RSA No.4340 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4340 of 2011 (O&M) Date of decision : 04.11.2011 Dakshin Haryana Bijli Vitran Nigam Limited and others ....APPELLANTS(S) VERSUS Banwari Lal ....RESPONDENT(S) CORAM : HON'BLE MR.JUSTICE A.N.JINDAL *** Present : Mr.K.S.Malik, Advocate, for the appellants. *** A.N.JINDAL, J (Oral) Banwari Lal respondent-plaintiff (herein referred as 'the plaintiff') filed a civil suit for declaration to the effect 1. That he was entitled to fixation of his pay in the pay-scale of Rs.5000-150-7100-EB-150-8000 as on 01.01.1996 instead of Rs.4625-125-6000-EB-125-7250; 2. That he was also entitled to be given ACP on 01.01.1996 in the pay-scale of Rs.5500-175-8300-EB-175-9000 w.e.f. 01.01.1996; 3. That a decree for mandatory injunction directing the defendants to refix his pay in the pay-scale of Rs.5,000-150- 7100-EB-150-8000 as on 01.01.1996; 4. That a decree for mandatory injunction directing the defendants to refix the pension, gratuity, commutation of pension, leave encashment in the terms of the revised pay RSA No.4340 of 2011 (O&M) 2 scale. The trial Court dismissed the suit. On appeal, the Addl. District Judge, Gurgaon, while accepting the appeal observed that the plaintiff was entitled to decree for declaration to the effect that he was entitled to ACP scale of pay of Rs.5500-9000 w.e.f. 01.01.1996 with consequential relief of mandatory injunction directing the appellants-defendants(herein referred as 'the defendants') to refix retiral benefits of pension, gratuity, commutation of pension, leave encashment etc. as per revised pay-scale with interest @ 6% per annum from the date of the suit till realization. Factual matrix of the case is that the plaintiff had joined the service of defendants as Lower Division Clerk on 01.06.1972 and retired as Upper Division Clerk on 30.06.1999 from the office of defendant No.2. On 27.02.1998, Haryana State Electricity Board issued office order No.706/Finance introducing Assured Career Progress Scheme in respect of regular employees of group 'C' and 'D' w.e.f. 01.01.1996. The plaintiff was promoted as Upper Division Clerk on 11.08.1985 and the pay-scale was revised at Rs.1400-2600. As per report of the Pay Commission, scale of Rs.1400-2600 was revised to Rs.5000-150-7100-EB-150-8000. As on 31.12.1995, the pay-scale of the plaintiff was Rs.1400-2600 and as per revised scale, he was entitled to pay scale of Rs.5000-175-7100-EB-150- 8000 w.e.f. 01.01.1996 but he was wrongly given the functional pay-scale of Rs.4625-125-6000-EB-125-7250. The plaintiff had completed ten years of service as Upper Division Clerk on 24.09.1995 and did not get any promotion during this period. The plaintiff ought to have been given first ACP scale of Rs.5500-175-8300-EB-9000. He is suffering recurring financial loss, thus, he claimed the relief as aforesaid. RSA No.4340 of 2011 (O&M) 3 Upon notice, the defendants filed the written statement and raised some preliminary objections. The defendants denied the allegations and submitted that promotion of Upper Division Clerk and the scheme of grant of ACP were stated to be a matter of record. They further submitted that the plaintiff was granted higher standard scale w.e.f. 01.01.1994, as such, he had got financial upgradation and promotion in the year 1985 so he was not entitled to Ist ACP scale. As far as the 2nd ACP scale is concerned, the plaintiff was entitled to the same but for the post of Lower Division Clerk as he had joined the service of the Board as Lower Division Clerk. The functional pay-scale of plaintiff was Rs.4625-125-7250 and he was drawing pay scale of Upper Division Clerk as Rs.5000/-, therefore, his claim of Rs.5500/- is