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Judgment
Jyotsna Rewal Dua, J
Petitioners contend that they are entitled to revised pay scale of Rs. 2200-4000, as revised from time to time being given to Superintendent Grade-I, w.e.f. the dates of their joining the service, respectively. For praying this relief, reliance has been placed upon a judgment rendered in CWP(T) No. 2179 of 2008, titled as Ashok Shandil and others Vs. State of H.P. and others, decided on 19.06.2009.
Brief factual position may be noticed hereunder :-
2(i) Recruitment and Promotion Rules for the post of CDPO were initially framed in 1979. These rules were repealed and new R&P Rules for the post of CDPO were framed in 1996. The petitioners joined the service of the respondent-department as Child Development Project Officers (for short CDPO) in terms of R&P Rules 1996.
2(ii) Under R&P Rules 1979, the post of CDPO was to be filled in 100% by way of promotion i.e. 90% from feeder category of District Welfare Officer (DWO) and 10% from the feeder category of Superintendent. Some CDPOs, who were appointed under 1979 R& P Rules, moved this Court by way of CWP(T) No. 2179 of 2008, titled Ashok Shandil and others Vs. State of H.P. with the grievance that their feeder categories namely DWO and Superintendents were drawing higher pay scale than was drawn by the CDPOs. In the judgment rendered in this case on 19.06.2009, the Court noticed the fact that pay scale of CDPO was revised to Rs. 2000-3500 w.e.f. 1.1.1986 while pay scale of its feeder categories i.e. DWO was revised to Rs. 2100-3700 and of Superintendent Grade-I was revised to Rs. 2200-4000. In the factual position as it existed under the R&P Rules 1979, the Court observed that petitioners (therein) -CDPOs were getting the pay scale of Rs. 2000-3500 whereas the persons who were to be promoted as CDPOs from the feeder post of DWO and Superintendent Grade-I were in the higher pay scale of Rs. 2100-3700 and Rs. 2200-4000 respectively. In these circumstances, the Court further observed that pay scale of higher post should be more than that of its feeder categories, more so when qualifications required for the post of CDPO was higher than that of its feeder constituents. It is apposite to extract relevant paras from the judgment dealing with the factual matrix involved therein :-
"It is not in dispute that as per Annexure A-1, the posts of District Welfare Officer and Superintendent Grade- 1 is in the feeder category for promotion to the post of Child Development Project Officer in the ratio of 90% and 10%, respectively. The pay scale of Child Development Project Officer before 1.1.1986 was Rs. 350-800 and the pay scale of District Welfare Officer and Superintendent Grade-1 was Rs. 300-700 and Rs. 400-650, respectively. The pay scale of Child Development Project Officer was Rs. 825- 1580 with effect from 1.1.1978 and the pay scale of District Welfare Officer was Rs. 800-1400 whereas the pay scale of Superintendent Grade-1 was Rs. 825-1580. Surprisingly, the pay scale of Child Development Project Officer was revised to Rs. 2000-3500 with effect from 1.1.1986 while the pay scale of District Welfare Officer was revised from Rs. 800-1400 to Rs. 2100-3700. Similarly, the pay scale of Superintendent Grade-1, which was at par with the pay scale of Child Development Project Officer with effect from 1.1.1978, was revised to Rs. 2200-4000.
The pay scale of the promotional post/higher post cannot be less than the feeder category. The petitioners were getting pay scale of Rs. 2000-3500 and the persons who were to be promoted from the feeder post of District Welfare Officer and Superintendent Grade-1 are in the pay scale of Rs. 2100-3700 and Rs. 2200-4000, respectively. The pay scale of the higher post should have been more than the post of feeder category. The only reason for not granting the higher pay scale to the petitioners is that anomaly has arisen due to provisions of the Recruitment and Promotion Rules, which were being suitably modified/amended inconsonance with the pay scales involved. The qualification for filling up the post of Child Development Project Officer is higher than the feeder category. Since the post in question i.e. Child Development Project Officer is a higher post, it pre-supposes onerous and responsible duties. The petitioners ought to have been granted the higher pay scale vis-à-vis the persons who are in the feeder category i.e. District Welfare Officer and Superintendent Grade-I."
