withdrawing bunching increment given ti JBT trs h. court decision

Civil Writ Petition No.19799 of 2010 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Writ Petition No.19799 of 2010

DATE OF DECISION: September 14, 2011

Raj Singh Malik & others

.....Petitioners

VERSUS

State of Haryana & others

....Respondents

CORAM: HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest?

Present:

for the petitioners.

Mr. Harish Rathee, Sr. DAG, Haryana

for the State.

Dr. S.K. Redhu, Advocate,

*****

RANJIT SINGH, J.

Number of petitioners working as JBT teachers and as on

other posts have approached this Court through different writ

petitions to challenge the order passed by the respondent-

Government to withdraw the bunching increments earlier granted to

them and thereafter, directing recovery of the paid excess amount

from their pay and allowances. The petitioners have, thus, not only

challenged the action of the respondent-Government in withdrawing

bunching increments but have also made a grievance in regard to the

recovery as ordered on the support of the ratio of law laid down in

Sahib Ram Versus State of Haryana, 1995(1) SCT, 668.

challenge the action of the government in withdrawing the bunching

increments after granting the same, reliance is placed upon a ratio of

a law laid down in

ToOm Parkash Vs. State of Haryana, 2008(4) RSJ

Civil Writ Petition No.19799 of 2010 -2-

35

are yet to be completed in number of writ petitions. In some of the

petitions, even the service of notice is yet to be effected. Since the

issue involved in all such cases is common, there would not be any

need to wait for completion of service or pleadings. Accordingly all

the petitions bearing Nos. 22041 (Ramdhari & others Vs. State of

Haryana & others), 22048 (Anil Kumar & others Vs. State of Haryana

& others), 22049 (Suresh Kumar & others Vs. State of Haryana &

others), 22088 (Shiv Charan & others Vs. State of Haryana &

others), 22122 (Badan & others Vs. State of Haryana & others),

22201 (Sunder Singh & others Vs. State of Haryana & others), 23364

(Ram Phal & others Vs. State of Haryana & others) of 2010, 537

(Umed Singh & others Vs. State of Haryana & others), 693 (Vinod

Kumar & others Vs. State of Haryana & others), 1596 (Suresh Kumar

& others Vs. State of Haryana & others), 2355 (Radha Krishan &

others Vs. State of Haryana & others), 2383 (Satya Pal & others Vs.

State of Haryana & others), 2585 (Davinder Singh & others Vs. State

of Haryana & others), 2710(Saddiq Ahmed & others Vs. State of

Haryana & others), 3027(Sanjay Kumar & others Vs. State of

Haryana & others), 3420 (Raj Pal & others Vs. State of Haryana &

others), 3442 (Raj Pal Singh & others Vs. State of Haryana & others),

4420 (Sh. Ashok Kumar & others Vs. State of Haryana & others),

4941(Sh. Baljeet Singh & others Vs. State of Haryana & others),

5120 (Ajay Singh & others Vs. State of Haryana & others), 5632 (Anil

Kumar & others Vs. State of Haryana & others), 14304 (Ved Parkash

& others Vs. State of Haryana & others) and 15628 (Harikesh Dalal &

others Vs. State of Haryana & others) of 2011 are being disposed of

. In some of the cases, reply has been filed, whereas pleadings

Civil Writ Petition No.19799 of 2010 -3-

together through a common order. For the ease of discussion and

order, the facts have been taken from Civil Writ Petition No.19799 of

2010, titled as “Raj Singh Malik & others Vs. State of Haryana &

others”.

As per the averments, on the recommendation of the 6

th

Pay Commission, the State had introduced revised pay scales w.e.f.

1.1.2006 through a notification dated 30.12.2008. The pay of the

petitioners (in this writ petition) was, accordingly, fixed in the revised

pay scale of

Petitioners No.1 to 5 were drawing their basic pay of

pre-revised pay scale of

and dearness allowance of

the upgraded revised pay scale of

adding increments of bunching, pay comes to

1.1.2006. Granting one annual increment , thereafter, w.e.f.

1.7.2006, the pay was worked out to be

Similarly the pay has been calculated by adding the subsequent

increments. Similar calculations are also given in respect of

petitioners No.6 to 26.

It is stated that the respondents had earlier fixed the pay

of the petitioners by granting the benefit of bunching as provided

under proviso of Rule7(1)(A) in Haryana Civil Services (Revised Pay)

Rules 2008 (for short '2008 Rules') issued vide notification dated

30.12.2008. Subsequently, however, Financial Department had

issued a letter on 14.6.2010 and through it, the benefit of bunching

has been withdrawn besides directing recovery from the pay of the

petitioners. Respondent No.4, accordingly, refixed the pay of the

`9300-34800+ pay band 4200 w.e.f. 1.1.2006.`5250/- in the`4500-125-7000/-, dearness pay of `2625/-`1890/-. This worked out to `9765/- in`9300-34800+ pay band 4200. By`14340/- as on`11020/- + 4200/-=15220/-.

