Digital clock

Tuesday, 6 November 2012

BUNCHING CASE DECISION OF HIGH COURT


IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision : 3.11.2012
CWP No. 18438 of 2010
Subhash Chander and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 13408 of 2010
Chandi Ram and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 20307 of 2010
Ashok Vashisth and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 824 of 2011
Naresh Kumar and others ..... Petitioner(s)
Versus
State of Haryana and another ..... Respondent(s)
CWP No. 18438 of 2010 and connected cases -2-
CWP No. 3856 of 2011
Satbir Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 4343 of 2011
Gayatri and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 4347 of 2011
Manju Khurana and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 6750 of 2011
Krishan Kumar and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 7034 of 2011
Mahesh Chander and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18438 of 2010 and connected cases -3-
CWP No. 7663 of 2011
Ramesh Kumar and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 8180 of 2011
Subhash Chander and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 10072 of 2011
Rajbir Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 11471 of 2011
Somvir Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 11689 of 2011
Sukh Pal Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18438 of 2010 and connected cases -4-
CWP No. 11770 of 2011
Chander Parkash and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 12431 of 2011
Pawan Kumar and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 13066 of 2011
Satvir Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 14669 of 2011
Sanjay Kumar and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 15882 of 2011
Yudhbir Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18438 of 2010 and connected cases -5-
CWP No. 17033 of 2011
Rajesh Kumar Yadav and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18184 of 2011
Jai Kanwar and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18352 of 2011
Raj Kumar and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 21003 of 2011
Sarjeet Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 616 of 2012
Kulvender Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18438 of 2010 and connected cases -6-
CWP No. 3101 of 2012
Monika and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 3898 of 2012
Umed Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 6992 of 2012
Sanjay and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 7978 of 2012
Jagdish Chander Verma and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 10363 of 2012
Vijender Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 18438 of 2010 and connected cases -7-
CWP No. 15170 of 2012
Rajender Singh ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 16062 of 2012
Ranvir Singh and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 17949 of 2012
Seema and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CWP No. 21256 of 2012
Kishan Lal and others ..... Petitioner(s)
Versus
State of Haryana and others ..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. S.K. Tamak, Advocate, (in CWP No. 18438 of 2010)
Mr. Umesh Narang, Advocate,
(in CWPs No. 20307 of 2010 and 824, 11770, 14669, 15882,
17033, 18184 of 2011 and 616, 3898, 7978, 16062 of 2012)
CWP No. 18438 of 2010 and connected cases -8-
Mr. Vivek Arora, Advocate,
(in CWPs No. 3856, 6750, 7034, 7663, 8180, 10072, 11471,
11689, 12431, 13066 of 2011)
Mr. S.K. Yadav, Advocate, (in CWP No. 18352 of 2011)
Mr. N.S. Shekhawat, Advocate, (in CWP No. 21003 of 2011)
Mr. S.K. Verma, Advocate, (in CWP No. 15170 of 2012)
Mr. Sandeep Kotla, Advocate,
(in CWPs No. 3101, 6992 17949 of 2012)
Mr. S.K. Redhu, Advocate,
(in CWPs No. 4343, 4347 of 2011 and 10363, 21256 of 2012)
for the petitioners.
Mr. Harish Rathee, Senior DAG Haryana.
AUGUSTINE GEORGE MASIH, J.
By this order, I propose to decide Civil Writ Petitions No. 18438,
20307, 13408 of 2010 and 824, 3856, 4343, 4347, 6750, 7034, 7663, 8180,
10072, 11471, 11689, 11770, 12431, 13066, 14669, 15882, 17033, 18184
18352, 21003 of 2011 and 616, 3101, 3898, 6992, 7978, 10363, 15170,
16062, 17949, 21256 of 2012, as common questions of facts and law are
involved in these cases which have been taken up together as per the request
and on the consent of the counsel for the parties. For brevity, the facts are
taken from CWP No. 18438 of 2010.
Petitioners in these cases have approached this Court, impugning
the order dated 14.6.2010 (Annexure-P-4), issued by the Government of
Haryana, Department of Finance, interpreting Note 2 below Rule 7 of the
Haryana Civil Services (Revised Pay) Rules, 2008 (in short 'HCS(RP) Rules,
2008') and Note 2 below Rule 18 of the Haryana Civil Services (Assured
Career Progression) Rules, 2008 (in short 'HCS(ACP) Rules, 2008'), whereby
under Clause III under the heading 'Interpretation', it has been stated that the
proviso attached with the rules ibid would not be applicable in cases where the
pre-revised pay scale of the post has been upgraded as indicated in Part-B of
the 1st Schedule of the HCS(RP) Rules, 2008 and in column 4 of Schedule-I
CWP No. 18438 of 2010 and connected cases -9-
Part-I of the HCS(ACP) Rules, 2008, as the case may be, on the ground that
this interpretation is alien to the statutory Rules, framed under Article 309 of
the Constitution of India and through executive/administration instructions,
the statutory Rules cannot be amended, altered or modified and such action of
the respondents is violative of the judgment of the Hon'ble Supreme Court in
the case of State of Haryana Versus Shamsher Jang Bahadur and others, 1972
SLR 441 and further that the recovery cannot be effected from the petitioners
as pay fixation had been done by the respondents on their own due to misinterpretation
of the Rules. There are no allegations of mis-representation or
fraud played by the petitioners and thus, the claim of the petitioners for no
recovery is covered by the Full Bench judgment of this Court in Budh Ram
and others Versus State of Haryana and others, 2009(3) PLR 511. Reliance
has also been placed upon a Division Bench judgment of this Court in CWP
No. 18601 of 2006 titled as Om Parkash and others Versus State of Haryana
and others, decided on 10.4.2008, wherein a similar situation had arisen under
the Haryana Civil Services (Revised Pay) Rules, 1998 and Haryana Civil
Services (Assured Career Progression) Rules, 1998, where again admissible
bunching in the revised grades were initially granted but on a clarification
issued by the Government of Haryana, the same was withdrawn which was
challenged and the said challenge was upheld by this Court, holding the
petitioners entitled to the grant of increment and the explanation issued by the
Government of Haryana, to be violative of the statutory Rules and thus, not
sustainable.
Reply to the writ petition has been filed wherein it has been stated
that the benefit of bunching was not applicable in those cases where the pay
scale of an employee was revised by the Government in pre-revised scales
CWP No. 18438 of 2010 and connected cases -10-
prior to the new revision of the pay scale. The scale of the present petitioners
were revised by the Government in pre-revised scales from Rs. 4500-7000 to
Rs. 6500-10500, thus, the benefit claimed by the petitioners under the present
writ petition was not admissible to them and the pay of the petitioners was
rightly reduced by the respondents. It has been stated that the proviso
attached to Rule 7 of the HCS(RP) Rules, 2008 and Rule 18 of the HCS(ACP)
Rules, 2008, shall not be applicable in such cases as that of the petitioners.
Accordingly, it has been asserted that the petitioners are not entitled to the
claim made by them in the present writ petition. Rule 7 of the HCS(RP)
Rules, 2008 prescribes that where, in the fixation of pay, the pay of
Government servants drawing pay at two or more consecutive stages in an
existing scale gets bunched, that is to say, gets fixed in the revised pay
structure at the same stage in the pay band, then, for every two stages so
bunched, benefit of one increment shall be given so as to avoid bunching of
more than two stages in the revised running pay bands. For the purpose, the
increment will be calculated on the pay in the pay band. Grade pay would not
be taken into account for the purpose of granting increments to alleviate
bunching. On this basis, it has been stated that the petitioners are not entitled
to the benefit which was earlier granted to them and has now been withdrawn
as per the order dated 14.6.2010, issued by the Government of Haryana,
Department of Finance.
Counsel for the parties have argued their cases referring to the
statutory Rules and the impugned order and have made their submissions as
per the pleadings referred to above.
I have heard the counsel for the parties and with their assistance
have gone through the records of the case.
CWP No. 18438 of 2010 and connected cases -11-
For resolving the controversy, which has been raised in these writ
petitions, reference to Rule 7 of the HCS(RP) Rules, 2008 and Rule 18 of the
HCS(ACP) Rules, 2008, have to be necessarily made. Rule 7 of the HCS(RP)
Rules, 2008 read as follows :-
“7. Fixation of initial pay in the revised pay structure :—
(1) The initial pay of a Government servant who elects or
is deemed to have elected under sub-rule (3) of rule 6 to
be governed by the revised pay structure on and from the
1st day of January, 2006, shall, unless in any case the
Government by special order otherwise directs, be fixed
separately in respect of his substantive pay in the
permanent post on which he holds a lien or would have
held a lien if it had not been suspended, and in respect of
his pay in officiating post held by him, in the following
manners namely:-
(A) In the case of all employees—
(i) The pay in the pay band/ pay scale will be determined
by multiplying the existing basic pay as on 1.1.2006
by a factor of 1.86 and rounding off the resultant
figure to the next multiple of 10.
