1. By way of these two appeals, the appellant-State has challenged judgment dated 2nd May, 2022, passed by the learned Single Judge in CWPOA No. 6401 of 2019, titled as Dr. Sanjay Guleria and others Vs. State of H.P. and others and CWPOA No. 2223 of 2020, titled as Dr. Vivek Sharma and others Vs. State of Himachal Pradesh and another, in terms whereof, the learned Single Judge while allowing both the writ petitions vide common judgment, set aside communication dated 27.11.2015 as also order dated 09.12.2015, with issuance of directions to the appellants herein to fix the initial pay of the writ petitioners in both the petitions at Rs.18450/- from the respective dates of their regularization with consequential benefits.

2. In Letters Patent Appeal titled as State of H.P. and others Vs. Dr. Sanjay Guleria and others, registered as LPA No. 113 of 2023, an application for condonation of delay, i.e., CMP No. 155 of 2023 is also filed, but with the consent of the parties, both the appeals were heard on merit.

3. Brief facts necessary for the adjudication of these appeals are as under:-

Respondents/petitioners (hereinafter referred to as ‘the petitioners’) approached the erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 5279 of 2015, titled as Dr. Sanjay Guleria and others Vs. State of Himachal Pradesh and others and OA No. 2692 of 2017, titled as Dr. Vivek Sharma and others Vs. State of H.P. and another.

4. After abolition of the Tribunal, the cases were transferred to this Court and registered as CWPOA No. 6401 of 2019 titled as Dr. Sanjay Guleria and others Vs. State of Himachal Pradesh and others and CWPOA No. 2223 of 2020, titled as Dr. Vivek Sharma and others Vs. State of H.P. and another.

5. Case of the petitioners in CWPOA No. 6401 of 2019 was that they were initially engaged as Ayurvedic Medical Officers on contract basis and their services were regularized vide notification dated 10.08.2015 (Annexure A-4) in the pay scale of Rs.10300-34800+5000 Grade Pay plus Non Practice Allowance, as admissible under the Rules/Instructions issued by the Government from time to time with immediate effect.

6. The grievance of the petitioners was that in terms of Communication dated 27.11.2015 (Annexure A-1), the Department took an arbitrary decision deferring the grant of re-revised pay structure of Ayurvedic Medical Officer of Rs.13600-39100+Rs.5400 Grade Pay on completion of two years of regular service after 01.01.2006, i.e., general revision of pay scales by the Ayurveda Department vide Notification dated 13.09.2012 with immediate effect, with the direction that pay of the Ayurvedic Medical Officers category regularized/appointed after said date was to be fixed in the pay structure of Rs.10300-34800+5000 Grade Pay without any initial pay start. Further, in terms of office order dated 09.12.2015, the services of the incumbents named therein were regularized in the pay band of Rs.10300+34800+5000 Grade Pay+25% NPA on their regular joining, which as per the petitioners was bad in law.

7. The petitioners accordingly prayed for the following reliefs in the petition:-

“(A) That the order/letter dated 27.11.2015 (Annexure A-1) may be quashed and set aside.

(B) That the office order dated 09.12.2015 (Annexure A-14) may also be quashed and set aside.

(C ) That the applicants may be held entitled to initial basic pay of Rs.18450/- in the pay band of Rs.10300-34800+5000 Grade Pay as per Schedule, Fitment Table and provisions of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009.

(D) That the respondents may further be directed to pay all the arrears pursuant to fixation of basic pay at Rs.18,450/- in the pay band of Rs.10300-34800+5000 Grade Pay as per Schedule, Fitment Table and provisions of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009.”

8. The case of the petitioners in CWPOA No. 2223 of 2020 was that they were initially appointed as Ayurvedic Medical Officers on contract basis at fixed pay of Rs.15,300/-, which was the minimum of pay band of Rs.10,300-34,800+5000 Grade Pay. Their services were regularized vide notification dated 06.10.2016 (Annexure A-3). In terms of this notification, their services were regularized as Ayurvedic Medical Officers in the pay scale of Rs.10,300-34,800 +Rs.5000/- Grade Pay plus Non-Practice Allowance, as admissible under the Rules/Instructions issued by the Government from time to time.

