CWP No.586 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 586 of 2006 Date of decision 24 .9.2008 Rajinder Kumar Beniwal ...Petitioner Versus State of Haryana and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. RS Mamli Advocate for the petitioners. Mr. B.S.Rana, Advocate for the respondents 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioner has approached this Court with a prayer for quashing order dated 25.4.2005 ( Annexure P.11) passed by the Managing Director, Uttar Haryana Bijli Vitran Nigam . Panchkula- respondent no.3. The claim of the petitioner for ante-dated promotion to the rank of Assistant Executive Engineer has been rejected where he has requested for promotion by ignoring the punishment which was operating during that specific period. Likewise his claim for grant of time scale w.e.f. 1.10.2000 on completion of 12 years of service on 14.10.2000 has been rejected on the ground that his five increments were stopped in different disciplinary proceedings and the required certificate of completing service satisfactorily, which is a condition precedent for grant of time scale, could not be issued because the effect of punishment lasted upto 1.1.2004. Brief facts of the case may first be noticed. The petitioner joined the predecessor in interest of respondent no.3 on 11.5.1988 as G.T.A. CWP No.586 of 2006 2 However, lateron he was given appointment as Assistant Engineer on 14.10.1988. The petitioner has claimed that he completed 12 years service on 14.10.2000. However, his claim has been refused. It is not disputed that his two annual increments were stopped without cumulative effect vide order dated 22.1.1998 and other three annual increments were also stopped on 17.2.1998 without future effect. On 13.8.1998 persons junior to the petitioner working on the post of Assistant Engineer were promoted. He was ignored for promotion because disciplinary proceedings were pending against him. Again some more Assistant Engineers were also promoted on 30.6.1999 and the petitioner was again ignored. On 1.1.2004, the petitioner was given higher pay scale. However, the petitioner has claimed that the higher pay scale should have been given to him w.e.f. 1.10.2000. The petitioner has further claimed that he has been given promotion on 19.4.2000 on the post of Assistant Executive Engineer whereas he deserves to be promoted w.e.f. 13.8.1998 when persons junior to him were promoted. He had filed representations to claim the relief. When no action was taken on those representations, he preferred CWP No. 2266 of 2005 which was disposed of on 1.2.2005 by directing the respondents to pass a speaking order. On 25.4.2005 speaking order has been passed ( Annexure P.11) which is subject matter of challenge in the instant petition. The operative part of the order reads thus: “ The punishment of stoppage of 5 increments (in the above two different cases) were running its course at the time whenever his promotion case was considered. The effect of these punishments was over on 1.1.2004. CWP No.586 of 2006 3 Shri Rajinder Kumar Beniwal was considered and deferred for promotion to the rank of AEE on these different occasion i.e. 13.8.98, 2.10.98 and 30.6.99 due to the punishment awarded to him. He however stands promoted to the rank of AEE vide this office order No.276 dated 19.4.2004 when his all disciplinary cases were decided and effect of the punishment was over. The criteria of promotion from AE to AEE is seniority cum merit and an officer cannot be said to be meritorious when he has been awarded punishment. Promoting such an officer would that only have nullified the punishment but also would have come as a reward as on promotion he would have got next scale thus rendering the punishment of stoppage of increment as null and void. So far as time scale w.e.f. 1.10.2000 as required by the officer (P.9) is concerned, I find that Shri Rajinder Kumar Beniwal had completed 12 years service on 14.10.2000 as he was appointed as AE w.e.f. 14.10.88. But while considering the case it was observed that his 5 increments were stopped in different disciplinary proceedings and the required certificate of completing the service satisfactory, which is a pre requisite condition for grant of time scale could not be issued as the effect of punishment was to last upto 1.1.2004. An officer who has been awarded, punishments cannot by any stretch of imagination be said to have satisfactory service. Thus, the regular satisfactory service certificate was issued vide this office memo No. Ch-121/EBG-2286 dated 10.2.2004 w.e.f. CWP No.586 of 2006 4 1.1.2004 i.e. the date when the punishment was