Civil Writ Petition No.4230 of 2009 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: July 22, 2009 Smt.Sujata Sharma .....Petitioner VERSUS State of Haryana & another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Pritam Saini, Advocate, for the petitioner. Mr.Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, who is presently working as Personal Assistant in the office of Chief Information Commissioner, an ex- cadre post, was earlier also working on another ex-cadre post in the State Land Use Board, Haryana. She is aggrieved against the action of respondents in not protecting her pay, which she was drawing in the ex-cadre post while fixing her pay in the present ex-cadre post, where she stands transferred. The petitioner filed a representation Civil Writ Petition No.4230 of 2009 2 : against the same, which has been rejected. She has accordingly filed the present petition. The facts, in brief, are that the petitioner was appointed as Steno-typist on adhoc basis in the office of Chief Secretary on 25.1.1989. Her services were regularised in March, 1991. She was promoted as Junior Scale Stenographer on 10.3.1995. She was selected and appointed as Senior Scale Stenographer in the State Land Use Board, Haryana on 19.11.1996. However, her lien remained in the office of Chief Secretary. The petitioner has thereafter continued to work in the State Land Use Board, which is an ex-cadre post. She has also qualified in the departmental promotion test held on 26.5.2007 and thereafter she was given proforma promotion as Senior Scale Stenographer in her parent cadre, i.e. office of Chief Secretary, Government of Haryana w.e.f. 12.6.2007. In the year 2008, State Information Commissioner, respondent No.2, invited applications for filling up two posts of Personal Assistants by way of transfer from amongst the staff already working in various organization/departments. The petitioner applied in response to the same and was selected for the post on 24.1.2008. Respondent No.2 accordingly wrote a letter to respondent No.1 to place the services of the petitioner at their disposal. On 28.1.2008, State Land Use Board relieved the petitioner and repatriated her to her parent department w.e.f. 30.1.2008. Respondent No.1 placed the services of the petitioner at the disposal of respondent No.2 w.e.f. the same date, i.e., 30.1.2008 on transfer basis. The last pay certificate as a Senior Scale Stenographer was Civil Writ Petition No.4230 of 2009 3 : also issued by the State Land Use Board showing the last pay drawn by the petitioner to be Rs.7100/-. On having joined the office of respondent No.2 as Personal Assistant, pay of the petitioner was fixed pursuant to the last pay certificate issued at Rs.7300/- in the pay scale of Rs.6500- 10500 w.e.f. 30.1.2008. Against this, one Smt.Kamal submitted a representation on 5.6.2008 for removing anomaly in her pay scale on the ground that the pay of the petitioner being junior to her was fixed in a pay scale of Rs.7300/-, whereas pay of Smt.Kamal as a Personal Assistant was fixed at Rs.6500/-. In the meantime, State Land Use Board issued another last pay drawn certificate, fixing the pay of the petitioner at Rs.7425/- on account of revision of pay scales. On 20.8.2008, the pay of the petitioner accordingly was fixed at Rs.7500/- as on 30.1.2008. In response to the representation made by Smt.Kamal, the petitioner submitted her detailed representation giving the background under which her pay was fixed on the basis of last pay drawn by her while working in the State Land Use Board. The case set up by the petitioner is that though she was relieved from the State Land Use Board on 30.1.2008 to join her parent department, but on the same very day, she had joined as a Personal Assistant in the office of respondent No.2 without working in the office of respondent No.1. The respondent No.1 has now fixed the pay of the petitioner in the scale of Rs.5500-9000 on 21.11.l2008 on the basis of a representation given by Smt.Kamal. The petitioner has been informed that pay drawn by her while working on ex-cadre post cannot be protected on her joining the cadre post as per Note 10 Civil Writ Petition No.4230 of 2009 4 : below Rule 4.4(c) of Punjab Civil Service Rules Vol.1 Part-I (for short “the Rules”). The petitioner again submitted a representation that she has not joined her cadre post while reporting for duties as a Personal Assistant on being relieved from ex-cadre post. She accordingly pleaded that her pay was rightly protected on the basis of a last pay drawn by her while working on the ex-cadre post with State Land Use Board. Still, the pay of the petitioner has been fixed by referring to Note 10 below Rule 4.4 (c ), referred to above. Respondents have justified the action of fixing the pay of the petitioner in the scale which is applicable to the post to which the petitioner is appointed. They have also justified their action in rejecting the representation given by the petitioner by saying that last pay drawn by her on ex-cadre post cannot be protected on her joining the cadre post. As per the respondents, the pay of the petitioner could not have been fixed in the scale which she may or might have been drawing while working on the ex-cadre post. The respondents have relied upon Note 10 Rule 4.4(c) of the Rules, as already noted above. The counsel for the petitioner would contend that Note 10 relied upon by the respondents is not applicable and hence the action of the respondents in fixing the pay of the petitioner by making reliance on this Note is not justified. The counsel contends that rather Rule 4.4(c) (i) would be applicable and according to this, the pay of the petitioner which she was drawing while working on the ex-cadre would need to be protected while fixing her pay in the present post which is again an ex-cadre post. Respondents, however, would rely upon Note 10 referred to above, as already noticed. Civil Writ Petition No.4230 of 2009 5 : Rule 4.4(c)(i) and Note 10 thereunder reads as under:- “(c)(i) Notwithstanding anything contained in these rules, where a Government employee holding a post in a temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above his pay drawn by him in the lower post provided it is certified by the Head of the Department or Head of the office where he is appointing authority in respect of class III & IV Government employees in which the Government employee was holding the lower post that he would have continued to officiate in the lower post but for his promotion/appointment to the higher post.” “Note.10- In the case of a person who proceeds from a lower cadre post to a higher ex-cadre post, the benefit of the pay drawn in the ex-cadre post will not be allowed for the purpose of pay on promotion/reversion to a higher cadre post. On reversion from the ex-cadre post, the pay of the official will be fixed under rule 4.4(c) with reference