Birbal v. State of Haryana & Ors.

Judgment

1. The present writ petition has been filed seeking writ of certiorari quashing the impugned orders dated 16.2.1989 (Annexure P-13) and dated 12.7.1989 (Annexure P-14) reducing the pay-scale of the petitioner.

The brief facts of the present case are that prior to joining services in the respondent-Department, the petitioner was working as Clerk since 10.11.1961 in the Election Department where his services were regularized w.e.f. 9.1.1962 and on the extinction of the post there he was absorbed in the respondent-Department as Clerk on 8.6.1962 on the approval of the Subordinate Services Selection Board, Haryana. On the basis of his good work and conduct he was confirmed as Clerk CWP No.15429 of 1989 -2- by the respondent-authorities vide order dated 24.9.1969 (Annexure P-1) w.e.f. 10.11.1966. On the basis of his passing the test, the petitioner was selected and appointed as Steno- typist by the respondent-authorities vide orders No.31-CFH dated 21.4.1970 and consequently, he joined this post on

16.5.1970 in the office of the Forest Division, Ambala. He was brought on the permanent establishment as Steno-typist on probation for one year w.e.f. 1.11.1971 vide order dated

5.2.1972 (Annexure P-2). Again on the basis of his passing the test, the petitioner was selected and promoted as Stenographer in the pay scale of Rs.160-10-280/15-400 w.e.f. 3.3.1972 vide order dated 17.3.1972 (Annexure P-3). He was brought on the permanent establishment as Stenographer on probation for one year w.e.f. 2.7.1973 by the Conservator of Forest North vide order dated 18.7.1973 (Annexure P-4). He was confirmed as such w.e.f.

4.7.1974 vide order dated 24.07.1974 (Annexure P-5). The next promotion from the post of Stenographer is made to the post of Head Assistant under the Punjab Civil Service (Promotion of Stenographers and Steno- typists) Rules, 1961 (hereinafter referred to as the 1961-Rules). Petitioner was found better meritorious than a number of his seniors and thus superceded them all. None of them ever challenged the promotion of the petitioner. Atleast no notice of any kind, whatsoever, has ever been received by the petitioner. He joined this post on 10.10.1978 at Yamuna Nagar. Prior to his joining this post of Head Assistant, he was drawing his CWP No.15429 of 1989 -3- salary in the basic pay of Rs.250.00 in the pay scale of Rs.160- 10-280/15-400. Since, the post of Head Assistant was a higher post involving duties and responsibilities of greater importance and having a higher pay scale of Rs.200-10-280/15-430/20-450 the petitioner was given the benefit of fixation of pay under rule

4.4 of the Punjab Civil Services Rules (as applicable to Haryana).

3. The Chief Conservator of Forests, Haryana vide his office order No.11215-28 dated 9.10.1975 and again vide No.7959-75 dated 7.7.1977 invited options from the ministerial staff for serving on various posts in the 'A' Class Office carrying higher pay scales. This was on the basis of upgradation of the Direction Office as an 'A' Class Office. Enticed by the opportunity, the petitioner also opted to serve as Stenographer in the pay scale of Rs.225-15-360/20-500. On the basis of his option, the petitioner was posted as Stenographer in the 'A' Class Direction Office in the pay scale of Rs.225-15-360/20-500 vide order dated 13.4.1979 (Annexure P-7). Since, the post of stenographer in the Direction Office involving the duties and the responsibilities of greater importance the petitioner was entitled to the benefit of refixation of his pay at a higher stage carrying the benefit of atleast one increment in the new pay scale of the post in view of rule 4.4 quoted above but no such benefit was allowed to him. The optitions etc. exercised by the ministerial staff including the petitioner were all of a sudden cancelled by the Chief Conservator of Forests, Haryana vide his order dated CWP No.15429 of 1989 -4-

29.6.1979 (Annexure P-8) on the ground that the proposed service rules pertaining to 'A' Class Office had not been finalised till then and therefore, the then existing service-rules were to govern their service conditions. But even after the cancellation of petitioner's option, he was retained to work on the same post of Stenographer though he was earlier holding the post of Head Assistant. The respondent No.1 in a further communication dated 12.7.1989 (Annexure P-14) informed the respondent No.2 that the fixation of basic pay of the petitioner on 1.3.1979 as Head Assistant at the stage of Rs.270/- was found to be correct and as such his pay as Head Assistant on

