C.W.P.No.3293 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 29.04.2011 C.W.P.No.3293 of 2009 Er.Raj Kumar and another ....Petitioner(s) vs. Punjab State Electricity Board and others ....Respondent(s) C.W.P.No.13355 of 2009 Er.Bhupinder Singh ....Petitioner(s) vs. Punjab State Electricity Board and others ....Respondent(s) C.W.P.No.14614 of 2009 Er.Bikramjit Singh ....Petitioner(s) vs. Punjab State Electricity Board and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Dharam Pal, Advocate, for the petitioners in CWP Nos.3293 and 13355 of 2009. Mr.Naresh Kaushal, Advocate, for the petitioner in CWP No.14614 of 2009 Mr.Vikas Chatrath, Advocate, for the respondents in CWP No.3293 of 2009. Mr.P.S.Mattewal, Advocate, for the respondents in CWP No.13355 of 2009. Mr.S.S.Mattewal, Advocate, for the respondents in CWP No.14614 of 2009. *** AUGUSTINE GEORGE MASIH, J. (Oral) This order shall dispose of CWP Nos.3293, 13355 and 14614 of 2009 as common questions of law have been raised by the petitioners. C.W.P.No.3293 of 2009 -2- For convenience, facts are being taken from CWP No.3293 of 2009 titled as Er.Raj Kumar and another vs. Punjab State Electricity Board and others. The petitioners are working as Additional Assistant Engineers. As per the regulations of the Punjab State Electricity Board (now Punjab State Power Corporation Ltd.) (hereinafter referred to as the Board) in the scale of ` 2200-4250/- which was revised in the conversion scale of ` 7500-9100/10350-13700/-. This scale was granted to the employees such as petitioners who had passed the Departmental Accounts Examination or also to employees who were granted exemption after getting second time bound revised promotional scale of ` 2100-3700/- (unrevised). The petitioners' pay on their completing 16 years of service was to be fixed when they had reached ` 9100/- in the above scale at ` 10700/-. The petitioners continued to receive the same but vide audit objection dated 16.1.2009, it was pointed that while granting 16 years' time bound promotional scale to the petitioners, their pay was wrongly fixed at ` 10700/- whereas it should have been at ` 10350/-. On this basis, recovery of ` 51317/- in the case of petitioner No.1-Raj Kumar and ` 59,093/- in the case of petitioner No.2-Charanjit Singh was pointed out. It is this reduction of pay of the petitioners on the ground that they are not entitled to increment on such fixation of pay in the higher scale which is under challenge in this writ petition. Counsel for the petitioners contends that as per Regulation 8 of the Punjab State Electricity Board (Revised Pay) Regulations, 1988 (hereinafter referred to as 'the 1988 Regulations'), a benefit of minimum two increments has to be granted when the pay is fixed in the scale of higher C.W.P.No.3293 of 2009 -3- post. He, on this basis, contends that even when an employee reaches the stage of ` 9100/- or higher, on completion of 16 years, his pay is fixed at ` 10,350/- which would amount to one increment and, therefore, they would be entitled to another increment i.e. ` 350 in the higher pay-scale and their pay was rightly fixed at ` 10,700/- on their completing 16 years of service on granting them the promotional scale. Accordingly, he prays for quashing of this audit objection on which the respondents have taken action and reduced their pay. He has placed reliance upon a similarly placed employee's case where he had filed a civil suit for claiming the same benefit as the petitioners which was decreed by the learned trial Court on 4.3.1994 (Annexure P-12) and thereafter appeal preferred by the Board was dismissed by the Additional District Judge, Bathinda vide order dated 9.2.1995 and thereafter RSA No.1562 of 1995 preferred by the Board was also dismissed on 4.9.1995 and Special Leave Petition was also not entertained and dismissed on 7.2.1996 vide orders Annexure P-13 to P-15 respectively. He, on this basis, contends that the orders impugned deserve to be set aside and the pay of the petitioners re-fixed at the stage at which the same was initially fixed by the respondent-Board and all consequential benefits be released to them. On the other hand, counsel for the respondent-Board has submitted that any employee when reaches the stage of ` 9100/-, he continues to get his further increments till he completes his 16 years of service which entitles him to fixation of his pay in the grade of promotional post. Accordingly, the petitioners in this writ petition also continued to reach the scale of ` 9100/- on completion of 16 years' service and became entitled to fixation of pay in the promotional post at ` 10,350/-. However, C.W.P.No.3293 of 2009 -4- an additional increment was granted to them under a misconception that they would be entitled to two increments treating the jump of one increment and another additional increment of ` 350/- in that scale. He contends that the petitioners were not entitled to this increment in view of the fact that this was not a regular promotion but was only a notional fixation of pay scale of the higher post which was granted to them under the time bound promotional Scheme. He, therefore, contends that the pay of the petitioners has rightly been fixed at the stage of ` 10350/- and the additional increment granted to them has rightly been withdrawn and recovery ordered to be effected. Reliance has been placed by the counsel on a Division Bench judgment of this Court in R.A.No.316 of 2007 in CWP No.8702 of 2007 decided on 11.1.2008 where a similar question as also the reliance on the judgment of the Court in a civil suit which was preferred by an employee of the Board, was also considered by the Court and the claim of the petitioner therein was rejected and the stand of the Board upheld. I have heard counsel for the parties and have gone thorough the records of the case. As per the time bound promotional scheme, the employees are entitled to fixation of pay on the next promotional post on completion of 9-16 years of continuous service. It is not in dispute that the petitioners completed their 16 years of service and they had earlier been granted the 9 years' promotional scale to which they were entitled to. It is also not in dispute