Himachal Pradesh High Court
Sh. Attar Singh S/O Dharam Singh vs P.D. Attri And Others on 20 May, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
ON THE 20th DAY OF MAY, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.
6543 OF 2019.
Between:-
1. SH. ATTAR SINGH S/O DHARAM SINGH,
R/O VILLAGE PALOURA, P.O. DARKOTI,
TEHSIL JAWALI, DISTT. KANGRA, H.P.
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, GOVT. POLY TECHNIC
COLLEGE, DHAULAKUNA, DISTT.
SIRMOUR.
2. SH. ASHOK KUMAR S/O LATE HIMAL
CHAND, R/O VPO PHARER, TEHSIL
PALAMPUR, DISTT. KANGRA, H.P.
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, GOVT. POLYTECHNIC
COLLEGE KANGRA, H.P.
3. SH. KARAM CHAND S/O SH. RANU
RAM, R/O VILLAGE BATWARA, P.O.
NALTI, TEHSIL & DISTT. HAMIRPUR,
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, Govt. POLYTECHNIC
COLLEGE, HAMIRPUR, H.P.
4. SH. VINAYBIR SINGH S/O LATE JAI
SINGH, R/O VILLAGE LOWERBERI, P.O.
KOTHUWAN, TEHSIL SANDHOL, DISTT.
MANDI, H.P. PRESENTLY SERVING AS
FOREMAN INSTRUCTOR, GOVT.
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POLYTECHNIC COLLEGE, SUNDER
NAGAR, DISTT. MANDI, H.P.
.
5. SH. PAN SINGH S/O SH. GANGA RAM,
R/O VILLAGE KULARU, P.O. TAKERA,
TEHSIL GHUMARWIN, DISTT.
BILASPUR, H.P. PRESENTLY SERVING
AS FOREMAN INSTRUCTOR, GOVT.
POLYTECHNIC COLLEGE UDAYPUR,
DISTT. LAHUL & SPITI, H.P.
6. SH. HARI NAND S/O SH. GITA RAM, R/O
VILLAGE BAHRYAL, P.O. BADHARI VIA
TOTU, TEHSIL & DISTT. SHIMLA,
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, GOVT. POLYTECHNIC
COLLEGE, KANDAGHAT, DISTT. SOLAN,
H.P.
7. SH. VIJAY KUMAR S/O JAMBA RAM, R/O
VPO AND TEHSIL BHORANJ, DISTT.
HAMIPUR H.P. PRESENTLY SERVING AS
FOREMAN INSTRUCTOR, GOVT.
POLYTECHNIC COLLEGE, BILASPUR,
CAMPT AT HAMIRPUR, H.P.
8. SH. AJIT KUMAR S/O DURGA DASS, R/O
VILLAGE SALOA, FAKLOH, TEHSIL
JAWALAMUKHI, DISTT. KANGRA, H.P.
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, GOVT. POLY TECHNIC
COLLEGE, KULLU, DISTT. KULLU, H.P.
9. SH. BALBIR SINGH S/O LATE JIWAN
DASS, R/O VPO, LOHARLI, TEHSIL
GHANARI (AMB) DISTT. UNA, H.P.
KANDAGHAT, DISTT. SOLAN, H.P.
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, GOVT. POLYTECHNIC
COLLEGE, UNA, H.P.
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10. SH. HARINDER SINGH S/O LATE BUDHI
.
SINGH, R/O VPO BALUGLOD, TEHSIL
BAROH, DISTT. KANGRA, H.P.
PRESENTLY SERVING AS FOREMAN
INSTRUCTOR, GOVT. POLYTECHNIC
COLLEGE.
....PETITIONERS.
(BY MR. L.N. SHARMA, ADVOCATE)
AND r to
1. STATE OF H.P. THROUGH ITS
SECRETARY (TECHNICAL EDUCATION)
TO THE GOVT. OF H.P. SHIMLA-2.
