Himachal Pradesh High Court
Chhotu Ram vs The State Of Himachal Pradesh And Others on 11 July, 2019
Bench: V .Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2037 of 2016 a/w .
CWPs No. 2039 & 3059 of 2016
Reserved on: 09.07.2019
Decided on: 11.07.2019
CWP No. 2037 of 2016
Chhotu Ram ...Petitioner
Versus
The State of Himachal Pradesh and others ...Respondents
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CWP No. 2039 of 2016
Nikka Ram ...Petitioner
Versus
The State of Himachal Pradesh and others ...Respondents
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CWP No. 3059 of 2016
The State of Himachal Pradesh and others ...Petitioners
Versus
Nikka Ram ...Respondents
Coram
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 2CWPs No. 2037 & 2039 of 2016 For the petitioner(s): Mr. V.D. Khidtta, Advocate.
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For the respondents: M/s. J.K. Verma, Adarsh K. Sharma, Ritta Goswami, Ashwani K. Sharma and Nand Lal Thakur, Additional Advocates General.
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CWP No. 3059 of 2016For the petitioners: M/s. J.K. Verma, Adarsh K. Sharma, Ritta Goswami, Ashwani K. Sharma and Nand Lal Thakur, Additional Advocates General.
For the respondents: Mr. V.D. Khidtta, Advocate.
V. Ramasubramanian, Chief Justice.
Two persons by name Chhotu Ram and Nikka Ram who were working as Technicians GradeI, filed writ petitions on the file of this Court challenging the orders of re fixation of pay and consequential recovery. The writ petitions were transferred to the file of the Himachal Pradesh State Administrate Tribunal and numbered as T.A. Nos. 818 and 812 of 2015, respectively.
2. Those two Transferred Applications were allowed partly by the State Administrative Tribunal by separate orders ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 3 dated 17th May, 2016 and 16th May, 2016, respectively. By these orders, the State Administrative Tribunal upheld the re .
fixation of pay, but set aside the recovery on the basis of the decision of the Supreme Court in State of Punjab versus Rafiq Masih, AIR 2015 SC 696.
3. Aggrieved by that portion of the order of the State Administrative Tribunal upholding the refixation of pay, Chhotu Ram has come up with a writ petition in CWP No. 2037 of 2016. Similarly, Nikka Ram has also come up with a writ petition in CWP No. 2039 of 2016 challenging that portion of the order of the State Administrative Tribunal upholding the refixation of pay.
4. Assailing the other portion of the order of the State Administrative Tribunal setting aside the recovery, the State came up with two writ petitions, one in CWP No. 2917 of 2016 and another in CWP No. 3059 of 2016. The former related to the case of Chhotu Ram and the latter to Nikka Ram.
5. Ideally, all the four writ petitions, two filed by the State and two filed by the individuals, should have been ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 4 clubbed together and taken up for disposal. But unfortunately, the writ petition filed by the State in CWP No. .
2917 of 2016 arising out of the order of the State Administrative Tribunal setting aside the recovery in respect of Chhotu Ram was thrown out even at the stage of admission by a Bench of this Court by an order dated 28 th November, 2016. Therefore, the recovery of excess pay ordered in the case of Chhotu Ram, stands set aside by the State Administrative Tribunal and the same has now been confirmed by this Court.
This has resulted in the remaining three cases coming up for hearing now.
6. Out of the three writ petitions on hand, two are of individuals namely Chhotu Ram and Nikka Ram challenging one portion of the order of the State Administrative Tribunal upholding the refixation of pay. The third writ petition is by the State challenging the other portion of the order of the State Administrative Tribunal setting aside the recovery of excess pay.
::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 57. Heard Mr. V.D. Khiddta, learned Counsel appearing for the individuals and Mr. Adarsh K. Sharma, .
learned Additional Advocate General appearing for the State.
8. We shall first take up CWP No. 3059 of 2016 filed by the State against the order of the State Administrative Tribunal setting aside the recovery of excess pay in the case of Nikka Ram, as it is capable of easy disposal. Both Nikka Ram and Chhotu Ram were originally appointed as daily wage Plumber/Welder and were brought to the work charged establishment later. Thereafter, they were granted the scale of pay of the post of Technician GradeII with effect from a particular date and the scale of pay of the post of Technician GradeI with effect from another date under a Scheme. The date on which they were granted the scale of pay of the post of Technicians GradeII and GradeI was revised to a future date and the consequential recovery of excess pay was ordered by the proceedings impugned by the individuals before the State Administrative Tribunal.
9. As pointed out earlier, the State Administrative Tribunal followed the decision of the Supreme Court in Rafiq ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 6 Masih for setting aside the orders of recovery. The order of the State Administrative Tribunal in the case of Chhotu Ram has .
been upheld by this Court in CWP No. 2917 of 2016.
