Punjab-Haryana High Court
State Of Haryana & Another vs Dr. K.L.Kumar & Another on 7 August, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Inderjit Singh
1
R.A.No.29 of 2013 in
L.P.A. No.930 of 2010
& other connected cases
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 07.08.2013
R.A.No.29 of 2013 (O&M) in
L.P.A. No.930 of 2010
& other connected cases
State of Haryana & another ...Applicant-Appellants
Versus
Dr. K.L.Kumar & another ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE INDERJIT SINGH
Present : Mr. M.S.Saggar, Senior Advocate, with
Mr. Baleshwar Singh, Advocate,
for the applicant-appellants.
HEMANT GUPTA, J.
This order shall dispose of afore mentioned review application along with other review applications, as mentioned in the foot note of this order, seeking review of the order dated 10.08.2010 dismissing a set of 10 Letters Patent Appeals. Vide the said order, the learned Division Bench has upheld the order passed by the learned Single Bench holding that the pay of the respondents herein - the writ petitioners in the scale of Rs.13500-17250 has been rightly fixed and the order fixing the pay in the pay-scale of Rs.12000-16500 was set aside.
Kumar Vimal2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 2 R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases Though we find that there is no error apparent on record, which may warrant consideration of the review applications, but since the learned counsel for the applicant-appellants has vehemently argued that the order passed by this Court is erroneous and has large financial implications, therefore, we have heard the learned counsel for the applicant-appellants at length and we record our reasons as to why, there is no error apparent on record.
Learned counsel for the applicant-appellants has argued that the learned Single Bench as well as the learned Division Bench have relied upon the judgment of Hon'ble Supreme Court in State of Haryana Vs. Dr. M.P.Mohla 2007 (1) SCC 457, whereas while dismissing the appeal, the Court has left the question as regards the applicability of Haryana Civil Service (Assured Career Progression) Rules, 1998 (for short 'the ACP Rules') or Haryana Civil Service (Revised Pay) Rules, 1998 (for short 'the Revised Rules') open to be determined on its own merit in accordance with law. Therefore, it is contended that the learned Single Bench and the learned Division Bench have erred in law in relying upon Dr. M.P.Mohla's case (supra), which has not dealt with the applicability of the Rules to the employees of the State Government.
The entire argument of Mr. Saggar is that the pay-scale of the respondents has to be fixed in accordance with the ACP Rules and not in terms of the Revised Rules. It is pointed out that both the set of Rules were notified on the same day, therefore, the respondents are not entitled to pay fixation under the Revised Rules, as has been ordered by the learned Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 3 R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases Division Bench. The Revised Rules have since been replaced by Haryana Civil Services (Revised Pay) Rules, 2008 and still later by Haryana Civil Services (Revised Pay) Rules, 2012 and also ACP Rules by Haryana Civil Service (Assured Career Progression) Rules, 2008 and later by Haryana Civil Service (Assured Career Progression) Rules, 2012. Both set of Rules are notified on the same day.
We find that the contention of the applicant-appellants that the pay scales have to be revised in terms of ACP Rules is not tenable. In fact, both set of Rules are applicable to the persons appointed to Civil Services and the posts in connection with affairs of the Government of Haryana. It excludes certain categories of officials as well. The relevant Clauses from the Revised Rules are as under:
"2. Categories of Government servant to whom these rules apply - (1) Save as otherwise provided by or under these rules, these rules shall apply to persons appointed to civil services and posts in connection with the affairs of the Government of Haryana and who are under the administrative control of the Government of Haryana and whose pay is debitable to the Consolidated Fund of the State of Haryana. (2) These rules shall not apply to:-
(a) Members of All India Services working in connection with the affairs of Haryana Government;
(b) Officers of judicial service working in connection with the affairs of Haryana State as a separate commission has been appointed for revision of their pay scales;
(c) Persons not in whole time employment;
(d) Persons paid out of contingencies;Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 4
R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases
(e) Persons paid otherwise than on monthly basis including those paid only on a piece-rate basis or on daily wages basis;
(f) Persons employed on contract;
(g) Persons re-employed in Government service after retirement; except ex-military pensioners;
(h) Government servants who are drawing their pay in a pay scale as personal measure (other than the functional pay scale prescribed for the post held by the Government servant) with effect from the date on which he started drawing his pay in the pay scale as a personal measure and till the time he drew his pay in the pay scale as a personal measure;
(i) Any other class or category of persons whom the Government may, by order specifically, exclude from the operation of all or any, of the provisions contained in these rules."
