Prat ibha Pant v. Mr. P.S. Bisht

Rs.15600- 39100/ - Grade Pay Rs.5400/ - as first ACP was allow ed. The relevant ext ract of t he im pugned j udgm ent is reproduced below for ready reference: - t he “ 16. Sim ilarly placed Pharm acist s have got grade pay of Rs. 5400 aft er ACP in January 2016 and t he sam e would have been given t o t he pet it ioner by t he St at e Tax Depart m ent w.e.f. 25.01.2016 had she init iat ed her services as C.T.O. on 25.01.2006. An argum ent has also been advanced by t he respondent depart m ent t hat grant ing ACP t o her in January 2016 would be unfair t o t he ot her C.T.Os., who were direct ly recruit ed along wit h t he pet it ioner in 2015. This Tribunal does not find any force in t his argum ent is already get t ing higher because salary as com pared t o ot her cont em porary CTOs by way of her pay prot ect ion and t he int er- se seniorit y of t he CTOs is also not going t o be affect ed in any t he pet it ioner 1 m anner. The pet it ioner had an accrued right t o be considered for ACP on t he basis of t he past lengt h of her service which should be v iewed from t he lens of t he previous depart m ent and as analyzed in t he preceding paras, t he sam e should have been grant ed t o her w.e.f. 25.01.2016.”

17. Nowhere it has been proj ect ed by t he respondent depart m ent t hat t he benefit of ACP is not given t o t he pet it ioner on account of unsat isfact ory service, eit her in t he present or in her previous depart m ent . Therefore, t reat ing her services t o be sat isfact ory, orders for grant ing her ACP w.e.f 25.01.2016 m ay be issued.

18. The Tribunal, t herefore, is of t he opinion t hat t he im pugned order ( Annexure: A1) should be set aside and a direct ion should be given t o respondent No.2 t o grant 1 st ACP in t he pay scale of Rs. 15,600- 39100 wit h Grade Pay of Rs.5400 in accordance wit h t he provisions of t he G.Os. dat ed 08.03.2011 and 01.07.2013, by calculat ing t he t ot al period of 10 years of service appoint m ent in t he service of St at e of Ut t arakhand i.e. 25.01.2006. The pet it ioner is also ent it led t o be given all consequent ial benefit s, aft er grant of 1 st ACP w.e.f. 25.01.2016 wit h arrears of ACP.” t he dat e of her

2. I t is not in disput e t hat respondent was appoint ed as Pharm acist in Medical and Healt h Depart m ent t he St at e Governm ent

25.01.2006 in t he pay scale of Rs.5200- 20200/ - Grade Pay of Rs.2800/ - . Vide Governm ent Order dat ed 31.12.2013, pay scale of Pharm acist , ( ent ry grade) was revised from Rs.5200- 20200/ - Grade Pay of Rs.2800/ - t o Rs.9300- 34800/ - Grade Pay Rs.4200/ - , while pay scale of Pharm acist , w it h t wo years service, was rev ised from 9300- 34800/ - Grade Pay 4200/ - t o Rs.9300- 34800 Grade Pay Rs.4600/ - . Respondent was also grant ed Grade Pay of Rs.4600/ - in t he pay scale of Rs.9300- 34800/ - aft er 2 com plet ing t wo years of service on t he post of Pharm acist .

3. Respondent was appoint ed by open select ion as Com m ercial Tax Officer in St at e Tax Depart m ent w it h effect from 03.03.2015. The post of Com m ercial Tax Officer was also carry ing t he sam e pay scale as respondent was get t ing earlier i.e. 9300- 34800/ - Grade Pay 4600/ - . Respondent claim ed Grade pay of Rs.5400/ - as first ACP by m aking a represent at ion cont ending t hat since she has put in cont inuous sat isfact ory service of 10 years in t he scale of Rs.9300- 34800/ - Grade Pay of 4600/ - , t herefore, she is ent it led t o Grade Pay of Rs.5400/ - . The represent at ion was rej ect ed by t he com pet ent aut horit y.

4. Respondent challenged t he order whereby her represent at ion was rej ect ed, before learned t ribunal. Learned t ribunal allow ed t he claim pet it ion and held t hat respondent is ent it led t o Grade Pay of Rs.5400/ - as first ACP, by t aking int o account t he services rendered by her as Pharm acist in Medical Depart m ent .