In view of the observations and findings recorded in the judgment, the writ petition filed by CDPOs recruited under 1979 R&P Rules was allowed in the following terms : -
" Accordingly, the petition is allowed. Annexure A-6 dated 17.3.1993 is quashed and set aside. The petitioners are held entitled to revised pay scale of Rs. 2200-4000 being given to the Superintendent Grade-1, respectively within a period of eight weeks from today. The pay scale will be released to the petitioners with effect from 1.1.1986. No costs."
2(iii) It is also pertinent to notice that while considering the prayer of the petitioners (in Ashok Shandil's case) in respect of revised pay scale of Rs. 2200-4000 being given to feeder category of Superintendent Grade-I, the Court also took cognizance of the fact that new R&P Rules for the post of CDPO had come into force on 10.07.1996, which would be applicable prospectively. In this context, the Court observed in the judgment that petitioners (therein) have been paid less pay than their feeder constituents-DWO and Superintendent Grade-I w.e.f. 01.01.1986 (the date of release of revised pay scale) till the date of framing of new Rules. The relevant observations made in this judgment in this regard are extracted hereinafter :-
"The learned Senior Additional Advocate General has drawn the attention of the Court to the newly framed rules called "the Himachal Pradesh Social and Women's Welfare Department, Child Development Project Officer (Class-II, Gazetted) Recruitment and Promotion Rules, 1996" whereby now instead of District Welfare Officer and Superintendent Grade-1, the feeder category is 40% from Assistant Child Development Project Officer and remaining 40% by promotion from amongst the Tehsildar Welfare Officers. The rules have come into force on 10.7.1996 and would apply prospectively. The petitioners have been paid less pay than the District Welfare Officer and Superintendent Grade -1 with effect from 1.1.1986 till the date of framing of new rules."
The Court observed :-
"The rights of the petitioners have crystallized on the basis of the Recruitment and Promotion Rules Annexure A -1 to get the higher pay scale. Their right to get the higher pay scale vis- à-vis the feeder categories i.e. District Welfare Officer and Superintendent Grade-1 cannot be defeated by the issuance of new rules for the post of Child Development Project Officer on 10.7.1996. The persons, who are appointed under the new rules, their condition of service are to be regulated under this new notification. The District Welfare Officer and Superintendent Grade-1 have been granted higher pay scale on the basis of notifications dated 30.5.1991 and 23.7.1990. The petitioners have been granted the pay scale of Rs. 2000-3500 on the basis of Annexure A-6 dated 17.3.1993."
2(iv) Primarily, drawing strength from the above mentioned judgment, petitioners have preferred instant writ petition for the grant of revised pay scale of Rs. 2200-4000. The relief clause contains following substantive prayers:-
"(a) That a writ in the nature of mandamus may very kindly be issued thereby directing the respondents to hold entitle the petitioners to the revised pay scale of Rs. 2200-4000 as revised from time to time being given to the Superintendents Grade-I with effect from the dates of their joining the service, respectively. It is further prayed that the petitioners may be given the benefits as per the judgment rendered by this Hon'ble Court in CWP(T) No. 2179 of 2008 as the said judgment has attained the finality and the petitioners in that petition had reaped the fruits.
(b) That the respondents may very kindly be directed to give higher pay scale to the petitioners alongwith arrears of salary from the dates of their appointments."
2(v) The record shows that initially instant writ petition was disposed off by a Division Bench of this Court on 16.08.2012 by observing that in case petitioners are situated similarly to the petitioners in CWP(T) No. 2179 of 2008, then benefit of judgment shall be given to them also. The operative part of the judgment reads as under :-
"2. According to the petitioners, the issue is covered by Annexure P-1, judgment in CWP(T) 2179 of 2008, and the judgment has become final. If that be so, and in case the petitioners are similarly situated, similar treatment shall be given to the petitioner herein also. The needful shall be done within a period of three months from the date of production of a copy of this judgment along with a copy of the writ petition as well as a copy of the judgment referred to above, by the petitioners before the 2nd respondent."
Respondent-State preferred Civil Appeal No. 8394 of 2014 against the judgment dated 16.08.2012. Apex Court set aside this judgment on 01.09.2014 and the matter was remanded back to this Court for afresh decision with the following observations :-
"We have heard learned counsel for the parties and perused the record. From the impugned order, it is apparent that the High Court without discussing the case of the parties and without deciding the question whether the writ petitioners were similarly placed like petitioners in CWP(t) No. 2179 of 2008 passed the impugned order. As no reason or ground has been shown, we set aside the impugned judgment and remit the case back to the High Court for its decision on merits.
