CWP No.1002 of 1992 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1002 of 1992 Date of Decision: 29.07.2010 D.R.Saini & Ors. ..Petitioners Vs. Punjab State Electricity Board & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Kamal Sharma, Advocate, for the petitioners. Mr.H.S.Sran, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The petitioners have invoked writ jurisdiction of this court under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari, for quashing the order dated 20.2.1991, vide which the claim of the petitioners for promotional scale, as granted to directly CWP No.1002 of 1992 2 appointed Assistant Engineers, has been rejected. The petitioners have also challenged Circular No.28/90 dated 24.5.1990 vide which the petitioners have been discriminated while granting the time bound promotional scale. The petitioners, therefore, prayed for issuance of writ in the nature of mandamus, directing the respondents, to grant benefit of time bound promotional scale to the petitioners, as granted to the direct recruits by treating the petitioners at par with them. The petitioners have also prayed for fixation of their pay in accordance with law, so that the pension and other retiral benefits can be revised, accordingly. Brief facts leading to the filing of the writ petition are that the petitioners were initially appointed in the year 1950-51 as Line Superintendent which was later on re-designated as Junior Engineer Class II. All the petitioners had the qualification of diploma in Electrical/Civil Engineering before they joined the service of Punjab Government in the Department of PWD (Electricity Branch). The petitioners on formation of Punjab State Electricity Board, (for short the Board) were absorbed in the Board. The case of the petitioners is, that the Board issued circular Ex.P.5, for the grant of time bound higher scale to the employees, at two stages in their service career i.e. on completion of 9 years service and 16 years service. The circular was issued on 19.7.1989. This was subsequently clarified vide Ex.P.6 on 30.3.1990 and the benefit, therefore, was granted with retrospective effect i.e.1.1.1986. CWP No.1002 of 1992 3 The case of the petitioners is, that though the petitioners as well as private respondents were performing duties as Assistant Engineer, however, pursuance to the Circular letter referred to above the pay scale of engineers who were direct recruits was fixed at Rs.3000-5600/- on completion of 9 years service and Rs.4500-6300/- after completion of 16 years of service. The petitioners made representation for grant of similar treatment to the petitioners on the plea that the petitioners could not be discriminated only because of source of their induction in the cadre and further, that they could not be discriminated merely because they were diploma holders, though senior in the cadre of Assistant Engineers. As already noted, the representation of the petitioners was rejected vide Annexure P.13, which reads as under:- “18. The case of Er.R.K.Arora, Executive Engineer (C) (Retired) is not covered under the office order No.205/PRC/Fin-1988 dated 24.5.1990 because he has been appointed as assistant Engineer, from the post of S.D.O. By way of promotion. Therefore, the record of Sh.R.K.Arora Executive Engineer is hereby sent back to your office.” Reading of Annexure P.13 would show, that only reason given for the rejection of the claim of the petitioners was, that they were appointed as Assistant Engineers from the post of S.D.O. By way of promotion and therefore, they were not entitled to benefit under circular issued by the respondents. CWP No.1002 of 1992 4 Learned counsel for the petitioners challenged the action of the respondents by placing reliance on the Division Bench judgment of this court in CWP No.468 of 2004 titled T.S.Behl and Ors.Vs. Punjab State Electricity Board, decided on 10.2.2006, wherein the claim made by the promotee A.E. was allowed, and were directed to be equated with direct recruits by giving them benefit of the circular. Operative part of the judgment reads as under:- “......... The benefit of the higher pay scales is being denied to the petitioners as they are diploma holders, which according to the learned counsel for the Board, are not to be treated at part with the directly recruited AEs. As has already been noticed, the petitioners joined the service of the Board in 1962 and in 1964 they were appointed as SOs (Civil). They were subsequently promoted as AEs and then AEEs. This promotion as AE/AEE is not being treated by the Board as direct recruit to the said post, on the ground that the petitioners are diploma holders. The claim of the petitioners', however, is based on the circular dated 24.5.1990 (Annexure P.6). In terms of the same, in supersession of an earlier order dated 31.3.1990, the Board was pleased to order that AE/AEE would be placed in the next higher scale of Rs.3000-5600/- and allowed minimum pay of Rs.3500/- in the 10th year i.e. on completion of 9 years regular service as AE/AEE. Similarly, he would be placed in the next higher scale of Rs.4500-6300/- in the 17th year i.e. on the completion of 16 years regular service as AE/AEE. The higher CWP No.1002 of 1992 5 scale, it is indicated, would only be available to directly recruited AEEs as per Regulation 7-a (i) read with Regulation 9 of the Regulations. The cases of AEs appointed by promotion as per Regulation 7-a(ii) read with Regulation 10 of the regulations were to be governed by guidelines circulated vide office order dated 23.4.1990. The effect of the circular dated 24.5.1990 for the purpose of grant of higher scale in respect of diploma holders was considered by a Single Bench of this Court