OFFICE OF DIRECTOR ELEMENTARY EDUCATION HARYANA, PANCHKULA
Order No. 12/53-2015 ET-1(1) Dated, Panchkula, the 28.07.2015
Whereas, Sh. Asinder and others filed CWP No. 6857 of 2013 titled as Asinder Kumar and Others Vs. State of Haryana and others in the Hon'ble High Court for issuance of a writ of mandamus directing the respondents to grant the benefit of bunching increments to the petitioners in accordance with the provisions of revised pay rules and A.C.P. rules which was earlier withdrawn/not paid to the petitioners in pursuance to the order dated 14.06.2010 which now stands quashed in the light of judgment of Hon'ble Punjab and Haryana High Court dated 03.11.2010.
The same came up for hearing in the Hon'ble Punjab and Haryana High Court on 30.04.2013 which passed the following orders :-
"The present writ petition is disposed of with a direction to
respondent No.2 i.e. the Commissioner and Director General, School Education, Haryana to consider the claim of the petitioner and to take a CWP No. 6857 of 2013 -2- final decision on the legal notice dated 05.12.2012 (Annexure P-6) strictly in accordance with law and by passing a speaking order within a period of four months from the date of receipt of a certified copy of this order.
Disposed of."
I have gone through the legal notice dated 05.12.2012 wherein the petitioners are demanding to grant the benefit of bunching increment. The petitioners are working as JBT Teachers/S.S. Master in the department of Elementary Education. The Haryana Government on the recommendation of 6th Pay Commission revised the pay scale of employee w.e.f. 01.01.2006 as per the provisions of Haryana Civil Services (Revised Pay) Rules - 2008 (in Short Revised Pay Rules - 2008), which has become effective w.e.f. 01.01.2006. Accordingly the pay of the petitioners were fixed in the revised pay scale w.e.f. 01.01.2006 by wrongly granting the benefit of bunching by fixing their pay under the provision of Rule - 7 (1A) of Haryana Civil Services (Revised Pay) Rules - 2008 by ignoring the Note : 2 mentioned below this Rule. The benefit of bunching given wrongly to the petitioners was withdrawn, keeping in view F.D.'s notifications dated 30.12.2008. Aggrieved by the action of Department, petitioners approached the Hon'ble High Court in above stated writ petitions, which have been disposed of by the Hon'ble High Court on 30.04.2013 as mentioned above.
The provisions of Rule-7 (1A) of Haryana Civil Services (Revised Pay) Rules - 2008 were amended by the Finance Department, Haryana vide Haryana Civil Services (Revised Pay) amendment Rules - 2014 issued vide notification dated 04.11.2014.
After perusing through the notication dated 04.11.2014, I am passing order on following terms :
(i) Whereas, the Haryana Government on the recommendation of 6th Pay Commission revised the pay scale of employee w.e.f. 01.01.06 as per the provisions of Haryana Civil Services (Revised Pay) Rules-2008 (in Short Revised Pay Rules-2008), and the came has become effective w.e.f. 01.01.2006. (Accordingly the pay of the petitioners were fixed in the revised pay scale of 9300-34800+Grade Pay of 4200/9300-34800+grade pay of 4600 w.e.f. 01.01.2006 by wrongly granting the benefit of bunching by fixing their pay under the provision of Rule - 7(1A) of Haryana Civil Services (Revised Pay) Rules - 2008 by ignoring the Note : 2 mentioned below this Rule.
The petitioners were not entitled for bounching. As the pay scales of JBT Teachers were modified/upgraded from 4500-7000 to 6500-10500 during revision of their pay scale and revised pay scale was granted to the petitioner not on the basis of their functional pay scale of 4500-7000/5500-9000 but on the basis of modified upgraded pay scale of 6500-10500. The relevant provision of Haryana Civil Services (Revised Pay) Rules-2008 in this regard are reproduced
below :-
The Rule 7(A) (i) and (ii) is reproduced as under :-
7(A) In the case of all employees :-
(i) The pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding off the resultant figure figure to the next multiple of 10.
