Joginder Singh vs State of Haryana and Another

Rajiv Narain Raina, J.—The challenge in this petition is to the order dated 2.6.2010 issued on 5.7.2010 (P-4). The petitioner was a direct

recruit Junior Engineer (Mechanical) and joined the Irrigation Department, Haryana on 3.12.1976. He was promoted to the next higher post of

Sub Divisional Officer on 21.10.2008 w.e.f. 1.11.2008. The pay of the petitioner was re-fixed in the manner indicated in the impugned order

dated 2.6.2010 adverse to him inasmuch as the increment earned by him on promotion in 2008 has been withdrawn ex parte without assigning any

reasons in the impugned order. This petition was filed on 26.7.2010. The petitioner died in harness on 24.4.2011. His LRs., that is his widow, two

sons and a daughter have been brought on record since the right to sue survives, the claim being monetary. The pay of the petitioner was fixed by

office order dated 30.3.2009 in the revised pay band of Rs. 9300-34800 by treating existing pay as on 1.1.2006 as Rs. 9300/-. The office order

was passed under the Haryana Civil Services (Assured Career Progression) Rules 2008. The pay in the revised pay band with effect from

1.1.2006 was fixed as Rs. 17300/- with grade pay of Rs. 5200/-, with date of next increment falling on 1.7.2006. On promotion on 1.11.2008,

the petitioner was granted increment of Rs. 740/- taking his pay to Rs. 20,140/- in grade pay 5400 on promotion as SDO.

By the impugned order the pay of the petitioner on 1.1.2006 has been fixed at 17670 + 5200 = 22870 in the new pay scale in Pay Band Rs.

9300-34800. The position obtaining on the date of promotion as SDO, that is, on 1.11.2008 is entitlement to Rs. 19800 + 5400 = Rs. 25200.

The case of the petitioner is that the ACP rules do not apply to his case since he had never taken benefit of ACP scheme. His case is to the

contrary is covered by Rule 4.4 (a) (i) of the Punjab Civil Services Rules, Vol. I Part-I read with Rule 13 (1) of the Haryana Civil Services

(Revised Pay) Rules, 2008. Both the rules are reproduced as under:

4.4 The initial substantive pay of a Government employee who is appointed substantively to a post on a time-scale of pay is regulated as follows:

(a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended.

(i) when appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of

rule 4.13) than those attaching to such permanent post, he will draw as initial pay the stage of the time scale next above his substantive pay in

respect of the old post.

Fixation of pay on promotion on or after 01.01.2006:

(1) In the case of promotion from one grade pay to another in the revised pay structure the fixation will be done as follows:

One increment equal to 3% of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This

will be added to the existing pay in the pay band. The grade pay corresponding to the promotion post will thereafter be granted in addition to this

pay in the pay band. In cases where promotion involves change in the pay band after adding the increment is less than minimum of the higher pay

band to which promotion is taking place, pay in the pay band will be stepped to such minimum.

It was in the light of the said two provisions that the pay of the petitioner was fixed by order dated 30.3.2009 (P-3) by granting him benefit of

one increment on his promotion as SDO with effect from 1.11.2008.

It so happened that certain junior engineers have approached this court in CWP 15532 of 1994 in which a claim was made by them for grant of

the pay scale Rs. 1640-2900 with effect from 1.1.1986 and pay scale of Rs. 2000-3200 on completion of 15 years of service. The petition was

allowed and the decision was implemented vide order dated 18.12.2009. In this exercise, the pay of the petitioner was re-fixed by granting him the

benefit of pay scale of Rs. 1640-2900 with effect from 1.1.1986 and the benefit of pay scale of Rs. 2000-3200 with effect from 1.1.1992 on

completion of 15 years of service. The re-fixation order was issued on 5.7.2010. From this order, the petitioner came to know that one increment

already granted on 1.11.2008 on his promotion as SDO stood withdrawn without notice or hearing. On inquiring as to the reason for withdrawal

of increment he was told that it was done in view of the instructions dated 9.4.2010 (P-5) issued under the Haryana Civil Services (Assured

Career Progression Scheme) Rules, 2008 which laid down as follows:

As per existing provisions contained in note below Rule 18 of HCS (ACP) Rules 2008 if the grade pay of promotional post and ACP pay

structure in which the Government servant is drawing his pay prior to promotion are identical, his pay will not against be fixed in the functional pay

structure of the promotional post which is identical to the ACP Pay structure in which he was drawing his pay before promotion. He will continue

to draw his salary of the same stage and his date of increment will also continue to be same as before promotion.

For example:- Mr. ''X'' drawing his pay in the ACP pay structure carrying grade pay of Rs. 4000/- in PB-2 and promoted to higher post carrying

grade pay of Rs. 4000/- in PB-2.

