C.R. No. 3557 of 2011 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.R. No. 3557 of 2011 (O&M) Date of Decision: Dec. 22,2011 Kanwaljit Singh Ghuman................................... Petitioner Versus The State of Punjab and others ................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Gaurav Chopra, Advocate for the petitioner. Mr. Yatinder Sharma, DAG, Punjab. ... RITU BAHRI, J. Petitioner has challenged the order dated 6.7.2009 passed by the Civil Judge (Jr. Divn.), Jalandhar, whereby the execution application instituted by the petitioner has been dismissed. Also seeks setting aside of order dated 23.3.2011 passed by the District Judge, Jalandhar, (Annexure P-15) whereby the application for clarification/ modification of the judgment and decree dated 30.3.2005 passed by the District Judge, Jalandhar, has been dismissed. C.R. No. 3557 of 2011 (O&M) [ 2 ] The petitioner had joined as Employment Officer on 1.2.1991 with the Department of Employment Generation and Training, Punjab, on the directions of Hon'ble High Court in C.W.P. No. 3674 of 1985 decided on 8.4.1986 (Annexure P1). As per the appointment letter, he was to be given seniority on the basis of P.C.S. (Executive Branch) and Allied Service Examination, 1984 (Annexure P2). Vide order dated 24.11.1997 (Annexure P3) he was given seniority with effect from 14.3.1984 and he was placed at seniority No.58-A. Thereafter, petitioner's initial pay was fixed at `800/- from 14.3.1984 vide letter dated 28.4.2000. He was not given the benefit of military service. This order was challenged by the petitioner by way of filing Civil Suit No.732 of 2001 which was decreed on 23.10.2002 and the plaintiff was held entitled to the benefit of fixation of pay at `1150/- i.e. last pay drawn by him in the Army on 1.4.1984. By virtue of annual increments, the plaintiff was to get his pay fixed with effect from 1.2.1991. He was held entitled to 18% p.a. interest from the due date i.e. 1.2.1991 (Annexure P-5). The State Government filed an appeal which was partly allowed vide judgment dated 30.3.2005 (Annexure P6). It was directed that the last pay drawn by the plaintiff in the Army shall be protected on the date of his joining the present service and the past service rendered in the Military shall be counted for the purpose of time bound promotion/higher C.R. No. 3557 of 2011 (O&M) [ 3 ] scale in the present post. He shall not be placed senior to any of the Officer senior to him and this benefit would be a measure personal to him. The Regular Second Appeal No.2879 of 2005 filed by the respondent-department was dismissed by the High Court vide order dated 29.11.2005 (Annexure P8) by observing that the protection of pay and counting of military service for the purpose of promotion/grant of higher scale has been granted in view of the letter issued by the Finance Personnel II Branch at the Department of Finance, Government of Punjab. Even the SLP (Civil) No. 3575 of 2006 filed by the respondent department was dismissed on 21.8.2006 (Annexure P-10). Thereafter, the department on the basis of pay of the petitioner last drawn in the Army i.e. `1200/- on 7.7.1979 fixed it at `2520/- with effect from 1.2.1991 i.e. the date of actual joining and arrears of `1,50,413/- were paid which the petitioner accepted under protest. The execution application was dismissed on 16.7.2009 (Annexure P-13) by holding that all the payments have been made by the department and nothing survives. Thereafter the petitioner filed C.M. No. 25 of 2010 in the Court of District Judge, Jalandhar, for modification of the date 14.3.1984 along with the word 'date of joining' in the last para of the judgment and decree sheet dated 30.3.2005 and also clarification regarding the rate and grant of interest. This application was disposed of on C.R. No. 3557 of 2011 (O&M) [ 4 ] 23.3.2011 (Annexure P-15) by observing that the applicant could take all the pleas before the Appellate Court and no modification of the order was required. Counsel for the petitioner while referring to the judgment passed by the trial Court has pointed out that after the Civil Writ Petition No. 3674 of 1985 was allowed the petitioner was allowed to join on 1.2.1991. The precise grievance of the petitioner in this writ petition was that in the selection process conducted in the year 1984 he was in the merit-list and despite the fact that vacant post was available due to non-availability of candidates, he was not being offered letter of appointment. The writ petition was allowed on 8.4.1986. Even in the appointment letter (Annexure P-2) petitioner was given seniority with effect from 1984. For all intents and purposes the petitioner was not to be blamed for not joining in pursuance to the selection process. Once the benefit of seniority had been given with effect from 1984 in the appointment letter, the trial Court while decreeing the suit had given a direction that the last pay drawn in the Army should be protected with effect from the date 1.4.1984. There was no ambiguity in this order. However, the lower Appellate Court modified the judgment only to the extent that nobody senior to the petitioner will claim parity of pay. For all intents and purposes the effective date of joining as mentioned in the C.R. No. 3557 of 2011 (O&M) [ 5 ] appointment letter itself was 1.4.1984. The department has not challenged the terms and conditions of the appointment letter and the grant of military benefit had to be implemented with effect from the date of his appointment. At the appellate stage there was no order of the Appellate Court to set aside the appointment letter of the petitioner. For all intents and purposes his date of appointment as accepted by the department continues to be 1.4.1984. He has been granted the benefit of seniority from this date. He cannot be denied protection of pay which he had earned in the Army at the time of being relieved on 7.7.1979 to be made available to him with effect from the date of joining i.e. 1.2.1991. The Appellate Court relied on letter No. 6/75/95/APPI/10993 issued by the Finance Personnel lI Branch at the Department of Finance, Govt. of Punjab on 15.11.2000. The Appellate Court while disposing of the appeal had examined Rule 4.4 of the Punjab Civil Service Rules. This rule protects the last pay drawn at the time of fixation of pay in the new post or counting the same for the time bound promotions. This benefit was not to create any right for employees already senior to claim equality in pay with the junior who had received higher pay by counting his previous service. It was further clarified in para 5 of the said letter that this protection of pay was a measure personal to such employee. He was to be placed lower to those already C.R. No. 3557 of 2011 (O&M) [ 6 ] up in the seniority list. Vide these instructions the protection of higher pay scale earned by an employee in the previous service was also given. In nutshell, the fact of this letter was that after getting the pay protection the employee was not to get a march over his seniors who were getting lower pay than him. These instructions nowhere lay down that the pay protection has to be granted with effect from the date of joining. In the facts of the present case, the department while giving him appointment letter (Annexure P2) had given him the date of joining as 1.4.1984 in view of C.W.P. No. 3674 of 1985 being allowed in 1986. Once the date of appointment has been given by the Department itself, they cannot chose a separate date for giving pay protection by counting the military service. The letter dated 15.11.2000 of the Finance Department, State of Punjab, nowhere lays down that the pay protection has to be given from the actual date of joining. This letter on the other hand protects the last pay drawn as well as the higher seniority pay scale received by an employee when he joined a new post/service. The instructions nowhere lays down as to how the department has to choose the date of joining. The trial Court had decreed the suit of the plaintiff by giving him seniority on the basis of P.C.S. (Executive Branch) Allied Services Examination 1984. This direction has not been modified in appeal by the learned District Judge vide judgment and C.R. No. 3557 of 2011 (O&M) [ 7 ] decree dated 30.3.2005. It has only been modified that he shall not be placed senior to any of the officers senior to him and that this benefit would be a measure personal to him. The letter dated 20.1.2003 of the Punjab Government has been issued on this core alone. It lays down that by protecting the pay scale earned by an employee in the past service when he joined a new post it will be a measure personal to him and he shall not take march over his seniors on account of counting that service for protection of pay. The letter dated 20.1.2003 by no stretch of imagination can be interpreted to mean that the petitioner's initial pay on appointment as fixed by the department itself in the appointment letter dated 1.4.1984 is to be reckoned from 1.2.1991. After protecting the pay of the petitioner in the Army with effect from 1.4.1984 the petitioner is entitled to the correct fixation of pay with effect from 1.2.1991. The petitioner was held entitled to interest at the rate of 18% per annum. The Appellate Court has not modified this order. The order dated 23.3.2011 (Annexure P-15) is set aside and it is clarified that the instructions issued by the State of Punjab on 20.1.2003 were confide to the pay protection of an employee of the service rendered before he joined a new civil post. It protected even the higher scale granted to an employee. However, it clarifies that he shall not take a march over and above his seniors and the seniors C.R. No. 3557 of 2011 (O&M) [ 8 ] cannot claim parity of pay scale with his juniors. This pay fixation was to be treated as a measure personal to him. The letter did not lay down any condition as to how the date of joining has to be fixed. The department has assigned the seniority with effect from 1.4.1984 vide appointment letter (Annexure P2). A direction is given to the department to re- fix the pay of the petitioner with effect from 1.4.1984 and after counting the increments earned uptil 1.2.1991 his pay should be re-fixed after re-fixing it from 1.4.1984 and arrears be paid to him within the next four months. It is also clarified that the petitioner is also entitled to 18% p.a. interest on the arrears as the Appellate Court has not modified setting aside the order passed by the trial Court. Civil Revision is allowed. 22.12.2011 ( RITU BAHRI ) Rupi JUDGE