Punjab-Haryana High Court
Madan Gopal Gupta And Another vs State Of Haryana And Others on 7 July, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.2426 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JULY 07, 2014
Madan Gopal Gupta and another
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. R. K. Malik, Sr.Advocate with
Mr. Tej Pal Dhull, Advocate,
for the petitioners.
Mr. Anjum Ahmed, Addl.A.G., Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioners have approached this Court, praying for issuance of a writ of mandamus directing the respondents to fix their pay in the pay band of `37400-67000+10000 grade pay with effect from 01.01.2006 as on the date of their appointment i.e. 03.05.2005 and 02.05.2005 as Senior Deputy Advocate General and Deputy Advocate General, Haryana, respectively, though they were appointed on contract basis but they were granted the then applicable running pay scale of `18400-500-22400+600 NPA for the post. It may be added here that same running pay scale has been granted to the post of Deputy Advocate General and the Senior Deputy Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 2 }:
Advocate General and the only difference is that Senior Deputy Advocate General is given an additional increment at the time of his/her initial appointment.
Petitioners, after their appointments in May 2005 in the office of Advocate General, Haryana, continued till 30.11.2010. During the interregnum, pay scales of various posts of employees of State of Haryana were revised vide notification dated 30.12.2008 (Annexure P-3) by making the Haryana Civil Services (Revised Pay) Rules, 2008 (for short, "the 2008 Rules"). As per Rule 1(2) of the 2008 Rules, the said Rules were deemed to have come into force on 01.01.2006, unless otherwise provided by the Government for any class or category of persons or posts. Claim of the Law Officers, including the petitioners, was also considered in the light of the revision of the pay scales of the Government employees of the office of Advocate General by applying the principles as laid down in Rule 7(1) of the 2008 Rules and then proceeded to recommend the grant the corresponding pay scale to the Law Officers holding the posts of Senior Deputy Advocate General, Deputy Advocate General and the Assistant Advocate General. An Administrative Committee so constituted by the Advocate General, Haryana, to look into this matter, recommended the grant of pay scales as revised with effect from 01.01.2006. Learned Advocate General, Haryana, approved the recommendations of the Administrative Committee on 21.01.2009 (Annexure P-5). The Department of Finance on 18/19.03.2009 (Annexure P-6) approved the proposal as submitted by the Advocate General, Haryana. However, subsequently certain clarifications were sought, which were also responded to by the Advocate General, Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 3 }:
Haryana. After correspondence, the Finance Department ultimately on 09.12.2010 (Annexure P-11) did not grant the final approval and gave a reason that as new appointments of Deputy Advocate Generals and Senior Deputy Advocate Generals have been made and in view of the terms and conditions issued vide letter dated 11.02.2010 and 29.03.2010, where appointments have been made in the revised pay structure of `37400-
67000+NPA, there is no necessity of fixing the pay scales with effect from 01.01.2006 in the pay scale as recommended. This action of the respondents has been assailed by the petitioners in the present writ petition, which denies them the revised pay scales with effect from 01.01.2006, apart from fixation of their pay as per the formula laid down in Rule 7(1) of the 2008 Rules.
It is the contention of learned Senior counsel for the petitioners that although the appointments of the petitioners in the month of May 2005 is on contract basis but they were granted the regular pay scale as admissible then of the post i.e. ` 18400-500-22400. They were serving the respondents till 30.12.2008 when the revised pay scales were notified. As per this notification, the rules had to come into effect from 01.01.2006. Since the petitioners were appointed by giving them the running pay scales of the post and were granted annual increments as well, they cannot be discriminated in fixation of their pay and grant of benefit under the 2008 Rules. Petitioners continued to serve in the office of Advocate General till 30.11.2010, when fresh appointments were made. Merely because their appointments are on contract basis, but that would not deprive them the benefit of the 2008 Rules, especially when they have been granted the Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 4 }:
running pay scale of the posts. He accordingly contends that the action of the respondents cannot sustain and the reason, which has been assigned in the communication dated 09.12.2010 (Annexure P-11) is without any basis.
Counsel for the State, on the other hand, vehemently argues that since the petitioners were appointed on contract basis, their pay has to be determined in accordance with the terms and conditions of their engagement. They are not regular employees of the State and, therefore, are not entitled to the benefit of the 2008 Rules. Since a specified pay scale was mentioned in their contractual appointments, they are only entitled to the benefit of that pay scale and the revised pay scale would not be applicable to them. He, on this basis, supports the impugned communication dated 09.12.2010 (Annexure P-11).