9. Their grievance was that in terms of the Himachal Pradesh Civil Services (Revised Pay) Rules, 2009 (Annexure A-4), the initial pay to which an incumbent appointed/regularized in the pay band of Rs.10300-34800/-+5000/- Grade Pay was entitled to, was Rs.18,450/- as per the Schedule appended with the Rules and despite the fact that incumbents regularized earlier to the petitioners as Ayurvedic Medical Officers were granted the initial pay of Rs.18,450/- as per Office Orders Annexures A-5, A- 6 and A-7, yet the petitioners were discriminated against after their regularization and as per Annexure A-10, their basic was fixed at Rs.15300/- instead of Rs.18,450/-.

10. Accordingly, the petitioners sought the following reliefs by way of the writ petition:-

“(A) That the action of the respondents in fixing the basic pay of the applicants at Rs.10300 +5000 Grade Pay i.e. Rs.15300/- instead of Rs.13450+5000 Grade Pay i.e. Rs.18450/- may be declared to be wrong and illegal and the pay fixation made vide Annexure A-10 may be quashed and set aside.

(B) That the applicants may be held entitled to initial basic pay of Rs.18450/- in the pay band of Rs.10300=34800+5000 Grade Pay as per Schedule, Fitment Table and provisions of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009.

(C) That the respondents may further be directed to pay all the arrears with effect from 06.10.2016 pursuant to fixation of basic pay at Rs.18450/- in the pay band of Rs.10300-34800 +5000 Grade Pay as per Schedule, Fitment Table and provisions of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009.”

11. Both the petitions were opposed by the respondents, inter alia, on the ground that the pay of Ayurvedic Medical Officers appointed on contract basis was Rs.10300-34800 +Rs.5000/- Grade Pay, i.e., Rs.15300/-. In terms of notification dated 13.09.2012, the scale of Rs.15600- 39100 +5400/- Grade was given to the Ayurvedic Medical Officers with prospective effect with the condition that such benefit will be applicable to those officers who have rendered two years regular service and, therefore, the pay of the petitioners was rightly fixed at Rs.15,300/-. It was further the stand of the respondents that the pay of the petitioners was to be fixed in accordance with the provisions of Rule 5(ii) of the Himachal Pradesh Civil Services (Category/Post wise Revised Pay) Rules, 2012 (hereinafter referred to as ‘the 2012 Rules’) and in terms of notification dated 13.09.2012, the scale of Rs.15,600-39100+ Rs.5400/- Grade was given to Ayurvedic Medical Officers prospectively on completion of two years regular service, which was rightly fixed as per Rule 5(ii) of the 2012 Rules.

12. By way of the respective rejoinders, the petitioners reiterated their case. While refuting the stand of the respondents, the petitioners prayed that they were entitled to the reliefs as claimed. It was further the stand of the petitioners that the 2012 Rules, being relied upon by the State, were not applicable to the Ayurvedic Medical Officers, as these Rules were applicable to only those posts which were included in the Schedule appended to the Rules and the post of Ayurvedic Medical Officer was not included in the posts mentioned in the Schedule attached thereto.

13. Vide judgment dated 2nd May, 2022, learned Single Judge allowed both the writ petitions by a common judgement by holding that the Himachal Pradesh Civil Services (Category/Post wise Revised Pay) Rules, 2012 were applicable to only such categories of Himachal Pradesh Government employees, as mentioned in the Schedule annexed to said Rules, and as the category of Ayurvedic Medical Officer was not included in the Schedule appended to these Rules, therefore, these Rules could not be a valid source of issuance of impugned communications.

14. Learned Single Judge further held that no doubt fixation of pay and determination of parity in duties was the function of the executive and the scope of judicial review was limited, but as the respondents had come up with a specific defence that impugned communications were issued on the strength of 2012 Rules, and as in the said Rules, the category of Ayurvedic Medical Officer was not included in the Schedule, therefore, impugned communications being mere administrative instructions could not supersede 2012 Rules, framed under Article 309 of the Constitution of India.

15. On these bases, learned Single Judge allowed the writ petitions by issuing a direction to the appellants to pay to the petitioners/respondents Rs.18,450/- as initial pay from the date of regularization, with consequential benefits.

