IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP. 2554 of 2009. Date of Decision:24.2.2011. _______________________________________________ Datta Ram ….Petitioner. Versus. State of H.P. and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner :Mr.A.K.Gupta, Advocate. For Respondents. :Mr.P.K.Sharma, Addl. Advocate General with Ms.Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner is aggrieved by the in action of the respondents in not granting him the revised grade of Technician Grade-II which pay has been upgraded vide Annexure:P-2. It is undisputed before me that the petitioner was appointed vide Annexure:P-1 as Mechanic-cum-Fitter Grade-II in the pay scale of Rs. 3120-5160. It is also undisputed that Annexure:P-2 was issued by the State upgrading the pay scale as mentioned therein, namely: Whether reporters of the Local papers are allowed to see the judgment?yes. 2 “The F.C.-cum-Secretary (IPH) to the Government of Himachal Pradesh. To The Engineer-in-Chief, I&PH Department, Shimla-1. Dated Shimla-2 the 26 Sept. 2000 Subject: Implementation of pay scale as per second schedule revised w.e.f. 1.1.1996. Sir, Jai Hind, I am directed to refer to your letter No.IPH-ES-III- Revised Pay Scale (W/T)99-11404-05 dated 30 Dec..99 on the subject cited above and to say that the matter has been examined in consultation with the Finance Department who have opined as under:- “The cadre of Technicians is required to be bifurcated as on 1.1.96 in accordance with the guidelines contained in Finance Dept./Notification No.FIN-(PR)B(7)-1/98 dated 1.9.98 below VII skilled and semi skilled category of the second schedule in the following manner. Thus the following picture will emerge” 1. Senior most 20% Technicians Grade-II to be Technicians Grade-I in the pay scale of Rs.4550-7220/-. 2.Next 30% Technicians Grade-III to be designated as Technicians Grade II in the pay scale of Rs.4020-6200/- 3. The remaining 50% Junior Technicians to be granted the pay scale of Rs.3120-5160/-. The total cadre strength existed on 1.1.96 will not be increased and the cadre of Technicians is to be bifurcated in the ratio of 20:30:50 as on 1.1.96. In case any post of Technician Grade-I fell vacant after 1.1.96 due to retirement or any reason, as the case may be the same is to be filled up from amongst the eligible Technician Grade-II. As such the rest in the Junior rung i.e. Junior Technicians will be made in the pay scale of Rs.3120-5160 with the designation Junior 3 Technicians. The R&P Rules of the post of Junior Technicians may be modified accordingly in the first instance. No further recruitment to the post of Junior Technician be made till finalization/notification of R&R Rules. You are therefore, requested to take further necessary action in the matter accordingly under intimation to this Department. Sd/- Under Secretary(IPH) to the Government of H.P.” 2. The grievance of the petitioner is that on up-gradation of the pay scale, he was entitled to the pay scale of Rs. 4020-6200/-. 3. Reply to this application has been filed by the State. One preliminary objection which has been taken is that the petitioner is guilty of suppression of facts. For this purpose, the State relies upon Annexure:R-4 which is the judgment of the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, H.P. Camp at Nahan. The reference to be adjudicated before the Tribunal was in the following terms: “Whether the demand raised by Shri Datta Ram s/o Shri Nathu Ram through Bhartiya Mazdoor Sangh Ram Shehar Unit, Distt. Solan, HP vide demand notice dated 6.5.2003 (copy enclosed) before the Executive Engineer, I&PH Division Arki District Solan, HP not to promote him on the post of Mechanic-cum-Fitter Grade-I w.e.f. 1.4.1998 is proper and justified? If yes, what relief of service benefits, the aggrieved workman as per demand notice? If not what its legal effects?” 4. In reply to the petition, the stand adopted by the State is that Mechanic-cum-Fitter Grade-II has been re-designated as Technician (Mechanic). Para-4 of the preliminary submissions reads: 4 “4………………..Further it is submitted that as per Mool Raj Upadhaya judgment passed by the Hon’ble Supreme Court of India, the petitioner was regularized to the corresponding lowest grade in the cadre in the minimum of the time scale of corresponding post i.e. for Mechanic- cum-Fitter Grade-II re-designated as Technician (Mechanic) in the pay scale of Rs.3120-5160. It is again submitted that the petitioner was regularized/appointed as work charged w.e.f. 1.4.1998 i.e. after 1.1.1996 as such did not fall/come in the cadre strength of technicians that existed on 1.1.1996 which was to be maintained and was required to be bifurcated in the ratio of 20:30:50 for the purposes of granting pay scales w.e.f. 1.1.1996. In this view of the matter, the petitioner is not entitled to any relief as sought for by him in the present petition.” 5. Learned Additional Advocate General submits that the entitlement of the petitioner to the revised pay grade as demanded by him in this petition, namely, Technician Grade-II was the subject matter for adjudication before the learned Tribunal-cum-Labour Court, Shimla in Reference No. 40 of 2007 decided on 30th May, 2009. That petition having been dismissed by the Tribunal, the petitioner cannot be allowed to agitate/re-agitate the same point over and over again. This submission cannot be accepted. It is apparent and evident that the claim urged by the petitioner before the learned Court was for promotion to the post of Mechanic-cum-Fitter Grade-I. His entitlement to the revised salary in Grade-II was not the subject matter of adjudication. Learned Tribunal framed the following issues: 1.Whether the demand raised by Shri Data Ram S/o Sh. Nathu Ram through Bhartiya Mazdoor Sangh before the XEN I&PH, Arki not to promote him on the post of 5 Mechanic-cum-Fitter Grate-I w.e.f 1.4.1998 is improper and unjustified as alleged?. …OPP. 2. If issue No.1 is proved to what benefits the petitioner is entitled to and since when?. …OPP. 3.Whether the petition is not maintainable as alleged?. ..OPR. 4. Whether the petition is barred by limitation? ..OPR. 6. While disposing of that petition, the Court held that there was nothing on the record to establish that the petitioner was, in fact, entitled to promotion to the post of Grade-I as he had been appointed against the post of Mechanic-cum-Fitter Grade-II. 7. The objection raised by the State, therefore, cannot be sustained. On the second submission made that Mechanic-cum-Fitter Grade-II and Technician are two different posts, cannot be accepted for the reasons that in the reply instituted by the State, it is apparent and evident that the Mechanic-cum-Fitter has been re-designated as Technicians and the cadre then divided into three different tear for the purpose of pay. 8. In order to be entitled to this grade, the petitioner would have to be within the 30% strength of the cadre of Technician. This exercise does not seem to have been undertaken and if undertaken, has not been placed on the record of the case. 9. This petition is accordingly allowed. A direction is issued to the respondents to determine as to whether the petitioner would fall within the quota of 30% as envisaged by Notification Annexure:P-2. In case he falls in that category, it requires no reiteration that he would be entitled to this grade on and from the date when the Notification was issued. This exercise be completed within a period of two weeks 6 from today. The petition is disposed of. Cost of Rs.5,000/- is imposed upon the State. (Dev Darshan Sud), Judge. February 24,2011(R)