Rai Singh Negi & others vs State of Uttarakhand & others

V.K. Bist, J.

Since prayers in all these writ petitions are common and question of law involved in all these writ petitions are common, therefore, all the writ

petitions are clubbed together and are being decided by a common judgment. Writ Petition (S/S) No. 2876 of 2017 shall be the leading file.

Petitioners have approached this Court for quashing the report dated 28.07.2017 submitted by the respondent no. 5 as well as the order dated

26.08.2017 passed by the respondent no. 4. By the order dated 26. 08.2017 passed by the respondent no. 4, pay-scale of various employees has been

re-fixed. Further prayer has been made for a direction to the respondents to give the salary to the petitioners as fixed by Office Order dated 12.

03.2013.

All the petitioners are working as Head Constable in the Provincial Armed Constabulary (P.A.C.), 40th Battalion Haridwar, District Haridwar. For

understanding the controversy involved regarding fixation of pay of the petitioners, pay-scale of certain posts has to be mentioned in this judgment.

The Vth Pay Commission Report was accepted and was implemented w.e.f. 01.01.1996. As per the Vth Pay Commission Report, pay-scale of Police

Constable was 3050-75-3950-80-45-90, pay-scale of Head Constable was 3200-85-4900 and the pay-scale of Sub Inspector was 5500-175-9000. As

per the Vth Pay Commission Report, it was provided that in case Constable does not get promotion, in that event, after completing 14 years of service,

he will get pay-scale of Head Constable and, after completing 24 years of service, he will get pay-scale of Sub Inspector. The VIth Pay Commission

Report was implemented w.e.f. 01.01.2006; whereas, in the petitioners’ department, the VIth Pay Commission Report was made applicable w.e.f.

31.08.2008. As per VIth Pay Commission Report, the pay-scale of Sub-Inspector was revised 5500-175-9000 to 10230-4200-14430. Thereafter, a

Committee was constituted by the State of Uttarakhand on 17.10.2008 for considering the revised pay-scale of the State Government employees as

per the decision taken by the Central Government for grant of pay-scale w.e.f. 01.01.2006. The Committee, so constituted, submitted its

recommendation to the Government on 17.10.2008. It was recommended that the revised pay-scale be given to the employees w.e.f. 01.01.2006. It

was also mentioned in the recommendation that the option is to be invited from the employees within a period of 90 days from the date of issuance of

Government Order and in case employees do not give any option within the stipulated period, in that event, it would be assumed that he has accepted

the revised pay-scale. Thereafter, the Government Order was issued on 17.10.2008, whereby it was provided that the revised pay-scale be given to

the Government employees as per the decision taken by the Government. At the time of implementation of the recommendation of the VIth Pay

Commission Report, the petitioners were getting the higher pay-scale. There were some anomaly for fixation of the salary. The Department gave

option to the petitioners asking them as to whether they want to take benefit of VIth Pay Commission Report from the date of promotion or from the

date promotional pay-scale was given to them. Since the petitioners were not given promotion and were given promotional pay-scale of Head

Constable i.e. 3200-85-4900 after completion of 14 years of service on 15.03.1996 and another promotional pay-scale of 5500-175-9000 on completion

of 24 years of service on 15.03.2006, the petitioners gave option for grant of pay benefit of VIth Pay Commission from the date of acceptance of pay-

scale i.e. 15.03.2006.

As stated above that the pay-scale of Sub-Inspector was revised in the year 2006 as 10230-4200-14430.

The case of the petitioners is that since they were already getting the pay-scale of Sub-Inspector with effect from 15.03.2006, in the old scale,

therefore, they are entitled for the revised pay-scale as given on the VIth Pay Commission Recommendation. It is the case of the petitioners that the

S.S.P., Haridwar also requested the Deputy Inspector General of Police (Personnel), Uttarakhand to give necessary directions in the matter. The case

of the petitioners is that the higher authority never informed the petitioners about the Government order dated 17.10.2008 & 13.02.2009 and, for the

first time, the Commandant of 40th Battalion, P.A.C., Haridwar (respondent no. 4 herein) wrote to his subordinates on 12.02.2013 to get the option

from the concerned Head Constables & Constables for opting the revised pay-scale. It is the case of the petitioners that, immediately, thereafter, the

petitioners submitted their options. This fact has been written by the petitioners in paragraph no. 20 of the writ petition that on 12.02.2013 the

respondent no. 2 asked the petitioners to give option.

The respondent no.4 has filed counter affidavit and in paragraph no. 18 of the counter affidavit, he has denied the contents of paragraph no. 20 of

the writ petition. In the said paragraph, it is also written that, in pursuance of the Government Order dated 17.10.2008, the then Commandant, 40th

Battalion P.A.C. invited options from all the non-gazetted Officers/employees on 22. 10.2008; but, no option was received. Then again, vide

Government Order dated 13.02.2009, the facility to change their options was extended upto 13.05.2009; but, petitioners did not submit their options.