5. Learned St at e counsel appearing for pet it ioner subm it s t hat services rendered by respondent in som e ot her depart m ent , before her appoint m ent as Com m ercial Tax Officer, cannot be t aken int o 3 account and respondent would be eligible for first ACP only upon com pet ing t en years of cont inuous sat isfact ory service in t he St at e Tax Depart m ent . The said subm ission, however, is cont rary t o t he provision cont ained in para 2( vi) of t he Governm ent Order dat ed 08.03.2011, which is ext ract ed below: - “ ( vi) izns'k ds vU; jktdh; foHkkxksa esa leku xzsM osru esa dh x;h fu;fer lsok dks foRrh; LrjksUu;u ds fy, x.kuk esa fy;k tk;sxk] ijUrq ,slsa ekeyksa esa ,0lh0ih0 dh O;oLFkk ds vUrxZr ns; fdlh ykHk gsrq u;s foHkkx ds in ij ifjoh{kk vof/k ( Probat ion Period) larks"ktud :i ls iw.kZ djus ds mijkUr gh fopkj fd;k tk;sxk ,oa lacaf/kr ykHk ns; frfFk ls gh vuqeU; djk;k tk;sxkA^^

6. Perusal of para 2( vi) of Governm ent Order dat ed 08.03.2011 reveals t hat regular services rendered by a St at e em ployee in som e ot her St at e depart m ent in sam e Grade Pay shall be count ed for grant ing benefit of pay upgradat ion under ACP, however, period of probat ion has t o be excluded. Thus, first cont ent ion, raised on behalf of pet it ioner, is w it hout force.

7. Learned St at e Counsel t hen cont ended t hat pay scales in Medical Depart m ent and Com m ercial Tax Depart m ent are different , t herefore, benefit of services rendered by respondent as Pharm acist in Medical Depart m ent cannot be given for grant of ACP.

8. Learned t ribunal has considered and discussed t he said cont ent ion and held t hat t ot al service 4 rendered in low er as well as in upgraded pay scale shall be com bined t oget her for calculat ing t he period of eligibilit y for grant of ACP.

9. The view t aken by learned t ribunal cannot be fault ed. Prov isio t o Para 2( i) ( ka) of G.O. dat ed

08.03.2011 is clear on t he point and provides t hat if pay scale/ grade pay of a post is upgraded, in t hat event t he services rendered in old pay scale/ grade pay shall be added in t he upgraded pay scale/ grade pay for det erm ining t he period of eligibilit y. The provisions cont ained in para 2( i) ka of t he Governm ent Order dat ed 08.03.2011, is ext ract ed below: - “ 2( i) ,0 lh0 ih0 ds vUrxZr lh/kh HkrhZ ds fdlh in ij izFke fu;fer fu;qfDr dh frfFk ls 10 o"kZ] 18 o"kZ o 26 o"kZ dh vuojr~ larks’ktd lsok ds vk/kkj ij] rhu foRrh; LrjksUu;u fuEu izfrcU/kksa ds v/khu vuqeU; fd;s tk;saxs%& ¼d½ izFke foRrh; LrjksUu;u lh/kh HkrhZ ds in ds osrueku@lkn`”; xzsM osru esa 10 o’kZ dh fu;fer lsok fujUrj lUrks’ktud :i ls iw.kZ dj ysus ij ns; gksxkA ijUrq] fdlh in dk osrueku@xzsM osru fdlh le; fcUnq ij mPphd`r gksus dh fLFkfr esa foRrh; LrjksUu;u dh vuqeU;rk gsrq lsokfuf/k dh x.kuk esa iwoZ osrueku@xzsM osru rFkk mPphd`r osrueku@xzsM osru esa dh x;h lsokvksa dks tksM+dj mPphd`r xzsM osru ls vxyk xzsM osru vuqeU; gksxkA^^

10. Learned counsel t he pet it ioner t hen cont ended t hat respondent was grant ed Grade Pay of Rs.4600/ - as non- funct ional pay scale while serving as Pharm acist which is not applicable for 5 t he post of Com m ercial Tax Officer. Learned t ribunal has considered and discussed t he m at t er in great det ail in para 12, 13, 14 & 15 of t he im pugned j udgm ent as ext ract ed below: - ( B) , Healt h Rule- 22

12. Order dat ed 09.10.2015 ( Annexure: A- 4A) , issued by Com m issioner Tax, is in favour of t he pet it ioner. Exercising t he power under Financial Fundam ent al Handbook Part- I I , Volum e 2- 4, t he pet it ioner has been grant ed pay prot ect ion by including t he her past services ( as Pharm acist ) The Depart m ent . Tax Com m ercial quot ed above depart m ent al ( as service explicit ly dealt wit h past Pharm acist ) rendered by t he pet it ioner in t he Medical Fam ily Welfare Depart m ent , from 25.01.2006 t o 02.03.2015. I t has been quot ed in t he depart m ent al order referred t o above t hat t he pet it ioner worked t o 02.03.2015, wit hout ( service) break. As per t he LPC of February, 2015 of t he pet it ioner, issued by Chief Treasury Officer, Nainit al, t he pet it ioner was drawing, in February, 2015, basic pay of Rs.16150/ - grade pay Rs.4600/ - t he basic pay which was higher Rs.12540/ - grade pay of Rs.4600/ - , for t he post of CTO. She was drawing higher salary, as Pharm acist , t han t he init ial pay of CTO ( when she j oined as CTO) . Pay prot ect ion of t he pet it ioner was, t herefore, ordered by HOD.