over.” In the written statement filed by the respondents it has been asserted that the work and conduct of the petitioner was far from satisfactory. For the acts of omission and commission, the petitioner was charge sheeted and awarded following punishment in the last ten years: “ (1)Two increments without cumulative effect were stopped vide Office Order No.24/Conf. 3555 dated 22.1.1998 while deciding the charge sheet No. Ch.9/conf.3555 dated 22.3.1996. (2)Three increments without cumulative effect were stopped vide Office Order No. 53/Conf. 3857 dated 17.2.98 while deciding the charge sheet no. Ch.17/Conf.3857 dated 4.7.1997. (3)A sum of Rs.108 was recovered from the pay of the officer and warned to be more careful in future with a copy placing on his ACR file vide office order No.150/Conf. 4547 dated 18.5.1999 while deciding Show cause notice No. Ch.16/Conf.4547 dated 30.7.1998. (4)The petitioner/officer was advised to be more careful in future with a copy placed in his ACR file vide office order No. 18/Conf. 276 dated 31.1.2002 while deciding Show Cause Notice No. Ch.8/Conf. 276 dated 2.5.2001.” It has also been asserted that the effect of stoppage of two increments and three increments in pursuance to the orders issued as per items 1 and 2 above was continuing and its effect remained upto 1.1.2004. It has also been accepted that the petitioner had completed 12 years of service on 14.10.2000 but he did not fulfill the requirement of the rules and instructions stipulating 12 years regular satisfactory service as five CWP No.586 of 2006 5 increments of the petitioner had already been stopped in different disciplinary proceedings. The required certificate of completing 12 years service satisfactorily could not be issued which is a pre requisite for grant of time scale. The effect of the orders of punishment of stoppage of five increments came to an end on 1.1.2004 and a certificate verifying the regular satisfactory service was issued in favour of the petitioner on 10.2.2004 w.e.f. 1.1.2004. The respondents have also asserted that the case of the petitioner was considered on each occasion when persons junior to him were promoted on 13.8.1998, 2.10.1998 and 30.6.1999. However, his promotion was deferred because the punishment was in operation. The respondents have explained that on the basis of the criterion of seniority- cum-merit the petitioner could not have been promoted especially when he was already facing charge sheet and resultantly punishment was awarded. The rationale given by the respondents is that promotion of such an officer would nullify the punishment and would tantamount to rewarding him because on promotion he would have been given the next pay scale rendering the punishment of stoppage of increments null and void. We have heard learned counsel for the parties at a considerable length and find that there is no merit in the instant petition. Once the petitioner has been punished for stoppage of increments without cumulative effect by stopping his two increments and three increments vide orders dated 22.1.1998 (Annexure P.1) and 17.2.1998 ( Annexure P.3). It cannot be said that the promotion orders superseding the petitioner and preferring his juniors are vitiated or suffer from any illegality. Apart from the orders of stoppage of increments, the recovery of Rs. 108/- was effected from his pay CWP No.586 of 2006 6 and he was warned to be more careful in future. A copy of this order was placed on his ACR file vide order dated 18.5.1999 but the afore-mentioned penal order was passed while deciding show cause notice on 30.7.1998. He was also advised to be more careful in future with a copy placed on his ACR file vide order dated 31.1.2002 when show cause notice dated 2.5.2001 was decided. The petitioner was charge-sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 for committing serious offence of stealing electricity. However, respondents took a lenient view and punishment of stoppage of increments without cumulative effect was awarded. We also do not find any legal infirmity in the action of the respondents in granting him time scale w.e.f. 1.1.2004 because according to the requirements of the Scheme a certificate verifying 12 years regular satisfactory service was required to be produced which is a pre requisite for grant of that benefit. The certificate could be issued only on 10.2.2004 authenticating that the petitioner has rendered satisfactory service upto 1.1.2004 the date when the punishment period was over. There is thus no merit in the petition and the same is accordingly dismissed. (M.M.Kumar) Judge (Rakesh Kumar Garg) 24 .9.2008 Judge okg