C.W.P. No.4816 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4816 of 2005 DATE OF DECISION: AUGUST 25, 2009 Ram Kumar Gupta .....PETITIONER Versus Haryana Vidyut Parsaran Nigam Ltd., Panchkula ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Amit Jain, Advocate, for the petitioner. Mr.Narender Hooda, Advocate, for the respondent. .. SATISH KUMAR MITTAL, J. The petitioner has filed this petition under Article 226 of the Constitution of India for quashing the order dated 4.5.2004 (Annexure P5), whereby the claim of the petitioner for fixing his pay on promotional post of Circle Superintendent while taking into consideration the Special Pay of Rs.100/- drawn by him on the post of Head Clerk, has been rejected. The petitioner was working as Head Clerk in the pay scale of Rs.1640-2900. He was also being paid Special Pay of Rs.100/- as Cash Handing Allowance with regard to performing additional duty of cash handling. On 31.3.1993, the petitioner was promoted as Circle Superintendent in the pay scale of Rs.2000-3500. On his promotional post, his pay was fixed at Rs.3000/- which he was drawing on the lower post. It is C.W.P. No.4816 of 2005 -2- the case of the petitioner that while fixing his pay on the promotional post, Special Pay of Rs.100/- which was being paid to him as Cash Handing Allowance, was not taken into consideration. On 31.7.1994, the petitioner retired from service. After his retirement, the petitioner approached the Labour Court by filing an application under Section 33-C(2) of the Industrial Disputes Act, 1947. The said application was rejected on 21.5.2001 by the Labour Court as not maintainable. After that, the petitioner filed CWP No.5939 of 2002, which was disposed of by this Court with a direction to the respondent to decide the legal notice of the petitioner. Vide order dated 24.10.2002, the legal notice of the petitioner was decided and the claim of the petitioner was rejected. Thereafter the petitioner challenged the said order by filing CWP No.5962 of 2003. A Division Bench of this Court vide order dated 19.2.2004 disposed of the said writ petition by passing the following order:- “After having heard both sides, we are of the view that by no method of interpretation, the amount of Rs.100/-, referred to above, could be termed as deputation (duty) allowance or special pay drawn in lieu thereof. The petitioner was holding the regular post of Head Clerk and had been drawing the additional sum of Rs.100/- as the special pay attached to that post, and not as deputation (duty) allowance, for the last several years, when he was promoted as Circle Superintendent. That being so, the benefit available to him under Note 9 under rule 4.4 © (i) of the rules could not be legally denied to him while fixing his pay on the promotional post. In this view of the matter, the impugned order Annexure P3 cannot be allowed to stand. We, therefore, quash the same and direct the respondent to re-consider the claim of the petitioner within two months from the date when a copy of this order is received. It is, however, clarified that the arrears found due to the petitioner will be restricted to a period C.W.P. No.4816 of 2005 -3- of three years and tow months prior to the filing of this writ petition. Petition is disposed of accordingly.” In pursuance of the said direction, by the impugned order, the respondent has again rejected the claim of the petitioner while observing as under:- “From record, it is revealed that the petitioner was promoted as Circle Supdt. Vide erstwhile C.E./Commercial HSEB, Panchkula now HVPNL, vide O/o No.12/DSE-108/Vol.III dated 1.3.93 and reported arrival on this post on 31.03.93. At the time of promotion, the petitioner was working as Head Clerk under the administrative control of erstwhile S.E./Op.Circle,HSEB, Sirsa and was drawing basic pay of Rs.2975 + Rs.100/- cash handing allowance in the scale of Rs.1640-2900 with regard to performing additional duty of Cash Handing assigned to him in view of erstwhile Secretary, HSEB, Chandigarh O/o No.676/NGE/G-26 dated 6.8.74 and subsequent O/o No.432/Finance, dated 4.1.89. As per Commissioner & Secretary to Govt. Haryana Finance Department Memo No.6/1 (1)-81-IFR(1) dated 4.5.82, adopted and circulated to all concerned by the erstwhile Secretary, HSEB, Chandigarh now HVPNL vide Memo No.Ch 89/NGE/g-301/Vol-IV dated 11.6.87 according to which if special pay is granted for arduous nature of duties the benefit of special pay drawn in the lower post is not admissible for the purpose of pay fixation in the higher promotional posts. As per note 9 (i) (ii) under Rule 4.4 of CSR Vol-I, Part-I if the special pay has been drawn in the lower post continuously for a minimum period of three years on the date of promotion the pay in the higher post will be fixed under the normal rules, treating the special pay as part of basic pay. But in this instant case, the petitioner was getting Rs.100/- as Cash Handling Allowance so long as he was performing the additional duties of cash Handing therefore he was not entitled for the same. C.W.P. No.4816 of 2005 -4- Hence the contention of the petitioner that less payment of pay to the tune of Rs.3208/- for the period 31.3.93 to 31.7.94 was made to him is not sustainable and tenable in view of the position discussed above, accordingly the same is rejected.” The said order has been challenged by the petitioner in this writ petition. I have heard the counsel for the parties and gone through the impugned order as well as record of the case. Learned counsel for the petitioner argued that the claim of the petition for fixing his pay on the promotional post of Circle Superintendent was based on Rule 4.4(c)(i) of the Punjab Civil Services Rules, Vol.I, Part-I, wherein it has been provided that any Special Pay being drawn by an incumbent on the lower post continuously for a minimum period of three years from the date of promotion, then the Special Pay having been drawn