2025:UHC:2046-DB IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No.357 of 2020 State of Uttarakhand and others ...Petitioner Vs. Pratibha Pant ... Respondents Presence: Mr. P.S. Bisht, learned Addl. C.S.C. for the State of Uttarakhand. Mr. B.D. Upadhyay, learned Senior Counsel assisted by Mr. Sunil Upadhyay, learned counsel for respondent. Coram: Hon’ble Manoj Kumar Tiwari, J. Hon’ble Ashish Naithani, J. JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) 1. State of Uttarakhand has filed this writ petition challenging the judgment and order dated 19.11.2019 passed by Uttarakhand Public Services Tribunal in Claim Petition No.27/DB/2019. By said judgment, claim staked by respondent for scale of Rs.15600-39100/- Grade Pay Rs.5400/- as first ACP was allowed. The relevant extract of the impugned judgment is reproduced below for ready reference:- “16. Similarly placed Pharmacists have got the grade pay of Rs. 5400 after ACP in January 2016 and the same would have been given to the petitioner by the State Tax Department w.e.f. 25.01.2016 had she initiated her services as C.T.O. on 25.01.2006. An argument has also been advanced by the respondent department that granting ACP to her in January 2016 would be unfair to the other C.T.Os., who were directly recruited along with the petitioner in 2015. This Tribunal does not find any force in this argument because the petitioner is already getting higher salary as compared to other contemporary CTOs by way of her pay protection and the inter-se seniority of the CTOs is also not going to be affected in any 1 2025:UHC:2046-DB manner. The petitioner had an accrued right to be considered for ACP on the basis of the past length of her service which should be viewed from the lens of the previous department and as analyzed in the preceding paras, the same should have been granted to her w.e.f. 25.01.2016.” 17. Nowhere it has been projected by the respondent department that the benefit of ACP is not given to the petitioner on account of unsatisfactory service, either in the present or in her previous department. Therefore, treating her services to be satisfactory, orders for granting her ACP w.e.f 25.01.2016 may be issued. 18. The Tribunal, therefore, is of the opinion that the impugned order (Annexure: A1) should be set aside and a direction should be given to respondent No.2 to grant 1st ACP in the pay scale of Rs. 15,600-39100 with Grade Pay of Rs.5400 in accordance with the provisions of the G.Os. dated 08.03.2011 and 01.07.2013, by calculating the total period of 10 years of service from the date of her first appointment in the service of State of Uttarakhand i.e. 25.01.2006. The petitioner is also entitled to be given all consequential benefits, after grant of 1st ACP w.e.f. 25.01.2016 with arrears of ACP.” 2. It is not in dispute that respondent was appointed as Pharmacist in Medical and Health Department of the State Government on 25.01.2006 in the pay scale of Rs.5200-20200/- Grade Pay of Rs.2800/-. Vide Government Order dated 31.12.2013, pay scale of Pharmacist, (entry grade) was revised from Rs.5200-20200/- Grade Pay of Rs.2800/- to Rs.9300-34800/- Grade Pay Rs.4200/-, while pay scale of Pharmacist, with two years service, was revised from 9300-34800/-Grade Pay 4200/- to Rs.9300-34800 Grade Pay Rs.4600/-. Respondent was also granted Grade Pay of Rs.4600/- in the pay scale of Rs.9300-34800/-after 2 2025:UHC:2046-DB completing two years of service on the post of Pharmacist. 3. Respondent was appointed by open selection as Commercial Tax Officer in State Tax Department with effect from 03.03.2015. The post of Commercial Tax Officer was also carrying the same pay scale as respondent was getting earlier i.e. 9300-34800/- Grade Pay 4600/-. Respondent claimed Grade pay of Rs.5400/- as first ACP by making a representation contending that since she has put in continuous satisfactory service of 10 years in the scale of Rs.9300-34800/- Grade Pay of 4600/-, therefore, she is entitled to Grade Pay of Rs.5400/-. The representation was rejected by the competent authority. 4. Respondent challenged the order whereby her representation was rejected, before learned tribunal. Learned tribunal allowed the claim petition and held that respondent is entitled to Grade Pay of Rs.5400/- as first ACP, by taking into account the services rendered by her as Pharmacist in Medical Department. 