I have considered the submissions made by counsel for the parties and with their assistance have gone through the records of the case.
The dispute in the present case is in a very narrow compass. The facts are not in dispute that the petitioners were appointed on contract basis and were granted the then applicable running pay scales of the posts which were held by them i.e. ` 18400-500-22400. It is also not in dispute that they were regularly granted the annual increments as per the pay scale and they continued to earn the same till they worked with the office of Advocate General i.e. 30.11.2010.
The question, which required to be answered is whether the Law Officers in the Office of the Advocate General, Haryana, as the petitioners are, who were appointed on contract basis and were granted the running pay scale of the posts, would be entitled to the pay scales relatable Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 5 }:
to the posts on which they were appointed, if the said scales are subsequently revised?
The answer to this question apparently has to be in the positive for the reason that the terms of appointment as specified in the contract would determine and govern the rights and liabilities of the parties to the contract and in the contract all Law Officers, including the petitioners, have been granted the running pay scale as applicable then to of the posts on which they were appointed. Since the petitioners were holding the posts and were full time Law Officers of the Government they are entitled to the pay scales of the posts on which they were appointed and were serving the respondents.
It is not in dispute that the pay scales of the posts of Haryana Government employees were revised as per the 2008 Rules vide notification dated 30.12.2008. It is also not in dispute that the said rules came into effect from 01.01.2006. Further, there is no dispute that on the day when the pay scales came into effect and even on the date of issuance of the notification of the 2008 Rules, the petitioners were in service and were being paid the running pay scale of the posts held by them. They being full time employees and drawing the running pay scale of the post, would be covered by the requirement of the 2008 Rules. Rule 2 of the 2008 Rules provides as to whom these Rules would apply and if covered it would entitle them to grant of revised pay scale with effect from 01.01.2006.
Rule 2 of the 2008 Rules read as follows:-
"2. Categories of Government Servant to whom these rules apply:-
Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.2426 OF 2012 :{ 6 }:
(1) Save as otherwise provided by or under these rules, these rules shall apply to the following:-
Persons appointed to civil services and posts in connection with the affairs of the Government of Haryana, 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 Government of Haryana;
(b) Officers of judicial services working in connection with the affairs of Government of Haryana;
(c) Persons not in whole time employment;
(d) Persons paid otherwise than on monthly basis, including those paid on a piece-rate basis or on daily wages basis or on contract basis;
(e) Persons employed in Government service after retirement;
(f) Persons re-employed in Government service after retirement;
(g) 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 draws his pay in the pay scale as a personal measure;
Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.2426 OF 2012 :{ 7 }:
(h) 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."
Petitioners would fall under sub rule (1) of Rule 2 and none of the clauses under sub-rule (2) would cover the case of the petitioners. The 2008 Rules, thus, would apply to the Law Officers, including the petitioners. The decision of the Administrative Committee, as constituted by the Advocate General, Haryana, puts the position in right perspective in the light of the 2008 Rules, which reads as under:-
"The file has been examined by the Administrative Committee. Noting dated 15.1.2009 in view of the notification regarding revised pay package formulation and implementation Rules, 2008 was examined by the Committee. After considering all the notification, as well as terms and conditions, Committee has considered and reached the conclusion that there is no need to seek any clarification from the Govt. as point (d) is very clear. Point (d) is regarding payment about those persons who are being paid monthly basis, piece rate basis, daily wages basis or on contract basis. This point (d) is not applicable to Sr.D.A.G., D.A.G. and A.A.G as all the afore mentioned Law Officers, are covered in Sub Rule (i) of Rule 2, in which it has been specifically mentioned that these rules shall apply to those persons, who have been appointed to civil services and posts in connection with the affairs of Govt. of Haryana, who Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 8 }:
are under the administrative control of the Govt. of Haryana and whose pay is debitable to the Consolidated Fund of the State of Haryana. All the Law Officers i.e. Sr.DAG, DAG and AAGs have been appointed in service in connection with affairs of the Govt. of Haryana and are under the administrative control of the Govt. of Haryana and their pay is debitable to the Consolidated Fund of the State of Haryana. It is further made clear that they are getting their pay in their respective scales alongwith NPA plus usual allowances, as sanctioned by Govt. of Haryana from time to time. Annual increments are being granted to all the Law Officers and dearness allowance is also granted from time to time regularly as granted by the Govt. of Haryana to all the Govt. employees GIS scheme is also applicable to all the Law Officers and premium is being regularly deducted from their salary. It is specifically mentioned that they are whole time Govt. servants and CSR/PFR is also applicable upon all the afore mentioned Law Officers. Condition of contractual in nature in terms and condition letter is only for the purpose of termination and pension, not for any other purpose. It is very much clear in terms and conditions letter that all the afore mentioned Law Officers will draw the pay of their respective post as long as they will work on the said post and they are whole time Govt. employees. All the Law Officers are getting their pay in a functional pay scale of Sr.DAG, DAG and AAG against Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 9 }:
sanctioned posts. Pay scales have been revised of every sanctioned scale and post w.e.f. 1.1.2006. Even earlier pay revisions in the year 1986, 1996 all categories of employees i.e. Sr.DAG, DAG and AAG were already granted revised pay scales simultaneously with other Haryana Govt. employees.
