Himachal Pradesh High Court
Budhi Singh vs State Of H.P. And Others on 13 January, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 2638 of 2019 Reserved on: 07.01.2023 Decided on: 13.01.2023 __________________________________________________________ .
Budhi Singh ...Petitioner
Versus
State of H.P. and others ...Respondents
__________________________________________________________ Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting? No ______________________________________________________ For the petitioner : Mr. Y. K. Thakur, Advocate.
For the respondents: Mr. Manoj Chauhan and Mr.
r Varun Chandel, Additional
Advocate Generals.
Satyen Vaidya, Judge
By way of instant petition, petitioner has prayed for grant of following substantive reliefs:
"i) That the writ or order may please be issued to respondents No. 1 to 3 to pay pre-revise pay scale of Rs.400 -600 to petitioner w.e.f.
his initial appointment, i.e. 28.1.1989 and may also be held that the petitioner is similarly situated at par with the other cooks serving and posted in other various Govt. departments viz., Police, Health, Home Guards, Fire, HP Tourism, IGMC, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 13/01/2023 20:33:03 :::CIS 2Medical Sciences, HIPA, Governor House, etc. discharging and performing the similar duties and sharing the same responsibilities.
ii) That declaration to the effect that the .
notification of pre-revise pay scale from Rs.300-430 to 400-600 w.e.f. 01.03.1980, which has made in consultation and approval of the Finance Department of Govt. of H.P. is applicable as per Annexure P-5, in case of petitioner, being right of equality under Article 14 of the Constitution of India."
2. The petitioner was appointed as Cook in the Department of Agriculture vide office order dated 28.01.1989 in the pay scale of Rs.300 - 430, petitioner was confirmed on the same post on 16.7.1996.
3. The grievance of the petitioner is that despite his entitlement to parity in pay scale with other similarly situated persons in the employment of State Government, he has been denied his eligible dues. The petitioner represented his case to the respondents for the first time on 3.1.2007 and thereafter on 17.3.2007.
Having received no response from the respondents, petitioner approached this Court by way of CWP No.3698 of 2009, which was decided by the learned ::: Downloaded on - 13/01/2023 20:33:03 :::CIS 3 Single Judge of this Court on 6.3.2013 in the following terms:
"2. Learned counsel representing the petitioner .
submits that the issue in this writ petition is covered in favour of the petitioner by the judgment of this Court in CWP No. 171 of 2004 titled State of Himachal Pradesh and another versus Chet Ram and others, decided on 17th November, 2005.
3. Consequently, there shall be a direction to the respondents to examine the case of the petitioner and take appropriate action in accordance with law and also in the light of the decision, referred to above, in case the judgment has attained finality and in case the petitioner is similarly situated, within a period of three months from the date of production of a copy of this judgment alongwith a copy of the writ petition and a copy of the judgment referred to above by the petitioner before the second respondent."
4. Respondent No.2 vide communication dated 6.7.2013, Annexure P-1, rejected the case of petitioner by holding that his case was not similar to the facts of the case in CWP No. 171 of 2004, titled State of Himachal Pradesh and another vs. Chet Ram and others. The above conclusion was drawn on the ::: Downloaded on - 13/01/2023 20:33:03 :::CIS 4 premise that the post of Cook in the department of Agriculture was Class-IV post in the pay scale of Rs.300 - 430 and as per the R & P Rules, the essential .
qualification was "Primary pass", whereas in the Department of Director of HIPA, essential requirement was to possess Diploma from Food Craft Institute or equivalent qualification.