would be treated as part of the basic pay. He submitted that in the instant case the petitioner was drawing Special Pay of Rs.100/- since May, 1977 till his promotion as Circle Superintendent on 31.3.1993. Therefore, in view of the aforesaid Rule, Special Pay of Rs.100/- should have been taken into consideration while fixing the pay of the petitioner on the promotional post. Learned counsel submitted that earlier the claim of the petitioner was rejected while taking the plea that in view of Explanation mentioned in Note 9 (2)(iii) of the aforesaid Rules, which provides that the deputation (duty) allowance or special pay drawn in lieu thereof will not be taken into account for fixation of pay in the higher posts. But the said stand of the respondent was specifically rejected by this Court while observing that by no method of interpretation, the amount of Rs.100/- could be termed as deputation (duty) allowance or special pay drawn in lieu thereof. Learned counsel submitted that now in the impugned order the respondent has taken the stand that the C.W.P. No.4816 of 2005 -5- petitioner while performing the duties on the lower post was getting Rs.100/- as Cash Handling Allowance and since on his promotion as Circle Superintendent, he ceased to perform the duties of cash handling, therefore, he was not entitled for the same. He submitted that in the earlier writ petition, the claim of the petitioner was accepted and the respondent was directed to re-fix the pay of the petitioner, but while taking an advantage of the word “re-consider” in the order, the respondent has illegally denied the benefit of pay fixation to the petitioner vide impugned order, by adopting a different reasoning. On the other hand, learned counsel for the respondent during the course of hearing tried to justify the action of the respondent in denying the said claim to the petitioner on the basis of Clause (ii) of Note 9 (2) of the aforesaid Rules, which provides that the Special pay granted for service in particular localities on account of remoteness, un-healthiness, severity of climate, etc. will not be taken into account for fixation of pay in the higher posts. He submitted that since the petitioner was performing the duties on lower post, he was getting Rs.100/- as Cash Handling Allowance and since on his promotion as Circle Superintendent, he ceased to perform the duties of cash handling, therefore, he was not entitled for the same. He submitted that in particular circumstances, the petitioner was being granted the said benefit and when the said circumstances were over with his promotion to the post of Circle Superintendent, then he was not entitled for the said benefit. After hearing the counsel for the parties, I am of the opinion that this petition deserves to be allowed as the respondent has illegally denied the benefit of Rs.100/- as Special Pay while ignoring the earlier C.W.P. No.4816 of 2005 -6- direction issued by this Court. It is conceded position that while fixing the pay of the petitioner on the promotional post of Circle Superintendent, the respondent was required to take into consideration the relevant provisions of Rule 4.4 of the aforesaid Rules, which provide for fixation of initial pay. The relevant portion of the said rule is reproduced below for ready reference:- “4.4 The initial substantive pay of a Government employee who is appointed substantively to a post on a time-scale of pay is regulated as follows:- (a) xx xx xx xx (b) xx xx xx xx (c) (i) Notwithstanding anything contained in these rules, where a Government employee holding a post in a temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above his pay drawn by him in the lower post provided it is certified by the Head of the Department or Head of the office where he is appointing authority in respect of Class III & IV Government employee in which the Government employee was holding the lower post that he would have continued to officiate in the lower post but for his promotion/appointment to the higher post. (ii) The provisions of sub-rule (2) of rule 4.14 shall also be applicable in any case where the initial pay is fixed under this clause. In cases, where a Government employee is, immediately before his promotion or appointment to a higher post, drawing pay at the maximum of the time scale of the lower post, his initial pay in the time scale of the higher post shall be fixed in the same manner as provided in sub-clause (i) above. C.W.P. No.4816 of 2005 -7- Explanation xx xx xx xx Note 1. xx xx xx xx Note 2. xx xx xx xx Note 3. xx xx xx xx Note 4. xx xx xx xx Note 5. xx xx xx xx Note 6. xx xx xx xx Note 7. xx xx xx xx Note 8. xx xx xx xx Note 9- (1) Where a Government employee in receipt of a special pay in a post, his pay on promotion to a higher post will be fixed after taking into account the special pay drawn in the lower post subject to the following conditions:- (i) the special pay in the lower post should have been granted in lieu of a separate higher time scale (e.g. special pay granted to steno-typist, clerks in-charge, etc.); (ii) if the special pay has been drawn in the lower post continuously for a minimum period of three years on the date of promotion, the pay in the higher post will be fixed under the normal rules, treating the special pay as part of basic pay. In other cases, the pay in the time scale of the higher post will be fixed under the normal rules with reference to basic pay drawn in the lower post (excluding the special pay), where this results in drop in emoluments, the difference between the pay so fixed and the pay plus special pay drawn in the lower post will be allowed in the form of personal pay to be absorbed in future increase of pay; (iii) in both the kinds of cases referred to in clause (ii) above, it should be certified that, but for the promotion the Government employee would have continued to draw the special pay in the lower post. Provided that where the lower and