Suresh Kumar v. The State of Haryana & Ors.

Mr. I.D. Singla, Advocate for the petitioner ***** PERMOD KOHLI, J. The petitioner was appointed as Assistant Electrician in the pre- revised pay scale of Rs.950-1400, vide order dated 30.04.1997 (Annexure P-3) in the Haryana Roadways. He is claiming the pay scale of Rs.1200-2040 on the basis of Finance Department letter No. 6/233PR/ (FD)-88 dated 26.07.1991. Vide the aforesaid letter, pay scale of various posts where the minimum prescribed qualification is Matric with I.T.I Certificate were merged and placed in the pay scale of Rs. 1200-2040 w.e.f. 01.05.1990 (entry No.40). Simultaneously, another entry at Sr. No.40(a) was introduced, which inter alia provide no future recruitment without Matric I.T.I. and such appointees are to be placed in the pay scale of Rs. 950-1400 w.e.f. 01.05.1990. A larger number of employees appointed prior to 01.05.1990 and holding technical posts approached this Court in various writ petitions. Such writ petitions were allowed by this Court and all such employees holding technical posts prior to 01.05.1990, as prescribed under item No. 40 were directed to be placed in pay scale of Rs.1200- 2040 notwithstanding whether they were having Matric and I.T.I qualification. Petitioner is also seeking a direction for his placement in the initial pay scale of CWP No. 7074 of 2010 -2- Rs.1200-2040 and the revised pay scale of both 4000-6000. Presently, petitioner has been placed in the pay scale of Rs.3050-4350. Petitioner is matriculate and is diploma holder in Electric Engineering. His contention is that he is duly qualified and is holding a technical post, hence should be placed in the initial pay scale of Rs.1200-2040 in terms of the Governments Instructions (Anneuxre P-4). At the time of his recruitment/appointment in the service, the petitioner was governed by the statutory Rules, namely, Haryana Civil Services Revised Pay Rules 1998 notified vide G.S.R./3/Const./Art.309/98 notification dated 07.01.1998. These rules were made applicable w.e.f. 01.01.1996. Petitioner appointment is on 30.04.1997. These rules have been made applicable to all categories of Government servants appointed to civil services and posts in connection with the affairs of the Government of Haryana and who are under the Administrative Control of the Government of Haryana. Section 3 further defines basic pay and existing scale and also the functional pay scale. The relevant conditions are reproduced as under: - (a) “basic pay” means pay drawn in the prescribed scale of pay as on

31.12.1995 for the post held by the person(s) as functional scale of pay for such post including stagnation increments but not including any other type of pay like “special pay”, “personal pay” etc. (c) “existing scale” in relation to any post or any Government servant means the functional pay scale as on 31.12.1995 prescribed for the post or the post held by the Government servant as the case may be. (d) “functional pay scale” in relation to a Government servant means the pay scale which is prescribed for the post held by the CWP No. 7074 of 2010 -3- Government servant. It does not mean any other pay scale in which the Government servant is drawing his pay as a personal measure to him with any other justification like based on length of service, or on higher/additional qualification or on upgradation of pay scale due to any other reason. Provided that where functional pay scales have not been provided to the posts in any cadre and the cadre is not stratified in terms of posts in the hierarchy alongwith specified different functional pay scales, as in case of Haryana Civil Services (Executive) the pay scale based on the position of Government servant in the cadre shall be deemed to be the functional pay scale for the purposes of these rules. (l) “pay” means the amount drawn monthly by a Government servant, other than special pay or pay granted in lieu of his personal qualification or his length of service, in the functional pay scale, which has been sanctioned for a post held by him substantively or in an officiating capacity or in case where no separate functional pay scale is sanctioned for the post held by the Government servant constituting a cadre, in the pay scale to which he is entitled by reason of his position in a cadre. Rule 7 deals with fixation of initial pay in the revised scale. Rule 9 deals with the fixation of pay in the revised scale subsequent to the 1st day of January, 1996. Rule 12 gives overriding effect to the rules. Under 1st schedule attached to the rules existing functional pay scales are mentioned. Part II of the 1st schedule prescribed the existing functional pay scales as also the revised functional pay scales. At the time of petitioner's appointment, he was placed in the existing functional pay scale of Rs.950-1400 as is evident from his CWP No. 7074 of 2010 -4- appointment letter (Annexure P-3). This pay scale has been revised to Rs.3050- 4350 under Sr. No. 4, whereas the petitioner is asking for pay scale of 1200- 2040 at Sr. No. 8. The relevant extract is reproduced as under: - ------------------------------------------------------------------------------------------------- Sr.No. Existing Functional Pay Scales in Haryana Revised Functional Pay Scales in Haryana ------------------------------------------------------------------------------------------------- 1. -------------------------------------------------------------------------------------------------

8. 950-20-1150-EB-25-1400 3050-75-3950-EB-80-4350 1200-30-1560-EB-40-2040 4000-100-800-EB-100-6000 ------------------------------------------------------------------------------------------------- The pay revision has taken place on the basis of the existing pay scale. The basic scale and the existing scale as defined under the rule is the pay scale drawn by Government servant as on 31.12.1995. Functional pay scale means the pay scale prescribed for the post held by Government servant as on the date the Rules came into being. The expression “pay” also means monthly emoluments drawn by the Government servant other than special pay or personal pay. Rule 7 further provides the mode of fixation of the functional pay in the revised scale in respect to those employees who elected for the revised pay scale from the 1st day of January, 1996. Further Rule 9 deals with the fixation of pay in the revised pay scale subsequent to the 1st day of January, 1996. Rule 12 gives overriding effect to these rules over the provisions of CSR or PFR or any other rules. From the perusal of the revised scale under part II of the 1st Schedule, it is clear that a Government employee who was in the existing pay scale of 950-1400 is to be placed in the revised pay scale of Rs.3050-4350. The petitioner's claim for treating his initial pay scale of Rs. 1200-2040 on the basis of the Government instructions dated 26.07.1991 issued prior to his appointment is not sustainable in the law. Those instructions were applicable to the employees who were in service as on 01.05.1990 and are not applicable to an CWP No. 7074 of 2010 -5- employee who is recruited to the service much later than the issuance of Government instructions. This is particularly so in respect to Government employee who is appointed and is governed by the pay Rules, 1998. It is admitted case of the petitioner that his appointment was in the pay scale of Rs.950-1400, governed by statutory rules, he cannot claim the initial pay scale of Rs.1200-2040 at a later stage. The judgment relied by the petitioner as also the Government order have no application in the present case. No merit in the present petition. Dismissed.

26.05.2010 naresh.k (PERMOD KOHLI) JUDGE