"4. Scale of pay of posts - (1) The functional scale of pay of every post specified in column 2 of part I of the first Schedule shall be as specified against it in column 4 of the above said part of the First Schedule.
(2) For all other categories of the posts not mentioned in part 1 of the First Schedule but falling within the scope of these rules the functional scale of pay shall be as specified in part II of the First Schedule in column 3 corresponding to the existing scale mentioned in column 2 as the corresponding revised scale of the existing scale."
The posts i.e. Veterinary Assistant Surgeon in the Animal Husband Department, Haryana held by the respondents do not find mention in First Schedule (Part I) in terms of clause (1) of Rule 4 of the Revised Rules. In the event, the post do not fall in First Schedule (Part I), then it is the residuary clause (2), which comes into operation i.e. Part II of the First Schedule. It is not disputed that the writ petitioners were in pre-revised scales of Rs.4100-5300 prior to 01.01.1996. Therefore, in terms of Entry 23 Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 5 R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases of Part II of First Schedule, the Revised Functional Pay Scale is Rs.13500- 375-17250. It is the said scale, which has been upheld as payable to the writ petitioners.
The ACP Scales, which were pressed during arguments by learned counsel for the applicant-appellants, are also applicable to all persons appointed to Civil Services and the posts in connection with affairs of the Government of Haryana, but the objective of such Rules is to provide such Government servants, who fall within the scope of these rules, at least two financial up gradations, including the financial up gradation, if any, availed by such Government servants as a consequence of the functional promotion, within the corresponding prescribed period of length of service during his entire career, as may be specified under these Rules. The relevant extract from the ACP Rules are as under:
"2. Categories of Government servant to whom the rule apply:- (1) Save as otherwise provided by or under these rules, these rules shall apply to persons appointed to civil services and posts in connection with affairs of the Government of Haryana and who are under the administrative control of the Government of Haryana and whose pay is debitable to the consolidated Fund of the State of Haryana and as are mentioned in Schedule 1 of these rules.
(2) These rules shall not apply to -
(a) Officers of judiciary working in connection with the affairs of Haryana State. As a separate commission has been appointed for revision of their pay scale.
(b) Persons not in whole time employment;
(c) Persons paid out of contingencies;
Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 6
R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases
(d) Persons paid otherwise than on monthly basis including those paid only on a piece-rate basis or on daily wage.
(c) any other class or category of persons whom the Government may by order, specifically exclude from the operation of all or any of the provisions contained in these rules."
Schedule 1, which finds mention in Rule 2 of the ACP Rules, includes the Veterinary Assistant Surgeon in the Animal Husband Department, Haryana, but such Rule is applicable in respect of a Government servant, who is recruited as a direct recruitment fresh entrant. The relevant entry in Schedule I Part I reads as under:
Sr.No. Name of the post/cadre in First Assured Second Assured which the Government Career Career Servant were recruited as a Progression Scale Progression Scale direct recruited fresh entrant.
xx xx xx xx
6. Veterinary Surgeons in the 10000-325-13900 12000-375-16500
Department of Animal (after 5 years of (After 11 years of
Husbandry regular satisfactory regular satisfactory
service in the service in the
cadre) cadre)
xx xx xx xx
The argument of Mr. Saggar is that Second Assured Career Progression Scale is Rs.12000-375-16500 after 11 years of regular satisfactory service in the cadre, therefore, the writ petitioners are entitled to the said scale and not the scale of Rs.13500-17250.
