Punjab-Haryana High Court
The State Of Haryana And Others vs S.P.Gupta on 26 April, 2013
Author: Surya Kant
Bench: Surya Kant
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Letters Patent Appeal No.797 of 2013(O&M)
Date of Decision : April 26, 2013
The State of Haryana and others .....Appellants
versus
S.P.Gupta .....Respondent
Letters Patent Appeal No.804 of 2013(O&M)
The State of Haryana and others .....Appellants
versus
Kishan Chand Bhardwaj .....Respondent
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE R.P.NAGRATH.
Present : Mr.R.D.Sharma, Deputy Advocate General, Haryana,
for the appellants.
-.-
1. Whether Reporters of Local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Surya Kant, J. (Oral)
This order shall dispose of L.P.A.Nos.797 and 804 of 2013 as common questions of law and facts are involved in both the appeals.
2] For brevity, the facts are being extracted from LPA No.797 of 2013.
3] This letters patent appeal is directed against the order dated 9.7.2012 passed by learned Single Judge whereby the writ petition preferred by the respondent for grant of revised pay scale of Rs.13500-375-17250 w.e.f. 1.1.1996 being the corresponding revised pay scale of Rs.4100-5300, has been accepted. The learned LPA Nos.797 & 804 of 2013 (O&M) [2] Single Judge has viewed that the claim of respondent is covered by two previous orders passed in (i) CWP No.5520 of 2003 (S.P.Sood versus State of Haryana and others) decided on 2.2.2009 and (ii) CWP No.905 of 2011 (W.C. Goyal versus State of Haryana and another) decided on 29.5.2012.
4] Alongwith the appeal, the appellants have also moved an application under Section 5 of the Limitation Act for condonation of 231 days' delay in filing the accompanying appeal. It is averred that certified copy of the judgment dated 9.7.2012 was received in the office of Advocate General, Haryana on 8.8.2012 and the opinion that it was a fit case for filing appeal, was received on 13.10.2012. The department, however, filed the appeal on 12.4.2013 only. We fail to understand that when the Advocate General, Haryana had given his opinion on 13.10.2012 why the appellant- department took so long in filing the appeal when it was required to be filed within 30 days excluding the time spent in obtaining the certified copy of the order. The averments in the application or in the supporting affidavit are wholly unsatisfactory in this regard and liable to be rejected. We order accordingly.
5] Notwithstanding that, we have heard learned State counsel on merits as well and gone through the record. 6] Since the learned Single Judge has passed a short order, we may notice some of the relevant facts briefly. 7] The respondent joined the Department as a Sub Divisional Engineer on 1.8.1971 and while serving as such, he was admittedly granted the revised pay scale of Rs.4100-5300 w.e.f. 1.5.1989. The said pay scale was granted in accordance with the State Government notifications dated 16.5.1989 and 16.5.1990 whereunder the pay scales of various categories of employees were revised w.e.f. 1.5.1989.
LPA Nos.797 & 804 of 2013 (O&M) [3]8] It is true that the above-stated notifications have been interpreted to mean that the Engineers were entitled to pay scale of Rs.4100-5300 only to the extent of 20% of the cadre posts. It was in this backdrop that the averments made by the respondent in para No.4 of the writ petition become relevant, which are to the following effect:-
"4. That vide notification dated 16.5.1990, copy attached as Annexure P/2, the State of Haryana further modified the above said notification and by declaring that the categories of AEE.AE/SDO/SDE would be entitled for revised scales of Rs.4100-5300 after a period of 12 years in service provided that the incumbent would be within 20% of the cadre strength. It is also submitted that in view of the above said pay revisions, the petitioner's pay was revised in the scale of Rs.4100-5300 w.e.f. 1.5.1989 on the ground that it was from 1.5.1989 that the petitioner came within 20% of the cadre...."
(emphasis applied) 9] The appellants in their written statement have pleaded as under:-
"5. That in reply to para 5 of the writ petition, it is submitted that the petitioner is misleading this Hon'ble Court by mentioning that he was drawing pay scale of Rs.4100-5300 for all intents and purposes. The petitioner was granted higher pay scale of Rs.4100-5300 as selection grade w.e.f. 1.5.1989 (after completion of 12 years of regular satisfactory service) limited to 20% of cadre posts. Thus, the averments made in this para are wrong and LPA Nos.797 & 804 of 2013 (O&M) [4] hence denied.
6. That in reply to para 6 of writ petition, it is submitted that functional pay scales have been revised vide service rules titled as Haryana Civil Services (Revised Pay) Rules, 1998. Whereas, the petitioner was drawing his pay in non-functional pay scale i.e., selection grade of Rs.4100-5300 which was limited to 20% of the total cadre posts. Therefore, his pay was to be fixed under the provisions of Haryana Civil Services (ACP) Rules, 1998 which was applicable in the case of petitioner. Accordingly, his pay was fixed in the Second ACP scale of Rs.12000-16500. Detailed submissions have already been made in the preliminary objections and the same are reiterated..."
(emphasis applied) 10] It thus stands crystalized that the respondent was granted the higher pay scale of Rs.4100-5300 w.e.f. 1.5.1989 within the permissible limit of 20% of the cadre strength and the appellants have duly acknowledged this fact in their written statement. 11] There is also no denial to the fact that the pay scales of Government employees were further revised w.e.f. 1.1.1996 under the Haryana Civil Services (Revised Pay) Rules, 1998 and against the pre-revised pay scale of Rs.4100-5300, the corresponding revised pay-scale granted under the new rules was Rs.13500-375-17250. The respondent was denied the afore-stated revised pay scale only on the premise that the pre-revised pay scale of Rs.4100-5300 was a functional pay scale for the post of Superintending Engineer and not for the post of Executive Engineer held by him. On the other hand, the case of the respondent was that since he was actually drawing the pay scale of Rs.4100-5300 after rendering 12 years of LPA Nos.797 & 804 of 2013 (O&M) [5] service, he was entitled to the corresponding revised pay scale. 12] Learned Single Judge has upheld the respolndent's contention and in our considered view rightly so. Once the Rules Making Authority has chosen to provide a corresponding revised pay scale in the tabulated form, the employee cannot be denied the same unless limitations are expressly discernible under those Rules. The appellants have relied upon another set of rules known as "The Haryana Civil Services (Assured Career Progression) Rules, 1998"
which are apparently inapplicable in the matter of revision of pay scales and are only meant to address the situation where an employee stands stagnated and is entitled to be placed in the higher promotional pay scale though he is not actually promoted to a higher post. However, once the pay revision rules prescribe different stages or time-scale(s), whether described as 'selection- grade' or 'supertime-grade' and it has been granted to an employee on fulfillment of eligibility conditions, he would on the further revision of pay-scales, be entitled to the corresponding revised pay- scale. He cannot be deemed to be reverted to his original time scale of entry level for the purpose of his placement in the corresponding revised pay scale as such an action shall amount to the withdrawal of the benefit which the employee was drawing before the revised pay scales came into force.
13] For the reasons afore-stated, we do not find any substance in the appeal on merits as well.
14] Dismissed on both counts.
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(SURYA KANT)
JUDGE
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April 26, 2013 (R.P.NAGRATH)
Mohinder JUDGE