On careful consideration and in exercise, of the powers vested under the provision of Rule 27 and 28 of HCS (ACP-Rules 2008 and all other

powers enabling the Government so to do, it is ordered that:-

If the grade pay of the promotional post is higher than that of ACP pay structure in which the Government employee is drawing his salary prior

to promotion his will not be re-fixed and he will only get the difference of grade pay and his date of next increment will continue to be same as

before promotion and it will not be treated Financial Upgradation under HCS (ACP) Rules 2008.

For example: Mr. ''Y'' drawing pay in functional pay structure of the post carrying grade pay of Rs. 3600/- has been granted ACP grade pay of

Rs. 4000/- being stagnated for 10 years on the post and further granted regular promotion in the hierarchy of his cadre carrying grade pay of Rs.

4200/-.

Provided that above methodology will not be applicable in the cases where grade pay of ACP pay structure granted under Rule 13 of HCS (ACP)

Rules 2008 is higher than that of the grade pay of the promotional post in which the Government employee is drawing his salary prior to ACP

structure, his pay will be raised by 3% of the total in the pay band and grade pay drawn before such ACP upgradation and grade pay of the

relevant ACP pay structure will be in addition.

The short controversy involved in this petition is as to whether the benefit of one increment granted to the petitioner on his promotion as SDO

with effect from 1.11.2008 as per Rule 4.4 (a) (i) of the Punjab Civil Services Rules, Vol. I Part-I read with Rule 13 (1) of the Haryana Civil

Services (Revised Pay) Rules, 2008 can be withdrawn citing clarificatory instructions dated 9.4.2010 issued under Rule 27 and 28 of the ACP

Scheme, 2008. The argument being that benefits of the ACP scheme are available only in lieu of promotion and to avoid stagnation. The objective

sought is to compensate financially an employee who is long stagnating without any promotion in a lower post in cases for example for 10 and 20

years.

In response to the writ petition, the Haryana Irrigation Department has filed a written statement. The clarificatory instructions dated 9.4.2010

have been relied upon to justify withdrawal of one increment. The reasoning given is as follows:

That in compliance to the decision of Punjab and Haryana High Court passed in Civil Writ Petition No. 15532 of 1994 titled Jagdeep Singh and

others versus State of Haryana, the pay scale of Junior Engineers of PWD three wings have been modified by the Government of Haryana vide

their Memo No. 46/93/2009-31W dated 18.12.2009 (Copy annexed as Annexure R-I) that they are entitled to the pay scale of Rs. 1640-2900/-

w.e.f. 01.01.1986 and the pay scale of Rs. 2000-3200/- on completion of 15 years regular and satisfactory service w.e.f. 01.01.1992 (in case

they have not been promoted to the next higher post). As per Government Memo No. 46/93/2009-31W dated 18.12.2009, the pay of the

petitioner has been re-fixed vide this office letter No. 4857-63/3EE-II/2010 dated 05.07.2010 (Copy annexed as Annexure P-4).

That Government of Haryana issued clarification regarding pay fixation in Haryana Civil Services (Assured Career Progression Scheme) Rules,

2008 vide No. 21/02/2009-PR (FD) dated 09.04.2010 (Copy annexed as Annexure P-5). The above said clarification provide that if the grade

pay of the promotional post is higher than that of ACP pay structure in which the Government employee is drawing his salary prior to promotion

his pay will not be re-fixed and he will only get the difference of grade pay and his date of next increment will continue to be same as before

promotion and it will not be treated financial up gradation under HCS (ACP), Rules, 2008.

That the pay of the petitioner has been re-fixed (Copy annexed as Annexure P-4) according to instruction dated 09.04.2010 (copy annexed as

Annexure P-5) vide order dated 02.06.2010. Prior to promotion as Sub Divisional Officer the petitioner was drawing his pay in the new pay scale

in pay band of Rs. 9300-34800/-+Grade Pay of Rs. 5200/- as per provisions the revised Pay Scale of 2006. The petitioner was promoted as Sub

Divisional Officer w.e.f. 01.11.2008 in the grade pay of Rs. 5400/-. The grade pay of the petitioner on promotional post is higher than that of the

ACP pay structure which he was drawing prior to his promotion. Therefore, the petitioner was not entitled to grant the benefit of one increment on

his promotional post. However, difference of grade pay of promotional post has been granted w.e.f. 01.11.2008 i.e. date of promotion as Sub

Divisional Officer according to Government instruction dated 09.04.2010.