(ii) If the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above the pay shall be fixed at the minimum of the revised pay band/pay scale.
Provided further that :
Where, in the fixation of pay, of pay of Government Servant 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 in the pay band, then, for every two stages so bunched benefits 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.
In the case of pay scales in higher administrative grade (HAG) in the pay band PB-4, benefit of increments due to bunching shall be given taking into account all the stages in different pay scales in this grade.
If by steepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised pay band/pay scales (Where applicable) which is higher than the stage in the revised
pay band at which the pay of a Government servant who was drawing
pay at the next higher stage or stages in the same existing scale is
fixed, the pay of the latter shall also be stepped up only to the extentby which it falls short of that of the former.
The pay in the pay band will be determined in the above manner, in addition to the pay in the pay band, grade pay correspnding to the existing scale will be payable.
(ii) The Note 2 below Rule 7 of Haryana Civil Services (Revised Pay) Rule 2008, reproduced below :-
Note 2 :- Where a past has been upgraded as indicated in Part Bof the First Scheduled 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 existing basic pay as on 01.01.2006 by a factor 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 to these rules.
The pay of the petitioners should be fixed, keeping in view Note-2 of Rule 7 of the Haryana Civil Services (ACP Rules -2008), as applicable to the case of petitioners and same was wrongly fixed by granting the benefit of bunching increement ignoring these provisions.
(iii) That while revising the pay scale of its employee through Revised Pay Rule - 2008, the Government has divided its employee in two categories in First Schedule. In PART-A of this scheduled the functional pay scales was revised by prescribing corresponding paybands and grade pay, without specifying the posts. However, in
PART - B of this schedule the pay scale of certain category of the posts were modified/upgraded before revision. The posts of Education Department were placed in PART-b of this scheduled at Sr.No. 15.
The post of JBT Teacher stood at Sr.No. 15(i) of PART-B of this scheduled, which is reproduced below :-
FIRST SCHEDULED
Part- B
REVISED PAY SCALES FOR CERTAIN CATEGORIES OF ST AFF
Section - I
The revised pay structure mentioned in column (5) & (6) of this part of the Notification for the post mentioned in column (2) have been approved by the Government. The initial fixation as on 01.01.2006 will be done in accordance with Note 2 below Rule 7 of this notification.
SECTION - II
Sr. Post Existing Revised/Modified Corresponding Pay
No. Scale Pay Scale Bank & Grade Pay
Pay Grade
Band Pay
1 2 3 4 5 6
15 POST OF EDUCATION DEPARTMENT
(i) JBT, Teacher/ 4500-7000 6500-10500 PB-2 4200
C&V teacher
(ii) Master 5500-9000 6500-10500 PB-2 4600
(iv) The since pay scales of JBT Teachers/C&V Teachers/ Masters as explained above have already been upgraded/modified during revision from 4500-7000 to 6500-10500 of their pay scale and revised pay band and Grade Pay of PB-2 (9300-34800) was granted
corresponding to modified pay scale of 6500-10500, not on the
basis of actual pay scale 4500-7000/5500-9000 of JBT Teachers/
C&V Teachers/Masters. At the time of revision of pay scale w.e.f.
01.01.2006, the functional pay scale of post of JBT Teacher/C&V
Teachers/Masters were 4500-7000/5500-9000. As per, PART-A of First Schedule of Revised Pay Scale Rule - 2008 (Annexure R-1), the corresponding revised pay band for the functional pay scale of 4500-7000 is PB-1 (5200-20200) with grade pay of 2800. If the pay
scale of JBT Teacher was not modified as explained above, they are
entitled of revised pay scale of PB-1 (5200-20200) with grade pay of 2800 instead of pay band of PB-II i.e. 9300-34800 with grade pay of 4200. Therefore, the double benefit of bunching as well as modification/up-gradation of pay scale could not be granted to the petitioner.
