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2022 Supreme(HP) 446
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Lekh Raj Son Of Late Sh. Shyam Lal - Appellant
Vs.
State Of Himachal Pradesh, Through Secretary (Home) To The Government Of Himachal Pradesh, Shimla Respondent
Civil Writ Petition (Original Application) No. 4777 Of 2019 Along With Civil Writ Petition (Original Application) Nos. 4737, 4918 and 4691 OF 2019
Decided On : 08-09-2022
For the Appellant :Mr. Dilip Sharma, Senior Advocate With Mr. Tejasvi Dogra And Manish Sharma, Advocates.
For the Respondent:Mr. R.P. Singh And Mr. Narender Thakur, deputy Advocate generals.
Point of Law : An amendment having retrospective operation which has effect of taking away the benefit already available to the employee under existing rule indeed would divest employee from his vested or accrued rights and that being so, it would be held to be violative of rights guaranteed under Articles 14 and 16 of the Constitution.
Headnote:
Constitution of India, 1950 - Articles 14 and 16 - Engaged as Clerks - Pay scale - Cadre - These petitions are that all the petitioners are employees of police department of the State - They belong to ministerial staff and were initially engaged as Clerks - Respondents State had notified Recruitment and Promotion Rules for post of Clerk (Class-III Non-Gazetted) in department of police - In cadre of Clerks, three separate categories were carved. First being in the pay-scale of 950-1800 (basic entry scale with initial start of Rs.1000/) for Clerks, second being in pay-scale of Rs.1200-2130 for Senior Clerks on their designation after completion of minimum five years as Clerk and third being in pay-scale of Rs.1500-2700 on their designation as Junior Assistant after putting 10 years of service as Clerks and Senior Clerks taken together - Whether the petitioners had acquired any vested rights and whether the respondents could take away such rights retrospectively?
Finding of Court :
Petitioners were not granted benefits at any stage from outside of the provisions of Rule Book - They were allowed the benefits or rights that flowed from relevant rules - Petitioners can definitely be said to have vested and acquired rights in the benefits allowed to them under prevalent Rules - Amendment brought by respondents in Himachal Pradesh Civil Services (Revised Pay) Rules, 1998, vide notification dated which had effect of taking away benefits already available to the petitioners under the existing Rules is contrary, discriminatory and violative of rights granted - In view of aforesaid exposition of law and its applicability to facts of the case, it is clear that vested, accrued and fundamental rights of the petitioners have been infringed and impugned action of respondents is in clear violation of Articles 14 and 16 of Constitution of India.
Result : Petitions are allowed
JUDGEMENT :
All these petitions have been heard together and are being disposed of by a common judgment as identical questions of facts and law are involved.
2. Brief facts necessary for adjudication of these petitions are that all the petitioners are employees of police department of the State. They belong to ministerial staff and were initially engaged as Clerks. In the context of matter in issue, it will suffice to notice the posts respectively held by the petitioners as on 01.01.1996. Petitioners in CWPOA No. 4777 of 2019 and CWPOA No. 4737 of 2019 were holding posts of Clerks as on 01.01.1996, whereas petitioners in CWPOA Nos. 4691 and 4918 of 2019 were holding posts of Senior Clerks as on the said date.
3. Respondents State had notified Recruitment and Promotion Rules for the post of Clerk (ClassIII Non-Gazetted) in the department of police on 14.02.1997. In the cadre of Clerks, three separate categories were carved. First being in the payscale of 9501800 (basic entry scale with initial start of Rs.1000/) for Clerks, second being in the payscale of Rs.12002130 for Senior Clerks on their designation after completion of minimum five years as Clerk and third being in the payscale of Rs.15002700 on their designation as Junior Assistant after putting 10 years of service as Clerks and Senior Clerks taken together.
4. Vide notification dated 20.01.1998, Himachal Pradesh Civil Services (Revised Pay) Rules, 1998 were notified. These rules were made operative from 01.01.1996. On the date of notification of these rules, petitioners in CWPOA No. 4777 of 2019 and CWPOA No. 4737 of 2019 had already been designated as Senior Clerks, whereas petitioners in CWPOA No. 4691 of 2019 and CWPOA No. 4918 of 2019 had been designated as Junior Assistants as per the Recruitment and Promotion Rules noted above. Petitioners were accordingly getting the pay scales admissible against their respective designation. As per the schedule annexed to Himachal Pradesh Civil Services (Revised Pay) Rules, 1998, pay scale of Senior Clerks i.e. 12002130 was revised to Rs.40206200 and the pay scale of Junior Assistants i.e. 15002700 was revised to 50008100. Since these rules were made applicable w.e.f. 01.01.1996, petitioners became entitled to the revised scales from the respective dates on which the petitioners were designated as Senior Clerks or Junior Assistants, as the case may be. Petitioners started getting the revised pay scales accordingly.
5. Respondents issued a subsequent notification dated 01.09.1998, whereby the posts with designation of Senior Clerks was abolished w.e.f. 01.01.1996 and the revised pay scales of Junior Assistant was reduced from Rs.50008100 to Rs. 44007000. The cadre of Clerk was demarcated as Clerks and Junior Assistants in the ratio of 50:50. Respondents issued yet another notification dated 31.05.2001 whereby the provision of promotion from Clerks to Junior Assistants was done away with and instead it was provided that the posts of Junior Assistants would be filled up only by way of placement.
6. On 03.11.2001, a clarification was issued to the effect that the designation and the revised equivalent of the unrevised pay scale of officials working as Senior Clerk and Junior Assistant as on 01.01.1996 shall be protected as a measure personal to them. The protection was, however, limited to the extent of excess payment made to Junior Assistants upto 01.09.1998 only. For Senior Clerks this protection was not made available.
7. On 07.06.2005, an order was issued by respondents whereby the pay scale of 40206200 granted to the Senior Clerks was withdrawn. Their pay was refixed as Clerks till their placement as Junior Assistants. It is relevant to notice that the prior to the issuance of order dated 07.06.2005, petitioner in CWPOA Nos. 4777 and 4737 of 2019 had also been designated as Junior Assistants.
8. In the aforesaid bac