5. Aggrieved against the aforesaid rejection order, petitioner has approached this Court on the grounds that the issue is no more res integra in light of the judgments passed by this Court in CWP No.171 of 2004, titled State of Himachal Pradesh and another vs. Chet Ram and others, decided on 17.11.2005, by virtue of which the Cooks in the Department of Health and Family Welfare, were held entitled to parity with the pay scale of Cooks working with the Tourism and Hospitality Department, Governor's House, Indira Gandhi Medical College, who in turn had been granted such benefit by the order of erstwhile H.P. State Administrative Tribunal in T.A. No.253 of 1986 by considering the scale paid to Cooks in Police ::: Downloaded on - 13/01/2023 20:33:03 :::CIS 5 Department. The order of the learned Tribunal in T.A. No.253 of 1986 was affirmed by the Hon'ble Supreme Court in SLP(Civil) No.15011/1996 vide judgment .
dated 20.01.1997. Later, a Division Bench of this Court applied the same principle to the Cooks employed by the Commandant General of Home Guards-cum-Director Civil Defence and Fire Services in the State of Himachal Pradesh, vide judgment dated 6.11.2008, passed in CWP No. 71 of 2001. It is contended on behalf of the petitioner that no distinction can be drawn in their case as the nature of duties performed by them are identical and similar to the nature of duties performed by the Cooks in the other Departments viz., HIPA, Tourism, Governor's House, Department of Home Guards and Civil Defence and Health etc.
6. On the other hand, the respondents have defended their action by asserting the same reasons as detailed by respondent No.2 in communication, Annexure P-1, dated 6.7.2013. It has also been stated that the mess of Gram Sewak Training Centre, ::: Downloaded on - 13/01/2023 20:33:03 :::CIS 6 Mashobra had been allowed to be run on contract basis due to conversion of Gram Sewak Training Centre as Autonomous Society and the petitioner was .
offered the work of the post of Peon w.e.f. 24.01.2000.
7. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
8. It is evident from the judgment dated 17.11.2005 passed by a Division Bench of this Court in CWP No. 171 of 2004, titled State of Himachal Pradesh and another vs. Chet Ram and others, that the order of H.P. State Administrative Tribunal allowing the Cooks in the Department of Health and Family Welfare, the scale of Rs.400-600 on the analogy of pay scale of Cooks working in the Tourism and Hospitality Department, Governor's House, IGMC, etc. was affirmed. The Court had taken into consideration the earlier order passed by the learned Tribunal in T.A. No. 253 of 1986, whereby the Cooks working in the Governor's House and Department of Tourism and Hospitality, were held entitled to pay scale of Rs.400 -
::: Downloaded on - 13/01/2023 20:33:03 :::CIS 7600 w.e.f. 01.03.1980. The order of erstwhile Tribunal in T.A. No. 253 of 1986 was affirmed even by the Hon'ble Supreme Court.
.
9. In CWP No.71 of 2001, titled State of Himachal Pradesh and others vs. Tek Ram and others, another Division Bench of this Court vide judgment dated 06.11.2008, after following the same principle, allowed the benefit of pay scale of Rs.400 - 600 in favour of the Cooks working in the Department of Home Guards-cum-Director Civil Defence & Fire Services.
10. The case of the petitioner in the instant case cannot be said to be different than the case of Cooks in cases i.e. T.A. No.253 of 1986, CWP No. 171 of 2004 and CWP No. 71 of 2001, as noticed above. The petitioner is also working under the State Government and cannot be treated differently in relation to his pay especially when the nature of work performed by him is the same as is being performed by the Cooks working in other Departments of the Government.
::: Downloaded on - 13/01/2023 20:33:03 :::CIS 811. It is not the case of the respondents that the initial appointment of petitioner was not in accordance with the prevalent Recruit and Promotion .
Rules. Thus, to carve out a distinction between the petitioner and the Cooks in other Departments of the State Government, is clearly discriminatory. The fact of the matter remains that the nature of duties performed by petitioner is the same as performed by the Cooks in other Government Departments.
12. The contention of respondents that the petitioner has been given the charge of Peon also cannot improve their case. It is not their case that the post of Cook does not exist or the petitioner himself had opted for change of cadre.
13. In view of above discussion, the petition is allowed. The respondents are directed to grant pre-
revised pay scale of Rs.400-600 to the petitioner w.e.f.
his initial appointment i.e. 28.01.1989. Needless to say that the consequential benefits shall follow.
::: Downloaded on - 13/01/2023 20:33:03 :::CIS 914. The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.
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13th January, 2023. (Satyen Vaidya) (GR) Judge r to ::: Downloaded on - 13/01/2023 20:33:03 :::CIS