(v) That the pay scales of the petitioners were fixed inadvertently by granting the benefit of bunching. It is submitted that Government of Haryana in Finance Department vide notification dated 14.06.2010 issued interpretation of Note-2 below Rule - 7 of Haryana Civil Services (Revised pay) Rules - 2008 and note 2 of Rule - 18 of Haryana Civil Services ACP Rules-2008. Hence, as per this clarification, where the pre-revised pay scale of the post has been upgraded/modified as indicated in Part B of the First Schedule of
Haryana Civil Services (Revised Pay) Rules - 2008 the benefit of bunching could be granted to these posts as the proviso attached to rule 7 of Haryana Civil Services (Revised Pay) Rules - 2008 is not applicable in these cases. Although, notification dated 14.06.2010 (Annexure R-2) stood quashed by the Hon'ble High Court in CWP No. 18438/2010-titled as Subhash Chander & Others versus State of Haryana & Others decided on 03.11.2012 and LPA No. 361/2014
filed in this case was also stood dismissed on 12.05.2014. But now Finance Department, Haryana has settled this controversy for all
time by amending the Haryana Civil Services- (Revised Pay) Rules, 2008 w.e.f. 01.01.2006 vide Haryana Civil Services (Revised Pay)
(Amendment), Rules 2014 issued by Gazette notification dated 04.11.2014. As per this amendment, the benefit of increment due to bunching shall not be given in cases, where pre-revised pay scale of the post has been modified as indicated under Column 4, in Section
II in Part-B of First Schedule of these rules. The relevant provision
is reproduced below :-
"Provided that :-
(i) Where, in the fixation of pay, the pay of Government servant drawing pay at two or more cosecutive 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. Further, the benefit of increment due to bunching shall not be given in cases where the pre-revised pay scale of the post has been modified as indicated under Column - 4, in Section-II, in Part-B of First Schedule of these rules, Grade pay would not be taken into account for the purpose of granting increment to alleviate bunching."
(vi) That the pay scale of the all the petitioners being JBT Teachers was modified/upgraded from the pay scale of Rs. 4500-7000 to Rs. 6500-10500 as indicated under Column-4, in Section-II in Part B of First Schedule of these rules, hence, petitioners being JBT Teachers are not entitled for benefit of any increment due to bunching. Keeping in
view of facts are circumstances as explained above and provisions of Haryana Civil Services (Revised Pay) Rules-2008 as amended
by Haryana Civil Services (Revised Pay) (Amendment), Rules 2014, the petitioners are not entitled for increment due to bunching and the pay of all the petitioners were correctly re-fixed. The petitioners can not claim double benefit of the up-gradation of their grades during
revision and of bunching.
(vii) That the judgement dated 03.11.2012 of Hon'ble High Court passed in CWP No. 18438 /2010 titled as Subhash Chander & Others Versus State of Haryana & Others and judgement dated 12.05.2014 passed in LPA No. 361/2014 filed in thsi case was not applicable to the present case, because in that case notification dated 14.06.2010 issued on the basis of un-amended Haryana Civil Services (Revised Pay), Rules 2008 was quashed, on the ground that statutory Rules could not be amended by administrative order, but now Haryana Civil Services (Revised Pay), Rules 2008, has been stood amended vide Haryana Civil Services (Revised Pay) (Amendment), Rules 2014.
Hence, these judgements which are based on the un-amended Haryana Civil Services (Revised Pay), Rules 2008 are not applicable to the present case.
(viii) Where, all the petitioners have given undertaking at the time of fixing of their pay scale under the provision of Haryana Civil Services (Revised Pay) Rules - 2008 that if any error is committed by the Department in fixing their pay. The same may be rectified by it at any time and petitioner shall have no objection to the same. All the petitioners are bound by their undertaking given by them at the time of fixing their pay scale. The bonafide error was committed by the Department during fixation of the pay scale of petitioners and same
was now rectified by the Department. Hence no prejudice has been
caused to the petitioner.
Keeping in view position as discussed above the petitioners are now entitled for benefit of bunching increment and same is liable to be withdrawn.
I ordered accordingly.
R.S. KHARB
Director Elementary Education
Haryana, Panchkula.