State of Haryana and another... Respondent(s) CWP No of 2010 and connected cases -2-

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1 Punjab-Haryana High Court Punjab-Haryana High Court IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : CWP No of 2010 Subhash Chander and others... Petitioner(s) CWP No of 2010 Chandi Ram and others... Petitioner(s) CWP No of 2010 Ashok Vashisth and others... Petitioner(s) CWP No. 824 of 2011 Naresh Kumar and others... Petitioner(s) State of Haryana and another... Respondent(s) CWP No of 2010 and connected cases -2- CWP No of 2011 Satbir Singh and others... Petitioner(s) CWP No of 2011 Gayatri and others... Petitioner(s) Indian Kanoon - 1

2 CWP No of 2011 Manju Khurana and others... Petitioner(s) CWP No of 2011 Krishan Kumar and others... Petitioner(s) CWP No of 2011 Mahesh Chander and others... Petitioner(s) CWP No of 2010 and connected cases -3- CWP No of 2011 Ramesh Kumar and others... Petitioner(s) CWP No of 2011 Subhash Chander and others... Petitioner(s) CWP No of 2011 Rajbir Singh and others... Petitioner(s) Indian Kanoon - 2

3 CWP No of 2011 Somvir Singh and others... Petitioner(s) CWP No of 2011 Sukh Pal Singh and others... Petitioner(s) CWP No of 2010 and connected cases -4- CWP No of 2011 Chander Parkash and others... Petitioner(s) CWP No of 2011 Pawan Kumar and others... Petitioner(s) CWP No of 2011 Satvir Singh and others... Petitioner(s) CWP No of 2011 Sanjay Kumar and others... Petitioner(s) CWP No of 2011 Yudhbir Singh and others... Petitioner(s) Indian Kanoon - 3

4 CWP No of 2010 and connected cases -5- CWP No of 2011 Rajesh Kumar Yadav and others... Petitioner(s) CWP No of 2011 Jai Kanwar and others... Petitioner(s) CWP No of 2011 Raj Kumar and others... Petitioner(s) CWP No of 2011 Sarjeet Singh and others... Petitioner(s) CWP No. 616 of 2012 Kulvender Singh and others... Petitioner(s) CWP No of 2010 and connected cases -6- CWP No of 2012 Monika and others... Petitioner(s) Indian Kanoon - 4

5 CWP No of 2012 Umed Singh and others... Petitioner(s) CWP No of 2012 Sanjay and others... Petitioner(s) CWP No of 2012 Jagdish Chander Verma and others... Petitioner(s) CWP No of 2012 Vijender Singh and others... Petitioner(s) CWP No of 2010 and connected cases -7- CWP No of 2012 Rajender Singh... Petitioner(s) CWP No of 2012 Ranvir Singh and others... Petitioner(s) CWP No of 2012 Seema and others... Petitioner(s) Indian Kanoon - 5

6 CWP No of 2012 Kishan Lal and others... Petitioner(s) CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present:- Mr. S.K. Tamak, Advocate, (in CWP No of 2010) Mr. Umesh Narang, Advocate, (in CWPs No of 2010 and 824, 11770, 14669, 15882, 17033, of 2011 and 616, 3898, 7978, of 2012) CWP No of 2010 and connected cases -8- Mr. Vivek Arora, Advocate, (in CWPs No. 3856, 6750, 7034, 7663, 8180, 10072, 11471, 11689, 12431, of 2011) Mr. S.K. Yadav, Advocate, (in CWP No of 2011) Mr. N.S. Shekhawat, Advocate, (in CWP No of 2011) Mr. S.K. Verma, Advocate, (in CWP No of 2012) Mr. Sandeep Kotla, Advocate, (in CWPs No. 3101, of 2012) Mr. S.K. Redhu, Advocate, (in CWPs No. 4343, 4347 of 2011 and 10363, of 2012) for the petitioners. Mr. Harish Rathee, Senior DAG Haryana. AUGUSTINE GEORGE MASIH, J. By this order, I propose to decide Civil Writ Petitions No , 20307, of 2010 and 824, 3856, 4343, 4347, 6750, 7034, 7663, 8180, 10072, 11471, 11689, 11770, 12431, 13066, 14669, 15882, 17033, , of 2011 and 616, 3101, 3898, 6992, 7978, 10363, 15170, 16062, 17949, of 2012, as common questions of facts and law are involved in these cases which have been taken up together as per the request and on the consent of the counsel for the parties. For brevity, the facts are taken from CWP No of Indian Kanoon - 6