in Rajinder Singh Patpatia's case (supra) CWP 9162 of 1994. The same was considered in the context of the following note of the circular dated 24.5.1990 (Annexure P.6):- NOTE The Departmental employee (Technical Subordinates and Drawing Staff) who while in service of the Board have been promoted to the post of AE (Electrical/Civil) against quota reserved for promotion from amongst them under Regulation 7-A(ii) read with Regulation 10(7) of the Regulation 7-A(ii) read with Regulation 10(4) of the PSEB Service of Engineers (Electrical) PSEB Service of Engineers (Civil) Regulation-1965 shall be deemed to have appointed Regulation-1965 As Assistant Engineers like the Assistant Engineers appointed through direct appointment under Regulation 7-A(i) read with Regulation 7-A(i) read with Regulation-9 of the Service of Engineers (Civil) ibid Regulation-9 of the Service of Engineers (Civil) For the purpose of grant of above next higher scales after 9/16 years of regular service as Assistant Engineer/assistant Executive Engineer/XEN, prescribed period to be counted from the date of joining the post of Assistant Engineer on regular basis – similarly Graduates in Electrical/Mechanical Engineering/AMIE qualified Civil Engineering AMIE qualified hands who possess this qualification before joining the service of the Board and subsequently promoted as assistant Engineers against quota reserved for promotion from amongst them in terms of provisions of Regulation 7-a(ii) read with regulation 10 (9) Regulation 7-a(ii) read with regulation 10 (6) CWP No.1002 of 1992 6 of Engineers (Electrical) Regulation-1965 of Engineers (Civil) Regulation-1965 with be treated likewise. This scheme for 9/16 years time bound placement in higher scale will take effect from 1.1.1986. However, the payment of arrears would be spread over to next 3 years as under: (sic.) would be paid Arrears for 1988-89 would be paid during 1991-92 Arrears for 1989-90 would be paid during 1992-93 It was observed by the learned Single Judge as follows: “A plain reading of the aforesaid explanation contained in the Note leaves no room for any doubt that the departmental employees who were promoted to the post of Assistant Engineer against the promotion quota shall be deemed to have been appointed as assistant Engineer like the direct recruits for the purposes of the next higher pay scale. This deeming provision is sufficient to raise a presumption in favour of the petitioner. There was no occasion to incorporate a deeming provision in the Note after it was laid down that the next higher pay scale will be available to the direct recruits only.” (Emphasis added). The said decision was assailed by the Bhakra Beas Management Board by way of Letters Patent Appeal and a Letters Patent Bench of this Court in BBMB V.Rajinder Singh Patpatia (supra) considered the provisions of the Punjab services of Engineers (Irrigation Branch) Class-II Rules 1941 CWP No.1002 of 1992 7 and the circular letter dated 24.5.1990 issued by the Board and adopted by the Bhakra Beas Management Board as also the provisions of 1965 Regulations and it was held as follows:-” “11. A perusal of the above regulation shows that Regulation 10.2 deals with Circle Head Draftsman and Chief Head draftsman. It requires only possession of diploma. Hence, it does not require the qualification of degree of AMIE as contended by Shri DS Nehra. The circular letter dated 25.4.1990 (supra) is not confined only to the category of those who have been given promotion under Regulation 10.. Therefore, the basic argument of Shri DS Nehra that degree/AMIE qualification is required for the purpose of earning the scale of Rs.4500-6300/- after completion of 16 years of service is not supported by the reading of Regulation which deals with Circle Head Draftsman as the case of the petitioner is. Moreover, by deeming fiction all promotees have been treated as direct recruits and there is no requirement for them to possess degree/AMIE qualifications. Any other construction of the circular would render Clause 2 of the circular referred to in the preceding para as otiose and illusory. We are of the considered view that the benefit of higher scale of pay cannot be confined by the BBMB only. The benefits are meant for all the Engineers working in the BBMB who CWP No.1002 of 1992 8 are covered by circular letter dated 25.4.1990 (supra) whether they have come from PSEB or from any other organization. The BBMB has adopted the circular dated 24.5.1990 for its application to the engineers working with them. The petitioner was promoted as ADE/SDO on 25.4.1971 and was regularized as such w.e.f.1.5.1979. He completed 16 years of service in the year 1987 much before the date of his superannuation i.e.30.11.1990. Another reason for taking the view that the petitioner is entitled to the benefit of circular dated 24.5.1990 is that these are beneficent provisions made for the breaking of stagnation to bring efficiency in the working of the officers. The petitioner has since retired on 30.11.1990, no prejudice is likely to be caused to any employee in the service.: (Emphasis added). The Bhakra Beas Management Board assailed the above order of the Letters Patent Bench of this Court before the Hon'ble Supreme Court of India by way of SLP 2393 of 2002, which was dismissed on 15.5.2002.The Bhakhra Beas Management Board thereafter filed a 'review Application before the Hon'ble Supreme Court of India, which was also dismissed. We are, therefore, of the view that the petitioners are also entitled to the benefit of the circular dated 24.5.1990 and it cannot be said that because they had been promoted from the category of diploma holders, they are not to be treated as CWP No.1002 of 1992 