25.01.2006 Pharm acist t han

13. I t m ay be st at ed t hat sim ilarly placed Pharm acist s in t he Medical Healt h and Fam ily Welfare Depart m ent have been given t he benefit of first ACP aft er 10 years of t heir j oining as per orders issued by t he officers of t hat Depart m ent , placed in file as Annexure: A- 11 t o Supplem ent ary R.A., which have not been denied by t he respondent s. Had t he pet it ioner not left her parent depart m ent , she would also have been grant ed first ACP aft er 10 years of service, i.e., w.e.f. 25.01.2016. 6 Her j oining t he Com m ercial Tax Depart m ent on 03.03.2015 was also in t he sam e pay scale and sam e grade pay as she was get t ing t he t he earlier post . The order of Com m issioner Tax, Ut t arakhand added such past services t o t he present services and provided pay prot ect ion t o her, as she was get t ing higher basic pay due t o t he earlier lengt h of service. This t ransit ion did not involve any financial up- gradat ion which could have prevent ed her from get t ing ACP on 25.01.2016, which has been received by sim ilarly placed Pharm acist s, in t he Medical Healt h and Fam ily Welfare Depart m ent aft er 10 years of service. required

14. The respondent s have also argued t hat as per t he G.O. dat ed 01.07 2013, it has been provided in para 4( kha) t hat present ly non- funct ional pay scale/ grade pay is provided only on t he post of Pharm acist and if any ot her post has been wrongly given, any financial benefit , on t his basis, t he sam e should be correct ed and excess paym ent m ade, t o be adj ust ed. The respondent s are also insist ing on t he fact t hat t he services of t he pet it ioner in t he present pay scale and grade pay have com m enced t he t wo years of her only aft er services of pharm acist and hence, she should be provided ACP as per t he G.Os of 2011 and 2013 only in 2018, but even t hat is not possible, as from 2017, t he ACP has been replaced by MACP which does not t ake int o in anot her rendered t he service account depart m ent of t he Governm ent . j oining

15. At int ernal page No.3 of t he G.O. dat ed 08.03.2011 is clearly ( Annexure: A6) , m ent ioned t hat service in t he sam e grade pay of ot her Governm ent Depart m ent of t he St at e financial shall be upgradat ion t he considerat ion of t he benefit of ACP shall be done only aft er sat isfact ory com plet ion of t he probat ion period, but shall be given from t he t he pet it ioner has due dat e. Presum ably, int o account cases, t aken 7 Healt h is, whet her from 25.01.2006 or already com plet ed her probat ion period and, t herefore, her past services as Pharm acist were t o be added for considerat ion of ACP. t hey should be The quest ion t wo years t hereaft er, when she got t he present pay scale and grade pay. The service rendered prior t o her j oining t he St at e Tax Depart m ent has t o be considered at par wit h t he services of ot her sim ilarly placed Pharm acist s in t he Fam ily Welfare Medical, Depart m ent . I f t hose services qualified t he ot her Pharm acist s, appoint ed in January, 2006 t o be grant ed ACP from January, 2016, t he m ere anot her depart m ent of t he St at e Governm ent in t he sam e pay scale and grade pay, does not disqualify her January 2016. The St at e Tax Depart m ent cannot apply t heir own perspect ive t o t he previous depart m ent , when t he previous depart m ent count s t he ent ire period as qualifying period for considerat ion of ACP.” from get t ing ACP t he pet it ioner t ransit ion of rendered services

11. Learned t ribunal has relied upon t he j udgm ent rendered by Hon’ble Suprem e Court in t he case of D w i j e n Ch a n d r a Sa r k a r a n d A n o t h e r v s. Un i o n o f I n d i a a n d Ot h e r s ( 1 9 9 9 ) 2 Su p r e m e Co u r t Ca se s 1 1 9 wherein Hon’ble Suprem e Court held t hat past services rendered by an em ployee are t o be count ed for lim it ed purpose t owards qualifying service for higher grade under t im e bound prom ot ion schem e. The t ribunal has also referred t o j udgm ent rendered t he case of St a t e o f M a h a r a sh t r a a n d o t h e r s v s, Ut t a m Vi sh n u Pa w a r 2 0 0 8 ( 1 1 6 ) FLR 7 8 8 . 8

12. Learned counsel for t he pet it ioner concedes t hat while serving as Pharm acist , respondent was get t ing salary in t he Grade Pay of Rs.4600/ - . Since t he post of Com m ercial Tax Officer was also having Grade Pay of 4600/ - at t he t im e of respondent ’s appoint m ent , t herefore, upon com plet ing t en years of service, respondent was ent it led for Grade Pay of Rs.5400/ - as per Governm ent Policy. Even ot herw ise also respondent would have received Grade Pay of Rs.5400/ - , if she had not swit ched from Medical Depart m ent t o St at e Tax Depart m ent and t hat benefit would have been given t o her from due dat e i.e. 25.01.2016, if she cont inued Medical Depart m ent .

13. We find no illegalit y or infirm it y t he j udgm ent rendered by learned t ribunal, which m ay warrant int erference. Accordingly, writ pet it ion fails and is dism issed. No order as t o cost . ( A sh i sh N a i t h a n i , J.) ( M a n o j K u m a r Ti w a r i , J.)

21.03.2025 Arti ARTI SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH 9