that the petitioners have rightly been granted the next scale in promotional post on completion of 16 years of service as per their entitlement. The only dispute is with regard to the grant of an additional increment to the petitioners by the Board on their fixation of pay. Initially, C.W.P.No.3293 of 2009 -5- the pay was fixed at ` 10700/- which on the basis of the audit objection dated 16.1.2009 (Annexure P-10) stood reduced to 10350/- and recovery of the excess amount paid to them was ordered. This order has been assailed primarily relying upon the 1988 Regulations, to be precise Regulation 8 for claiming minimum of two increments on fixation of pay in the higher post. Reference to this regulation would be beneficial at this stage which is reproduced here-in-below:- “ Regulation 8. Fixation of pay on promotion: Notwithstanding anything contained in these regulations, in case of promotion to a higher post effected after the date of publication of this order, the benefit of minimum two increments shall be given while fixing the pay in the scale of the higher post. The next increment in the scale of the higher post shall be allowed after the completion of twelve months qualifying service in that scale.” A perusal of this Regulation would show that this Regulation is effective in case of promotion to a higher post. Where in a normal course when an employee on fulfiling the requirement of eligibility and there being a vacancy available on a promotional post is considered and promoted. It is under these circumstances that a person is entitled to, as per this Regulation, the benefit of minimum of two increments at the time of fixation of his pay in the scale of a higher post. The case in hand is under time bound promotional scheme wherein merely on completion of a particular length of service, the employee is entitled to the scale of the next higher post i.e. on completion C.W.P.No.3293 of 2009 -6- of 9/16 years of service. Under these circumstances, Regulation 8 would not be applicable. An additional plea has been taken that the scale of ` 10350/- is granted only on passing of the Departmental Accounts Examination and, therefore, it would virtually amount to a promotion entitling a person for consideration of his claim under Regulation 8, which ground in my view cannot be accepted as this does not amount to a regular promotion and this condition is only entitling a person to a particular scale of a promotional post, which as a matter of fact, the petitioners have been granted. If Regulation 8 does not apply to the Scheme under which the petitioner has been granted the higher scale of ` 10350-13700/-, then no additional increment could have been granted to the petitioners and their pay had to be fixed at the minimum level i.e. ` 10350/-. The judgments relied upon by the counsel for the petitioners were relating to a particular person and were decided on the basis of those pleadings. This specific issue with regard to the applicability of Regulation 8 was not taken into consideration. In any case, a Division Bench of this Court in RA No.316 of 2007 titled as Er.Gurnam Singh Bajwa and others vs. P.S.E.B.and others, decided on 11.1.2007 has already taken into consideration the judgment of the Civil Court which has been relied upon by the counsel for the petitioners and it was observed as follows :- “Reliance has been placed on a judgment of the Civil Court in the case of another employee, which was affirmed by this Court vide order, Annexure P-15, dated 4.9.1995 with the following observations:- “The solitary contention raised by Mr.Anil Malhotra, learned counsel for the appellants is that C.W.P.No.3293 of 2009 -7- the Board had amended the provision in the Regulations and prescribed a master scale wherein the jump from Rs.2700/- to Rs.3000/- was not admissible. The officer was only entitled to the two increments @ Rs.75/- per month. Similar contention was raised before the Courts below and has been rejected on the ground that nothing has been placed on the record to show that the “case of the respondent falls in the said master pay scale.” The Courts appear to be right. Even now, it has not been shown that the respondent had been actually placed in the Master Scale and had as such lost the right to the jump from Rs.2700/- to Rs.3000/- as admissible in the pay scale in which he was actually working.” The above observations do not lay down any law to the effect that while granting time bound promotional scale, one additional increment is required to be given. Learned counsel for the petitioner is unable to show any rule to that effect. In view of above, the Board having taken a view that on grant of second time bound promotional scale, the petitioner was entitled to higher stage in the scale without any increment, cannot be held to be illegal or arbitrary.” In this view of the matter, the prayer made by the petitioners C.W.P.No.3293 of 2009 -8- cannot be accepted. Accordingly, the impugned orders are upheld and the fixation of pay of the petitioners at the stage of ` 10350/- is in accordance with law. At this stage, counsel for the petitioners states that the recovery which has been ordered from the petitioners may not be effected from them as it was neither at their behest nor there was any misrepresentation, fraud or undue influence exercised by the petitioners which would entitle the respondents for recovery, in the light of the Full Bench judgment of this Court in the case of Budh Ram and others vs. State of Haryana and others, 2009(2) Law Herald (P&H) 1617. This contention raised by the counsel for the petitioners could not be disputed by the counsel for the respondents. Keeping in view the Full Bench judgment of this Court and following the same, the recovery as ordered in the case of the petitioners in these writ petitions are ordered to be not made; however, that would not confer any right on the petitioners for fixation of pay in future. In case any recovery has already been effected, the same be refunded to the petitioners within a period of two months from the date of receipt of copy of this order. The writ petitions are disposed of accordingly. April 29, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE