Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 155

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Dr. Sanjay Guleria, S/o. Shri Bhupsingh Güleria & Ors. - Petitioners
Versus
State of Himachal Pradesh, through Principal Secretary (Ayurveda) to the Government of Himachal Pradesh, Shimla & Ors. - Respondents
Civil Writ Petition (Original Application) Nos. 6401 of 2019 and 2223 of 2020
Decided On : 02-05-2022

Advocates Appeared:
For the Petitioner:Mr. Rajnish Maniktala, Senior Advocate With Mr. Naresh Verma.
For the Respondent:Mr. Desh Raj Thakur, Additional Advocate General With Mr. Gaurav Sharma, Deputy Advocate General.

Point of Law : Once the State Government had omitted to include the category of AMOs in the Schedule appended to the said rules, it cannot be allowed to turn around and try to justify its action of so-called equitable consideration. As noticed above, the categories of employees in Agriculture department of the State have also been exempted from the rigors of these rules.

Headnote:
Constitution of India, 1950 - Article 309 - Himachal Pradesh Civil Services (Category/Post wise Revised Pay) Rules, 2012 - Rules 1 & 2 - Himachal Pradesh Civil Services (Revised Pay) Rules, 2009 - Recruitment and Promotion Rules - scope of judicial review - Respondent No.1 framed Recruitment and Promotion Rules for post of AMOs under Article 309 of Constitution of India - As per these rules, prescribed pay scale for AMOs, appointed on regular basis, whereas AMOs appointed on contract basis were to get fixed pay with due and admissible increase on extension of contract service on year-to-year basis – Once the State Government had omitted to include the category of AMOs in the Schedule appended to the said rules, it cannot be allowed to turn around and try to justify its action of so-called equitable consideration. As noticed above, the categories of employees in Agriculture department of the State have also been exempted from the rigors of these rules –[Para 19]
Finding of the Court :
No doubt, fixation of pay and determination of parity in duties is a function of executive and scope of judicial review is limited - However, writ court cannot be a mute spectator even in cases where administrative action is found unreasonable, unjust and prejudicial to a section of employees or such action is otherwise harsh and arbitrary - In facts of present case, respondents have come up with a specific defence that communication, Annexure A-1, was issued on strength of 2012 Rules - No other explanation has been rendered - In view of this, argument raised by learned Additional Advocate General cannot be countenanced as same would be in conflict with pleaded case of respondents - 2012 Rules have been framed by State Government in exercise of powers emanating from proviso to Article 309 of Constitution of India - Once State Government had omitted to include category of AMOs in Schedule appended to said rules, it cannot be allowed to turn around and try to justify its action of so-called equitable consideration - As noticed above, categories of employees in Agriculture department of State have also been exempted from rigors of these rules - There was nothing to prevent State Government to include category of AMOs in Schedule appended to 2012 Rules - Communication Annexure A-1 being mere administrative instructions will not supersede 2012 rules framed under Article 309 of Constitution of India - Argument so raised by learned Additional Advocate General is thus rejected.
Result : Petitions are allowed

ORDER :

Both these petitions are being decided by a common judgment as common question of law and facts are involved.

2. Petitioners in both the petitions are Ayurvedic Medical Officers (for short “AMOs”) serving respondent No.1.

3. Respondent No.1 framed Recruitment and Promotion Rules for the post of AMOs under Article 309 of the Constitution of India, on 17.02.2009 (for short “2009 R & P Rules”). As per these rules, the prescribed pay scale for AMOs, appointed on regular basis was 7220-220-8100-275-10300-340-11660, whereas AMOs appointed on contract basis were to get fixed pay of Rs. 10,830/- with due and admissible increase on extension of contract service on year-to-year basis.

4. Government of Himachal Pradesh vide notification dated 26.08.2009, Annexure P-9, notified Himachal Pradesh Civil Services (Revised Pay) Rules, 2009 and were made effective from 01.01.2006. Accordingly, respondent No.1 also amended 2009 R & P Rules of AMOs on 20.09.2020. The pay scale for regular AMOs was prescribed at Rs. 10,300-34800+5000 grade pay. AMOs appointed on contract basis were to get Rs.15,300/- per month with due and admissible increase on extension of contract service on year-to-year basis.

5. Petitioners in CWPOA No. 6401 of 2019, who earlier were working on contract basis were regularised as AMOs vide order dated 10.08.2015, Annexure A-4, in the pay scale of Rs.10,300-34,800+5000 grade pay + admissible NPA. The pay of petitioners in CWPOA No. 6401 of 2019 was fixed in terms of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009 and the General Conversion Table as also Fitment Table-17 included in the schedule to such rules were applied. The relevant extract of General Conversion Table reads as under:-

Pre-revised				Revised
Sr. No.	Group	Pay Scale	Pay Band	Group	Corresponding pay Bands	Grade Pay	Initial
17	(i)	7220-220-8100-275-10300-340-11660	PB-3	(I)	10300-34800	5000	18450

Further the relevant extract of Fitment Table 17 reads as under:-

Pre-revised pay Scale	Revised pay structure
	Revised pay Scale + Grade Pay
	Rs.10300-34800 + Rs.5000
Rs.7220-11660	Revised Pay
Basic Pay	Pay in the pay Band	Grade Pay	Revised Basic Pay
7220	13450	5000	18450

Accordingly, the pay scale of petitioners in CWPOA No. 6401of 2019, was fixed at 13450+5000=18450.

6. The Respondent No.1, vide notification dated 13.09.2012, Annexure A-12, had ordered the grant of pay scale of Rs.15,600-39100 plus 5400/- Grade Pay to AMOs/Homeopathic Medical Officers/Unani Medical Officer/Amchi with immediate effect, after rendering two years regular service.

7. The Government of Himachal Pradesh further notified Himachal Pradesh Civil Services (category/post wise revised pay) Rules, 2012, on 24.09.2012.

8. On dated 27.11.2015, respondent No.1 issued a communication to respondent No.2 to the following effect”

“I am directed to refer to your letter No. Ay-H(B)(06)-01-10-1/6027 dated 02.09.;2015 on the subject cited above and to say that the matter has been examined at the Government level in consultation with the Finance Department and it is clarified that the pay structure of AMOs has been re-revised as Rs.13,600-39100+ Rs.5400 Grade Pay on completion of two years of regular service after 01.01.2006 i.e. general revision of pay scales by the Ayurveda Department vide Notification dated 13.09.2012 with immediate effect and as such the pay of AMOs category regularized/appointed after this date is to be fixed in the pay structure of Rs.10300-34800 +5000 Grade Pay without any initial pay start. You are, therefore, requested to take action accordingly in the matter under intimation to this department.

This issue with the prior approval of Finance Department Obtained vide Diary No. 53397533-Fin(PR)-B(7)-662/2010-Loose dated 18.11.2015.”

9. In pursuance to the aforesaid communication dated 27.11.2015,

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2022 Supreme(HP) 155

Cases Referred (3)