MADAN GOPAL GUPTA Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioners have approached this Court, praying for issuance of a writ of mandamus directing the respondents to fix their pay in the pay band of Rs. 37400-67000+10000 grade pay with effect from 01.01.2006 as on the date of their appointment i.e. 03.05.2005 and 02.05.2005 as Senior Deputy Advocate General and Deputy Advocate General, Haryana, respectively, though they were appointed on contract basis but they were granted the then applicable running pay scale of Rs. 18400-500-22400+600 NPA for the post. It may be added here that same running pay scale has been granted to the post of Deputy Advocate General and the Senior Deputy Advocate General and the only difference is that Senior Deputy Advocate General is given an additional increment at the time of his/her initial appointment.

(2.) Petitioners, after their appointments in May 2005 in the office of Advocate General, Haryana, continued till 30.11.2010. During the interregnum, pay scales of various posts of employees of State of Haryana were revised vide notification dated 30.12.2008 (Annexure P-3) by making the Haryana Civil Services (Revised Pay) Rules, 2008 (for short, "the 2008 Rules"). As per Rule 1(2) of the 2008 Rules, the said Rules were deemed to have come into force on 01.01.2006, unless otherwise provided by the Government for any class or category of persons or posts. Claim of the Law Officers, including the petitioners, was also considered in the light of the revision of the pay scales of the Government employees of the office of Advocate General by applying the principles as laid down in Rule 7(1) of the 2008 Rules and then proceeded to recommend the grant the corresponding pay scale to the Law Officers holding the posts of Senior Deputy Advocate General, Deputy Advocate General and the Assistant Advocate General. An Administrative Committee so constituted by the Advocate General, Haryana, to look into this matter, recommended the grant of pay scales as revised with effect from 01.01.2006. Learned Advocate General, Haryana, approved the recommendations of the Administrative Committee on 21.01.2009 (Annexure P-5). The Department of Finance on 18/19.03.2009 (Annexure P-6) approved the proposal as submitted by the Advocate General, Haryana. However, subsequently certain clarifications were sought, which were also responded to by the Advocate General, Haryana. After correspondence, the Finance Department ultimately on 09.12.2010 (Annexure P-11) did not grant the final approval and gave a reason that as new appointments of Deputy Advocate Generals and Senior Deputy Advocate Generals have been made and in view of the terms and conditions issued vide letter dated 11.02.2010 and 29.03.2010, where appointments have been made in the revised pay structure of Rs. 37400- 67000+NPA, there is no necessity of fixing the pay scales with effect from 01.01.2006 in the pay scale as recommended. This action of the respondents has been assailed by the petitioners in the present writ petition, which denies them the revised pay scales with effect from 01.01.2006, apart from fixation of their pay as per the formula laid down in Rule 7(1) of the 2008 Rules.

(3.) It is the contention of learned Senior counsel for the petitioners that although the appointments of the petitioners in the month of May 2005 is on contract basis but they were granted the regular pay scale as admissible then of the post i.e. Rs. 18400-500-22400. They were serving the respondents till 30.12.2008 when the revised pay scales were notified. As per this notification, the rules had to come into effect from 01.01.2006. Since the petitioners were appointed by giving them the running pay scales of the post and were granted annual increments as well, they cannot be discriminated in fixation of their pay and grant of benefit under the 2008 Rules. Petitioners continued to serve in the office of Advocate General till 30.11.2010, when fresh appointments were made. Merely because their appointments are on contract basis, but that would not deprive them the benefit of the 2008 Rules, especially when they have been granted the running pay scale of the posts. He accordingly contends that the action of the respondents cannot sustain and the reason, which has been assigned in the communication dated 09.12.2010 (Annexure P-11) is without any basis. Counsel for the State, on the other hand, vehemently argues that since the petitioners were appointed on contract basis, their pay has to be determined in accordance with the terms and conditions of their engagement. They are not regular employees of the State and, therefore, are not entitled to the benefit of the 2008 Rules. Since a specified pay scale was mentioned in their contractual appointments, they are only entitled to the benefit of that pay scale and the revised pay scale would not be applicable to them. He, on this basis, supports the impugned communication dated 09.12.2010 (Annexure P-11).