It the respondents-writ petitioners prove that they are similarly situated to those petitioners who were granted benefit of revised pay scale the High Court may pass appropriate orders in accordance with law granting benefits to which respondents-writ petitioners may be entitled. If no case is made out no relief can be granted to the respondents-writ petitioners.
The appeal stands disposed of with aforesaid observations."
Heard learned counsel for the parties and gone through the record.
Learned counsel for the petitioners has strenuously argued that petitioners are entitled to the revised pay scale of Rs. 2200-4000. In support of this prayer, heavy reliance has been placed upon the judgment passed in Ashok Shandil's case (supra).
Whereas learned Additional Advocate General contended that petitioners are not similarly situated as the petitioners in Ashok Shandil's case. The petitioners herein were appointed as CDPOs under the R&P Rules 1996, whereunder none of the feeder categories for promotion to the post of CDPO carried higher pay scale than drawn by their promotional post of CDPO.
4(i). It is not in dispute that R&P Rules for the post of CDPO were initially framed in 1979. The petitioners in Ashok Shandil's case (supra) were promoted to the post of CDPO in terms of the then prevailing 1979 R&P Rules. As noticed in the judgment rendered in Ashok Shandil's case (supra), post of CDPO at that point of time could be filled in 100% by way of promotion i.e. 90% from the feeder category of DWO and 10% from the second feeder category of Superintendent Grade-I. The pay scale of CDPO was revised to Rs. 2000-3500 w.e.f. 01.01.1986 whereas the pay scale of its feeder category of District Welfare Category was revised to higher pay scale of Rs. 2100-3700. Similarly, the pay scale of second feeder category i.e. Superintendent Grade-I was also revised to higher scale of Rs. 2200-4000. Thus, there was no dispute in Ashok Shandil's case that both the feeder categories for promotion to the post of CDPO were in fact drawing higher pay scale than drawn by their next promotional post i.e. CDPO. It was in such circumstances that benefit of revised pay scale of Rs. 2200-4000 was granted to the petitioners therein.
4(ii). The factual position in the instant case is different. Petitioners were directly recruited to the post of CDPO subsequent to coming into force of 1996 R&P Rules. Under the 1996 Rules, post of CDPO could be filled in 40% by promotion of eligible Assistant CDPOs and 40% by promotion of eligible Tehsil Welfare Officers. Remaining 20% posts of CDPO are meant for direct recruitment against which petitioners were recruited in different years. The respondent-State in its reply has categorically submitted that post of DWO and Superintendent Grade I are no longer the feeder categories for promotion to the post of CDPO under the 1996 R&P Rules. It is the posts of ACDPO and TWO, which have the feeder channel of promotion to the posts of CDPO. It has also been submitted that feeder category of ACDPO has pay scale of Rs. 1800-3200 whereas the feeder category of Tehsil Welfare Officer has pay scale of Rs. 1640-2925 under 1996 R&P Rules. The pay scale of CDPO drawn by the petitioners is Rs. 2000 -3500. The pay scale of the petitioners, who are directly recruited to the post of CDPO under 1996 R&P Rules, is definitely higher than drawn by their feeder categories. In view of this factual position in the instant case, the petitioners cannot be said to be situated similarly as the petitioners in Ashok Shandil's case (supra). Benefit of the judgment in Ashok Shandil's case, therefore, cannot be extended to them. It is also significant to note that the Court while deciding Ashok Shandil's case (supra) was conscious of the fact that new 1996 R&P Rules had come into force w.e.f. 10.07.1996 and that they would be applicable prospectively and further that, conditions of service of the persons, who are appointed under the new rules, are to be regulated in terms of the new Rules. The Court did not grant the benefit of higher pay scale to all the CDPOs irrespective of the R&P Rules under which they had joined the service as CDPO. The petitioners herein are directly recruited as CDPOs under the 1996 R&P Rules It is not their case that they are drawing lesser pay scale than the pay scale drawn by their feeder categories (which was the grievance projected in Ashok Shandil's case). Parity claimed by them with petitioners in Ashok Shandil's case (supra) is misplaced. For all the aforesaid reasons, the petitioners cannot be held to be similarly situated as the petitioners in Ashok Shandil's case (supra).
Finding no merit in the instant petition, the same is accordingly dismissed. Pending applications, if any, also stand disposed of.