2. PR. SECRETARY (FINANCE) TO THE
GOVT. OF H.P. SHIMLA-2.
3. DIRECTOR, TECHNICAL EDUCATION
VOCATIONAL INDUSTRIAL TRAINING,
SUNDERNAGAR, H.P.
....RESPONDENTS.
(BY MR. P.K. BHATTI, ADDITIONAL
ADVOCATE GENERAL)
RESERVED ON: 13th MAY, 2022.
DECIDED ON: 20th MAY, 2022.
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This petition coming on for hearing this day,
.
the Court passed the following:-
ORDER
The petitioners filed O.A. No. 5298 of 2016 before the Himachal Pradesh State Administrative Tribunal praying for following reliefs:-
"(i) That the respondents be directed to the pay scale of Rs.15,600-39100+5400GP to the applicant on their promotion to the post of foreman instructors at par with the Punjab Government Employee immediately.
(ii) That the respondent be further directed not make further promotion to the post of Workshop Superintendent without considering the case of the applicants, since all the applicants fulfills all the requisite qualification as per the R&P Rules of Punjab.
(iii) That the directions may kindly be issued to the respondents to pay the entire arrears to the applicant from the due date along with interest."
2. O.A. No. 5298 of 2016 came to be transferred to this Court after abolition of H.P. State Administrative Tribunal and has been registered as CWPOA No. 6543 of 2019.
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3. Petitioners were initially appointed as .
Workshop Instructors on regular basis in the pay scale of 1350-2400. Pay scale of petitioners as Workshop Instructors was revised from time to time and was fixed in the pay band of Rs.10300-34800 with 3600 as grade pay w.e.f. 1.1.2006.
4. Respondents r created posts of Foreman Instructors and framed recruitment and promotion rules for such post vide notification dated 13.10.2011. Post of Foreman Instructor was to be filled 100% by promotion from the feeder category of Workshop Instructors who had five years regular service or regular combined with continuous ad-hoc service, in the cadre. The post of Foreman Instructor was placed in the pay band of Rs.10300-34800 with 4200 grade pay.
5. Petitioners No.1 to 5 were promoted as Foreman Instructors in 2011 and 2012. After their promotion to the posts of Foreman Instructors, petitioners represented to respondents for grant of pay scale of ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...6...
Rs.15,600-39100+5400 G.P. as was being paid to their .
counter parts in State of Punjab. Respondent No.3 recommended the case of petitioners, but vide notification dated 16.07.2016, Annexure A-8, petitioners were allowed pay scale of 10300-34800 with 4600 Grade Pay w.e.f. 01.08.2016.
6. Aggrieved against the denial of pay scale of 15600-39100+5400 Grade Pay, petitioners approached the Himachal Pradesh State Administrative Tribunal by way of O.A. No.5298 of 2016 inter alia praying for reliefs as noticed above.
7. Petitioners contended that State of Himachal Pradesh has adopted Punjab pay pattern for all categories of employees. The category of Foreman Instructors in Punjab was paid Rs.15600-39100+5400 Grade Pay since 2009. Petitioners were also entitled to the same scale on the ground of parity. It was also contended on behalf of petitioners that respondents had allowed pay scale of ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...7...
10300-34800+4600 G.P. even to the Workshop .
Instructors w.e.f. 01.12.2012.
8. In response, respondents submitted that the staff structure in the workshop in Polytechnics of the State since 1973 to 2011 included posts of Workshop Instructor in respective fields in each workshop for imparting training to the diploma students in the workshop and the overall Incharge of the workshop was Workshop Superintendent, who also taught theory subjects in addition to overall supervision. Post of Workshop Instructor was Class-III Non-gazetted in the pay scale of 10300-34800 with 3600 Grade Pay and the post of Workshop Superintendent was Class-I Gazetted post in the pay scale of 15600-39100+5400 Grade Pay. Whereas the qualification for the post of Workshop Instructor was possession of ITI certificate in the concerned trade from a recognized Board/Institution with two years' post certificate industrial experience or three years diploma in respective branch or its equivalent for Workshop ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...8...
