Cwp No.7609 of 1994 Vs. State of Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1047560
CourtPunjab and Haryana High Court
Decided OnDec-20-2012
AppellantCwp No.7609 of 1994
RespondentState of Haryana and Others
Excerpt:
cwp no.7609 o”1. in the high court of punjab & haryana at chandigarh cwp no.7609 of 1994 date of decision:20.12.2012 inder singh .....petitioner versus state of haryana & others .....respondents coram : hon'ble mr.justice g.s.sandhawalia present: mr.vivek singla, advocate, for the petitioner, mr.saurabh mohunta, dag, haryana. **** g.s.sandhawalia j.(oral) 1. the present writ petition has been filed under articles 226/227 of the constitution of india for issuance of a writ in the nature of mandamus, commanding the respondents to revise the scale of the petitioner from w.e.f. 01.04.1987 on account of the fact that the petitioner had submitted his option in pursuance to the revision on account of revised pay rules, 1987 and for further direction to fix the pay according to the option given by the petitioner with a stipulation that anything paid in excess to the petitioner in fixing his pay w.e.f. 01.01.1986 may be recovered from the petitioner.2. the pleaded case of the petitioner is that he joined service in haryana roadways in 1976 at kaithal depot, kaithal and was transferred to sonepat in april, 1982. the kaithal depot did not send the personal file and service book of the petitioner to the office of respondent no.3 and the petitioner was unable to draw his annual increments. since the petitioner's verbal requests were not adhered to, he filed civil suit in the court of sub judge, 1st class, sonepat for declaration that benefit of the increments of the petitioner may be granted to him. the sub judge, 1st class, sonepat, cwp no.7609 o”2. decreed the suit of the petitioner on 10.05.1991 with 12% per annum interest for delayed payment and in pursuance of the said decree, the respondents paid the arrears of all the increments for the period he rendered the services till date in 1993. during the pendency of the suit, the government revised the pay scales w.e.f. 01.01.1986 vide notification dated 29.04.1987 while framing haryana civil services (revised pay) rules, 1987, under article 309 of the constitution of india. the respondents had refused to grant the revised pay scales to the petitioner w.e.f. 01.04.1987 as no option was given by the petitioner. the respondents' refusal to fix the pay scale of the petitioner w.e.f. 01.04.1987, as per the option given by him was on the ground that the personal file was not available and now, the ground was the absence of option and, therefore, the benefit could not be granted w.e.f. 01.04.1987. the petitioner had sent legal notice dated 14.05.1994 and that by virtue of rule 6, the petitioner was entitled to exercise his option within three months and he had submitted his option on 15.05.1987 and the petitioner opted till 01.04.1987 that he may be allowed to continue to draw pay in his existing scale until the date on which he drew his next increment or any subsequent increment in the existing scale. the action of the respondents in not fixing the pay in the revised scale from 01.04.1987 was, thus, without any authority and the respondents could not take benefit of their own wrong on the ground that the service book was not available.3. in the written statement, filed on behalf of the respondents, through the general manager, haryana roadways, sonepat, it was pleaded that the petitioner was not given his annual increment since he was transferred from kaithal depot to sonepat depot because his service book cwp no.7609 o”3. was not received by the answering respondents. it was submitted that the petitioner was given all increments and dues from 06.06.1976 to 01.07.1992 in compliance of the order and decree dated 10.05.1991. the compliance report dated 09.11.1992 was relied upon. it was further pleaded that no option was received from the petitioner by the answering respondents and the petitioner was given revised pay scale w.e.f. 01.01.1986, accordingly, as per the rules. since no option was given by the petitioner to the answering respondents, the petitioner was not entitled for revised pay scales from 01.04.1987. in pursuance of the judgment of the sub judge, 1st class, sonepat dated 10.05.1991, revised pay scale had been given w.e.f. 01.01.1986 and, therefore, the action of the answering respondents was not arbitrary in view of the fact that the petitioner had not given any option regarding fixation of pay.4. counsel for the petitioner has vehemently submitted that as per annexure p-1, he had given the option on 15.05.1987 which was during the period of three months from the date the rules came into force, i.e., on 29.04.1987 and, therefore, the denial on the part of the respondents was not justified. he also referred to the legal notice dated 14.05.1994 (annexure p-2), wherein demand was raised upon the respondents.5. the respondents were directed to produce the original service record of the petitioner vide order dated 31.10.2012. a perusal of the service record of the petitioner goes on to show that the petitioner was given arrears with interest @ 12% per annum from 10.05.1991 till date and his pay scale was revised. from 01.04.1987 to 20.07.1987, the petitioner was under suspension and his alleged date of submitting his option for revised pay scales was 15.05.1987, during the period of suspension. the cwp no.7609 o”4. respondents have categorically denied the fact that the petitioner had opted and given his option for the revised pay scales. in view of the fact that the petitioner was under suspension during this period, it is apparent that the allegation of the petitioner that he had submitted his option for the revised pay scales during this period is without any basis. it is also apparent from the paper book of the case that there is nothing on record to show that from 15.05.1987 till 14.05.1994, for a period of 7 long years, whether a demand notice was served by the petitioner and thus there was total inaction by the petitioner regarding his revised pay. this fact of being under suspension from 01.04.1987 to 20.07.1987 also finds mention in the compliance report dated 09.11.1992 (annexure r-1) and, therefore, the respondents are justified in denying the fact that the petitioner did not opt for the revised pay scale allegedly on 15.05.1987 as pleaded by him. rather, perusal of rule 6 (1)(ii) goes on to show that where a government employee is under suspension, he would give his option on the date of his return to duty, which is not the case of the petitioner.6. another fact which has to be taken into consideration is that the civil suit was filed by the petitioner on 28.11.1987, a photocopy of the same has been placed on record by the state counsel. the petitioner, in paragraph no.6 of the writ petition has specifically stated that during the pendency of the suit, haryana government revised pay of its employees w.e.f. 01.01.1986 vide notification dated 29.04.1987. the suit was filed on 28.11.1987, i.e., after the said notification. there is no mention in the said suit regarding this claim of option which the petitioner is not claiming. accordingly, the pleading of the petitioner cannot be accepted that he had opted for the revised pay scales. as per rule 6 (1) itself, the option had to cwp no.7609 o”5. be given within three months of the publication of the rules. once there is nothing on record to show that the petitioner had given any option, the submission of the counsel for the petitioner that the petitioner had submitted his option for revised pay scales within three months from the publication of the revised rules, cannot be accepted.7. accordingly, there is no merit in the writ petition and the same is dismissed. 20.12.2012 (g.s.sandhawalia) sailesh judge
Judgment:

CWP No.7609 o”

1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.7609 of 1994 Date of decision:20.12.2012 Inder Singh .....Petitioner Versus State of Haryana & others .....Respondents CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr.Vivek Singla, Advocate, for the petitioner, Mr.Saurabh Mohunta, DAG, Haryana. **** G.S.Sandhawalia J.(Oral) 1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus, commanding the respondents to revise the scale of the petitioner from w.e.f. 01.04.1987 on account of the fact that the petitioner had submitted his option in pursuance to the revision on account of Revised Pay Rules, 1987 and for further direction to fix the pay according to the option given by the petitioner with a stipulation that anything paid in excess to the petitioner in fixing his pay w.e.f. 01.01.1986 may be recovered from the petitioner.

2. The pleaded case of the petitioner is that he joined service in Haryana Roadways in 1976 at Kaithal Depot, Kaithal and was transferred to Sonepat in April, 1982. The Kaithal Depot did not send the personal file and service book of the petitioner to the office of respondent No.3 and the petitioner was unable to draw his annual increments. Since the petitioner's verbal requests were not adhered to, he filed civil suit in the Court of Sub Judge, 1st Class, Sonepat for declaration that benefit of the increments of the petitioner may be granted to him. The Sub Judge, 1st Class, Sonepat, CWP No.7609 o”

2. decreed the suit of the petitioner on 10.05.1991 with 12% per annum interest for delayed payment and in pursuance of the said decree, the respondents paid the arrears of all the increments for the period he rendered the services till date in 1993. During the pendency of the suit, the Government revised the pay scales w.e.f. 01.01.1986 vide notification dated 29.04.1987 while framing Haryana Civil Services (Revised Pay) Rules, 1987, under Article 309 of the Constitution of India. The respondents had refused to grant the revised pay scales to the petitioner w.e.f. 01.04.1987 as no option was given by the petitioner. The respondents' refusal to fix the pay scale of the petitioner w.e.f. 01.04.1987, as per the option given by him was on the ground that the personal file was not available and now, the ground was the absence of option and, therefore, the benefit could not be granted w.e.f. 01.04.1987. The petitioner had sent legal notice dated 14.05.1994 and that by virtue of Rule 6, the petitioner was entitled to exercise his option within three months and he had submitted his option on 15.05.1987 and the petitioner opted till 01.04.1987 that he may be allowed to continue to draw pay in his existing scale until the date on which he drew his next increment or any subsequent increment in the existing scale. The action of the respondents in not fixing the pay in the revised scale from 01.04.1987 was, thus, without any authority and the respondents could not take benefit of their own wrong on the ground that the service book was not available.

