IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.5019 of 2006 Date of Decision: July 06, 2009 Baldev Kaur .....PETITIONER(S) VERSUS State of Punjab & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. R.V.S. Chugh, Advocate, for the petitioner. Ms. Charu Tuli, Senior Deputy Advocate General, Punjab, for the respondents. . . . AJAI LAMBA, J (Oral) Baldev Kaur wife of Khushi Ram Singh, JBT Teacher (Retired), has filed this civil writ petition under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing Order dated 23.6.2004 (Annexure P-1) passed by respondent No.3 i.e. District Education Officer (Primary), Mansa, under which the benefit of Assured Career Progression Scheme (for short `ACP Scheme’) after 24/32 years of service has been denied to the petitioner. CWP No.5019 of 2006 [2] Prayer has also been made for issuance of writ in the nature of mandamus directing the respondents to grant increment under ACP Scheme after 24/32 years of service as Teacher as per Punjab Government Instructions dated 25.9.1998 (Annexure P-2) alongwith consequential benefits such as arrears of salary, revised pension etc. Learned counsel for the petitioner contends that the petitioner joined service with the respondents as JBT Teacher in Government Girls Middle School, Sardulgarh, on 26.10.1965 and retired on the same post after attaining the age of superannuation on 31.8.1999 from Government Primary School, Jawaharke. Learned counsel has referred to Instructions dated 25.9.1998 (Annexure P-2) in regard to ACP Scheme to contend that when the petitioner was not promoted to the next higher post as Head Teacher/ Centre Head Teacher even after 24/32 years of service in the cadre, a representation was made to the authorities by the petitioner and other similarly placed persons for grant of increment of proficiency step up and fix their pay accordingly. Since the required relief was not granted, the petitioner alongwith other aggrieved persons filed Civil Writ Petition CWP No.5019 of 2006 [3] No.19156 of 2002. The respondents were directed to pass a speaking order on the legal notice of the petitioner and other aggrieved persons within four months of receipt of certified copy of the order. The order passed by this Court has been placed on record as Annexure P-3. Impugned order, Annexure P-1, was passed by the District Education Officer whereby benefit of ACP Scheme has been denied to the petitioner as she had not availed the opportunity of promotion and hence she has been denied the benefit under ACP Scheme. The petitioner sent yet another representation to the respondents while relying on pronouncement of this Court in Civil Writ Petition No.6049 of 1997 titled `Tipar Chand Sharma & Another vs. State of Punjab & Others’, decided on 6.5.1998 by a Division Bench of this Court. The respondents, however, did not respond. Learned counsel for the petitioner states that the case of the petitioner is squarely covered by the judgment of this Court rendered in Tipar Chand Sharma’s case (supra). Learned counsel for the respondent- State very fairly states that facts of the present case are similar to the case in Tipar Chand CWP No.5019 of 2006 [4] Sharma’s case (supra), and therefore, the judgment would have a binding effect. Learned counsel has further not cited any law to the controversy. Learned counsel, however, states that SLP against the said judgment had not been filed. I have considered the issue. Relevant portion of the judgment in Tipar Chand Sharma’s case (supra) reads as under:- “The question then emerges for consideration is that whether the non-availing of the promotion, as alleged by the respondents, can mar the right of the petitioners from getting the benefit of the Notification. It is not specifically mentioned in the circular letter that a person who does not avail the promotional opportunity shall not be entitled to the benefit or proficiency step-up. The relevant sub para of the circular letter is reproduced as below: “(7) For reckoning the period of 8 and 18 years, the entire service in the time scale, senior scale and selection grade (of mere placement and not involving fixation of pay at higher level) etc., wherever available in a cadre, shall be counted. If an employee joins a scale at a stage higher than the minimum as a result of promotion or otherwise, his proficiency step-up (s) would stand postponed by a number of years equal to the numbers of increments already covered by him from the minimum of the scale at the time of initial fixation of pay in the scale. That the step- up is related to the number of years of service in a particular scale and if an employee’s pay is fixed by process of promotion at the sixth stage of a scale, he will be entitled to earn a step-up in that scale only after 8 years if an employee serves in a scale of pay for more than 18 years and is not promoted to a higher scale on account of lack of promotional opportunities or non-availability of a vacancy in the promotional scale, he would be granted two step-up(s) in his emoluments.” So far as the case of the present petitioners is concerned, it can be found that none of the petitioners can be punished for alleged non-availing of the promotions before the appointed date. Both the petitioners had completed 8/18 years on the appointed date. Therefore, even if the petitioners had not availed of the promotional avenues as alleged, their right to get the proficiency step- CWP No.5019 of 2006 [5] up on their appointed date cannot be washed away. We, therefore, do not want to go into discussion of the question to the effect of not availing the promotional avenues in case 8 and 18 years service is not completed by any of the petitioners on the appointed date. We, are, therefore, of the opinion that the reasons for not granting the proficiency step-up to the petitioners are not justified. We, therefore, allow this writ petition and direct the respondents to grant proficiency step-up increments to the petitioners on the completion of 8 and 18 years of service. However, the arrears so calculated shall be restricted for a period of three years and two months prior to the filing of the writ petition which was filed on 3.5.1997.” In view of the above and because learned counsel for the respondent-State has not been able to distinguish the facts, this petition is allowed in the same terms as in Tipar Chand Sharma’s case (supra). The respondents are directed to grant benefits to the petitioner under the ACP Scheme and accordingly release the arrears of increments. Needful be done within four months of receipt of certified copy of the order. In case, the arrears are not paid to the petitioner within the stipulated period of four months as directed above, the respondents would be liable to pay interest @ 12% per annum, thereafter. (AJAI LAMBA) July 06, 2009 JUDGE avin