Instructor from a recognized Polytechnic Institute/ .
Institution, the qualification for the post of Workshop Superintendent was possession of Bachelor or Masters Degree in Mechanical/Auto Engineering with first class or equivalent.
9. As per respondents, the State Government in the year 2008, created new posts of Foreman Instructor in pre-revised pay scale of 6400-10649 and revised to 10300-34800+4600 Grade Pay. It is also the stand of the respondents that vide notification dated 28.09.2012, the grade pay of Rs.4600 was allowed to those Workshop Instructors, who had rendered two years of regular service.
10. Respondents further contended that the State Government is independent to decide on grant of pay scale etc., and to revise such pay scales from time to time in exercise of power conferred by proviso to Article 309 of the Constitution of India. The specific stand of respondents is that the State Government is not bound to ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...9...
follow the Punjab pattern for grant of pay scales to its .
employees. The matter regarding grant of revised pay scales/grade pays to the category of Foreman Instructors was placed before the expert committee and thereafter the same was also placed before the Council of Ministers for consideration. Accordingly, the pay structure of Rs.10300-34,800+4600 G.P. was approved to be granted to Foreman Instructors prospectively w.e.f. 1.08.2016.
11. I have heard Mr. L.N. Sharma, learned counsel for the petitioners and Mr. P.K. Bhatti, learned Additional Advocate General for the respondents and have also gone through the records.
12. Petitioners are claiming pay scale of 15600- 39100+5400 Grade Pay for themselves as Foreman Instructors on the basis of same scale being drawn by their counter parts in State of Punjab. It is no more res integra that the Government of Himachal Pradesh is not bound to follow the pay scales granted by the State of Punjab to its employees. In State of Himachal ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...10...
Pradesh vs. P.D. Attri and others, (1999)3 SCC 217, .
the Hon'ble Apex Court has held as under:-
"5. The Case of the respondents is not based on any Constitutional or any other legal provisions when they claim parity with the posts similarly designated in the Punjab & Haryana High Court and their pay-scales from the same date. They do not allege any violation of any Constitutional provision or any other provision of law. They say it is so because of "accepted policy and common practice" which according to them are undisputed. We do not think we can import such vague principles while interpreting the provisions of law. India is a union of States. Each State has its own individualistic way of governance under the Constitution. One State is not bound to follow the rules and regulations applicable to the employees of the other State or if it had adopted the same rules and regulations, it is not bound to follow every change brought in the rules and regulations in the other State. The question then arises before us is if the State of Himachal Pradesh has to follow every change brought in the States of Punjab & Haryana in regard to the rules and regulations applicable to the employees in the States of Punjab & Haryana. The answer has to be in negative. No argument is needed for that ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...11...
as anyone having basic knowledge of the .
Constitution would not argue otherwise. True, the State as per "policy and practice" had been adopting the same pay-scales for the employees of the High Court as sanctioned from time to time for the employees of the Punjab & Haryana High Court and it may even now follow to grant pay-scales but is certainly not bound to follow.
No law commands it to do so."
13. Following the aforesaid mandate, the Division Bench of this Court in State of Himachal Pradesh and Others vs. Dr. Suman Sharma, 2020 (4) Shim. LC 2031 , has held as under:-
"4(i) Reliance upon the notification dated 21.12.2011 issued by State of Punjab for claiming Grade Pay of Rs.6600/- is misplaced. This notification was issued by Government of Punjab and not by Government of Himachal Pradesh. Even though petitioner-State has admitted that by and large it takes into consideration the Punjab pattern of pay-scale. But the fact cannot be lost sight of that the petitioner-State examines the matter of pay- scales in view of it own staffing pattern, Recruitment & Promotion Rules, method of ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...12...
recruitment, educational qualifications, .
geographical/traditional/territorial conditions and financial resources and then fixes the pay- scales for its employees by framing statutory Rules under Article 309 of Constitution of India. Government of Himachal Pradesh is not legally bound to follow Punjab pattern pay-scales."
