-1- Civil Writ Petition No.3528 of 2005. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: April 04 ,2008. Ramesh Dahiya ... Petitioner VERSUS Uttar Haryana Bijli Vitran Nigam Limited through its Managing Director ... Respondent CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. D.S. Rawat, Advocate, for the petitioner. Mr.Ajay Bhardwaj, Advocate, for the respondent. -.- MOHINDER PAL, J. The petitioner joined Uttar Haryana Bijli Vitran Nigam Limited (for short ` the Nigam') as Junior Draftsman on November 07, 1980 (wrongly mentioned as November 06, 1980 -2- Civil Writ Petition No.3528 of 2005. in the writ petition). He was promoted to the post of Draftsman on April 13, 1983 (wrongly mentioned as April 12, 1983 in the writ petition). The Government of Haryana revised the pay scales of all its employees with effect from January 01, 1996 by implementing Haryana Civil Services (Revised Pay) Rules, 1998 (for short `the Rules of 1998') and Haryana Civil Services (Assured Career Progression) Rules, 1998 (for short `A.C.P. Rules of 1998')) vide Notifications No.GSR/3/Const./Art.309/98 and No.GSR/4/Const./Art. 309/98, respectively. It is averred that the Nigam adopted the A.C.P. Rules of 1998 in toto and, as such pay of the petitioner was to be fixed under these Rules. It is case of the petitioner that since he had been working as Draftsman since April 13, 1983, his pay as such should have been fixed under the A.C.P. Rules of 1998. However, his pay was fixed in the functional scale of the post of Draftsman. As his pay was fixed much lower than his entitlement, the petitioner served legal notice dated August 10, 2004 (Annexure P-1). Thereafter, the Nigam passed the order dated October 20, 2004 (Annexure P-2) fixing the pay of the petitioner at Rs. 5450-8000 in the 2nd A.C.P. Scale of the post of Junior Draftsman , which, according to the petitioner, is not correct. In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari to quash the order dated October -3- Civil Writ Petition No.3528 of 2005. 20, 2004 (Annexure P-2). He has also prayed for issuance of a writ in the nature of mandamus directing the Nigam to fix his pay under the A.C.P. Rules of 1998 with all consequential benefits. The Nigam has filed written statement contesting the claim of the petitioner. It is admitted that the employees of the Nigam are entitled for 1st Assured Career Progression (for short `A.C.P) and 2nd A.C.P as per the A.C.P. Rules of 1998. It is pleaded that the petitioner was working as a Draftsman on December 31, 1995 in the old pay scale of Rs.1400-2600 and the revised functional pay scale of this post is Rs.5000-8000. His pay was fixed in the functional pay scale of Rs.5000-8000 with effect from January 01, 1996. It is further pleaded that the petitioner is entitled to the benefit of A.C.P. Rules of 1998 in respect of the post on which he was initially appointed i.e the post of Junior Draftsman. As the 2nd A.C.P of the post of Junior Draftsman is Rs.5450-8000, therefore, he was granted the same under Rule 5 of the A.C.P. Rules of 1998 with effect from December 01, 2000 on completion of 20 years of regular service vide order dated October 20, 2004 (Annexure P-2). Rule 5 of the A.C.P. Rules of 1998 prescribes as under:- “ Rule 5.Eligibility for grant of A.C.P Scales- (1) Every Government servant who, after -4- Civil Writ Petition No.3528 of 2005. a regular satisfactory service for a minimum period of 10 years, if the minimum period is not otherwise prescribed to be different than 10 years either in these rules or by the Government for any class or categories of Government servant from time to time, has not got any financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995, on which he was recruited as a direct recruited fresh entrant:- (a) Either as a consequence of his functional promotion in the hierarchy, or (b) As a consequence of the revision of pay scale for the same post, or ( c ) As a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect to the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay, be eligible for placement into the First ACP Scale with reference to him. (2) Every Government servant who, after a regular satisfactory service for a minimum -5- Civil Writ Petition No.3528 of 2005. period of 20 years, if the minimum period is not otherwise prescribed to be different than 20 years either in these rules or by the Government for any class or categories of Government servant from time to time, has not got more than one financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995, on which he was recruited as a direct recruited fresh entrant:- (a) Either as a consequence of his functional promotion in the hierarchy, or (b) As a consequence of the revision of pay scale for the same post, or ( c ) As a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect to the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay, be eligible for placement into the Second ACP scale with reference to him: Provided that grant of ACP Scale shall also be considered as financial upgradation -6- Civil Writ Petition No.3528 of 2005. for the purposes of this rule. NOTE: For the purposes of these rules “regular satisfactory service” would mean continuous service counting towards seniority under Haryana Government including continuous service in Punjab Government before re-organization, commencing from the date on which the Government servant joined his service after being recruited through the prescribed procedure or rules etc. for regular recruitment, in the cadre in which he is working at the time of being considered his eligibility for grant of ACP Scales under these rules and further fulfilling all the requirements prescribed for determining the suitability of grant of ACP Scales. EXPLANATION: The ACP