STATE OF HIMACHAL PRADESH Vs. MADHURI DHADWAL

JUDGEMENT

(1.) THE State has come up in appeal against the judgment dated 23.3.2011 in CWP(T) No. 8656 of 2008. The simple issue pertains to the placement as per the revised pay scale for granting Assured Career Progression Scheme, which is otherwise known as four tier pay scale. Annexure A-1, Rules were framed under Article 309 of the Constitution of India. In the H.P. Health Services, Class-I, employees were entitled to the ACP on completion of 4 years of regular service in the entry scale and on completion of 9 years of service in the entry scale and still thereafter on completion of 14 years of regular service in the entry scale at the relevant time. In terms of Annexure A-1, the pay of the writ petitioner was fixed on completion of 9 years of regular service in the entry scale, w.e.f. 15.5.1998. The contention of the State is that the placement as per Annexure A-4 clarification issued by the Government vide notification dated 23.6.2000, should have been only with effect from 1st January of the year next to the year in which an employee completes the required tenure of service for placement in the higher scale. The learned Single Judge has held that the Rules having granted the eligibility to be placed in the higher scale on completion of 9 years service in the case of the writ petitioner in the entry scale, by an executive order, the same cannot be diluted. Aggrieved, the State has come up in appeal.

(2.) THE learned Additional Advocate General submits that Annexure A-4 Government order dated 23.6.2000 has not diluted the Rules; it is not in violation of the Rules and it has only supplemented the Rules by laying down the procedure for the fixation of the revised pay scale. It is further submitted that the notification has been issued for the purpose of effective implementation of Annexure A-1 Rules. There cannot be any quarrel with the submissions made by the learned Additional Advocate General provided that the executive order does not interfere with the benefits already granted as per Annexure A-1 Rules framed under Article 309 of the Constitution of India. There is no dispute that Annexure A-4 notification dated 23.6.2000 is not a Rule framed under Article 309 in continuation of Annexure A-1. The same is only a notification for the effective implementation of the Rules. In that process, such a clarification has been issued for the effective implementation of the Rules. But the benefits granted in the Rules cannot be taken away in that process. That could be done only by way of appropriate amendment in the Rules and not by an executive order. Once the rules provide for the benefit of ACP on completion of 9 years of service in the entry scale, an employee is entitled to that benefit on completion of 9 years of service. To say that the placement in the higher scale on completion of 9 years would be only with effect from 1st January of the next year would interfere with the benefits granted in the Rules, unless the same is done by way of amendment in the rules. In the instant case, it is not so. It is only by way of an executive order. Therefore, on the well settled principle that the benefits under the duly framed Rules cannot be taken away by an executive order, the learned Single Judge has rightly held that Annexure A-4 Government order dated 23.6.2000 cannot take away the benefits already granted to the writ petitioner in terms of the Rules unless such a power is reserved to the Government either in the original Rules or by the amended Rules.

(3.) IN view of the principle already settled as above, Annexure P-9 is quashed, declaring that the petitioner would be entitled for fixation on completion of 4 years of service and not with effect from 1st January of the year next to the completion of such service.