CWP no. 16150 of 2009 (O&M) 1 and other connected case IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CWP no. 16150 of 2009 (O&M) Vakeel Singh ....Petitioner VERSUS Financial Commissioner & Secretary, Govt. of Haryana, Department of Irrigation, Chandigarh and others ....Respondents 2. CWP no. 18626 of 2009 (O&M) Rai Singh Ziledar ....Petitioner VERSUS Financial Commissioner & Secretary, Govt. of Haryana, Department of Irrigation, Chandigarh and others ....Respondents Decided on : 04-11-2011 CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.Sandeep Panwar, Advocate for the petitioners Mr. Harish Rathee, Sr. DAG, Haryana MAHESH GROVER, J This order will dispose of two connected writ petitions bearing CWP nos. 16150 of 2009 and 18626 of 2009. In the instant petitions, petitioners pray for issuance of writ in the nature of Mandamus restraining the respondents from re-fixing their pay and making deductions subsequent thereto. Briefly stated the facts of both the cases are that the petitioners were appointed as Ziledars after they were selected by Subordinate Service CWP no. 16150 of 2009 (O&M) 2 and other connected case Selection Board in the year 1982. They were required to clear the departmental exam before they could be appointed on regular basis. The first departmental exam was held in the year 1984 in which 61 incumbents from the list of 205 candidates cleared and they were offered regular appointment in 1984. Subsequently, in the years 1986 and 1988, 31 candidates each (including petitioner in CWP no. 16150 of 2009 who cleared exam in 1986 and petitioner in CWP no. 18626 of 2009 who cleared exam in 1988) cleared their exams and were regularly appointed in the years 1986 and 1990 respectively. A dispute arose amongst the members of the service i.e persons appointed in 1990 on regular basis, when they were denied seniority at par with those selected in 1984 i.e the batch in which first appointment on regular basis was made. The matter went up to the Hon'ble Supreme Court and in CWP nos. 1144 to 1146 of 1990 it was observed by the Apex Court as follows:- “Taking a broad view of the facts into consideration, we are of the opinion that the State of Haryana should have a direction to accommodate all the successful candidates of the three selections. We accordingly, direct the Haryana State to do so within three months from today. It has been agreed before us and we find it reasonable that when they are appointed in terms of the direction, their inter se seniority shall be on the basis of their initial selection on the basis of merit through the Subordinate Service Selection Board. Some submission was made regarding payment of the full allowance but we leave that question to be decided by the State on the basis of CWP no. 16150 of 2009 (O&M) 3 and other connected case representation, if any. The appeals are allowed to the extent and in terms of what has been stated above. No costs.” The respondents then took a conscious decision by way of Annexure P-2 to grant the benefit of enhancement in pay since the Hon'ble Supreme Court had more or less settled the issue regarding the seniority which was to be construed w.e.f 1984. However the decision of the respondents – State of Haryana further stipulated that no arrears of salary would be given ostensibly for the reason that the persons aggrieved before the Hon'ble Supreme Court had not worked on regular basis even though given stipend from 1982 to 1984. However despite all this, on 10.3.2009 respondent no.6 directed that the pay of the petitioners be regulated as per regularization in service i.e. from 5.9.1990 and vide orders dated 7.10.2009 their pay was reduced and re-fixed in complete ignorance of the earlier decisions of the State of Haryana and Hon'ble Supreme Court. This is the reason for grievance of the petitioners who state that once the matter of seniority has been settled by State of Haryana by giving them notional seniority w.e.f 1984 and even though they were held entitled to revised pay as well with no benefits of arrears the subsequent re-fixation w.e.f 1990 has the effect of negating not only the orders of the State itself but also the orders of Hon'ble Supreme Court as well. Peculiarly the petitions are silent about the benefits of grant of ACP benefits which were in fact made available to the petitioners but were withdrawn subsequently on the re-fixation which was ordered. The petitioners in their petitions have not uttered even a word about these benefits. Even after the filing of the written statement which discloses this CWP no. 16150 of 2009 (O&M) 4 and other connected case fact a justification has been sought to be introduced by way of filing of a counter affidavit to the reply submitted by the respondents. The Court does not intend to express its displeasure at the shoddy manner in which the petitions and the grievance of the petitioners has been projected. Suffice it to say that the matter has to be viewed from a very narrow perspective that whether the petitioners were to be conferred with the benefits of revised pay w.e.f 1984 without any arrears emanating therefrom which is more or less in tune with the orders passed by respondents – State of Haryana. The question apparently stands settled from the observations of the Hon'ble Supreme Court in which the issue of grant of seniority to the incumbents who have passed the exams in 1986 and 1988 stood determined when it was observed that such incumbents would be entitled to seniority w.e.f 1984 the year when the first batch of Ziledar successfully completed their departmental examination. The respondents had faithfully adhered to this order of the Hon'ble Supreme Court and having done so placed the service of the petitioners on regular pedestal by conferring upon them seniority w.e.f 1984. Thus the notional benefit of pay w.e.f 1984 till 1990 were also to be conferred upon the petitioners without any arrears of any revision that may have taken place in this interregnum. Likewise the benefits of ACP were also to be made admissible to the petitioners keeping in view the scheme which contemplates the grant of such benefits on an incumbent having completed 10 years and 20 years of regular satisfactory service. The respondents are not right in interpreting that since the petitioners had not put in work on regular basis from 1984 to 1990 thus they were justified in denying them the benefits and ordering consequential CWP no. 16150 of 2009 (O&M) 5 and other connected case recovery. Extensive reliance was placed on a explanatory note appended to the scheme which is to the following effect:- Note For the purpose of these rules, “Regular satisfactory service” would mean continuous service counting towards seniority under Haryana Government including continuous service in Punjab Government before re- organisation commencing from the date on which the Government servant joined his service after being recruited through the prescribed procedure or rules etc. for regular recruitment in the cadre in which he is working at the time of being considered his eligibility for grant of ACP scales under these rules and after further fulfing all the requirements prescribed for determining the suitability of grant of ACP scales.” A perusal of the aforesaid leaves no room for doubt that the only condition required to be satisfied for a person to be eligible to gain access to the benefit is that he should have put in regular satisfactory service which is defined to mean continuous service. Once the respondents themselves have treated the service of the petitioners to be regular and have conferred them continuity of service for the purposes of seniority w.e.f 1984, this service cannot be subtracted for the purposes of grant of ACP schemes. For the aforesaid reasons the impugned orders are set aside and the writ petitions are allowed. The petitioners are held entitled to the benefits of ACP schemes by counting their regular service w.e.f. 1984 which is the date on which the period of service has been reckoned to grant CWP no. 16150 of 2009 (O&M) 6 and other connected case them seniority. The respondents are directed to take an appropriate decision afresh within a period of three months from the date of receipt of the copy of this order by keeping in view the observations made above. November 4, 2011 (Mahesh Grover) rekha Judge