Therefore, we do not wish to discriminate against Nikka Ram testing the correctness of the order of the State Administrative Tribunal setting aside the recovery. If we do so, it may tantamount to our taking a different view than the one taken by a coordinate Bench in CWP No. 2917 of 2016. Therefore, the writ petition filed by the State in CWP No. 3059 of 2016 in the case of Nikka Ram is dismissed.
10. Coming to the other two writ petitions filed by the individuals, they arise out of orders of refixation of pay, upheld by the State Administrative Tribunal. The circumstances under which the individuals who are the writ petitioners were granted the benefit of fixation of pay and the circumstances under which the benefits granted were sought to be revised, are required to be noted.
11. Chhotu Ram who is the petitioner in CWP No. 2037 of 2016 was initially appointed as Plumber on daily wages, with effect from 7th November, 1978. He was brought ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 7 into the work charged establishment as a Plumber with effect from 1st November, 1994 by the office order dated 23 rd January, .
1995.
12. Similarly, Nikka Ram, the petitioner in CWP No. 2039 of 2016 was appointed as a Welder on daily wages basis with effect from 7th November, 1978. He was also brought into the work charged establishment with effect from 1 st January, 1994 by the office order dated 23rd January, 1995.
13. By the proceedings of the Superintending Engineer dated 31st December, 2002, the cadre strength of Technicians was trifurcated (wrongly mentioned as bifurcated in all proceedings) into Technicians GradeI, GradeII and Junior Technicians, in the ratio of 20:30:50. The trifurcation of the cadre strength of Technicians was as on 1st January, 1996.
14. While Technicians GradeI were granted the scale of pay of ₹ 45507200, Technicians GradeII were granted the scale of ₹ 40206200 and Junior Technicians were granted the scale of ₹ 31205160. The benefit of the trifurcation and the refixation of pay as ordered by the Superintending Engineer in his proceedings dated 31st December, 2002, was extended by ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 8 the Executive Engineer of the Division, by his proceedings dated 26th May, 2003, to about 34 individuals working in his .
Division. The writ petitioners herein were granted under those proceedings, the benefit of fixation of pay in the scale of ₹ 40206200 with effect from 1st January, 1996. In other words, they were fixed in the scale of pay admissible to Technician GradeII.
15. In fact, the manner in which the existing employees had to be fixed in these three categories of posts, namely Technician GradeI, Technician GradeII and Junior Technician, had already been decided by the Engineerin Chief. As per the policy laid down by the EngineerinChief, senior most 20% of Technicians GradeII are to be designated as Technicians GradeI. The next 30% of Technicians GradeII are to be designated as Technicians GradeII and the remaining 50% are to be designated as Junior Technicians.
16. Subsequently, by an office order dated 29 th March, 2004, the petitioners were granted the benefit of an Assured Career Progression Scheme, introduced by the Government.
Both of them were granted the scale of pay of ₹ 44007000 ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 9 with effect from 1st January, 2004 on the ground that they had completed eight years of service on 31 st December, 2003.
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Obviously, this period of eight years of service was calculated from 1st January, 1996, the date on which the petitioners were granted the benefit of the trifurcation of the posts.
17. After three years of the grant of the benefit of ACP to the petitioners, another office order came to be passed on 10th December, 2007 by the Superintending Engineer, revising the date of fixation of pay in the cadre of Technician GradeII as 1st January, 2001 and in the cadre of Technician GradeI as 1st January, 2006. Due to this postponement of the date of fixation in the cadre of Technician GradeII and Technician GradeI, the pay already paid in the higher scales were considered to be excess pay to which the petitioners were not eligible and hence recovery of the same was also ordered.
18. Challenging the orders of revision of the dates of the grant of the benefit of trifurcation and ACP, the petitioners herein filed writ petitions in CWPs No. 2034 and 2031 of 2008 respectively. These writ petitions were allowed by this Court by separate orders dated 9th November, 2010, on the simple ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 10 ground that the orders dated 10th December, 2007 refixing the pay and directing recovery were passed without following the .
principles of natural justice. Therefore, a direction was given to the EngineerinChief to grant an opportunity of hearing to the petitioners and then pass a speaking order.
19. Accordingly, the EngineerinChief gave an opportunity of hearing to both the petitioners and thereafter passed the orders dated 29th April, 2011 holding that the re fixation of pay and recovery were justified.
20. Challenging the said orders dated 29th April, 2011 the petitioners again filed writ petitions in CWPs No. 4731 and 4028 of 2011 on the file of this Court. These writ petitions were transferred to the State Administrative Tribunal and re numbered as T.A. Nos. 818 and 812 of 2015. The State Administrative Tribunal by its orders dated 17 th May, 2016 and 16th May, 2016 passed respectively in the cases filed by Chhotu Ram and Nikka Ram, upheld the refixation of pay but set aside the recovery on the basis of the decision of the Supreme Court in Rafiq Masih. It is against these orders that ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 11 the State as well as individuals have come up with these writ petitions.
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21. As we have pointed out in the first portion of the order, the recovery of excess pay has been set aside by the State Administrative Tribunal on the sole ground that the writ petitioners were not at fault. This has also attained finality.