Civil Writ Petition No.19799 of 2010 -4-

petitioners and had directed recovery.

Mainly, it is stated that this action has been taken without

affording any opportunity of hearing to the petitioners and thus, this

order, which results in effecting recovery from the pay and

allowances of the petitioners, is passed in violation of principle of

natural justice. It is stated that there was no misrepresentation or

fraud on the part of the petitioners and as such the amount, if paid in

excess, in any manner cannot be recovered as per the ratio of law

laid down in

Sahib Ram's case(supra).

Reference is also made to the earlier case, where similar

controversy regarding grant of bunching increments and withdrawal

thereof had been considered by a Division Bench of this Court in the

case of

order, whereby the increments had been withdrawn after having been

granted.

The bunching increment is regulated by Rule 7, which

relates to fixation of pay in the revised scale even in the Rules of

2008. The rule of fixation of initial pay in the revised scale is

contained in Rule 7. The proviso under the earlier rule read as

under:-

“Provided further that where in the fixation of pay,

the pay of Government servants drawing pay at

more than four consecutive stages in an existing

scale gets bunched, that is to say, gets fixed in the

revised scale at the same stage, the pay in the

revised scale of such of these Government

servants, who are drawing pay beyond the first four

consecutive stages in the existing scale shall be

stepped up to the stage where such bunching

Om Parkash(supra). This Court had quashed the impugned

Civil Writ Petition No.19799 of 2010 -5-

occurs, by the grant of increments in the revised

scale.”

In 2008 Rules, also proviso is identically worded and is as

under:-

“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 be taken into account for the purpose of

granting increments to alleviate bunching.”

The counsel for the petitioners, accordingly, contends that

the bunching increment was allowed to the petitioners on the basis of

this proviso, which is identical in both the Rules and hence, the

action of the respondents in withdrawing the bunching increments

would be illegal in view of ratio of law laid down in

case(supra)

Mr. Rathee, however, would join issues with the counsel

for the petitioners. By referring to the reply filed in the writ petition,

Mr. Rathee contends that in the amended Rules, Note 2 has been

incorporated in the Rules itself, which is as under:-

“

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

Om Parkas's.Note 2:- Where a post has been upgraded as

Civil Writ Petition No.19799 of 2010 -6-

existing basic pay as on 01.01.2006 by a factory 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 regard is in

Explanatory Memorandum of these rules.”

As per Mr. Rathee, the position that was considered and

was applicable in the case of

the present case as earlier the bunching increment was withdrawn on

the basis of executive instructions but in the present case this is

being done on the basis of rule position that this order has been so

passed.

Be that as it may, the fact remains that the action to

withdraw the bunching increments is ordered without following the

principle of natural justice. The issue whether a recovery can be

ordered in view of law laid down in

also arise in this case. Since this order has been passed without

issuing show cause notice to the petitioners, certainly, it can be

viewed that the order would suffer from violation of principle of

natural justice. Even if these increments are to be withdrawn on the

basis of rule position as contained in the amended Rules, the

respondents can be expected to issue show cause notice before

passing any order adverse to the interest of the petitioners. It can be

urged that if the position was so clear in the Rules in the form of a

Note then why at the first instance, the Government had decided to

allow the bunching increments. Once the bunching increments were

allowed being fully conscious about the rule position contained in the

amended rules, withdrawal thereof could not have been ordered

Om Parkash (supra) would not arise inSahib Ram's case(supra), would

Civil Writ Petition No.19799 of 2010 -7-

without following the principle of natural justice. The issue of recovery

would also have to be considered by the Government in terms of the

law laid down in

In view of the above, the present writ petitions are

disposed of on the short ground without going into the challenge

raised by the petitioners on merit. The impugned orders are set aside

due to violation of principle of natural justice. The case would go

back to the respondents and they are granted liberty to issue a show

cause notice to the petitioners and after obtaining their reply can

pass fresh order in accordance with law. It would be appropriate if

the respondents pass a well reasoned order making the petitioners

understand as to how they are not entitled to the bunching

increments and how the ratio of law laid down in

case (supra)

still feel aggrieved against any order so passed, they would be at

liberty to approach any appropriate to determine for redressal of their

grievance.

At this stage, counsel for the petitioners point out that

impugned orders have been passed by respective BEO/DEEO. In

this background, it would be appropriate to direct that the show

cause notices are issued to all the petitioners even by BEO/DEEO,

but, thereafter, the order be passed by the Director (Primary) DPI to

maintain uniformity.

September 14, 2011 ( RANJIT SINGH )

Sahib Ram's case (supra) .Om Parkash'swould not be attracted in this case. The petitioners, ifmonika JUDGE