7 Petitioners in these cases have approached this Court, impugning the order dated (Annexure-P-4), issued by the Government of Haryana, Department of Finance, interpreting Note 2 below Rule 7 of the Haryana Civil Services (Revised Pay) Rules, 2008 (in short 'HCS(RP) Rules, 2008') and Note 2 below Rule 18 of the Haryana Civil Services (Assured Career Progression) Rules, 2008 (in short 'HCS(ACP) Rules, 2008'), whereby under Clause III under the heading 'Interpretation', it has been stated that the proviso attached with the rules ibid would not be applicable in cases where the pre-revised pay scale of the post has been upgraded as indicated in Part-B of the 1st Schedule of the HCS(RP) Rules, 2008 and in column 4 of Schedule-I CWP No of 2010 and connected cases -9- Part-I of the HCS(ACP) Rules, 2008, as the case may be, on the ground that this interpretation is alien to the statutory Rules, framed under Article 309 of the Constitution of India and through executive/administration instructions, the statutory Rules cannot be amended, altered or modified and such action of the respondents is violative of the judgment of the Hon'ble Supreme Court in the case of State of Haryana Shamsher Jang Bahadur and others, 1972 SLR 441 and further that the recovery cannot be effected from the petitioners as pay fixation had been done by the respondents on their own due to misinterpretation of the Rules. There are no allegations of mis-representation or fraud played by the petitioners and thus, the claim of the petitioners for no recovery is covered by the Full Bench judgment of this Court in Budh Ram and others State of Haryana and others, 2009(3) PLR 511. Reliance has also been placed upon a Division Bench judgment of this Court in CWP No of 2006 titled as Om Parkash and others State of Haryana and others, decided on , wherein a similar situation had arisen under the Haryana Civil Services (Revised Pay) Rules, 1998 and Haryana Civil Indian Kanoon - 7

8 Services (Assured Career Progression) Rules, 1998, where again admissible bunching in the revised grades were initially granted but on a clarification issued by the Government of Haryana, the same was withdrawn which was challenged and the said challenge was upheld by this Court, holding the petitioners entitled to the grant of increment and the explanation issued by the Government of Haryana, to be violative of the statutory Rules and thus, not sustainable. Reply to the writ petition has been filed wherein it has been stated that the benefit of bunching was not applicable in those cases where the pay scale of an employee was revised by the Government in pre-revised scales CWP No of 2010 and connected cases -10- prior to the new revision of the pay scale. The scale of the present petitioners were revised by the Government in pre-revised scales from Rs to Rs , thus, the benefit claimed by the petitioners under the present writ petition was not admissible to them and the pay of the petitioners was rightly reduced by the respondents. It has been stated that the proviso attached to Rule 7 of the HCS(RP) Rules, 2008 and Rule 18 of the HCS(ACP) Rules, 2008, shall not be applicable in such cases as that of the petitioners. Accordingly, it has been asserted that the petitioners are not entitled to the claim made by them in the present writ petition. Rule 7 of the HCS(RP) Rules, 2008 prescribes that where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For the purpose, the increment will be calculated on the pay in the pay band. Grade pay would not Indian Kanoon - 8

9 be taken into account for the purpose of granting increments to alleviate bunching. On this basis, it has been stated that the petitioners are not entitled to the benefit which was earlier granted to them and has now been withdrawn as per the order dated , issued by the Government of Haryana, Department of Finance. Counsel for the parties have argued their cases referring to the statutory Rules and the impugned order and have made their submissions as per the pleadings referred to above. I have heard the counsel for the parties and with their assistance have gone through the records of the case. CWP No of 2010 and connected cases -11- For resolving the controversy, which has been raised in these writ petitions, reference to Rule 7 of the HCS(RP) Rules, 2008 and Rule 18 of the HCS(ACP) Rules, 2008, have to be necessarily made. Rule 7 of the HCS(RP) Rules, 2008 read as follows :- "7. Fixation of initial pay in the revised pay structure :-- (1) The initial pay of a Government servant who elects or is deemed to have elected under sub-rule (3) of rule 6 to be governed by the revised pay structure on and from the 1st day of January, 2006, shall, unless in any case the Government by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in officiating post held by him, in the following manners namely:- (A) In the case of all employees-- (i) The pay in the pay band/ pay scale will be determined by multiplying the existing basic pay as on by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. (ii) If the minimum of the revised pay band/ pay scale is more than the amount arrived at as per (i) above the pay shall be fixed at the minimum of the revised pay band/ pay scale: Provided further that: Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For the CWP No of 2010 and connected cases -12- Indian Kanoon - 9

