CWP No.1043 of 2009.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.1043 of 2009 Date of Decision: 01.10.2010 **** Kapil Kumar . . . . Petitioner VS. Punjab State Electricity Board & Ors. . . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 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. SK Rattan, Advocate for the petitioner Lt. Col. KP Singh, Advocate for Dr. Puneet Kaur Sekhon, Advocate for respondents ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the order dated 07.06.2004 (Annexure P5) whereby the benefit of Proficiency Step up (Time Bound Scale) granted to him w.e.f. 30.06.2000 on completion of 9 years of service vide order dated 07.01.2003 has been withdrawn. The petitioner seeks mandamus for restoration of the above-stated service benefit. (2). Shorn of the details, the petitioner joined the Punjab State Electricity Board (PSEB) as an CWP No.1043 of 2009.doc - 2 – Assistant Machine Attendant on regular basis in the pay scale of `950-1800 w.e.f. 1st July, 1991 and was posted as such in the Hydel Project at Mukerian. Vide an office Circular dated 12.03.1998 (Annexure P1), the PSEB created 200 posts of Junior Meter Readers in the pay scale of `950-1800 and decided to fill up the same from amongst surplus IB work-charged workers of Mukeria and Anandpur Sahib Hydel Projects possessing qualification of Matriculation (Punjabi passed) with 5 years of service. (3). The selection was required to be made by a Selection Committee headed by the Chief Engineer/M&MHP. The petitioner being one of the surplus employees of Mukerian Hydel Project was considered and having been found eligible was “transferred and posted” as Junior Meter Reader in the pay scale of `950-1800 against a vacant post vide order dated 25.05.2000 (Annexure P2). The petitioner completed 9 years of regular service on 30.06.2000 from the date of initial appointment as Assistant Machine Attendant. He, therefore, applied and was granted the benefit of one additional increment towards the Proficiency Step CWP No.1043 of 2009.doc - 3 – up (Time Bound Scale) from the afore-stated date of completion of 9 years of service vide order dated 07.01.2003. The above-stated service benefit, however, shortlived as vide order dated 07.06.2004 (Annexure P5), the previous order dated 07.01.2003 was cancelled and the benefit of Proficiency Step up was withdrawn due to the objection raised by the Audit Department. The petitioner represented before the authorities; served them with a legal notice but finding no favourable response, has approached this Court. (4). The respondents have filed their reply/affidavit maintaining that in terms of the Finance Circular dated 23.04.1990 which regulates the grant of benefit of Proficiency Step up (Time Bound Scale), the petitioner was required to complete 9 years regular service in the same cadre and since his cadre stood changed from Assistant Machine Attendant to Junior Meter Reader that he was not entitled to the grant of Proficiency Step up. (5). In order to appreciate the contention raised on behalf of the respondents, para 2 of the Finance Circular dated 23.04.1990, a copy whereof has been handed over by counsel for the respondents CWP No.1043 of 2009.doc - 4 – during the course of the hearing, may be referred to, which reads as follows:- xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx “2. For example an employee who has completed 17 years of service in an induction post and was not promoted upto 1.1.1986 will be allowed 1st time bound promotional/devised promotional scale on 1.1.1986 and the 2nd time bound promotional/devised promotional scale will be admissible on 1.1.1989 i.e. after completion of three years service in the first time bound promotional/devised promotional scale. For granting the time bound promotional/devised promotional scale to each employee in any cadre, the prescribed period will be counted from the date of commencement of service on the lowest post on which regular appointment has been made through direct recruitment in the concerned cadre. 