higher promotion post carry special pays in lieu of a separate higher time scale, the special pay drawn in the lower post shall not be taken into account while fixing pay in promotion to a higher post. Exception-(i) The condition of special pay having been drawn continuously for a minimum period of three years as well as the certificate of continued drawal of special pay but for promotion should not be insisted upon in the case of a person holding substantively the lower post carrying special pay in lieu of a separate higher scale. This exemption will C.W.P. No.4816 of 2005 -8- not be available to officers with substantive position in a cadre and holding, post carrying a special pay in lieu of a separate higher scale in the cadre, as confirmation of officers in the cadre is not made against individual posts. The condition of drawal of special pay in such posts continuously for not less than three years should be applied in those cases. (ii) The certificate of continued drawal of special pay but for promotion in case where a special pay is in lieu of a higher scale of pay and has been drawn continuously for at least three years should be dispensed with. In other cases, such a certificate should be insisted upon. (iii) It may happen that a senior person promoted to the higher post before completing three years in the special pay post draws less pay than his junior who is promoted after completing three years in the special pay post. Where such cases occur, the pay of the senior should be stepped up to the level of pay of the junior from the date of promotion of the latter, provided the junior was not drawing higher pay than the senior from time to time in the lower post and the lower and higher posts held by the junior and the senior belonging to the same cadre. (2) The following type of special pay will not be taken into account for fixation of pay in the higher posts:- (i) Special pay drawn in a tenure post; (ii) Special pay granted for service in particular localities on account of remoteness, un-healthiness, severity of climate, etc; (iii) Deputation (Duty) Allowance or special pay drawn in lieu thereof.” A perusal of the aforesaid Rule clearly provides that if the Special Pay has been drawn in the lower post continuously for a minimum period of three years on the date of promotion, the pay in the higher post will be fixed under the normal rules, treating the special pay as part of basic pay. Sub-clause (2) of Note 9 of the said Rule further provides that in three type of cases viz. (i) Special pay drawn in a tenure post.; (ii) Special pay granted for service in particular localities on account of remoteness, un- C.W.P. No.4816 of 2005 -9- healthiness, severity of climate, etc; and (iii)Deputation (Duty) Allowance or special pay drawn in lieu thereof, special pay will not be taken into account for fixation of pay in the higher posts. It is admitted position that the petitioner was drawing Special Pay of Rs.100/- since May, 1977 till the date he was promoted on 31.3.1993. The said special pay drawn by the petitioner, does not fall in any of the three categories mentioned above. This Court in earlier writ petition (CWP No.5962 of 2003) has specifically held that by no method of interpretation, the amount of Rs.100/-, referred to above, could be termed as deputation (duty) allowance or special pay drawn in lieu thereof. It is made clear that earlier the claim of the petitioner was declined by the respondent on the ground that the Special Pay of Rs.100/- granted to the petitioner was in the nature of deputation (duty) allowance, therefore, the same could not be added while fixing his pay on the promotional post. When the said stand was specifically rejected by this Court, the respondent has taken a different ground in the instant petition and tried to justify the rejection of the said claim under Clause (ii) of the aforesaid Rules. It has been argued by the learned counsel for the respondent that since the petitioner was getting Rs.100/- as Cash Handling Allowance as he was performing the duties of cash handling, therefore, after his promotion he was not entitled for the said benefit, and the same could not have been counted while fixing his pay on the promotional post. This contention of the learned counsel for the respondent is not acceptable at all. Actually, in the instant case, the claim of the petitioner was allowed by this Court vide order dated 19.2.2004 passed in CWP No.5962 of 2003, wherein it was specifically held that the benefit available to the petitioner under Note 9 Rule 4.4(c)(i) of the Rules could not C.W.P. No.4816 of 2005 -10- be legally denied to him while fixing his pay on the promotional post. But the respondent while taking the benefit of the words “to re-consider the claim of the petitioner within two months” in that order, has rejected the claim of the petitioner in an illegal and arbitrary manner. From the reading of the earlier order, it appears that in light of the earlier order of this court, the pay of the petitioner was to be re-fixed, but instead of re-fixing the pay as per the said order, the claim of the petitioner was rejected on a different ground which was not taken earlier at that time. In my opinion, there is no justification in rejecting the claim of the petitioner when as per the aforesaid Rules, the Special Pay of Rs.100/- which was being paid to the petitioner for many years, is to be taken into consideration while fixing his pay on the promotional post. In view of the above, the writ petition is allowed and the impugned order dated 4.5.2004 (Annexure P5) is set aside, and the respondent is directed to fix the pay of the petitioner on the post of Circle Superintendent after taking into consideration the Special Pay of Rs.100/- being drawn by the petitioner while working on the post of Head Clerk, and release the consequential benefits within a period of three months. August 25, 2009 (SATISH KUMAR MITTAL) vkg JUDGE