5. Learned State counsel appearing for petitioner submits that services rendered by respondent in some other department, before her appointment as Commercial Tax Officer, cannot be taken into 3 2025:UHC:2046-DB account and respondent would be eligible for first ACP only upon competing ten years of continuous satisfactory service in the State Tax Department. The said submission, however, is contrary to the provision contained in para 2(vi) of the Government Order dated 08.03.2011, which is extracted below:- “(vi) izns'k ds vU; jktdh; foHkkxksa esa leku xzsM osru esa dh x;h fu;fer lsok dks foRrh; LrjksUu;u ds fy, x.kuk esa fy;k tk;sxk] ijUrq ,slsa ekeyksa esa ,0lh0ih0 dh O;oLFkk ds vUrxZr ns; fdlh ykHk gsrq u;s foHkkx ds in ij ifjoh{kk vof/k (Probation Period) larks"ktud :i ls iw.kZ djus ds mijkUr gh fopkj fd;k tk;sxk ,oa lacaf/kr ykHk ns; frfFk ls gh vuqeU; djk;k tk;sxkA^^ 6. Perusal of para 2(vi) of Government Order dated 08.03.2011 reveals that regular services rendered by a State employee in some other State department in same Grade Pay shall be counted for granting benefit of pay upgradation under ACP, however, period of probation has to be excluded. Thus, first contention, raised on behalf of petitioner, is without force. 7. Learned State Counsel then contended that pay scales in Medical Department and Commercial Tax Department are different, therefore, benefit of services rendered by respondent as Pharmacist in Medical Department cannot be given for grant of ACP. 8. Learned tribunal has considered and discussed the said contention and held that total service 4 2025:UHC:2046-DB rendered in lower as well as in upgraded pay scale shall be combined together for calculating the period of eligibility for grant of ACP. 9. The view taken by learned tribunal cannot be faulted. Provisio to Para 2(i)(ka) of G.O. dated 08.03.2011 is clear on the point and provides that if pay scale/grade pay of a post is upgraded, in that event the services rendered in old pay scale/grade pay shall be added in the upgraded pay scale/grade pay for determining the period of eligibility. The provisions contained in para 2(i)ka of the Government Order dated 08.03.2011, is extracted below:- “2(i) ,0 lh0 ih0 ds vUrxZr lh/kh HkrhZ ds fdlh in ij izFke fu;fer fu;qfDr dh frfFk ls 10 o"kZ] 18 o"kZ o 26 o"kZ dh vuojr~ larks’ktd lsok ds vk/kkj ij] rhu foRrh; LrjksUu;u fuEu izfrcU/kksa ds v/khu vuqeU; fd;s tk;saxs%& ¼d½ izFke foRrh; LrjksUu;u lh/kh HkrhZ ds in ds osrueku@lkn`”; xzsM osru esa 10 o’kZ dh fu;fer lsok fujUrj lUrks’ktud :i ls iw.kZ dj ysus ij ns; gksxkA ijUrq] fdlh in dk osrueku@xzsM osru fdlh le; fcUnq ij mPphd`r gksus dh fLFkfr esa foRrh; LrjksUu;u dh vuqeU;rk gsrq lsokfuf/k dh x.kuk esa iwoZ osrueku@xzsM osru rFkk mPphd`r osrueku@xzsM osru esa dh x;h lsokvksa dks tksM+dj mPphd`r xzsM osru ls vxyk xzsM osru vuqeU; gksxkA^^ 10. Learned counsel for the petitioner then contended that respondent was granted Grade Pay of Rs.4600/-as non-functional pay scale while serving as Pharmacist which is not applicable for 5 2025:UHC:2046-DB the post of Commercial Tax Officer. Learned tribunal has considered and discussed the matter in great detail in para 12, 13, 14 & 15 of the impugned judgment as extracted below:- 12. Order dated 09.10.2015 (Annexure: A- 4A), issued by Commissioner Tax, is in favour of the petitioner. Exercising the power under Fundamental Rule-22 (B), Financial Handbook Part-II, Volume 2-4, the petitioner has been granted pay protection by including her past services (as Pharmacist) in the Commercial Tax Department. The departmental order quoted above has explicitly dealt with past service (as Pharmacist) rendered by the petitioner in the Medical Health and Family Welfare Department, from 25.01.2006 to 02.03.2015. It has been quoted in the departmental order referred to above that the petitioner worked as Pharmacist from 25.01.2006 to 02.03.2015, without (service) break. As per the LPC of February, 2015 of the petitioner, issued by Chief Treasury Officer, Nainital, the petitioner was drawing, in February, 2015, basic pay of Rs.16150/- grade pay Rs.4600/- which was higher than the basic pay Rs.12540/- grade pay of Rs.4600/-, for the post of CTO. She was drawing higher salary, as Pharmacist, than the initial pay of CTO (when she joined as CTO). Pay protection of the petitioner was, therefore, ordered by HOD. 13. It may be stated that similarly placed Pharmacists in the Medical Health and Family Welfare Department have been given the benefit of first ACP after 10 years of their joining as per orders issued by the officers of that Department, placed in file as Annexure: A-11 to Supplementary R.A., which have not been denied by the respondents. Had the petitioner not left her parent department, she would also have been granted first ACP after 10 years of service, i.e., w.e.f. 25.01.2016. 