Himachal Pradesh High Court
Anant Ram And Others vs Dr.Y.S.Parmar University Of ... on 5 August, 2020
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.122 of 2019 a/w CWPOA .
No. 4666 of 2019.
Reserved on : 22.07.2020.
Date of decision: 5th August, 2020.
1. CWPOA No.122 of 2019.
Anant Ram and others .....Petitioners.
Versus Dr.Y.S.Parmar University of Horticulture and Forestry, Nauni and others ......Respondents.
2. CWPOA No.4666 of 2019.
Mansa Ram Sharma and others .....Petitioners.
Versus Dr.Y.S.Parmar University of Horticulture and Forestry, Nauni and others ......Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. J.L. Bhardwaj, Advocate, in CWPOA No. 122 of 2019.
Mr. P.P. Chauhan, Advocate, in CWPOA No. 4666 of 2019.
For the Respondents: Mr. Avinash Jaryal, Advocate, for respondent No.1, in both the petitions.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 2 Mr.Ashok Sharma, Advocate .
General with Mr. Vinod Thakur, Mr. Vikas Rathore, Mr. Desh Raj Thakur, Additional Advocate Generals and Mr. Bhupinder Thakur, Deputy Advocate General, for respondents No.2 and 3 in both the petitions.
Tarlok Singh Chauhan, Judge Since common questions of law and facts arise for consideration in these petitions, therefore, they were taken up together for hearing and are now being disposed of by a common judgment.
2. The petitioners in CWPOA No.4666 of 2019 belong to the category of personal staff which include Junior Scale Stenographer, Senior Scale Stenographer, Personal Assistant, Private Secretary and Senior Private Secretary, whereas, the petitioners in CWPOA No.122 of 2019 have been appointed as Drivers after due selection.
3. The respondent-University has been created under the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986 (for short 'Act') and the aim and object of the respondent-University are to impart education as well as to provide the best varieties of seeds ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 3 to the farmers of the Himachal Pradesh. At the time of creating respondent-University, the statutes were framed .
under Section 54 of the Act for the purpose of recruitment, laying down the conditions of service of its employees which are called as Dr. Yashwant Singh Parmar University of Horticulture and Forestry Statutes, 1987 (for short 'Statutes') and the same have come into force with effect from 26.09.1987. r As per the provisions of the Statutes, Chapter-V deals with the Classification, Qualifications and Appointment of Employees of the University other than the Officers and Teachers and the category of the petitioners being Drivers also falls under this Chapter. Clause 5.6(1) of the Statutes deals with the Scale of Pay of University employees of the respondent-University.
4. As per the provisions of the Statutes contained in this Chapter for the Ministerial Staff including category of the petitioners i.e. Drivers, the Scales of Pay and R &P Rules will correspond to the Secretariat staff of the H.P. Government and for the Scales and R&P Rules of posts in the Estate Cell with the Public Works Department (except the workshop staff in whose case HPU/HRTC pattern of pay scales and R&P Rules shall be applicable). Meaning ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 4 thereby, the category of the petitioners will be paid the same Scale of Pay as granted to their counter-parts in the .
Himachal Pradesh Secretariat. Keeping in tune with the aforesaid provisions, the same pay scales and other allowances were being paid to the petitioners as were being paid to their counter-parts in the H.P. Secretariat. The petitioners were initially granted Special Pay of Rs.150/- per month and thereafter they were paid Rs.700/- as were granted to their counter-parts in the H.P. Secretariat.
5. The Government of Himachal Pradesh vide notification dated 14.01.1999 had decided that in all cases where special pay was attached to various posts in H.P. Civil Secretariat and its equivalent offices before 01.01.1996 and has not been abolished as stated in Clause (ii) of the aforesaid notification, it shall stand abolished as on 31.08.1997 and with effect from 01.09.1997 would be termed as "Secretariat Allowance". The existing rate of Special Pay/Special Allowance/Secretariat Allowance attached with the existing category/categories of posts/employees in H.P. Civil Secretariat and its equivalent offices shall stand doubled with effect from 01.09.1997.
::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 56. The said notification was adopted by the respondent-University vide notification dated 04.02.1999.
.