We do not find any merit in the argument raised. The Revised Rules are generic in nature and applicable to all employees of the State Government excluding the employees, who find mention in clause (2) of Rule 2 of the Revised Rules. Part I of Schedule I of the Revised Pay Rules contemplates giving revised functional pay scales to certain specified posts, Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 7 R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases but in respect of other posts, the revised functional pay scale is related to existing functional pay scales. Since the post of Veterinary Surgeon is not in Part I of Schedule I of the Revised Rules, therefore, the revised functional pay scale has to be in terms of Part II of First Schedule. The pay scale has been fixed accordingly.
On the other hand, the ACP scales are applicable to those persons, who do not get any up gradation. Such pay scales are given to overcome the stagnation. Schedule 1 itself states that it is applicable to Government servant, who is recruited as direct recruitment fresh entrant, if he does not get any promotion within 5 years of regular satisfactory service, he should get First Assured Career Progression Scale of Rs.10000-325- 13900. Whereas, after 11 years of regular satisfactory service as Veterinary Surgeon, a direct recruit gets Second Assured Career Progression Scale. Such scale is meant for direct recruit, who do not get any promotion while working as Veterinary Surgeon. The writ petitioners are not the direct recruit, who are claiming ACP scale due to stagnation. In fact, for example, the Petitioner No.1 namely Dr. K.L.Kumar, was appointed as Veterinary Assistant Surgeon on 20.06.1961 and retired as Joint Director on 31.03.1997. At that time, he was in the pre revised pay-scale of Rs.4100-
5300. He is not a direct recruit, who is entitled to up gradation scale due to stagnation in the post, but he is entitled to revised pay scale, as mention in Part II of Schedule I of Revised Rules.
In view of the above, we find that the Revised Rules are applicable to all Government employees, whereas ACP Rules are meant only Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh 8 R.A.No.29 of 2013 in L.P.A. No.930 of 2010 & other connected cases for those Government employees, who do not get promotion even after spending requisite number of years. Therefore, reliance of the applicant- appellants on ACP Rules to fix the salary of the writ petitioners is wholly misconceived. The writ petitioners have been rightly granted pay scales corresponding to their pre-revised pay-scales in terms of the Revised Rules.
Consequently, we do not find any error apparent on record, which may warrant review of the order dated 10.08.2010.
Dismissed.
(HEMANT GUPTA)
JUDGE
07.08.2013 (INDERJIT SINGH)
Vimal JUDGE
Sr.No. Case No. Parties Name
1. RA No.27 of 2013 in State of Haryana & another Vs. LPA No.936 of 2010 Dr. M.L.Gupta & others
2. RA No.28 of 2013 in State of Haryana & another Vs. LPA No.935 of 2010 Dr. Nawal Singh & others
3. RA No.31 of 2013 in State of Haryana & another Vs. LPA No.931 of 2010 Dr. O.P.Satija & others
4. RA No.32 of 2013 in State of Haryana & another Vs. LPA No.933 of 2013 Dr. J.P.Bansal & others
5. RA No.33 of 2013 in State of Haryana & another Vs. LPA No.940 of 2010 G.P.Grover & another
6. RA No.34 of 2013 in State of Haryana & another Vs. LPA No.934 of 2010 Dr. R.S.Panghal & another
7. RA No.35 of 2013 in State of Haryana & another Vs. LPA No.938 of 2010 Dr. Balbir Singh & others
8. RA No.36 of 2013 in State of Haryana & another Vs. LPA No.932 of 2010 Dr. Dharampal Singh & others
9. RA No.37 of 2013 in State of Haryana & another Vs. LPA No.939 of 2010 Dr. Tilak Raj & another Kumar Vimal 2013.08.08 16:32 I attest to the accuracy and integrity of this document Chandigarh