9 directly recruited AE/AEE for the purpose of grant of higher scale of pay after rendering 9 and 16 years of service. As held by the Letters Patent Bench in Rajinder Singh Patpatia's case (supra), the requirement is of possession of diploma and not the qualification of AMIE for the purpose of promotion to the post of AE/AEE. Another aspect that needs to be noticed is that SK Jain who is junior to the petitioners, has already been granted time bound revised scale of Rs.3000-5600/- after completion of 9 years service and thereafter granted the revised scale of Rs.4500-6300/- vide order dated 6.3.2002 (Annexure P7) after completion of 16 years of service as AE/AEE. SK Jain who is a junior to the petitioners though he possesses the degree of AMIE, has been granted the benefit of the said scale only on the ground that he is not from amongst the cadre of diploma holders. In fact in Rajinder Singh Patpatia's case (supra), the arguments put forth by the appellant/BBMB therein that the Regulations invariably require the qualification of a degree, was rejected. Therefore, there is no reason to deprive the petitioners of the same benefit which has been granted to the other employees.” Learned counsel for the petitioners contended, that the petitioners are also entitled to be treated at par with directly recruited assistant Engineers by placing them in the pay scale Rs.3000-5600/- on CWP No.1002 of 1992 10 completion of 9 years service and Rs.4500-6300/- after completion of 16 years of service. Writ petition is opposed by Mr.Harbhajan Singh Sran, learned counsel appearing on behalf of the Board, by contending that the judgment of Hon'ble Division Bench, is contrary to the instructions on which reliance has been placed by the petitioners for grant of benefit of promotional pay scale on completion of 9 years and 16 years service. The contention of the learned counsel for the respondent that reading of Annexure P.9 i.e. instructions dated 23.4.1990, would show that judgment of Hon'ble Division Bench is contrary to instructions on which reliance is placed. The contention of the learned counsel for the respondent/board was, that the object of issuance of instructions was to give an employee two promotion during his service, for want of promotional avenue. As per the instructions promotional scale can be granted to employee who continued to serve on the same post for a period of 9/16 years without getting any promotion. The learned counsel for the respondent/Board also referred to the instructions, which stipulate that employee is entitled to promotional scale of 9 years, on the date of issuance of the circular provided, he had put in more than 9 years of service as on 1.1.1986, and the second promotion grade was to be given 3 years thereafter. In case the employee stands promoted to next higher grade by that period. Learned counsel for the respondent also contended that the CWP No.1002 of 1992 11 reading of the instructions can lead to only one conclusion, that these benefits are available only to the employee who have no further promotion avenue during his service career. He made reference to paras No.1 (7) & 2 of the instruction, Annexure P.9 which reads as under: “1. (7) In case of employees who do not fulfill the qualification/passing of examination essential for their promotion to the next higher post, they shall also be placed into time promotional/devised promotional scale to be specified by the Board in the schedule as referred to in para 5 (above). 2. The Punjab State Electricity Board has further decided to allow benefit of promotional increment (s) to an employee on completion of 23 years of regular service provided:- i) He has not been benefited by the scheme of 9/16 years time bound promotional scale. ii) He has not earned three regular promotions in his career. iii) He has not earned third promotion in his regular service between 16th and 23rd years of service. iv) The increments referred to in para – 2 above are in the nature of advance promotional benefit to be absorbed in next regular promotion.” Contention of the learned counsel for the respondent, was that the petitioners admittedly, earned three regular promotion, in their career and therefore, were not entitled to benefit under these instructions, and CWP No.1002 of 1992 12 were wrongly applied by the Hon'ble Division Bench, therefore, a different view be taken, as the judgment is contrary to instructions. It is also the contention of the learned counsel for the respondent, that no fault can be found with the denial of benefits, to the petitioners, as the classification is based on the basis of qualification, and source of recruitment which is permissible in law. On consideration, I feel that the contentions raised by the learned counsel for the respondent cannot be considered, in view of the authoritative pronouncement of the Hon'ble Division Bench of this court which is binding on this court. Not only this, Hon'ble Division Bench did not place reliance on the instructions, but took note of the fact that the interpretation of Board to these instructions has resulted in higher pay scale to juniors than the seniors and the anomaly created could only be corrected by upgrading the pay scale of the seniors by stepping up/or by applying the instructions equally to all the employees in the cadre. For the reasons stated, writ petition is allowed in the same terms, as CWP No.468 of 2004 titled T.S.Behl and Ors. Vs. Punjab State Electricity Board, decided on 10.2.2006. The petitioners shall be entitled to all the consequential benefits i.e. fixation of their pay in the revised scale and also re-fixation of their pension and other benefits. No costs. 29.07.2010 (Vinod K.Sharma) rp Judge