10 purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching. In the case of pay scales in higher administrative grade (HAG) in the pay band PB-4, benefit of increments due to bunching shall be given taking into account all the stages in different pay scales in this grade. If by stepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised pay band/ pay scale (where applicable) which is higher than the stage in the revised pay band at which the pay of a Government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. The pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the existing scale will be payable. *[(A-1) In cases of employees belonging to the category of teachers and equivalent cadres in Universities and Colleges, provision under sub-clause (A) shall not apply and in its place, following shall apply to them: (i) The pay in the pay band will be determined by multiplying the existing basic pay as on by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10. (ii) If the minimum of the revised pay band is more than the amount arrived at as per (i) above, the pay in the pay band shall be fixed at the minimum of the revised pay band. CWP No of 2010 and connected cases -13- Provided further that: (a) Where, in the fixation of pay, the pay of employees drawing pay at two or more consecutive stages in an existing scale gets fixed in the revised pay structure at the same stage in the pay band in PB-3, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay band of PB-3. For this purpose, the increment will be calculated on the pay in the pay band alone and Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching. (b) Where, in the fixation of the pay, the pay of employees drawing pay at four or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band in PB-4, then, for up to the first four stages so bunched, benefit of one increment shall be given at the first place and thereafter for every two further subsequent stages so bunched, benefit of one further increment shall be given so as to avoid bunching of more than four stages in the revised running pay band of PB-4. For this purpose, the increment will be calculated on the pay in the pay band alone and Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching. (c) If by stepping up of the pay as above, the pay of an employee gets fixed at a stage in the CWP No of 2010 and connected cases -14- Indian Kanoon

11 revised pay band/ pay scale (where applicable) which is higher than the stage in the revised pay band at which the pay of an employee who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. (d) The pay in the pay band will be determined in the above manner and in addition to the pay in the pay band so arrived,, grade pay corresponding to the existing scale will be also be payable.] (B) In the case of employees who are in receipt of special pay/ allowance in addition to pay in the existing scale which has been recommended for replacement by a pay band and grade pay without any special pay/ allowance, pay shall be fixed in the revised pay structure in accordance with the provisions of (A) above. (C) In the case of employees who are in receipt of special pay component with any other nomenclature in addition to pay in the existing scales, such as personal pay for promoting small family norms, etc., and in whose case the same has been replaced in the revised pay structure with corresponding allowance/ pay at the same rate or at a different rate, the pay in the revised structure shall be fixed in accordance with the provisions of clause (A) above. In such cases the allowance at the new rate as recommended shall be drawn in addition to pay in the revised structure of pay from the date specified in the individual notifications related to these allowances. CWP No of 2010 and connected cases -15- (D) In the case of medical officers who are in receipt of Non-Practising Allowance (NPA), the pay in the revised pay structure shall be fixed in accordance with the provisions of clause (A) above except that, in such cases, the pre-revised dearness allowance appropriate to the non-practising allowance (excluding dearness pay component on NPA) admissible at index average 536 (1982=100) shall be added while fixing the pay in the revised pay band. Illustration 3 in Explanatory Memorandum to these rules may be referred to in this regard. Note A Government servant who is on leave on the 1st day of January, 2006, and is entitled to leave salary shall become entitled to pay in the revised pay structure from or the date of option for the revised pay structure. Similarly, where a Government servant is on study leave on the first day of January, 2006, he will be entitled to the benefits under these rules from or the date of option. Note 2.-- Where a post has been upgraded as indicated in Part B of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with clause (A) (i) and (ii) of rule 7 by multiplying the existing basic pay as on by a factor of 1.86 and rounding the resultant figure to the next multiple of 10. The Grade pay corresponding to the upgrade scale as indicated in column 6 of the Part-B of the First Schedule will be payable in addition. Illustration 4 in this CWP No of 2010 and connected cases -16- regard is in Explanatory Memorandum to these rules. Note 3.--In case of Government servant under suspension, he shall continue to draw subsistence allowance based on existing Indian Kanoon