Again, vide letter dated 23.04.2012, the respondent-State took further decision whereby the Secretariat Allowance was substituted by Secretariat Pay. Vide letter dated 23.02.2013, the respondent-State took another decision to pay Special Pay to the Personal Staff with effect from 01.03.2013 in addition to Secretariat Pay with further stipulation that the Special Pay admissible under these orders shall be subject to the terms and conditions of Secretariat Pay and it will also be treated as part of basic pay for calculation of various types of allowances and pensionary benefits as in the case of Secretariat Pay. This Special Pay was to be in addition to the Secretariat Pay already allowed to the above categories.
7. The respondent-University vide its impugned letter dated 27.11.2012 informed the Senator of Non-
Teacher Constituency that the matter was taken up with the State Government time and again for grant of Secretariat Pay to the University employees and in response to this, the Principal Secretary (Horticulture) to the Government of Himachal Pradesh vide letter dated ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 6 30.10.2012 informed that the matter was taken up with the Finance Department and it had shown its inability to concur .
with the proposal.
8. Further, the respondent-University vide its communication dated 15.03.2014 informed to the Personal Staff Association that the matter regarding Special Pay was taken up by them with the State Government and it has been intimated that granting of Special Pay to PA/PS Cadre is linked with grant of Secretariat Pay as the terms and conditions for grant of these two benefits are same, therefore, the University employees are not entitled for the grant of Special Pay.
9. It is in this background that the petitioners have assailed the orders passed on 27.11.2012, 15.03.2014 and 18.11.2015 as being arbitrary, malafide and illegal and have further prayed for a direction to the respondent-University to implement the notifications issued by the Government of Himachal Pradesh on 23.04.2012, 23.02.2013 for grant of Secretariat Pay with effect from 01.12.2011 and Special Pay with effect from 01.03.2013 along with arrears and interest @ 18% per annum.
::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 710. In the reply filed on behalf of the State Government, it is contended that the State Government by .
and large follows the Punjab pattern of pay scales in respect of its employees, but the matters with respect to granting allowances, special pay etc. are decided by the State Government on its own level. It has been denied that Clause 5.6(1) of the Statutes provides for equation in the matter of pay and allowances with the H.P. Secretariat employees. It is further averred that there are about 90 departments in the Government out of which only six have been specifically equated with the H.P. Secretariat for grant of pay and allowances etc. It is lastly averred that the Secretariat Pay is admissible to certain posts/categories of the employees working in the H.P. Civil Secretariat and its equivalent offices only, whereas, the University employees cannot be treated at par with the staff working in the H.P. Secretariat.
11. As regards the University, it has contested these petitions by filing separate reply wherein it is averred that Secretariat Allowance was being given to the employees of the University after obtaining approval of the Government vide letter dated 22.08.2006. Thereafter, Secretariat Pay in ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 8 lieu of the Secretariat Allowance was granted to the employees of the University with effect from 01.12.2011 .
vide letter dated 23.04.2012. It is conceded that the pay scales and other allowances of administrative and ministerial staff including the petitioners are on the pattern of H.P. Secretariat in terms of Statutes 5.6(1) of the University. Accordingly, on the same analogy, the matter was placed before the Finance Committee, but the Principal Secretary (Finance) to the Government of H.P. rejected the proposal with the remarks that the same was contrary to the Government's order. Subsequently, the matter regarding grant of Secretariat Pay was also placed before the Finance Committee in its 84th Meeting held on 17.10.2012 which once again was rejected.
12. Now, the moot question is whether the petitioners are entitled to the pay and allowances as were being paid to their counter-parts in the H.P. Secretariat.