1.4.1979 was rightly fixed at Rs.700.00. But so far the basic pay as Stenographer on 21.4.1979 is concerned his pay in the pre-revised scale would be fixed at Rs.260/- when he was posted on this post. It was further directed thereby that the pay of the petitioner be fixed in accordance with the letter dated

16.2.1989 (Annexure P-13). The petitioner was stunned as no opportunity, whatsoever, has been afforded to him to explain his position so far the fixation of his pay in the old as also the revised pay scales is concerned. Feeling Aggrieved by the action of the respondent-authorities, the petitioner submitted a representation on the same day, i.e. 16.8.1989 (Annexure P-15) and explained his position to the effect that his pay be rightly fixed in accordance with the rules. Many other submissions have also been made in this representation. No decision has been taken on this representation by the respondents. Atleast CWP No.15429 of 1989 -5- nothing of the sort has been conveyed to the petitioner.

4. Respondents No.1 to 3 in their written statement, have pleaded that Office of Chief Conservator of Forest was classified as “A -Class” Office and options from the entire Ministerial Staff were called for to be posted in the “A-Class” Office. It is also admitted that the petitioner was posted in the A-Class Office as Stenographer on his option. It is however contended that pay scale proposed for “A-Class” Office were not approved by the Government and the options already obtained from Ministerial Staff including the petitioner were cancelled vide the Chief Conservator of Forests letter No.7511- 65 dated 29.6.1979. The classification of Office of Chief Conservator of Forest, as “A-Class” was abolished vide Govt. letter No.31/10/78-2GSI dated 2.3.1982. It is further contended that after classification of the offices, the duties and responsibility of the Staff posted in the “A-Class” office does not carry the higher responsibilities & duties than to the staff posted in “B-Class” offices. It is further contended that no post of Head Assistant was available in the office of the Chief Conservator of Forests, the petitioner was allowed to work against the post of Stenographer in the office of Chief Conservator of Forests in the pay scale of Head Assistant drawn by him at that time. It is further contended that posting of the petitioner on the post of Stenographer and then again on the post of Head Assistant cannot be termed as reversion as alleged because the petitioner was appointed on 4.10.1978 as Head Assistant in CWP No.15429 of 1989 -6- officiating capacity and as no post of Head Assistant was available in the office of Chief Conservator of Forests, Haryana, he was posted as Stenographer; the post on which he was having lien. The rules framed by the department for “A-Class” Office were not approved by the Government, and petitioner having lien on the post of Stenographer was appointed as Stenographer on 21.4.1979 in the office of Chief Conservator of Forests, Haryana, the then A-Class office and subsequently on his request he was appointed as Head Assistant in the office of Divisional Forest Officer, Research & Training, Pinjore. Since classification of office has been abolished by Government on

17.2.1982.

5. I have heard learned Counsel for the parties and perused the record.

6. Undisputedly, petitioner stood superannuated on

31.3.2000. As admitted by the respondents in their written statement in paragraph 8 that no post of Head Assistant was available in the office of the Chief Conservator of Forests, hence, petitioner was allowed to work against the post of Stenographer in the office in the pay scale of Head Assistant drawn by him at that time. It is also undisputed that petitioner has not played any fraud nor played any active role in getting his pay scale fixed and making payment to him.

7. As admitted by the respondents in paragraph 8 of the written statement that although petitioner worked against the post of Stenographer in the office of Chief Conservator of CWP No.15429 of 1989 -7- Forests, however, he was allowed to draw pay scale of Head Assistant, since, no post of Head Assistant was available in the office of Chief Conservator of Forests. In paragraph 16 also of the written statement, it is further stated that on 4.10.1978 petitioner was appointed as Head Assistant in officiating capacity as no post of Head Assistant was available in the office.

8. In view of the above, this Court is of the opinion that petitioner was appointed as Head Assistant on 4.10.1978 and thereafter allowed to work against the post of Stenographer with his pay intact for the post of Head Assistant. Hence, refixation of salary of the petitioner by impugned orders is not justified. Hence, this petition is allowed and the impugned orders Annexures P-13 and P-14 are quashed.

03.02.2010 ashish (ALOK SINGH) JUDGE