12 scale of pay and his pay in the revised structure of pay will be subject to final order on the pending disciplinary proceedings or otherwise a final order, as the case may be. Note 4.-- Where the 'existing emoluments' exceed the revised emoluments in the case of any Government servant, the difference shall be allowed as personal pay to be absorbed in future increases in pay. Note 5.-- Where in the fixation of pay under sub-rule (1), the pay of a Government servant, who, in the existing scale was drawing immediately before the 1st day of January, 2006, more pay than another Government servant junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped upto the same stage in the revised pay band as that of the junior. Note 6.-- Where a Government servant is in receipt of personal pay on the 1st day of January, 2006, which, together with his existing emoluments exceeds the revised emoluments, then the difference representing such excess shall be allowed to such Government servant as personal pay to be absorbed in future increases in pay. Note 7.-- In case where a senior Government servant promoted to a higher post before the 1st day CWP No of 2010 and connected cases -17- of January, 2006, draws less pay in the revised pay structure than his junior who is promoted to the higher post on or after the 1st day of January, 2006, the pay in the pay band of the senior Government servant should be stepped up to an amount equal to the pay in the pay band as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfillment of the following conditions, namely:-- (a) both the junior and the senior Government servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre; (b) the pre-revised scale of pay and the revised grade pay of the lower and higher posts in which they are entitled to draw pay should be same; (c) the senior Government servants at the time of his promotion should have been drawing equal or more pay than the junior; (d) the anomaly should be directly as a result of the application of the provisions of CSR or any other rule or order regulating pay fixation on such promotion in the revised pay structure. If even in the Indian Kanoon

13 lower post, the junior officer was drawing more pay in the pre-revised scale than the senior by virtue of any advance increments granted to him, CWP No of 2010 and connected cases -18- provision of this Note need not be invoked to step up the pay of the senior officer. (2) Subject to the provisions of rule 5, if the pay as fixed in the officiating post under sub-rule (1) is lower than the pay fixed in the substantive post, the former shall be fixed at the same stage as in the substantive pay." Relevant part of the 1st Schedule, Part-B, referred to in Note 2 above, reads as follows :- "THE FIRST SCHEDULE, PART-A xxxxxxx xxxxxxx xxxxxxx PART-B xxxxxxx xxxxxxx xxxxxxx 15. Posts in Education Department i. JBT Teacher PB ii. P.T.I PB iii. Drawing Teacher PB iv. Cutting & Tailoring PB Teacher v. Head Teacher PB *Sr. Name of the Pre-revied pay Revised Pay Further modified Pre-revised pay No. post/cadre scale as on Structure scale/revised pay structure Pay w.e.f Pay Band/Grade Pay Band/Grade Pay (ii) PTI Teacher PB-2 PB-2 GP-3600 GP-4200 (iii) Art & Craft (Drawing Teacher) PB-2 PB-2 GP-3600 GP-4200 (iii) Cutting & Tailoring PB-2 PB-2 Teacher GP-3600 GP-4200 CWP No of 2010 and connected cases -19- Indian Kanoon

14 (1) (2) (3) (4) (5) (6) v. Head Teacher Primary School PB vi. Master PB vii. Language Teacher (Hindi/ PB Punjabi/Sanskrit & Hindi Teacher Primary) viii. Head Master Middle School PB ix. School Lecturer PB x. Head Master High School PB xi. Principal, Sr. Sec. School PB Dy. DEO/BEO/Asstt. Director (Academic) xii. DEO/DEEO/Principal, PB DIET/Dy. Director xiii. Joint Director/Director, SRC/ PB SCERT/Sharmik Vidyapeeth These instructions will take effect notionally w.e.f and actually w.e.f The pay of these categories of Teachers will be fixed as prescribed under the Haryana Civil Services (Revised Pay) Rules, 2008." Rule 18 of the HCS(ACP) Rules, 2008 is analogous and, therefore, is not being reproduced herein as the interpretation, which has been put-forth, vide impugned order dated (Annexure-P-4), has the similar impact and effect. Petitioners in these writ petitions are working on regular basis on the posts of JBT/C&V teacher/head teacher and all of them initially joined as JBT teachers and some of them have been subsequently promoted as head teacher. As per Rule 7 of the HCS(RP) Rules, 2008 and Rule 18 of the HCS (ACP) Rules, 2008 and the proviso provided thereunder deals with the initial pay fixation. A perusal of the proviso to Rule 7 of the HCS(RP) Rules, 2008, indicates beyond doubt that on re-fixation of pay in the revised pay scale, every employee is entitled to one increment if the pay gets bunched at two or more consecutive stages in an existing scale. Similar is the position if the pay CWP No of 2010 and connected cases -20- is fixed/revised in assured career progression pay structure. Petitioners were Indian Kanoon