not admissible. The defendants also denied the other contents of the plaint. Replication was also filed. The trial Court, vide order dated 26.05.2008, framed the following issues:- 1. Whether plaintiff is entitled to fixation of his pay in the pay scale of Rs.5500-15-7100-EB-150-8000 as on 01.01.1996 instead of scale of pay of Rs.4625-125-6000-EB-125-7250 ? OPP 2. Whether plaintiff is entitled to be given Ist ACP on 01.01.1996 in the scale of Rs.5500-175-8300-EB-175-9000 w.e.f. 01.01.1996 ? OPP 3. Whether plaintiff is entitled for relief of mandatory injunction directing the defendants to re-fix the pay of the plaintiff in the scale of pay of Rs.5000-150-7100-EB-150-8000 as on 01.01.1996 and on this scale to grant Ist ACP scale of pay of Rs.5500-175-8300-EB-175-9000 w.e.f. 01.01.1996 and to pay arrears thereof ? OPP 4. Whether plaintiff is entitled for relief of mandatory injunction directing the defendants to re-fix the retiral benefits of pension, RSA No.4340 of 2011 (O&M) 4 gratuity, commutation of pension, leave encashment in terms of the revised pay scale and to pay arrears with interest. If so at what rate ? OPP 5. Whether plaintiff has no locus standi to file the present suit ? OPD 6. Whether plaintiff has not come to the Court with clean hands ? OPD 7. Whether suit is bad for non-joinder and mis-joinder of necessary parties ? OPD 8. Whether suit is barred by limitation ? OPD 9. Relief. Both the parties led evidence. The trial Court while deciding issues No.1 to 4 in favour of defendants and issues No.5 to 8 in favour of plaintiffs, dismissed the suit of the plaintiff whereas the First Appellate Court decided issues No.1 to 4 in favour of the plaintiff and accepted the appeal. Arguments heard. Record perused. On perusal of the entire record, it has become crystal clear that Banwari Lal-plaintiff PW-2 reiterated the pleading while stating that he had joined as Lower Division Clerk on 01.06.1972 and was promoted as Upper Division Clerk on 11.08.1985. He further clarified that on 31.12.1995, he was functioning in the pay-scale of Rs.1400-2600, as such he deserved revised pay scales synchronizing his earlier pay-scale. Similarly, PW-1 Yudhishtar Kumar proved the office orders dated 24.02.1998, 27.02.1998 and 23.02.2004 Ex.PW1/1 to Ex.PW1/3. He also proved the memos dated 12.10.2000 and 27.09.2000 Ex.PW1/4 & Ex.PW1/5. To the contrary, DW1 Satish Chander Aggarwal has reiterated the contents mentioned in the written-statement. The simple question to be determined in the case is when the RSA No.4340 of 2011 (O&M) 5 plaintiff was already withdrawing the salary of Rs.1400-2600 w.e.f. 31.12.1995 then he was entitled to the pay-scale parallel to the pay-scale of Rs.1400-2600 as revised on 01.01.1996 which is Rs.5000-150-7100-EB- 150-8000 but the plaintiff was wrongly granted the functional pay-scale of Rs.4625-125-6000-EB-125-7250. The plaintiff remained posted as Upper Division Clerk w.e.f 11.08.1985 to 30.06.1999 so from the date of coming into force ACP i.e. January 01, 1996, the plaintiff was entitled to be given ACP of Rs.5500-175-8300-EB-175-9000 from the said date instead of Rs.5000-150-7100-EB-150-8000. The aforesaid facts could not in any way be challenged by the appellants-defendants, as such, the plaintiff was entitled to the fixation of pay-scale of Rs.5500-175-8300-EB-175-9000 as on 01.01.1996 and also entitled to re-fixation of his reitral benefits. No meaningful argument has been raised in order to rebut the findings of First Appellate Court qua issue Nos.1 to 4, as such the same stand confirmed. No question much less substantial question of law arises for consideration. Dismissed. (A.N.JINDAL) November 04, 2011. JUDGE mamta