14. In view of the aforesaid exposition of law, counter parts in Punjab.
petitioners cannot claim parity of pay scale with their Otherwise also the post of Foreman Instructor in Punjab cannot be equated with the posts held by petitioners in State of Himachal Pradesh for the reason that in State of Punjab there are two modes for filling up the post of Foreman Instructor, first being direct recruitment and second by promotion. For direct recruitment the essential qualification is First Class Bachelor Degree or First Class Master Degree in Mechanical Engineering/Production Engineering/Electrical Engineering/ Electronic and Communication Engineering with two years' experience in a Workshop/industrial concern of repute. For recruitment to the post of ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...13...
Foreman Instructor by promotion, the prescribed .
requirement is 10 years experience as regular Workshop Instructor in the relevant trade in a recognized technical institution. In State of Himachal Pradesh, only one mode i.e. by promotion is prescribed for the post of Foreman Instructor and Workshop Instructor with five years regular service or regular continuous ad-hoc service rendered, if any, in the grade is eligible for promotion. Noticeably, for the post of Workshop Superintendent in State of Himachal Pradesh, the essential qualification is possession of Bachelor Degree, as noticed above, and the mode of recruitment is by way of direct recruitment only.
15. Thus, the qualification for the post of Foreman Instructor in Punjab, in the case of direct recruitment is possession of First Class Bachelor Degree or Master degree and by way of promotion, experience of 10 years as regular Workshop Instructor is required. Petitioners neither hold the qualification as required for the post of Foreman Instructor through direct recruitment in State of ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...14...
Punjab nor have the requisite experience of 10 years .
before their promotion. Further, even the essential qualification prescribed for the post of Workshop Instructors in the State of Himachal Pradesh and State of Punjab are not identical.
16. In view of above discussion and exposition of law, petitioners are not entitled to the reliefs as claimed by them.
17. However it cannot be ignored that the category of Workshop Instructor in Himachal Pradesh, indisputably, is drawing pay scale of 10300-34800 +4600 Grade Pay w.e.f. 1.12.2012, in pursuance to notification dated 28.09.2012. Petitioners who were promoted as Foreman Instructors prior to issuance of notification dated 28.09.2012 were being paid pay scale of 10300-34800 + 4200 Grade Pay and their grade pay was increased to Rs.4600/- w.e.f. 01.08.2016. This anomaly remains unexplained. It is strange that feeder category as well as promotional category have been placed in the same pay ::: Downloaded on - 20/05/2022 20:07:37 :::CIS ...15...
band and are also being paid the same grade pay. It is .
not the case of the respondents that the post of Foreman Instructor is not a promotional post and does not carry higher duties and responsibility. It is clear from the recruitment and promotion Rules framed for the post of Foreman Instructors that initially they were granted higher grade pay of Rs.4200 in comparison to the feeder category of Workshop Instructor who was being paid Grade Pay of Rs.3600/-. Since the Workshop Instructors were allowed enhanced Grade Pay of Rs.4600/- after regular service of two years, no corresponding provision has been made for Foreman Instructors. Such conduct of respondents is not only irrational but is highly arbitrary.
18. In view of the above discussion, though the reliefs as prayed by the petitioners are declined, however, the respondents are directed to reconsider the case of the petitioners by removing anomaly as detailed above and to allow them appropriate higher pay than pay granted to feeder category post of Workshop Instructors.
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The respondents are directed to do the needful within .
three months from the date of passing of this order.
Petition is accordingly disposed of. All pending applications shall also stand disposed of.
(Satyen Vaidya) Judge 20th May, 2022.
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