scale upgradation will come into play only if due to functional promotion or upgradation of sale for the same post as specified above, the Government servant has not got the benefit of at least one pay scale upgradation within the prescribed period of 10 years or any other prescribed period for the grant of 1st ACP -7- Civil Writ Petition No.3528 of 2005. scale or two such financial upgradations within a period of 20 years or within the period otherwise specified for grant of second ACP scale. If within 10 years of service or within the prescribed period of service for the grant of 1st ACP, the employee has already got at least one financial upgradation or within 20 years of service, as the case may be, or otherwise prescribed period of service for the grant of second ACP scale, the Government servant has already got at least two financial upgradations, benefit of these rules will not be extended to such employees save if otherwise provided in these rules. (3) For determining the eligibility of grant of ACP scale, following conditions must also be fulfilled by the Government servant: (a) After completing the respective prescribed period for eligibility for the grant of ACP scales the Government servant should be fit to be promoted to the next higher post in the functional hierarchy in his cadre, but could not be functionally promoted due to lack of vacancy in the promotional post in the hierarchy to which he is eligible to be -8- Civil Writ Petition No.3528 of 2005. promoted; (b) If such promotion involves test of any departmental post or other test etc such condition should also be fulfilled by such Government servant. (4) The eligibility for grant of the ACP scales shall further be subject to any other restriction as may be prescribed by the Government from time to time including the restriction of the number of Government servant to be granted the respective ACP scales in terms of percentage of posts in the cadre to which such ACP placements shall be limited: Provided that till the time such restrictions are not imposed by the Government - (a) there shall be no restriction on the number of Government servants to be grated the first or second ACP scales with reference to the Government servants covered in sub-rule (2) of rule 4. (b) For the Government servants covered in sub-rule (1) of rule 4, there shall be no restriction on the number of -9- Civil Writ Petition No.3528 of 2005. Government servants for grant of first ACP scale. However, the grant of the second ACP scale for such Government servants as covered in sub-rule (1) of rule 4 shall be limited to 20 % of the total posts in the cadre.” The petitioner was working on the post of Draftsman since April 13, 1983. He completed ten years on this post on April 13, 1993 and twenty years on April 13, 2003. Admittedly, he did not get any financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on December 31, 1995, during this period of twenty years either as a consequence of his functional promotion in the hierarchy or as a consequence of the revision of pay scale for the same post or as a consequence of any other event through which the functional pay scale of the post had been upgraded. For the purposes of withdrawal of pay, the petitioner was, thus, eligible for placement into the 1st A.C.P Scale and 2nd A.C.P. Scale under the A.C.P. Rules of 1998. It is not the case of the Nigam that the petitioner did not fulfil all the requirements prescribed for determining the suitability of grant of A.C.P. Scales. The petitioner had been promoted as Draftsman with effect from April 13, 1983. So, under the A.C.P. Rules of 1998, his pay should have been fixed in the 1st A.C.P. -10- Civil Writ Petition No.3528 of 2005. Scale on account of ten years of regular satisfactory service on the post of Draftsman with effect from January 01, 1996 and in the 2nd A.C.P. Scale on account of twenty years of regular satisfactory service on this post with effect from April 01, 2003. Vide the impugned order dated October 20, 2004 (Annexure P- 2), the petitioner has been erroneously granted the 2nd A.C.P scale of the post of Junior Draftsman on which post he was initially appointed on November 07, 1980, on completion of 20 years of regular service. The purpose of providing 1st and 2nd A.C.P pay scale is to remove stagnation of the employees on one post for more than 10/20 years. The petitioner joined the Nigam as Junior Draftsman on November 07, 1980. He was promoted as Draftsman on April 13, 1983. Had he remained on the post of Junior Draftsman for all this period, he would have been granted 1st and 2nd A.C.P pay scale on the post of Junior Draftsman. Since after his promotion as Draftsman, he remained on the same post for more ten years on the date of coming into force of the A.C.P. Rules of 1998 i.e January 01, 1996, he was entitled to be given the 1st and 2nd A.C.P pay scale by counting his service as Draftsman. To make it more clear, if the petitioner was promoted as Head Draftsman, which is the next promotional post after Draftsman, and had remained on this post for ten years as on January 01, 1996, he would have been given the 1st A.C.P scale of the post of Head Draftsman on January 01, 1996. -11- Civil Writ Petition No.3528 of 2005. For the aforesaid reasons, this writ petition is allowed, the impugned order dated October 20, 2004 (Annexure P-2) is set aside and the Nigam is directed to fix the pay of the petitioner in 1st and 2nd A.C.P scale by counting his service of 10 and 20 years with effect from April 13, 1983, when he was promoted to the post of Draftsman. The petitioner will be entitled to all the consequential benefits flowing from such fixation of his pay. There shall be no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE April 04, 2008. ak