IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1383 of 2009 Date of decision: 19.02.2010 Harkesh Chand and others ....Petitioners versus Haryana Power Generation Corporation Limited and others. ....Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN ------ Present: Mr. Vikas Chatrath, Advocate, with Ms. Gaganpreet Kaur, Advocate and Mr. Gaurav Deep Goyal, Advocate, for the petitioners. Mr. Parveen Gupta, Advocate, for Mr. Narender Hooda, Advocate, for the respondents. ----- 1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporters or not? No. 3. Whether the judgment should be reported in the digest? No. ----- K.Kannan, J (Oral) 1. The three petitioners claimed the benefit of the 2nd ACP scale on completion of 20 years of service, by counting their respective periods of training also for consideration as regular satisfactory service. According to the petitioners, they joined between the dates 17.04.1987 to 30.04.1987 as trainees, who were subsequently absorbed and taken to the cadre. It is an admitted case that on the completion of 10 years from the Civil Writ Petition No.1383 of 2009 - 2 - date when they entered their services as trainees, the 1st ACP had been granted to the petitioners. When on the completion of 20 years, the 2nd ACP was not given, the writ petition had been filed. During the pendency of the writ petition, by proceedings dated 23.04.2009 even the 1st ACP had been withdrawn referring to a notification issued on 11.03.1990 that includes in clause (4) “ The trainees referred to above shall be entitled to the increment only on successful completion of their training. In case of Plant Attendant Grade-II and Technician Grade-II, increment on successful completion of training shall be granted, but without arrears.” Although the claim of the petitioners is only for the grant of 2nd ACP, by the fact that subsequent to the filing of the writ petition even the 1st ACP awarded to the petitioners have been withdrawn, the matter will have to be examined whether such withdrawal was possible. The petitioners have not come with any application for amendment but still I requested both the counsel to address the arguments regarding the tenability of the withdrawal of the 1st ACP on a construction that the periods spent during training could not be counted as regular satisfactory service, which was the issue for adjudication in the writ petition, as the circumstances existed even at the time of its institution. 2. The eligibility to ACP scales under the Haryana State Electricity Board is issued through office order No.703, Finance Department, dated 17.02.1988. Clause (2) of the scheme sets out classes of persons to whom the scheme shall not apply and admittedly the petitioners who are Technicians Grade-II are not excluded from the Civil Writ Petition No.1383 of 2009 - 3 - application of the scheme. Clause 3(e) refers to the 1st ACP scale that reads as follows:- “Board employee means the revised pay scale as mentioned in column 3 of Schedule 1 against the pay scale mentioned in column 2, as the corresponding existing scale prescribed for the post against which such Board employee was recruited as a direct recruited fresh entrant in the Board service. Provided that the First Assured Career Progression Scale may also be referred to as Ist ACP scale or ACP-1 scale.” The 2nd ACP scale is referred to in Clause 3(q) which reads as follows:- “Board employee means the revised scale as mentioned in column 4 of schedule 1 against the pay scale mentioned in column 2, as the corresponding existing pay scale prescribed for the post against which such Board employee was recruited as a direct recruited fresh entrant in the Board Service. Provided that the Second Assured Career Progression Scale may also be referred to as 2nd ACP scale or ACP-II scale.” The note accompanying this clause defines what regular satisfactory service means:- “Eligibility for Grant of ACP Scales: (1) Every Board employee who, after a regular satisfactory service for a minimum period of 10 years, 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 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 Board employee who, after a regular satisfactory service for a minimum period of 20 years, has not got more than one financial upgradation in terms of Civil Writ Petition No.1383 of 2009 - 4 - 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 the functional pay scale applicable to him; Provided that grant of ACP scale shall also be considered financial upgradation for the purposes of this para.” Note: For the purposes of this scheme “regular satisfactory service” would mean continuous service counting towards seniority under H.S.E.B. including continuous service in P.S.E.B. before re-organisation, commencing from the date on which the Board employee joined his service after being recruited through the prescribed procedure or rules/regulations 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 this scheme and further fulfilling all the requirements prescribed for determining the suitability of grant of ACP scales. The period spent on ad hoc basis; work charged basis; contingent basis and daily wages will not be counted for the purpose of counting of prescribed length of “Regular satisfactory service” for this scheme.” 3. The contention of the petitioners is that by means of several communications from the Secretary, HSEB, it had been informed to all Departments vide memo dated 27.03.1991 that the periods spent by the trainees of all categories on training shall be treated as duty for all intents and purposes, that is, for grant of increments in accordance with the provisions contained in the policy. The further note dated 19.04.1991 clarifies that the trainees shall also be eligible for all benefits allowed by the Board and the memo dated 02.01.1992 states that the period of Civil Writ Petition No.1383 of 2009 - 5 - training shall be counted as duty for all intents and purposes that is, seniority, leave etc. The memo dated 20.01.1992 further clarifies that the period spent by the trainees of all categories on training shall be counted as experience in service for the purpose of promotion. The communications at various levels therefore clearly indicate that the period of training has been reckoned as relevant literally for all purposes namely, for obtaining increments for benefits for leave, salary, seniority and for promotion. If we juxtapose all these communications to what is stated in the note that sets out the eligibility for ACP, it becomes clear that the regular satisfactory service that has to be counted for a minimum period of 10 years shall include also the period spent by a person as trainee. 4. However, the withdrawal of the 1st ACP has been done by reading of the notification dated 14.03.1990 relating to Clause (4) which we have extracted in para 1 above. Clause (4) applies only to cases for consideration of when the trainee's claims for increment shall be considered and that is stated to arise on completion of the training. Clause (4) will have no operation to override what the office order dated 27.02.1998 provides for and how the regular satisfactory service shall be reckoned. The withdrawal of the 1st ACP during the pendency of proceedings is, therefore, clearly wrong and for the same reason, the non- grant of the 2nd ACP at the time when the petitioners had completed 20 years of service which would include the period of training, was also unjustified. Although not specifically prayed for in the writ petition, but as proceedings which have come about subsequent to the filing of the Civil Writ Petition No.1383 of 2009 - 6 - writ petition, the extraordinary power of the Court is invoked to do complete justice in the manner contemplated under Article 226 of the Constitution and the proceedings withdrawing the 1st ACP scale through proceedings dated 23.04.2009 (R-5 to R-7) are quashed and there shall be a mandamus directing the respondents to afford to the petitioners both 1st and 2nd ACP scales reckoning the period of training also as constituting regular satisfactory service. The writ petition is allowed to the above extent. 19.02.2010 (K.KANNAN) sanjeev JUDGE