to the pay admissible in the lower cadre post.” Rule 4.4(c)(i) apparently does not make any provision for fixing of a pay of an employee by protecting what he/she may be drawing while working on any ex-cadre post. This Rule regulates those cases where an employee holds a post in a temporary or Civil Writ Petition No.4230 of 2009 6 : officiating capacity and is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of a greater importance than those attaching to the post held by him. In this event, his initial pay in the time scale of higher post shall be fixed at the stage next above his pay drawn by him in the lower post. This also is subject to a certificate by the Head of Department or Head of office where he is appointing authority where the Government employee was holding a lower post that he would have continued to officiate in the lower post but for his promotion/appointment to the higher post. How this rule can be read to say that the pay drawn by an employee while working on an ex- cadre post needs to be protected really cannot be appreciated. Note 10, to an extent, may seem to be governing the fixation of pay when one is made to work on an ex-cadre post. This provides that a person who proceeds from a lower cadre post to a higher ex-cadre post, the benefit of pay drawn in the ex-cadre post will not be allowed for the purpose of pay on promotion/reversion to a higher cadre post. Concededly, the petitioner is proceeding from a lower cadre post to a higher ex-cadre post. She is seeking protection of a pay which she was drawing while working on a higher ex-cadre post in an another department. On her selection to the present ex-cadre post of Personal Assistant, she was relieved from the earlier ex- cadre post at the State Land Use Board to join at her cadre post. The whole case set up by the petitioner appears to be that she did not join the duties on her cadre post and hence did not draw any pay on the cadre post. The petitioner apparently maintains that she has directly joined from an ex-cadre post to an another ex-cadre post Civil Writ Petition No.4230 of 2009 7 : and on that ground her pay drawn on the ex-cadre post needs to be protected while fixing her pay in the present ex-cadre post where she stands posted. From the averments in the writ petition, it can be seen that petitioner was relieved from the ex-cadre post on which she was working to join at her cadre post. She was never relieved from ex-cadre post directly to join at another ex-cadre post. Though not stated on these lines, but perhaps the State Land Use Board, where the petitioner was working, could have validly sent the petitioner to her cadre post from where she has been transferred to work with them. That is what was done. So, the petitioner obviously is seen going from cadre post to the present ex-cadre post. Her plea that she had gone from one ex-cadre post to work on another ex- cadre post, thus, is not made out and can also not be accepted. The petitioner obviously has proceeded from a cadre post to work on an ex-cadre post as she was relieved from an ex-cadre post to join on cadre post. In that context, it can be said that Note 10 may govern the position. The petitioner is proceeding from a lower cadre post to a higher ex-cadre post and, thus, the benefit of the pay drawn by her while working on another ex-cadre post can not be allowed for the purpose of pay on an ex-cadre post. The respondents, thus, appear to have fixed the pay of the petitioner rightly in the pay scale of the post and earlier action of the respondents in protecting the pay drawn by her while working in another ex-cadre post cannot be said to be justified. Counsel for the petitioner made an attempt to seek support from the observations made by the Hon'ble Supreme Court in the case of L.Parmeswaran Vs. Chief Personnel Officer & Ors., Civil Writ Petition No.4230 of 2009 8 : 2008(2) RSJ 311. This was a case where the petitioner was working on ex-cadre post and was repatriated to cadre post. While working on the ex-cadre post, the employee had got several promotions in his cadre post in terms of the policy decision. While upholding the decision to repatriate the employee to the cadre post, the directions were given that his pay be protected. Thus, this was a case where person was coming from an ex-cadre post to work on the cadre post, which is not the position in the present case. Otherwise, this case also appears to have been decided having regard to the facts peculiar to that case. Some observations in this regard are made in para 17 of the judgment. The court has noticed “in the peculiar facts of the present case despite the law operating in the field as noticed supra, appellant might have been recruited as a casual employee, but the fact that he was brought on the rolls of a regular cadre is not in dispute”. Further more, the Hon'ble Supreme Court thought it appropriate to exercise its jurisdiction under Article 142 of the Constitution of India to do complete justice to the parties. In this background, the pay of the employee therein was protected in the scale of pay. Thus, the ratio of law in this case would not be of any help and assistance to the petitioner. Similarly, the case of Badri Prasad and others Vs. Union of India and others, (2005) 11 Supreme Court Cases 304 would not apply to the facts of the present case. This was a case where an employee in Group-D was posted on higher post of Storeman/Clerk in Group-C post. After working for a period of ten years on the said post, they were reverted to Group-D post. The employees therein sought regularization and absorption in Group-C post. The Hon'ble Supreme Court held that the employees Civil Writ Petition No.4230 of 2009 9 : were not entitled to regularization on Group-C post merely on the basis of their adhoc promotion, but were entitled to protection of pay last drawn by them on the said post even after their repatriation to Group-D post. Thus, it is seen that a person who was working as a temporary status was made to work on a higher post and was reverted after having worked there for long time. They were reverted to their cadre and the post on which they were appointed. In that context and in equity, directions were issued to protect their pay which they had drawn for a long period. The ratio of this case accordingly would not apply to the facts in the present case. For the reasons afore-mentioned, I have not been able to persuade myself to hold that the pay, which the petitioner was drawing while working on the ex-cadre post, is required to be protected while fixing her pay in an another ex-cadre post where she has now been transferred to work. In fact, the Rule and the Note, referred to and relied upon by the petitioner, do not support her case. I am, thus, of the view that no case for interference in the impugned order is made out. Dismissed. July 22, 2009 ( RANJIT SINGH ) ramesh JUDGE