(ii) If the minimum of the revised pay band/ pay scale is
more than the amount arrived at as per (i) above the
pay shall be fixed at the minimum of the revised pay
band/ pay scale:
Provided further that:
Where, in the fixation of pay, the pay of Government
servants drawing pay at two or more consecutive
stages in an existing scale gets bunched, that is to
say, gets fixed in the revised pay structure at the
same stage in the pay band, then, for every two
stages so bunched, benefit of one increment shall be
given so as to avoid bunching of more than two
stages in the revised running pay bands. For the
CWP No. 18438 of 2010 and connected cases -12-
purpose, the increment will be calculated on the pay
in the pay band. Grade pay would not be taken into
account for the purpose of granting increments to
alleviate bunching.
In the case of pay scales in higher administrative
grade (HAG) in the pay band PB-4, benefit of
increments due to bunching shall be given taking into
account all the stages in different pay scales in this
grade.
If by stepping up of the pay as above, the pay of a
Government servant gets fixed at a stage in the
revised pay band/ pay scale (where applicable) which
is higher than the stage in the revised pay band at
which the pay of a Government servant who was
drawing pay at the next higher stage or stages in the
same existing scale is fixed, the pay of the latter shall
also be stepped up only to the extent by which it falls
short of that of the former.
The pay in the pay band will be determined in the
above manner. In addition to the pay in the pay band,
grade pay corresponding to the existing scale will be
payable.
*[(A-1) In cases of employees belonging to the category
of teachers and equivalent cadres in Universities and
Colleges, provision under sub-clause (A) shall not apply
and in its place, following shall apply to them:
(i) The pay in the pay band will be determined by
multiplying the existing basic pay as on
1.1.2006 by a factor of 1.86 and rounding off
the resultant figure to the next multiple of 10.
(ii) If the minimum of the revised pay band is
more than the amount arrived at as per (i)
above, the pay in the pay band shall be fixed at
the minimum of the revised pay band.
CWP No. 18438 of 2010 and connected cases -13-
Provided further that:
(a) Where, in the fixation of pay, the pay of
employees drawing pay at two or more
consecutive stages in an existing scale gets
fixed in the revised pay structure at the same
stage in the pay band in PB-3, then, for every
two stages so bunched, benefit of one
increment shall be given so as to avoid
bunching of more than two stages in the
revised running pay band of PB-3. For this
purpose, the increment will be calculated on
the pay in the pay band alone and Grade pay
would not be taken into account for the
purpose of granting increments to alleviate
bunching.
(b) Where, in the fixation of the pay, the pay of
employees drawing pay at four or more
consecutive stages in an existing scale gets
bunched, that is to say, gets fixed in the
revised pay structure at the same stage in the
pay band in PB-4, then, for up to the first four
stages so bunched, benefit of one increment
shall be given at the first place and thereafter
for every two further subsequent stages so
bunched, benefit of one further increment
shall be given so as to avoid bunching of more
than four stages in the revised running pay
band of PB-4. For this purpose, the increment
will be calculated on the pay in the pay band
alone and Grade pay would not be taken into
account for the purpose of granting increments
to alleviate bunching.
(c) If by stepping up of the pay as above, the pay
of an employee gets fixed at a stage in the
CWP No. 18438 of 2010 and connected cases -14-
revised pay band/ pay scale (where applicable)
which is higher than the stage in the revised
pay band at which the pay of an employee
who was drawing pay at the next higher stage
or stages in the same existing scale is fixed,
the pay of the latter shall also be stepped up
only to the extent by which it falls short of
that of the former.
(d) The pay in the pay band will be determined in
the above manner and in addition to the pay in
the pay band so arrived,, grade pay
corresponding to the existing scale will be
also be payable.]
(B) In the case of employees who are in receipt of special
pay/ allowance in addition to pay in the existing
scale which has been recommended for replacement
by a pay band and grade pay without any special pay/
allowance, pay shall be fixed in the revised pay
structure in accordance with the provisions of (A)
above.
