure PG that the same was revised to Rs. 4400-7000. The Court is of the firm opinion that this was not permissible under the law. The petitioner had acquired vested right to be placed in the higher pay scale on 28.1.1997 after completion of 10 years and the same could not be reduced to Rs. 4400-7000 by giving retrospective effect to Annexure PG dated 1.9.1998. The submission of the learned Additional Advocate General and Ms. Jyotsna Rewal Dua that since the petitioner was not placed in the pay scale of Junior Assistant on 1.1.1996, he could 12 not be granted the revised pay scale of Rs. 5000-8100, cannot be accepted. The respondents were required to harmonize the Himachal Pradesh Civil Services (Revised Pay) Rules, 1990 with the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 as amended from time to time. For all intents and purposes the petitioner was placed in the pay scale of the Junior Assistant with effect from 28.1.1997 and he was to be granted the pay scale of Rs. 5000-8100 after revision of pay scale. The petitioner has acquired the legal right to get the higher pay scale on the basis of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 and the same could not be withdrawn by misconstruing the Himachal Pradesh Civil Services (Revised Pay) Rules, 1998. The matter can be viewed from another angle. The purpose of constituting the Pay Commission is to revise the pay scales of the employees. In the present case the petitioner had already been granted the higher pay scale with effect from 28.1.1997 which was revised from Rs. 1500-2700 to Rs. 5000-8100 but the same was reduced after coming into force Annexure PG dated 1.9.1998. This could not be the intention of the rule making authorities. This anomalous situation which had arisen could be solved by invoking rule 11, which reads thus: “11. Powers to Relax:- Where the Government is satisfied that the operation of these Rules causes undue hardship to any individual Government employee or class of Government employees, it may, by order in writing, relax or dispense with any of the provisions of these rules to such extent and subject to such conditions as it may consider necessary.” This exercise admittedly has not been undertaken by the respondents. The representations made by the petitioner have not been decided in accordance with law since no reasons have been assigned while rejecting the same. The enforcement of new rules had definitely 13 caused undue hardship to the petitioner since he was drawing the higher pay scale of Rs. 5000-8100, but the same has been reduced to Rs. 4400- 7000 as per new rules. The petitioner was required to retain this pay scale as personal pay and thereafter the scale was to be revised increasing his salary instead of reducing it. The respondents have taken a very unreasonable stance that the petitioner since was not promoted/placed in the pay scale of Junior Assistant on 1.1.1996, he could not be permitted to retain this higher pay scale. In the present case the respondents have over looked a very vital aspect of the matter that the petitioner has been granted the higher pay scale on the completion of 10 years as per Annexure R-2/2 dated 23rd July, 1990 and the same could not be denied to him after coming into force of the new rules. It is settled law by now that though the amendments to the Recruitment and Promotion Rules governing conditions of service could be carried out retrospectively but the vested or acquired rights cannot be destroyed. In the present case, the respondents have reduced the pay of the petitioner by giving retrospective effect to Annexure PG dated 1.9.1998 to the detriment of the petitioner. The petitioner had prayed for quashing of Annexure PG to the extent it is contrary to Annexures PE and PF dated 9.1.1998 and 20.1.1998. The Court is of the prima facie opinion that Annexure PG dated 1.9.1998 is unconstitutional to the extent whereby the rights of the petitioner and similarly situate persons have been impaired. The rights of the petitioner and similarly situate persons have crystallized on the basis of the Himachal Pradesh Civil Services (Revised Pay) Rules, 1990 read with Annexures PE and PF dated 9.1.1998 and 20.1.1998. These rights cannot be permitted to be impaired by the respondents by giving retrospective effect to Annexure PG dated 1.9.1998. 14 Their Lordships of the Hon’ble Supreme Court in B.S.Yadav and others versus State of Haryana and others, 1980 (Supp) SCC 524 have held that though the Governor while exercising the legislative power under the proviso to Article 309 of the Constitution of India, it is open to him to give retrospective operation to the rules made under that provision, however, the date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period. Their Lordships have held as under: “The amended Rule 12, as in force in Punjab, lays down the length of continuous service in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the Governor on December 31, 1976 and was given retrospective effect from April 9, 1976. Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect