CIVIL WRIT PETITION NO.5720 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 31, 2009 Smt.Kamlesh Sharma and others .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Akshay Bhan, Advocate for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The representation of the petitioners for their pay fixation in second ACP Scale has been filed. The petitioners seek quashing of the said order dated 23.8.2007. Presently the petitioners are working in the office of Land Acquisition Officer, Urban Estate, Haryana, HUDA, Gurgaon (hereinafter called “HUDA”) but they were (except petitioner No.6) initially appointed in Haryana State Minor Irrigation (Tubewells) Corporation Ltd. (for short, “Tubewell Corporation”). Petitioner No.6 CIVIL WRIT PETITION NO.5720 OF 2008 :{ 2 }: was initially appointed as Sub Inspector in Food and Supplies Department. Upon being declared surplus, he was offered the post of Clerk in the Tubewell Corporation, where he joined. The services of all the petitioners were subsequently placed at the disposal of HUDA in the year 1999. Later, on a request made by respondent No.2, the petitioners were absorbed in HUDA. It was then mentioned that pay of the petitioners and the other Clerks be protected, though may not be given the benefit of past service rendered by them with the Tubewell Corporation. Respondent No.1 thereafter decided to absorb the petitioners in HUDA on 11.1.2000 from the date of their respective joining. It was decided that the benefit of their past service shall not be given to them. However, they were given the benefit of pay protection as noted above. Order in this regard is annexed with the writ petition as Annexure P-6. In view of the said order, the pay of the petitioners were re-fixed on 29.7.2002 with effect from the date they joined the department. Their pay had already been ordered to be protected. Subsequently, on 3.7.2003 a letter was initiated, conveying a decision that surplus employees of public enterprises, who were absorbed in the other public enterprises, will not be entitled to the pay protection in respect of past service rendered by them. It was also mentioned in this letter that the benefit of pay protection allowed as a special case to surplus employees of public enterprises absorbed in the Government Department was also withdrawn. As a consequence of this communication, order dated 9.4.2004 was passed withdrawing the benefit of pay protection granted to the CIVIL WRIT PETITION NO.5720 OF 2008 :{ 3 }: surplus employees like the petitioners. Being aggrieved against the same, the petitioner filed a Civil Writ Petition No.8691 of 2004 before this Court. The petitioners prayed for protection of their pay for the services rendered by them in the Tubewell Corporation. This writ petition came up for hearing before this Court. On 28.4.2005, the State counsel made the statement before the Bench that the Department has agreed to give pay protection to the petitioners. The writ petition was accordingly disposed of as infructuous. The order reads as under:- “Mr.Amol Rattan points out that he has received a communication to the effect that the department has agreed to give pay protection to the petitioner, but there appears to be some confusion with regard to the actual re-fixation of the pay and further states that the final decision with respect to the aspect shall be taken within a period of six months from today. On this, we dispose of the writ petition as infructuous.” Despite this, the respondents failed to fix the pay of the present petitioners in the scale of Rs.5000-150-7850 as was required as a consequence of the above statement. The petitioners filed a representation for granting second A.C.P. The petitioners also pointed out before the respondents the scale of pay of some juniors to the petitioners, who were absorbed in the Urban Department in the year 2000 from Municipal Corporation, Ambala. They also relied upon a judgment passed by the Hon'ble Supreme Court in Civil Appeal No.3250 of 2006, whereby the Supreme Court had directed stepping up of the salary of those employees who were getting lesser CIVIL WRIT PETITION NO.5720 OF 2008 :{ 4 }: salary than their juniors on fixation of their A.C.P scales. This representation filed by the petitioners was ordered to be filed, which is now impugned through the present writ petition. The respondents would contest the claim of the petitioners. By way of preliminary objection, the respondents would point out that the petitioners were declared surplus and so were sent to Urban Estate on deputation. Subsequently, however, they were absorbed by giving relaxation in the Government instructions. It is stated that they were not given benefit of the revised scales. It is, however, conceded that the petitioners were given the benefit of pay protection from the date of their joining in the office, which was subsequently withdrawn in implementation of letter dated 3.7.2003, Annexure R-4. By stating that this pay protection was withdrawn due to the policy of the State Government, the respondents would contend that the petitioners have no locus to file or maintain the present writ petition. The prayer for grant of ACP is contested on the ground that they were considered as a fresh appointees on absorption and, thus, would not be entitled to ACP as they have not completed 10 or 20 years of regular satisfactory service. Admitted position that would emerge from the stand taken by the parties is that upon absorption, the pay of the petitioners was protected. When this order of pay protection was withdrawn, the petitioner challenged the same by filing a writ petition where the Division Bench of this Court passed an order on the basis of a concession given by the counsel for the respondent-State. That being the position, it is to be seen if the respondents can now be permitted to go back and violate promise made or the concession CIVIL WRIT PETITION NO.5720 OF 2008 :{ 5 }: given on behalf of the State Government before the Court. The order, Annexure P-13, passed on the basis of concession has acquired finality. Once the State counsel made a statement to the effect that the Department had agreed to give pay protection to the petitioner and it was only that the decision was to be taken for re-fixation of the pay, which was to be done, the State now can not be allowed to change stance and withdraw from this position. The petitioners were such employees who were getting second ACP scales in the previous department and accordingly their pay was fixed in the scale of Rs.5000-150-7850. This was obviously in view of the order protecting their pay for which the statement was also made before the Court. Subsequently, however, this scale was withdrawn and the pay of the petitioners was fixed at the initial pay scale of Clerks in the scale of Rs.3050-75-3950 EB-80-4350. This order was challenged, when the statement was made by the counsel representing the State. When the pay of the petitioners was not fixed despite this undertaking given before the Court, the petitioners filed a representation where they also placed reliance on the judgment passed by the Hon'ble Supreme Court, holding that the salary of a senior employee was required to be fixed at par with the junior employee. The petitioners gave out the cases where juniors and holding similar post in the Department were getting pay under second ACP scale of Rs.5000-150-7850. As per the counsel for the petitioners, the respondents can not be permitted to go back from their undertaking which they gave before this Court and are also estopped from withdrawing the promise made at the time of their absorption in the Department. CIVIL WRIT PETITION NO.5720 OF 2008 :{ 6 }: Once the petitioners were given pay protection, the State would be estopped from going back from this part of the promise and may be bound to honour the same. In support of this submission, the counsel for the petitioners has referred to the case of Hari Chand and others Vs. State of Punjab and another, 2004(3) RSJ 796, where the petitioners who were working as Senior Clerks applied for appointment as Assistants by transfer. They had given up the benefit of service because the Government had promised that the person desirous of seeking appointment as Assistant by transfer will be eligible to the post of Assistant District Attorney Grade II etc. It was, thus, observed by the Court that after having induced the person to forego 11 years of service and to join the new Department, the respondents could not turn around and say that they were not bound by the promise made in the memo. The principle of law as enunciated in Hari Chand's case (supra) would be attracted to the facts of the present case. Here also, the respondents had absorbed the petitioners with a promise of their pay protection. Rather, an additional factor would also come into play in the present case. When the action was taken to withdraw this benefit, the same was challenged through writ petition, where an undertaking/promise was made before the Court on behalf of the State. Accordingly, the respondents now can not be allowed to change or alter the position and would be held bound by the promise/undertaking they made in this regard. Counsel would also refer to Managing Committee, Khalsa Higher Sec. School, Batala Vs. State of Punjab and others, 2004(3) RSJ 732, where it has been held that the petitioner- CIVIL WRIT PETITION NO.5720 OF 2008 :{ 7 }: Management would be estopped from raising the challenge to the jurisdiction of the Tribunal in appeal after having taken a chance to secure a favourable order and thereafter could not turn around and say that in fact the Tribunal was not competent to hear and adjudicate the appeal. I am, thus, clear in my mind that respondent- State can not now be allowed to somersault and go back from the undertaking, which it gave before this Court and also can not be permitted to violate the promise held out to the petitioners for their pay protection. Rather the respondent-State would be estopped under law from doing so. The writ petition accordingly succeeds and impugned order dated 23.8.2007, Annexure P-15, is set-aside. Direction would issue to the respondents to grant second ACP pay scale at the rate of Rs.5000-150-7850 to the petitioners. There shall, however, be no order as to costs. August 31, 2009 ( RANJIT SINGH ) khurmi JUDGE