IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.1131 of 2009(O&M) Date of decision: 30.10.2009 State of Haryana and another. -----Appellants Vs. Bishambar Dass. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MS. JUSTICE NIRMALJIT KAUR Present:- Mr. Rameshwar Malik, Addl.A.G., Haryana for the appellants. --- ORDER: 1. This appeal has been preferred against judgment of learned Single Judge, allowing writ petition of the respondent and directing grant of ACP Scale to the writ petitioner w.e.f. 1.10.1998, subject to the arrears being restricted to a period of 38 months prior to the filing of the writ petition. 2. As per case of the respondent, he was appointed as class-IV employee in the State of Haryana in 1970 and was, thereafter, appointed as driver on ad hoc basis on 20.11.1985. He was regularized w.e.f. 1.1.1991, but by later order dated 13.10.1997, he was regularized w.e.f. 1.10.1988. He made a claim for higher pay scale as per Assured Career Progression (ACP) Rules applicable in the State of Haryana. This claim was LPA No.1131 of 2009 contested on the ground that the object of the Rules was to give higher scale when a person did not get promotion and thus, if an employee was given promotion, he could not claim ACP scale, except with reference to original scale. 3. In the writ petition, the petitioner claimed that he was not promoted but directly appointed. But since this fact was denied in the written statement filed on behalf of the State, the petitioner filed replication, taking alternative plea that even if he had been promoted, he could not be given scale lower than the scale given to his juniors. He pointed out that one Mohinder Singh, driver had been regularized with effect from a later date had been given ACP scale w.e.f. 1.1.2001. Relevant averments are:- “..... It is also not disputed that one Mohinder Singh, Driver who was regularized w.e.f. 31.12.1990, the copy of the regularization order of Mohinder Singh issued by the respondents to this effect is attached as Annexure P-6 and the said Mohinder Singh was granted the benefit of 1st ACP w.e.f. 1.1.2001.” 4. Learned Single Judge upheld the plea of the respondent in view of earlier DB judgment of this Court in T.R. Bansal v. Punjab State Electricity Board 2005(2) SLR 410 and judgment of the Hon’ble Supreme Court in Punjab State Electricity Board & another v. Ajit Singh Aujla and another SLP © No.9615 of 2000 dated 14.7.2000. 5. We have heard learned counsel for the appellants. 2 LPA No.1131 of 2009 6. Learned counsel for the appellants submits that once it was assumed that the respondent was promoted, he could not get the benefit of ACP scale, as there was no stagnation. 7. We are unable to accept the submission. Averment to the effect that Mohinder Singh was junior to the respondent and had been given benefit of ACP scale w.e.f. 1.1.2001 has not been disputed. In such a situation, the judgment of the Hon’ble Supreme Court, which was placed on record before the learned Single Judge as Annexure P-5 being Commissioner and Secretary to Government of Haryana and others v. Ram Sarup Ganda & others Civil Appeal No.3250 of 2006 decided on 2.8.2006, fully applies, wherein it was, inter-alia, observed:- “Nevertheless, if ACP scales are higher, they are certain entitled to the ACP scales at the starting point. The date of giving such ACP scale in the date of entry into the service and through these respondents are entitled to get ACP scales and get fixation of the ACP scales as applicable to Group “C” employees and in case there are anomalies to the effect that they receive less than their juniors working in the same cadre/post, such senior Government servants are entitled to step up of their salary to get it on par with the salary being received by their juniors.” 8. In view of above, to remove anomaly, the respondent was entitled to scale at par with his junior, as rightly held by learned Single Judge. 3 LPA No.1131 of 2009 9. Last submission made by learned counsel for the State is that even if the respondent was entitled to be placed at par with the salary being received by his junior, according to case of the respondent himself, ACP scale was given to Mohinder Singh w.e.f. 1.1.2001 while direction to calculate ACP scale to the respondent has been issued w.e.f. 1.1.1998 though arrears have been restricted to 38 months prior to filing of the writ petition i.e. 1.5.2005. 10. This being a matter of record, we have not considered it necessary to issue notice to the respondent. We clarify that in view of stand of the respondent himself, he will be entitled to calculation of ACP scale w.e.f. 1.1.2001, to remove anomaly and to bring him at par with the scale given to Mohinder Singh. 11. The impugned order will stand modified to above extent. 12. The appeal is disposed of. ( ADARSH KUMAR GOEL ) JUDGE October 30, 2009 ( NIRMALJIT KAUR ) ashwani JUDGE 4