Therefore, we are now concerned only with the correctness of the order of refixation of pay.
22. To recapitulate, the petitioners were granted fixation of pay in the category of Technicians GradeII with effect from 1st January, 1996 and fixation of pay in the category of Technicians GradeI with effect from 1st January, 2004. Now the fixation of pay in the category of Technician GradeII has been postponed from 1st January, 1996 to 1st January, 2001. Similarly, the fixation of pay in the category of Technician GradeI has been postponed from 1 st January, 2004 to 1st January, 2006.
23. Before we proceed further, we must keep in mind one important aspect namely that while the fixation of pay in the category of Technician GradeII with effect from 1 st ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 12 January, 1996 took place under a Scheme of trifurcation of the cadre strength of Technicians into Technicians GradeI, Grade .
II and Junior Technicians, the fixation of pay in the category of Technician GradeI with effect from 1st January, 2004 took place under an entirely different Scheme, namely the Assured Career Progression Scheme. There can be no dispute about the fact that both these Schemes are different from each other.
24. The reasons as to why the benefit originally granted was sought to be modified were (i) that the first benefit was granted by drawing a joint seniority list of all categories of Technicians in violation of the instructions issued by the Government on 13th December, 2000; (ii) that different categories of Technicians ought not to have been clubbed together for granting higher pay scale; (iii) that when there was only one post of Plumber or Welder, the question of applying the ratio of 20% and 30% in those cadres did not arise at all; (iv) that the question as to what should be done if sufficient number of sanctioned posts in every category of Technician was not available, to apply the ratio of 20:30:50, was taken up by the Government and it was clarified by the ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 13 Government by their letter dated 9th January, 2007; (v) that as per those clarifications, Junior Technicians upon completion of .
seven years of service are to be placed in the scale of Technician GradeII and Technicians GradeII with five years of service should be placed as Technicians GradeI and that therefore, a need for refixation arose.
25. The aforesaid reasonings given in the order of the EngineerinChief dated 29th April, 2011 appealed to the conscience of the State Administrative Tribunal and hence, the order of refixation of pay was upheld by the Tribunal.
26. The main grounds on which the petitioners assail the orders of the State Administrative Tribunal are that they have been working since 1978 on daily wage basis and from 1 st January, 1994 on regular basis; that they were actually working in GradeII of the respective posts; that similar benefits were conferred upon other categories of Technicians such as Carpenters, Auto Electricians etc. and hence the denial of similar benefits would tantamount to discrimination and that as per the office letter dated 9 th January, 2007, Technicians GradeII had to be designated as Technicians ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 14 GradeI upon completion of five years of service, if the ratio of 20:30:50 could not be applied and that therefore, the re .
fixation is wrong.
27. But none of the above contentions appeal to us.
The fact that the petitioners were engaged on daily wage basis from 1978, is of no relevance today. The petitioners were brought into the work charged establishment only from 1 st January, 1994. The trifurcation was ordered on 31 st December, 2002 with effect from 1 st January, 1996. Therefore, within two years of their getting into the work charged establishment, the petitioners could not have imagined the conferment of a huge benefit.
28. Even today, it is not disputed by the petitioners that the posts of Plumber, Welder etc. were single posts.
Therefore, the question of trifurcation could not have arisen.
If there was only one post, the question of retaining 50% as Junior Technicians and retaining 30% as Technicians GradeII and 20% as Technicians GradeI could not have arisen. This anomaly was not noted by the Executive Engineer at the time when orders were passed in the year 2004. Therefore, the ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 15 order granting the benefit dated 29th March, 2004 was palpably erroneous and the same had to be set at naught. This .
is what was done by the order dated 10th December, 2007.
29. The order dated 10th December, 2007 was earlier found fault by this Court only for the reason that it was an order visiting the petitioners with civil consequences, but passed without following the principles of natural justice.
Therefore, after remand, the highest Authority in the Department, namely the EngineerinChief gave an opportunity of hearing and passed a reasoned order. The State Administrative Tribunal found that there was no scope for judicial review of the said order. The order of the State Administrative Tribunal is neither arbitrary nor perverse nor in violation of any Rules. Therefore, the same does not call for interference.
30. Insofar as the case of Chhotu Ram is concerned, he has one more difficulty to surmount. The order of the State Administrative Tribunal setting aside the recovery but upholding the refixation of pay has been upheld by this Court ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP 16 in a writ petition filed by the State in CWP No. 2917 of 2016.
Therefore, the doctrine of merger may also apply.
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31. Even without going into the doctrine of merger, we are convinced that the refixation of pay was perfectly in order and the State Administrative Tribunal was right in upholding the same. Hence, we find no justification to interfere with the orders of the State Administrative Tribunal. Therefore, these writ petitions are dismissed so also the pending applications, if any.
(V. Ramasubramanian) Chief Justice (Anoop Chitkara) Judge July 11, 2019 ( rajni ) ::: Downloaded on - 29/09/2019 00:41:03 :::HCHP