C.W.P. No.7870 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.7870 of 2009 DATE OF DECISION: MAY 22, 2009 Subhash Mahajan .....PETITIONER Versus The Secretary to Govt. of Punjab and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.D.R. Parihar, Advocate, for the petitioner. .. SATISH KUMAR MITTAL, J. The petitioner, who is working as Superintending Engineer in the Punjab Mandi Board, has filed the instant petition under Article 226 of the Constitution of India for quashing the order dated 25.8.2005 (Annexure P12), whereby the benefits of 1st ACP granted to the petitioner w.e.f. 24.3.1989 and second ACP granted to the petitioner w.e.f. 1.1.1996 have been withdrawn and the same were granted w.e.f. 24.3.1991 and 1.1.1998, respectively; and the order Annexure P15, whereby the revision petition filed by the petitioner against the said order has been dismissed by the revisional authority. In this case, prior to joining the service of the respondent- Board, the petitioner had worked as Sub Divisional Engineer (Civil) in the Punjab Water Supply and Sewerage Board (hereinafter referred to as `the Sewerage Board') from 24.3.1981 to 11.5.1983. In the year 1983, when C.W.P. No.7870 of 2009 -2- some staff of the Sewerage Board was taken to the service of the Punjab Mandi Board as per the policy decision, the petitioner was appointed as Assistant Engineer (PH) in the Punjab Mandi Board by giving him the fresh appointment. In the appointment letter, there was a specific condition that appointment of the petitioner in the Punjab Mandi Board shall be a fresh appointment. However, the pay being drawn by the petitioner in the Sewerage Board shall be protected,. Vide order dated 3.11.1995, the petitioner was granted the benefit of first ACP w.e.f. 24.3.1989 while taking into consideration the service rendered by the petitioner from 24.3.1981 to 11.5.1983 in the Sewerage Board and subsequently vide order dated 25.1.2001, the petitioner was further granted the benefit of second ACP w.e.f. 1.1.1996. Thereafter when it came to the notice of the respondents that the service rendered by the petitioner in the Sewerage Board was not to be counted for the purpose of grant of 1st and 2nd ACP, the same were withdrawn by the impugned orders and were granted from 24.3.1991 and 1.1.1998, respectively. The said orders were upheld in revision. During the course of arguments, counsel for the petitioner has not disputed that the appointment of the petitioner in the Punjab Mandi Board was a fresh appointment only with the condition that the pay drawn by him in the Sewerage Board will be protected and his seniority shall be fixed below the staff already in the Punjab Mandi Board. It has also not been disputed that while granting 1st and 2nd ACP with effect from the aforesaid dates, the service rendered by the petitioner in the Sewerage Board was counted. It is settled legal position that for the grant of ACP, the regular service of an employee is to be taken into consideration. The previous service rendered by the petitioner in Sewerage Board could not have been C.W.P. No.7870 of 2009 -3- counted towards seniority or grant of higher pay scale. Therefore, the respondent Board was fully justified in modifying the orders of granting the 1st and 2nd ACP and granting the said benefit w.e.f. 24.3.1991 and 1.1.1998, respectively, while excluding the period of service rendered by the petitioner in the Sewerage Board. Thus, I do not find any ground to quash the impugned orders Annexures P-12 and P-15. In the last, counsel for the petitioner argued that though till date no recovery notice has been given to the petitioner, but the respondents are going to issue the order for effecting recovery of the excess amount paid to the petitioner on account of wrong grant of the benefit of 1st and 2nd ACP to him. He submits that in view of the law laid down by the Supreme Court in Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 and Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475, the respondents cannot recover the said amount as the benefit of 1st and 2nd ACP was granted to the petitioner without any misrepresentation made by the petitioner or fraud played by him. Since till date no recovery notice has been issued to the petitioner, therefore, at this stage no direction can be issued. However, in case any recovery is being effected from the petitioner on account of the wrong grant of 1st and 2nd ACP, which, according to the aforesaid two judgments, could not be recovered from an employee if his pay fixation was made without any misrepresentation or fraud on his part, it will be open for the petitioner to challenge the same in accordance with law. With the aforesaid observations, this petition is dismissed. May 22, 2009 (SATISH KUMAR MITTAL) vkg JUDGE