3. At the time of placement in the time bound promotional/devised promotional scale, the employee will be allowed promotional increment(s) as are admissible on promotion under the provisions of Regulation 8 of the PSEB (Revised Pay) Regulations, 1988 and as amended from time to time, 4. If an employee already in the service of the Board, is directly appointed to a higher post through open selection then for the purpose of grant of time bound promotional/devised promotional scale in that cadre counting of the period of service will commence from the date of joining the above post by direct recruitment. (Emphasis applied) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx CWP No.1043 of 2009.doc - 5 – (6). The solitary question that arises for consideration is as to whether it is a case of voluntary change of cadre by the petitioner? OR was he adjusted against another post in ‘compelling circumstances’? (7). Before adverting to the aforesaid issues, it would also be apposite to reproduce the following object behind issuance of Finance Circular dated 23.04.1990:- “The Punjab State Electricity Board have been seized of the problems of stagnation prevailing amongst the various cadres of regular employees and its consequent effect on their efficiency. It is felt that an employee should, under ideal service conditions get normally two promotions from his initial recruitment, level during his service. However, this is not always possible owing to non-availability of promotional posts. The aspiration of the employees, can, however, be met to a great extent by allowing time bound higher scales to the employees at two stages in their service career. The Punjab State Electricity Board has, therefore, decided to introduce a scheme to allow ‘time bound benefit of promotional scales’ after the completion of 9/16 years of regular service in the PSEB, provided the maximum benefit on being placed in the time bound promotional scale does not exceed five increments including promotional increment(s) to the subordinate employee having a maximum scale upto Rs.3500/- except the categories where the benefits of time bound placement to higher scale is applicable on the Punjab Govt. pattern as in case of teachers etc.” CWP No.1043 of 2009.doc - 6 – (Emphasis applied) (8). It may be seen that the very object of Proficiency Step up Policy dated 23.04.1990 is to remove stagnation in the service career of those employees who are unable to avail any promotion for want of promotional posts. The Circular also discourages the grant of Proficiency Step Up even to those employees who compete and accept direct appointment in the Board as that would amount to voluntary switching over to another cadre. (9). The petitioner, on the other hand, was initially employed in the Mukerian Hydel Project on work- charged basis though later on appointed on regular basis as Assistant Machine Attendant in the same Project w.e.f. 25.05.2000. The petitioner along with several other employees of the Project was rendered surplus on completion of the Hydel Project and was facing retrenchment when the Board took the policy decision to adjust such employees against alternative posts. This is how the petitioner was also adjusted as Junior Meter Reader in the same pay scale of `950-1800 which he was getting while working as Assistant Machine Attendant. It was a mere change of cadre by on CWP No.1043 of 2009.doc - 7 – account of the compelling circumstances beyond the petitioner’s control and not a case of ‘direct recruitment’ or ‘promotion’ against a higher post or higher pay scale. The fact of the matter is that the petitioner served in the pay-scale of `950-1800 uninterruptedly for a period of 9 years and got no promotion while working as such. The object of the Finance Circular being to grant additional increment(s) to those employees who are unable to get any promotion even after completion of 9/16 years of service. The petitioner undoubtedly fulfilled the eligibility conditions and was entitled to the grant of one additional increment on completion of 9 years of service. (10). The petitioner’s appointment as Junior Meter Reader cannot be termed as ‘direct recruitment’ as he never applied or competed for that post. It was a case of switching over from one cadre to another to escape retrenchment. (11). The objection raised by the Audit Department was, thus, based upon an erroneous understanding of the underlying object behind the Proficiency Step Up Policy as well as incorrect appreciation of the facts. The impugned order withdrawing the CWP No.1043 of 2009.doc - 8 – benefit of Proficiency Step Up also suffers from same infirmities. (12). For the reasons afore-stated, the writ petition is allowed; the impugned order dated 07.06.2004 (Annexure P5) is quashed and the respondents are directed to grant the Proficiency Step up (Time Bound Scale) to the petitioner on completion of 9 years of service, however, the petitioner shall not be entitled to any arrears of pay for the period till he approached this Court on 31.12.2008. The respondents are directed to fix the petitioner’s pay notionally and to grant him arrears of pay w.e.f. 01.01.2009 onwards only. The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. (13). Ordered accordingly. Dasti. 01.10.2010 vishal shonkar (SURYA KANT) JUDGE