An employee should actually be placed in a higher pay scale after completion of 20 years of service in the lower post than the pay scale

prescribed for the next promotional post in the hierarchy. The next promotional post in the hierarchy is Sub Divisional Officer in the pay scale of

Rs. 8000-13500 but what to talk of granting higher pay scale than the pay scale prescribed for next promotional post in the hierarchy i.e. Sub

Divisional Officer, Rs. 8000-13500, the petitioner/Junior Engineer was allowed a pay scale of Rs. 6500-10500 (Revised to Rs. 9300-34800 plus

Grade Pay Rs. 5200 w.e.f. 1.1.2006 in view of merger with pay scale of Rs. 7500-13000) from Rs. 6500-9900 (revised to Rs. 9300-34800 plus

Grade Pay of Rs. 5400 w.e.f. 1.1.2006) under the 2nd ACP on completion of 20 years of service.

That the Court is of the considered view that the respondents have wrongly interpreted sub-para (i) of Para I of the Explanatory Memorandum

of the Scheme and therefore has been confining the Junior Engineers within the pay scale of Rs. 6500-10500 on completion of 20 years of service.

An employee continues to discharge the duties of his functional post and enjoys the status of the same post even after by placement in the higher

pay scale in the cadre/hierarchy under the A.C.P. Scheme. Therefore, the question of group jumping will also not arise and will be irrelevant.

In the present case, the petitioner has been placed in the pay scale of Rs. 8000-13500 (revised to Rs. 9300-34800 plus Grade Pay of Rs.

5400, Pay Band 3) of the next post of Sub-Divisional Officer in the cadre hierarchy only after his regular promotion w.e.f. 1.11.2008, (P-1). It is

not disputed that the petitioner will acquire the status of the post of Sub-Divisional Officer (Group A or B Gazetted) in Pay Band 3 and will

discharge higher duties and responsibilities of the post w.e.f. 1.11.2008. Though, the respondents have not placed the petitioner under sub-para (i)

of the Scheme referred to above, in a higher pay scale after completion of 20 years of service in the lower post (i.e. 1.4.1997) than the pay scale

prescribed for the next promotional post in the hierarchy i.e. Sub-Divisional Officer in the pay scale of Rs. 8000-13500, therefore, the

withdrawal/denial of pay fixation under the garb of P-5 dated 9.4.2010 ignoring Rule 4.4 (a) (i) will not be correct. The petitioner has passed

through the process of Department Promotion Committee at least thrice to reach/get the pay scale of Rs. 8000-13500 (revised to Rs. 9300-

34800 plus Grade Pay of Rs. 5400) of the next post of Sub Divisional Officer in the cadre hierarchy. Though letter Annexure P-5 clarifies that-if

the grade pay of promotional post and ACP pay structure in which the Government servant is drawing his pay prior to promotion are identical, his

pay will not again be fixed in the functional pay structure'' but the pay scale of Rs. 9300-34800 plus Grade Pay Rs. 5200 and Rs. 9300-34800

plus Grade Pay Rs. 5400 fall in different Pay Bands i.e. 2 and 3, therefore, they cannot be termed as identical. Further, the first example in P-5

talks of same Grade Pay and same Pay Band i.e. Rs. 4000 and PB 2.

In view of the above factual position, the contention of learned counsel for the petitioner appears to be correct that Annexure P-5 is not

applicable in the facts and circumstances of the case because pay scale of ACP and promotional post fall in different Pay Bands i.e. 2 and 3. The

situation elaborated in the last proviso in P-5 of higher grade pay under ACP than that of the grade pay of promotional post has not arisen in this

case due to faulty implementation of ACP Scheme as explained above because even after 2 or 3 financial up-gradations under the ACP Scheme

from the post of Junior Engineer, the petitioner did not even reach/get the pay scale/Grade Pay of Rs. 8000-13500/Rs. 9300-34800 plus Grade

Pay of Rs. 5400) of the next promotional post i.e. Sub Divisional Officer what to talk of higher grade pay than the promotional post, therefore, the

benefit of pay fixation under this proviso could not have been applied/granted. The candle of the petitioner has been burnt from both ends,

therefore, the respondents cannot be allowed to take benefit of their own wrong.

It is not disputed that no show cause notice was issued to the petitioner before withdrawing the financial benefit of one increment granted w.e.f.

1.11.2008 (P-3, 30.3.2009) on the basis of Instructions dated 9.4.2010, P-5 without superseding the office order dated 30.3.2009, P-3 possibly

passed under Rule 4.4 (a) (i) of the PCS, Rules Volume I, Part I, therefore, the action of the respondents in withdrawing the benefit vide P-4

dated 2.6.2010, while implementing Memo dated 18.12.2009 in pursuance of the judgment of this Court, without affording any opportunity of

hearing to the petitioner is illegal, arbitrary and in violation of the principles of natural justice. Therefore, Annexure P-4 deserves to be quashed, the

writ allowed.

Ordered accordingly. That normally, the respondents ought to have been granted liberty to follow the due process of law after quashing the

impugned order dated 2.6.2010 but in view of the special facts and circumstances, when the petitioner is no more it will not be fair and or proper

to grant this liberty to the respondents and put the LRs. to further official rigmarole.