(C) In the case of employees who are in receipt of
special pay component with any other nomenclature
in addition to pay in the existing scales, such as
personal pay for promoting small family norms, etc.,
and in whose case the same has been replaced in the
revised pay structure with corresponding allowance/
pay at the same rate or at a different rate, the pay in
the revised structure shall be fixed in accordance
with the provisions of clause (A) above. In such
cases the allowance at the new rate as recommended
shall be drawn in addition to pay in the revised
structure of pay from the date specified in the
individual notifications related to these allowances.
CWP No. 18438 of 2010 and connected cases -15-
(D) In the case of medical officers who are in receipt of
Non-Practising Allowance (NPA), the pay in the
revised pay structure shall be fixed in accordance
with the provisions of clause (A) above except that,
in such cases, the pre-revised dearness allowance
appropriate to the non-practising allowance
(excluding dearness pay component on NPA)
admissible at index average 536 (1982=100) shall be
added while fixing the pay in the revised pay band.
Illustration 3 in Explanatory Memorandum to these
rules may be referred to in this regard.
Note 1. — A Government servant who is on leave on the
1st day of January, 2006, and is entitled to
leave salary shall become entitled to pay in
the revised pay structure from 1.1.2006 or the
date of option for the revised pay structure.
Similarly, where a Government servant is on
study leave on the first day of January, 2006,
he will be entitled to the benefits under these
rules from 1.1.2006 or the date of option.
Note 2.— Where a post has been upgraded as
indicated in Part B of the First Schedule to
these Rules, the fixation of pay in the
applicable pay band will be done in the
manner prescribed in accordance with
clause (A) (i) and (ii) of rule 7 by
multiplying the existing basic pay as on
1.1.2006 by a factor of 1.86 and rounding
the resultant figure to the next multiple of
10. The Grade pay corresponding to the
upgrade scale as indicated in column 6 of
the Part-B of the First Schedule will be
payable in addition. Illustration 4 in this
CWP No. 18438 of 2010 and connected cases -16-
regard is in Explanatory Memorandum to
these rules.
Note 3.—In case of Government servant under
suspension, he shall continue to draw
subsistence allowance based on existing
scale of pay and his pay in the revised
structure of pay will be subject to final order
on the pending disciplinary proceedings or
otherwise a final order, as the case may be.
Note 4.— Where the ‘existing emoluments’ exceed the
revised emoluments in the case of any
Government servant, the difference shall be
allowed as personal pay to be absorbed in
future increases in pay.
Note 5.— Where in the fixation of pay under sub-rule
(1), the pay of a Government servant, who, in
the existing scale was drawing immediately
before the 1st day of January, 2006, more pay
than another Government servant junior to
him in the same cadre, gets fixed in the
revised pay band at a stage lower than that of
such junior, his pay shall be stepped upto the
same stage in the revised pay band as that of
the junior.
Note 6.— Where a Government servant is in receipt of
personal pay on the 1st day of January, 2006,
which, together with his existing emoluments
exceeds the revised emoluments, then the
difference representing such excess shall be
allowed to such Government servant as
personal pay to be absorbed in future
increases in pay.
Note 7.— In case where a senior Government servant
promoted to a higher post before the 1st day
CWP No. 18438 of 2010 and connected cases -17-
of January, 2006, draws less pay in the
revised pay structure than his junior who is
promoted to the higher post on or after the 1st
day of January, 2006, the pay in the pay band
of the senior Government servant should be
stepped up to an amount equal to the pay in
the pay band as fixed for his junior in that
higher post. The stepping up should be done
with effect from the date of promotion of the
junior Government servant subject to the
fulfillment of the following conditions,
namely:—
(a) both the junior and the senior Government
servants should belong to the same cadre
and the posts in which they have been
promoted should be identical in the same
cadre;
(b) the pre-revised scale of pay and the
revised grade pay of the lower and higher
posts in which they are entitled to draw
pay should be same;
(c) the senior Government servants at the
time of his promotion should have been
drawing equal or more pay than the
junior;
(d) the anomaly should be directly as a result
of the application of the provisions of
CSR or any other rule or order regulating
pay fixation on such promotion in the
revised pay structure. If even in the
lower post, the junior officer was
drawing more pay in the pre-revised
scale than the senior by virtue of any
advance increments granted to him,
CWP No. 18438 of 2010 and connected cases -18-
provision of this Note need not be
invoked to step up the pay of the senior
officer.