16. Feeling aggrieved, the State has filed these Letters Patent Appeals.

17. We have heard learned Advocate General as also learned Senior Counsel for the respondents/petitioners.

18. Before we proceed further, at this stage itself, it is relevant to refer to the following:-

19. In terms of the Recruitment and Promotion Rules framed by the respondent-State regarding Ayurvedic Medical Officers, in exercise of powers conferred under proviso to Article 309 of the Constitution of India, notified vide notification dated 17.02.2009, the post of Ayurvedic Medical Officer was placed in the Pay Scale of Rs.7220-11660/-. The contract appointee was to get a fixed salary of Rs.10830/- per month. These Rules were thereafter amended vide notification dated 20.09.2020, in terms whereof, the post of Ayurvedic Medical Officer was now in the pay band of Rs.10300-34800+Rs.5000/- Grade Pay. The contract appointee was to get Rs.15300/- as fixed salary per month.

20. The regularization of services of the respondents/petitioners, who were initially appointed on contract basis, in terms of notifications dated 10.08.2015 and 06.10.2016 was in the pay scale of Rs.10300-34800+Rs.5000 Grade Pay alongnwith Non-Practice Allowance.

21. In terms of the Himachal Pradesh Civil Services (Revised Pay) Rules, 2009, notified on 26th August, 2009, the initial pay of an incumbent drawing the pay band of Rs.10300-34800+5000 Grade Pay was fixed at Rs.18,450/-, meaning thereby that de hors the fact as to whether it was a contract appointee Ayurvedic Medical Officer, regularized against a post of Ayurvedic Medical Officer, or an incumbent directly recruited against the said post as per the existing Recruitment and Promotion Rules, the incumbent appointed in the pay band of Rs.10300-34800+5000 Grade Pay, was to get the initial pay of Rs.18450/-.

22. Having carefully gone through the record of the case as well as the documents which were made available for the perusal of this Court by the State, we fail to understand as to how the initial of the pay scale payable to the holder of the post of Ayurvedic Medical Officer, which flows from the Himachal Pradesh Civil Services (Revised Pay) Rules, 2009 (hereinafter referred to as ‘the 2009 Rules’) could have been withheld and, that too, with an arbitrary condition that the same would be payable to those officers who have rendered two years regular service.

23. It is settled law that once an incumbent is appointed to a particular post, then he is entitled to the pay scale/pay band of that particular post in terms of the relevant Rules which govern the fixation of pay of that particular post.

24. In the present case, in terms of the 2009 Rules, the Ayurvedic Medical Officers, on their appointment on regular basis, were entitled to the pay band mentioned therein with the initial start of Rs.18450/-.

25. There is no rider in the 2009 Rules, nor it could be in law, that the benefit of pay scale shall accrue as after two years from the date of regular appointment, may be by way of regularization.

26. The stand of the State before the learned Single Judge was that its source of power of doing so, i.e., what it did in terms of notifications dated 13.09.2012 and 01.12.2015 was the Himachal Pradesh Civil Services (Category/Post wise Revised Pay) Rules, 2012, issued vide notification dated 24.09.2012.

27. However, perusal thereof demonstrates that it was expressly mentioned in Rule-2 of the same that except otherwise expressly provided by or under those Rules, they shall apply to only such categories of Himachal Pradesh Government employees as mentioned in the aforesaid Schedule. The Schedule appended therewith demonstrates that only the post of Assistant Director, Youth Services and Sports Department was mentioned therein and the post of Ayurvedic Medical Officer was not mentioned in the same.

28. Alongwith the rejoinder filed to the said reply before the learned Single Judge, the respondents/petitioners appended two more notifications dated 27th September, 2012, in terms whereof, certain categories/posts were added to the Schedule, but this again did not include the post of Ayurvedic Medical Officer.

29. Therefore, learned Single Judge has rightly held that as notification dated 24.09.2012 did not include the post of Ayurvedic Medical Officer in its Schedule, the same could not have been made the source for issuance of notifications dated 13.09.2012 and 01.12.2015, in terms whereof, the benefit of pay scale was deferred, after regularization, by a period of two years.

30. While concurring with the findings so returned by the learned Single Judge, we add that as in terms of the 2009 Rules, Ayurvedic Medical Officers on their appointment on regular basis were entitled to the pay band mentioned therein with initial pay of Rs.18,450/-, the same otherwise could not have been denied to the respondents/petitioners herein on the basis of the justifications contained in notification dated 13.09.2012 and communication dated 01.12.2015.

31. Accordingly, as we do not find any merit in these appeals and further as we do not find any infirmity in the judgment of the learned Single Judge under challenge, both the appeals are dismissed, so also is the fate of CMP(M) No. 155 of 2023. Pending miscellaneous applications, if any, also stand disposed of.