3. In the written statement, filed on behalf of the respondents, through the General Manager, Haryana Roadways, Sonepat, it was pleaded that the petitioner was not given his annual increment since he was transferred from Kaithal Depot to Sonepat Depot because his service book CWP No.7609 o”

3. was not received by the answering respondents. It was submitted that the petitioner was given all increments and dues from 06.06.1976 to 01.07.1992 in compliance of the order and decree dated 10.05.1991. The compliance report dated 09.11.1992 was relied upon. It was further pleaded that no option was received from the petitioner by the answering respondents and the petitioner was given revised pay scale w.e.f. 01.01.1986, accordingly, as per the rules. Since no option was given by the petitioner to the answering respondents, the petitioner was not entitled for revised pay scales from 01.04.1987. In pursuance of the judgment of the Sub Judge, 1st Class, Sonepat dated 10.05.1991, revised pay scale had been given w.e.f. 01.01.1986 and, therefore, the action of the answering respondents was not arbitrary in view of the fact that the petitioner had not given any option regarding fixation of pay.

4. Counsel for the petitioner has vehemently submitted that as per Annexure P-1, he had given the option on 15.05.1987 which was during the period of three months from the date the Rules came into force, i.e., on 29.04.1987 and, therefore, the denial on the part of the respondents was not justified. He also referred to the legal notice dated 14.05.1994 (Annexure P-2), wherein demand was raised upon the respondents.

5. The respondents were directed to produce the original service record of the petitioner vide order dated 31.10.2012. A perusal of the service record of the petitioner goes on to show that the petitioner was given arrears with interest @ 12% per annum from 10.05.1991 till date and his pay scale was revised. From 01.04.1987 to 20.07.1987, the petitioner was under suspension and his alleged date of submitting his option for revised pay scales was 15.05.1987, during the period of suspension. The CWP No.7609 o”

4. respondents have categorically denied the fact that the petitioner had opted and given his option for the revised pay scales. In view of the fact that the petitioner was under suspension during this period, it is apparent that the allegation of the petitioner that he had submitted his option for the revised pay scales during this period is without any basis. It is also apparent from the paper book of the case that there is nothing on record to show that from 15.05.1987 till 14.05.1994, for a period of 7 long years, whether a demand notice was served by the petitioner and thus there was total inaction by the petitioner regarding his revised pay. This fact of being under suspension from 01.04.1987 to 20.07.1987 also finds mention in the compliance report dated 09.11.1992 (Annexure R-1) and, therefore, the respondents are justified in denying the fact that the petitioner did not opt for the revised pay scale allegedly on 15.05.1987 as pleaded by him. Rather, perusal of Rule 6 (1)(ii) goes on to show that where a Government employee is under suspension, he would give his option on the date of his return to duty, which is not the case of the petitioner.

6. Another fact which has to be taken into consideration is that the civil suit was filed by the petitioner on 28.11.1987, a photocopy of the same has been placed on record by the State counsel. The petitioner, in paragraph No.6 of the writ petition has specifically stated that during the pendency of the suit, Haryana Government revised pay of its employees w.e.f. 01.01.1986 vide notification dated 29.04.1987. The suit was filed on 28.11.1987, i.e., after the said notification. There is no mention in the said suit regarding this claim of option which the petitioner is not claiming. Accordingly, the pleading of the petitioner cannot be accepted that he had opted for the revised pay scales. As per Rule 6 (1) itself, the option had to CWP No.7609 o”

5. be given within three months of the publication of the Rules. Once there is nothing on record to show that the petitioner had given any option, the submission of the counsel for the petitioner that the petitioner had submitted his option for revised pay scales within three months from the publication of the revised Rules, cannot be accepted.

7. Accordingly, there is no merit in the writ petition and the same is dismissed. 20.12.2012 (G.S.Sandhawalia) sailesh JUDGE