(2) Subject to the provisions of rule 5, if the pay as fixed
in the officiating post under sub-rule (1) is lower than the
pay fixed in the substantive post, the former shall be
fixed at the same stage as in the substantive pay.”
Relevant part of the 1st Schedule, Part-B, referred to in Note 2
above, reads as follows :-
“THE FIRST SCHEDULE, PART-A
xxxxxxx xxxxxxx xxxxxxx
PART-B
xxxxxxx xxxxxxx xxxxxxx
15. Posts in Education Department
i. JBT Teacher 4500-7000 6500-10500 PB-2 4200
ii. P.T.I 4500-7000 5500-9000 PB-2 3600
iii. Drawing Teacher 4500-7000 5500-9000 PB-2 3600
iv. Cutting & Tailoring 4500-7000 5500-9000 PB-2 3600
Teacher
v. Head Teacher 5500-9000 7450-11500 PB-2 4600
______________________________________________________________
*Sr. Name of the Pre-revied pay Revised Pay Further modified Pre-revised pay
No. post/Cadre scale as on Structure scale/revised pay structure
1.1.06 Pay w.e.f. 1.1.06 Pay Band/Grade Pay
Band/Grade
Pay
_________________________________________________________________________
(ii) PTI 4500-7000 9300-34800 6500-10500 9300-34800
Teacher PB-2 PB-2
GP-3600 GP-4200
(iii) Art & Craft 4500-7000 9300-34800 6500-10500 9300-34800
(Drawing Teacher) PB-2 PB-2
GP-3600 GP-4200
(iii) Cutting & 4500-7000 9300-34800 6500-10500 9300-34800
Tailoring PB-2 PB-2
Teacher GP-3600 GP-4200
_________________________________________________________________________
CWP No. 18438 of 2010 and connected cases -19-
__________________________________________________________________________
(1) (2) (3) (4) (5) (6)
__________________________________________________________________________
v. Head Teacher Primary School 5500-9000 7450-11500 PB2 4600
vi. Master 5500-9000 7450-11500 PB2 4600
vii. Language Teacher (Hindi/ 5500-9000 7450-11500 PB2 4600
Punjabi/Sanskrit & Hindi
Teacher Primary)
viii. Head Master Middle School 6500-9900 7450-11500 PB2 4600
ix. School Lecturer 6500-10500 7500-11500 PB2 4800
x. Head Master High School 7500-12000 8000-13500 PB2 5400
xi. Principal, Sr. Sec. School 8000-13500 10000-13900 PB3 6000
Dy. DEO/BEO/Asstt.
Director (Academic)
xii. DEO/DEEO/Principal, 10000-13900 10000-15200 PB3 6400
DIET/Dy. Director
xiii. Joint Director/Director, SRC/ 10000-15200 12000-16500 PB3 7600
SCERT/Sharmik Vidyapeeth
These instructions will take effect notionally w.e.f. 01.01.2006 and actually w.e.f.
01.09.2009.
The pay of these categories of Teachers will be fixed as prescribed under the
Haryana Civil Services (Revised Pay) Rules, 2008.”
Rule 18 of the HCS(ACP) Rules, 2008 is analogous and,
therefore, is not being reproduced herein as the interpretation, which has been
put-forth, vide impugned order dated 14.6.2010 (Annexure-P-4), has the
similar impact and effect.