6 2025:UHC:2046-DB Her joining the Commercial Tax Department on 03.03.2015 was also in the same pay scale and same grade pay as she was getting on the earlier post. The order of the Commissioner Tax, Uttarakhand added such past services to the present services and provided pay protection to her, as she was getting higher basic pay due to the earlier length of service. This transition did not involve any financial up-gradation which could have prevented her from getting ACP on 25.01.2016, which has been received by similarly placed Pharmacists, in the Medical Health and Family Welfare Department after 10 years of service. 14. The respondents have also argued that as per the G.O. dated 01.07 2013, it has been provided in para 4(kha) that presently non- functional pay scale/grade pay is provided only on the post of Pharmacist and if any other post has been wrongly given, any financial benefit, on this basis, the same should be corrected and excess payment made, is required to be adjusted. The respondents are also insisting on the fact that the services of the petitioner in the present pay scale and grade pay have commenced only after two years of her joining the services of pharmacist and hence, she should be provided ACP as per the G.Os of 2011 and 2013 only in 2018, but even that is not possible, as from 2017, the ACP has been replaced by MACP which does not take into account the service rendered in another department of the Government. 15. At internal page No.3 of the G.O. dated 08.03.2011 (Annexure: A6), it is clearly mentioned that service in the same grade pay of other Government Department of the State shall be taken into account for financial upgradation but in such cases, the consideration of the benefit of ACP shall be done only after satisfactory completion of the probation period, but shall be given from the due date. Presumably, the petitioner has 7 2025:UHC:2046-DB already completed her probation period and, therefore, her past services as Pharmacist were to be added for consideration of ACP. The question is, whether they should be added from 25.01.2006 or two years thereafter, when she got the present pay scale and grade pay. The service rendered prior to her joining the State Tax Department has to be considered at par with the services of other similarly placed Pharmacists in the Medical, Health and Family Welfare Department. If those services qualified the other Pharmacists, appointed in January, 2006 to be granted ACP from January, 2016, the mere transition of the petitioner in another department of the State Government in the same pay scale and grade pay, does not disqualify her from getting ACP in January 2016. The State Tax Department cannot apply their own perspective to the past services rendered in previous department, when the previous department counts the entire period as qualifying period for consideration of ACP.” 11. Learned tribunal has relied upon the judgment rendered by Hon’ble Supreme Court in the case of Dwijen Chandra Sarkar and Another vs. Union of India and Others (1999) 2 Supreme Court Cases 119 wherein Hon’ble Supreme Court held that past services rendered by an employee are to be counted for limited purpose towards qualifying service for higher grade under time bound promotion scheme. The tribunal has also referred to judgment rendered in the case of State of Maharashtra and others vs, Uttam Vishnu Pawar 2008 (116) FLR 788. 8 2025:UHC:2046-DB 12. Learned counsel for the petitioner concedes that while serving as Pharmacist, respondent was getting salary in the Grade Pay of Rs.4600/-. Since the post of Commercial Tax Officer was also having Grade Pay of 4600/- at the time of respondent’s appointment, therefore, upon completing ten years of service, respondent was entitled for Grade Pay of Rs.5400/- as per Government Policy. Even otherwise also respondent would have received Grade Pay of Rs.5400/-, if she had not switched from Medical Department to State Tax Department and that benefit would have been given to her from due date i.e. 25.01.2016, if she continued in Medical Department. 13. We find no illegality or infirmity in the judgment rendered by learned tribunal, which may warrant interference. Accordingly, writ petition fails and is dismissed. No order as to cost. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.) 21.03.2025 Arti 9 ARTI SINGH Digitally signed by ARTI SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH Date: 2025.03.25 15:32:53 +05'30'