13. Clause 5.6(1) of the Statutes reads as under:
"5.6(1) The scale of pay of the posts of grade A, B, C and D employees of the University shall be as prevalent at present. The Recruitment and Promotion Rules and conditions and rules for the release of higher scales of pay for admissibility of ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 9 special pay and other allowances to the employees shall be the same as applicable from time to time to .
the employees holding corresponding posts in the concerned department of HP Govt. with which the present scales have been equated. For example, for the ministerial staff including drivers the scales of pay and R&P rules will correspond to the Secretariat staff of the HP Govt. for the scales and R&P rules of posts in the Estate Cell with the Public Works Department (except the workshop staff in whose case the HPU/HRTC pattern of pay scales and R&P rules shall be applicable) and for Technical staff (other than Laboratory staff) with the Department of Agriculture/Horticulture/Forest/Fisheries/Animal Husbandry/Education or where the University has evolved its own pay scales, the same will be revised by keeping in view the relative position of the pre-revised scales. The rates of local allowances shall be as admissible to the State Govt. servants at the concerned stations of posting. However, the release of higher scales or allowances will not be automatic consequent upon a revision in the State Govt. but shall be subject to the approval of the Board of Management.
Provided that, if the University adopts the pay scales in respect of some category of employees from some other organization in view of anomalies of pay scales, working conditions etc. then the corresponding R&P rules of that organization will automatically apply in the case of that category of ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 10 employees. However, if upon adoption of a pay scale from some organization, the R&P rules that .
category of employees are not existent in that organization, the University will make its own R&P rules in respect of that category of employees."
14. A bare perusal of the aforesaid Clause makes it evidently clear that the ministerial staff including the category of the petitioners herein, the Scales of Pay and R&P Rules will correspond to the Secretariat staff of H.P. Government. The Statute has consciously used the term "Secretariat Staff" as it is well-known that the allowance of the Secretariat Staff vis-a-vis other employees working in the other Government Departments is higher/more. It is more than settled that the Ordinances and Statutes framed by the University have the force of law and are thus binding on the University. It needs no direction that when laws of the Universities are framed, it is to be adhered to viz. Act, Statutes and Ordinances. (Refer: Dr. (Mrs.) Meera Massey versus Dr. S.R.Mehrotra and others, AIR 1998 SC 1153).
15. Thus, a conscious decision appears to have been taken to grant pay and allowances to the drivers and other staff at par with their counter-parts working in the ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 11 Secretariat, whereas, the scales and R&P Rules for the posts in the Estate Cell were at par with the Public Works .
Department (except the workshop staff in whose case the HPU/HRTC pattern of pay scales and R&P Rules had been made applicable). Therefore, it is too late in the day for the respondents to claim that the Secretariat Pay is not admissible to the petitioners and is only applicable to the six departments.
16. It is next contended by Shri Avinash Jaryal, learned counsel for the University that because of financial constraints, the University is not in a position to accede to the request of the petitioners.
17. Even this contention is without merit as it is more than settled that no inconvenience or difficulties, administrative or financial can justify the infringement of the guaranteed rights. In the event, the University feels financial constraints in making payment, the University can make a demand for allotment/allocation of additional funds, so that the payment of different arrears can be made to the petitioners. The State owes a responsibility to allocate funds so that full salary and allowances of the teaching and non-teaching staff are paid. Financial constraint, in the ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 12 given circumstances, is no ground to deny salary as non-
payment of full salary alongwith allowances violates .
Articles 21 and 23 of the Constitution of India.
18. It needs no reiteration that it remains the responsibility of the State Government to provide funding to the University keeping in mind its particular needs.
Education is a primary goal of a "Socialist" State and the State Government cannot shy away from its responsibility by posing the excuse of financial constraints. A balance needs to be struck between the needs of the people and the limitations of the State's purse.
19. If the Government feels that the University is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem because so long as the posts do exist and are manned, then there is no justification for not granting the petitioners the due and admissible allowance in terms of Clause 5.6(1) of the Statutes.
20. In view of the aforesaid discussion, I find merit in these petitions and the same are accordingly allowed. The respondents are directed to grant the Secretariat Pay after ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP 13 substitution of Secretariat Allowance with effect from 30.11.2011 as per the Notification dated 23 rd April, 2012 .
(Annexure A-4) issued by respondent No.2 in view of the provisions contained in Clause 5.6(1) of the Statutes. The petitioners shall be entitled to the dues from the date it fell due with interest at the rate of 12% per annum. All pending applications shall also stand disposed of.
5th August, 2020. (Tarlok Singh Chauhan) (krt) r Judge ::: Downloaded on - 05/08/2020 20:46:14 :::HCHP