In view of above, there is no need of any clarification from the Govt. on any point. The notification is applicable upon Sr.DAG, DAG and AAG. Revised pay be prepared as per revised scale immediately, so that all the afore mentioned Law Officers may get their revised salary in time as per Govt. directions from the month of January, 2009, due to be paid in February, 2009. File may be sent to Ld. Advocate General, Haryana for approval."
The said recommendation of the Administrative Committee was approved by the Advocate General, Haryana, on 21.01.2009 (Annexure P-5), which recommendation was also approved by the Finance Department on 18/19.03.2009 (Annexure P-6).
The subsequent correspondence ensued between the Government and Office of the Advocate General, which was also responded to in the right perspective by the office of Advocate General, Haryana.
However, it appears that when the fresh appointments were given to the Law Officers in the office of Advocate General in the year 2010, the well reasoned and justified proposal, which was duly accepted by the Department of Finance earlier, was sought to be given effect to. At this Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 10 }:
stage, the communication dated 09.12.2010 (Annexure P-11) addressed to the Advocate General, Haryana from the Financial Commissioner and Principal Secretary, Government of Haryana, Administration of Justice Department, needs to be reproduced:-
"Sub: Refixation of the Revised Pay of the Senior Deputy Advocate Generals and Deputy Advocate General, Haryana as per schedule and fitment table i.e. Rs.43390+10000+NPA. This is in reference to your letter No.40669 dated 29.10.2010.
2. After new appointments of Dy.Advocate General and Senior Dy.Advocate General, and in view of the terms and conditions issued vide letter dated 11.2.2010 and 29.3.2010 appointment has been made in the Revised Pay Structure of Rs.37400- 67000+NPA. So there is no any necessity for the proposal of the pay scale of Rs.43390+10000 G.P.=53390."
A perusal of the above would show that real issue, which was with regard to grant of revised pay scales to the Law Officers of the office of Advocate General, Haryana, with effect from 01.01.2006 and granting them the arrears of the revised pay scales was brushed aside or rather swept under the carpet on the basis of and in the garb of fresh appointments made of the Law Officers, where the revised pay scale was given to the newly appointment Officers in the office of the Advocate General. The claim of the Law Officers who had earlier worked with the office of the Advocate General till the fresh appointments were made was just over-looked and, thus, the petitioners were discriminated against the similarly situated employees. But the fact of the matter is that approval had already been Khurmi Rakesh 2014.07.10 10:13 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2426 OF 2012 :{ 11 }:
granted by the Finance Department on 18/19.09.2009 (Annexure P-6) to the proposal of the Advocate General, Haryana, dated 21.01.2009 (Annexure P-
5), which was in accordance with the 2008 Rules and, therefore, should have been given effect to. The grounds assigned while rejecting the proposal of the Advocate General, Haryana, being founded on irrelevant, baseless, unjustified reasons and the same being also contrary to the 2008 Rules, the action of the respondents, denying the Law Officers the benefit of the said Rules cannot sustain and deserves to be set-aside.
Merely because the Law Officers in the Office of the Advocate General, Haryana, including the petitioners, were not appointed on regular basis but on contract basis cannot be a ground for denying them the benefit of the 2008 Rules, especially when they have been granted the running pay scale of the post on which they were appointed as per the contract and as held above, the 2008 Rules are applicable to them. Even under the contract, they would be entitled to the benefit as claimed. Thus, the consequential benefits, such as revision of the pay scales and added benefits, if any, thereto have to be granted to the Law Officers, including the petitioners, with effect from the date when the 2008 Rules came into force i.e. 01.01.2006.
In view of the above, the present writ petition is allowed. Impugned order dated 09.12.2010 (Annexure P-11) is hereby set-aside. The consequential benefits be fixed and arrears be released within a period of two months from the date of receipt of certified copy of the order.
July 07, 2014 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2014.07.10 10:13
I attest to the accuracy and
integrity of this document