However, keeping in view the interest of the petitioners, the then Commandant 40th Battalion P.A.C., vide its order dated 25. 03.2009, sanctioned pay

band of ` 10,230/- against ` 5,500/- from the date promotional pay-scale was granted to the petitioners. In the said paragraph, it is also stated that the

order dated 12.03.2013 issued by the Commandant 40th Battalion P.A.C. is wrong, as at that time, there was no Government Order prevailing which

gave choice for option under the VIth Pay Commission Report.

The case of the petitioners is that the order dated 25.03.2009 passed by the Commandant sanctioning pay band of ` 10230/- to the petitioners was a

correct order; but, subsequently, vide order dated 19. 01.2016, the respondent no. 4 again revised the pay-scale of the petitioners and reduced the

same.

It is the contention of the learned counsel for the petitioners that once the benefit of VIth Pay Commission was granted to the petitioners and

revised pay-scale was granted to them, the same could not be reduced. Another argument of the learned counsel for the petitioners is that, before

reducing the salary of the petitioners, no opportunity of hearing was afforded to the petitioners. It is submitted by the learned counsel for the

petitioners that petitioners filed various writ petitions before this Court, which was allowed by the Co-ordinate Bench of this Court on 27.03.2017 in the

following manner:

“The petitioners were granted higher pay scale of Rs. 10230 -4200-14430 vide annexure no.3 dated 12.03.2013. The arrears were also released to

the petitioners. However, surprisingly, vide office order dated 19.01.2016, the decision dated 12.03.2013, annexure no.3, has been cancelled. The pay

scales of the petitioners were modified. The petitioners have not been heard before issuance of annexure no.5 dated 19.01.2016. The salary is

property within the meaning of Article 300A of the Constitution of India. No person can be deprived of the same, save in accordance with law.

The petitioners ought to have been heard before issuance of impugned annexure no.5 dated 19.01.2016, since it has civil and evil consequences.

The petitioners belong to lowest strata of the society and have spent the amount by treating it to be their right.

Accordingly the writ petitions are allowed. Annexure No.5 dated 19.01.2016 is quashed and set aside. However, it shall be open to the respondents to

proceed with the matter in accordance with law but with a rider that the amount which has already been paid to the petitioner shall not be recovered

being lowly paid employees.â€​

In compliance of the said order, the respondent no. 4 passed an order on 26.08.2017 fixing the pay-scale of the petitioners. The case of the

petitioners is that, before passing the order, no opportunity of hearing was accorded to the petitioners and the pay-scale of the petitioners has been

reduced.

It is submitted by the learned counsel for the petitioners that the order impugned is not only illegal; but, is passed in violation of the judgment given

by the Co-ordinate Bench of this Court on 27.03.2017, wherein the Co-ordinate Bench of this Court has specifically said that that the writ petitioners

should have been heard before the issuance of the order.

On the other hand, learned Deputy Advocate General submitted that, on 22.10.2008, options were invited by the then Commandant, 40th Battalion,

P.A.C. from all non-gazetted Officers/employees. Thereafter, the facility to change their options was extended till

05.2009; but, the petitioners did not submit any option, therefore, the benefit of the Government Order could not be given to the petitioners. He also

submitted that subsequent order passed by the respondent no. 4, permitting the petitioners to give options, is illegal, therefore, petitioners could not be

granted any benefit of the VIth Pay Commission Report.

I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. As far as

submission of learned Deputy Advocate General that petitioners were given opportunity twice to submit their options is concerned, if this contention is

taken to be true, in that event, at least one employee should have opted for the pay revision; but, none of the employees have opted, therefore, I find

force in the submission of the learned counsel for the petitioners that the petitioners were not informed about the Government Order dated 17.10.2008;

but, in any case, when the then Commandant, 40th Battalion, P.A.C. gave opportunity to the petitioners, then it will be assumed that time for

submitting options was extended by the respondents.

Moreover, it is a case where the petitioners claimed the benefit of VIth Pay Commission Report, benefit of which has already been given to other

employees, therefore, I do not think that the case of the petitioners should be declined on the ground that options were not given in time. The claim of

the petitioners is legitimate. So far the main argument of the learned counsel for the petitioners that, before passing the order impugned, the petitioners

were not accorded opportunity of hearing is concerned, this fact is not denied by the respondents in their counter affidavit. It is a fact that, before

reducing the pay-scale of the petitioners, no opportunity of hearing was accorded to the petitioners.

In my considered view, the respondents have committed gross illegality in passing the orders impugned. Consequently, the writ petitions are

allowed. Orders impugned are set-aside so far same relate to petitioners. The respondents are directed to pass a fresh order fixing the pay-scale of

the petitioners taking in account the observations made by this Court in the body of the judgment. Entire exercise shall be carried out within a period of

three months from the date of production of certified copy of the order.

There will be no order as to costs.

All pending applications stand disposed of.

Let a copy of this order be placed in all the connected writ petitions.