Petitioners in these writ petitions are working on regular basis on
the posts of JBT/C&V teacher/Head teacher and all of them initially joined as
JBT teachers and some of them have been subsequently promoted as head
teacher. As per Rule 7 of the HCS(RP) Rules, 2008 and Rule 18 of the HCS
(ACP) Rules, 2008 and the proviso provided thereunder deals with the initial
pay fixation. A perusal of the proviso to Rule 7 of the HCS(RP) Rules, 2008,
indicates beyond doubt that on re-fixation of pay in the revised pay scale,
every employee is entitled to one increment if the pay gets bunched at two or
more consecutive stages in an existing scale. Similar is the position if the pay
CWP No. 18438 of 2010 and connected cases -20-
is fixed/revised in assured career progression pay structure. Petitioners were
given the benefit of this proviso and their pay was accordingly fixed which
has now been withdrawn in the light of the order dated 14.6.2010, issued by
the Government of Haryana, Department of Finance. Note 2 of the above
Rules infact supports the claim of the petitioners, whose pre-revised pay
scales of the post, have been upgraded as indicated in part-B of the 1st
Schedule of the HCS(RP) Rules, 2008 and in column 4 of Schedule-I Part-I of
the HCS(ACP) Rules, 2008. Proviso to Rule 7 makes it amply clear that the
benefit of bunching has to be granted to those Government servants whose
pay gets fixed in the revised pay structure at the same stage in the pay band at
two or more consecutive stages in an existing scale. For every two stages so
bunched, benefit of one increment shall be given so as to avoid bunching of
more than two stages in the revised running pay bands. It further provides that
for this purpose, the increment will be calculated in the pay of the relevant
pay band. Note 2 to this Rule provides that where a post has been upgraded,
as indicated in Part-B of the 1st Schedule of these Rules, the manner
prescribed in accordance with Clause A (i) and (ii) of Rule 7 for fixation of
pay in the applicable pay band will be done by multiplying the existing pay as
on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next
multiple of 10. The grade pay corresponding to the upgraded scale as
indicated in column 6 of the Part-B of the 1st Schedule will be payable in
addition. Illustration 4 referred to in Note 2 to Rule 17 further clarifies this
position and supports the claim of the petitioners. Illustration 4 referred to in
note 2 to Rule 17 reads as follows :-
CWP No. 18438 of 2010 and connected cases -21-
“Illustration 4: Pay fixation in cases where posts have been upgraded e.g. posts in prerevised
pay scale of Rs.3050-75-3950-80-4590 to Rs.3200-85-4900
scale
1. Existing Scale of Pay Rs. 3050-4590
(Corresponding Grade Pay Rs.1900)
2. Pay Band applicable PB-1 Rs.5200-20200
3. Upgraded to the Scale of Pay Rs. 3200-4900
(Corresponding Grade Pay Rs. 2000)
4. Existing basic pay as on 1.1.2006 Rs. 3125
5. Pay after multiplication by a factor of Rs. 5813 (Rounded off to Rs. 5820)
1.86
6. Pay in the Pay Band PB-2 Rs. 5820
7. Pay in the pay band after including Rs. 5820
benefit of bunching in the pre-revised
Scale of Rs.3050-4590, if admissible
8. Grade Pay attached to the scale of Rs. 2000
Rs. 3200-4900
9. Revised basic pay- total of pay in the pay Rs.7820
band and grade pay.”
A perusal of the above leaves no manner of doubt that the benefit
of bunching in the pre-revised scale is admissible to the post where the prerevised
pay scales have been upgraded.
In the light of the above, the interpretation which has been putforth
by the respondents through the impugned order dated 14.6.2010
(Annexure-P-4), stating therein that the proviso attached to Rule 7 of the HCS
(RP) Rules, 2008 and Rule 18 of the HCS(ACP) Rules, 2008, is not applicable
to the cases where the pay revision has been upgraded, is contrary to the Rules
and, therefore, cannot sustain. By now it is a well settled principle of law that
administrative orders/instructions cannot be issued against or beyond the
statutory Rules and thus, cannot amend, add, alter or modify the statutory
Rules, which has been sought to be done by the respondents, vide impugned
order dated 14.6.2010 (Annexure-P-4). Administrative instructions can only
CWP No. 18438 of 2010 and connected cases -22-
supplement and explain the statutory Rules, but cannot override nor set at
naught the mere object of enactment, unless such an intention is clear and is
permitted from the statute itself. Rules framed under Article 309 of the
Constitution of India has overriding effect upon the administrative
instructions which although, may be subsequent, but contrary to the statute
and thus, cannot survive.
In view of the above, the impugned order dated 14.6.2010
(Annexure-P-4) is hereby quashed being contrary to the HCS(RP) Rules, 2008
and HCS(ACP) Rules, 2008. The writ petitions are allowed. The reduction of
the pay of the petitioners in pursuance to the order dated 14.6.2010
(Annexure-P-4) consequently stands quashed. Recovery, if any, effected from
the petitioners, on account of re-fixation of their pay on the basis of order
dated 14.6.2010 (Annexure-P-4) be refunded to the respective petitioners
within a period of three months from today. The consequential benefits to the
petitioners be granted within a further period of two months.
(AUGUSTINE GEORGE MASIH)
JUDGE
3.11.2012
sjks

No comments:

Post a Comment