15 given the benefit of this proviso and their pay was accordingly fixed which has now been withdrawn in the light of the order dated , issued by the Government of Haryana, Department of Finance. Note 2 of the above Rules infact supports the claim of the petitioners, whose pre-revised pay scales of the post, have been upgraded as indicated in part-b of the 1st Schedule of the HCS(RP) Rules, 2008 and in column 4 of Schedule-I Part-I of the HCS(ACP) Rules, Proviso to Rule 7 makes it amply clear that the benefit of bunching has to be granted to those Government servants whose pay gets fixed in the revised pay structure at the same stage in the pay band at two or more consecutive stages in an existing scale. For every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. It further provides that for this purpose, the increment will be calculated in the pay of the relevant pay band. Note 2 to this Rule provides that where a post has been upgraded, as indicated in Part-B of the 1st Schedule of these Rules, the manner prescribed in accordance with Clause A (i) and (ii) of Rule 7 for fixation of pay in the applicable pay band will be done by multiplying the existing pay as on by a factor of 1.86 and rounding the resultant figure to the next multiple of 10. The grade pay corresponding to the upgraded scale as indicated in column 6 of the Part-B of the 1st Schedule will be payable in addition. Illustration 4 referred to in Note 2 to Rule 17 further clarifies this position and supports the claim of the petitioners. Illustration 4 referred to in note 2 to Rule 17 reads as follows :- CWP No of 2010 and connected cases -21- "Illustration 4: Pay fixation in cases where posts have been upgraded e.g. posts in pre- revised pay scale of Rs to Rs scale 1. Existing Scale of Pay Rs (Corresponding Grade Pay Rs.1900) Indian Kanoon

16 2. Pay Band applicable PB-1 Rs Upgraded to the Scale of Pay Rs (Corresponding Grade Pay Rs. 2000) 4. Existing basic pay as on Rs Pay after multiplication by a factor of Rs (Rounded off to Rs. 5820) Pay in the Pay Band PB-2 Rs Pay in the pay band after including Rs benefit of bunching in the pre-revised Scale of Rs , if admissible 8. Grade Pay attached to the scale of Rs Rs Revised basic pay- total of pay in the pay Rs.7820 band and grade pay." A perusal of the above leaves no manner of doubt that the benefit of bunching in the pre-revised scale is admissible to the post where the prerevised pay scales have been upgraded. In the light of the above, the interpretation which has been putforth by the respondents through the impugned order dated (Annexure-P-4), stating therein that the proviso attached to Rule 7 of the HCS (RP) Rules, 2008 and Rule 18 of the HCS(ACP) Rules, 2008, is not applicable to the cases where the pay revision has been upgraded, is contrary to the Rules and, therefore, cannot sustain. By now it is a well settled principle of law that administrative orders/instructions cannot be issued against or beyond the statutory Rules and thus, cannot amend, add, alter or modify the statutory Rules, which has been sought to be done by the respondents, vide impugned order dated (Annexure-P-4). Administrative instructions can only CWP No of 2010 and connected cases -22- supplement and explain the statutory Rules, but cannot override nor set at naught the mere object of enactment, unless such an intention is clear and is permitted from the statute itself. Rules framed under Article 309 of the Constitution of India has overriding effect upon the administrative Indian Kanoon

17 instructions which although, may be subsequent, but contrary to the statute and thus, cannot survive. In view of the above, the impugned order dated (Annexure-P-4) is hereby quashed being contrary to the HCS(RP) Rules, 2008 and HCS(ACP) Rules, The writ petitions are allowed. The reduction of the pay of the petitioners in pursuance to the order dated (Annexure-P-4) consequently stands quashed. Recovery, if any, effected from the petitioners, on account of re-fixation of their pay on the basis of order dated (Annexure-P-4) be refunded to the respective petitioners within a period of three months from today. The consequential benefits to the petitioners be granted within a further period of two months. (AUGUSTINE GEORGE MASIH) JUDGE sjks Indian Kanoon