IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: November 29, 2010 1. L.P.A. No. 1344 of 2010 (O&M) State of Punjab and another …Appellants Versus T.C. Gupta …Respondent 2. L.P.A. No. 1345 of 2010 (O&M) State of Punjab and another …Appellants Versus G.I.S. Bhullar …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. Chetan Mittal, Addl. Advocate General, Punjab, for the appellants. Mr. Sanjeev Sharma, Advocate, for the respondents 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of L.P.A. Nos. 1344 and 1345 of 2010, which have been filed by the State of Punjab under Clause X of the Letters Patent against the common order passed by learned Single Judge, dated 27.8.2008, as also against order dated 15.2.2010 dismissing the review applications. The facts are noticed from LPA No. 1345 of 2010. 2. The writ petitioner-respondent Shri G.I.S. Bhullar, IPS, who was to L.P.A. No. 1344 & 1345 of 2010 (O&M) superannuate on 30.9.1994 from the post of Inspector General of Police, was appointed by the State of Punjab as a Member of the Punjab Public Service Commission, Patiala (for brevity, ‘the Commission’), vide notification dated 29.9.1994 (P-1). He assumed the charge of office as such on 13.10.1994 (P-2). At the time of superannuation he was working in the pay scale of Rs. 5900-6700 and was drawing basic pay of Rs. 6,700/- per month. His pay as Member of the Commission was fixed at Rs. 5,900/- per month w.e.f. 13.10.1994, vide order dated 26.10.1994 (P-7/A). He made representation dated 25.1.1995 (P-10) to the respondent State for fixing his salary in the pay scale of Rs. 5900-6700 as was allowed to other members. He claimed that he was entitled to full salary as well as pension. 3. On 12.5.1997, the pay of the petitioner-respondent was re-fixed after deducting the element of pension, which he was drawing from the State Government after his superannuation as Inspector General of Police w.e.f. 30.9.1994 (P-8). The aforesaid re-fixation has been made in pursuance to letter dated 31.3.1997, issued by the State of Punjab to the Commission for fixing the pay of the petitioner-respondent in terms of Regulation 5(1)(i) of the Punjab Public Service Commission (Conditions of Service) Regulations, 1958 as amended vide notification dated 26.2.1993 (for brevity, ‘the Regulations’). Accordingly, the Commission issued a letter on 26.8.1997, asking him to deposit a sum of Rs. 54,208/- being excess payment and in case of failure then recovery was to be effected in monthly instalments from his pay from August 1997 (P-9). 4. Similar treatment was meted out to other members of the Commission. Feeling aggrieved, they filed various writ petitions which came up for hearing before the learned Single Judge. They placed reliance on the 2 L.P.A. No. 1344 & 1345 of 2010 (O&M) judgments rendered in the cases of Ram Phal Singh v. State of Haryana and others (CWP No. 15159 of 1996, decided on 8.9.2004) and M.P. Pandove v. State of Punjab and others (CWP No. 85 of 2005, decided on 26.2.2005). The learned Single Judge disposed of the writ petitions in terms of the judgment rendered in the case of Ram Phal Singh (supra). Thereafter, the appellant State of Punjab filed review applications which have been dismissed by the learned Single Judge vide order dated 15.2.2010. 5. Mr. Chetan Mittal, learned Additional Advocate General Punjab, has placed firm reliance on a Division Bench judgment of this Court rendered in the case of G.L. Batra v. State of Haryana and others, 2010 (1) SCT 562, where the judgment of learned Single Judge delivered in the case of M.P. Pandove (supra) has been overruled where the provisions of Regulation 5(1)(i) of the Regulations was declared ultra vires. The Division Bench in G.L. Batra’s case (supra) has upheld the vires and order of refixation passed by the Commission. 6. Mr. Sanjeev Sharma, learned counsel for the petitioner-respondents could not distinguish the view of the Division Bench taken in G.L. Batra’s case (supra) where the Regulations were also considered. The view of the Division Bench is discernible from the perusal of para 22, when it interpreted Regulation 5(1) and proviso added to it on 26.2.1993 (P-5), which reads thus:- “22. The proviso underneath Regulation 5(1) clarifies that if the Chairman or a Member at the time of appointment as such is a pensioner having retired from service either of the Central Government, State Government, a local authority, a university, a privately managed recognised school or an affiliated college or any other body wholly or substantially owned or controlled by the 3 L.P.A. No. 1344 & 1345 of 2010 (O&M) Punjab Government and who is in receipt of or has received or has become entitled to receive retirement benefits by way of pension, gratuity, contributory provident fund or otherwise, then the pay specified in Regulation 5(1) has to be reduced by the gross amount of any kind of pension including any portion of pension which may have been commuted. It is further qualified with another proviso that the amount of pension not exceeding Rs. 500/- per month is not to be taken into account for fixing the pay. In other words, the pay of a re-employed pensioner or a person who has been appointed as Chairman or Member of PPSC has to be reduced by the gross amount of any kind of pension, which he was receiving or became entitled to receive during the currency of service. The maximum amount of pension, which is permitted to be included in the pay of a Chairman or a Member of PPSC, is Rs. 500/-. Therefore, if a Member of the PPSC is a re-employed pensioner and getting say Rs. 15,000/- as pension then his pay fixed in the pay scale of Rs. 18400-500-22400 would be worked out after deducting Rs. 15,000/- which is the gross amount of pension minus Rs. 500/-. The regulation clearly makes a distinction between the re-employed pensioner who are in receipt of retiral benefits and other Member/Chairman who have no benefits of such a nature to their credit.” 7. The petitioner-respondent in LPA No. 1344 of 2010 was appointed as member of the Commission vide notification dated 17.7.1995 and he assumed the charge as such on 19.7.1995, which is after the date of amendment incorporated to the Regulations on 26.2.1993/2.3.1993 (P-5). Likewise, in LPA 4 L.P.A. No. 1344 & 1345 of 2010 (O&M) No. 1345 of 2010, the petitioner-respondent has assumed the charge as member of the Commission on 13.10.1994 after notification appointing him as member of the Commission was issued on 29.9.1994. Therefore, they would be governed by the amended Regulations dated 26.2.1993/2.3.1993. Once the aforesaid factual situation prevails then there is no escape that the Division Bench judgment in G.L. Batra’s case (supra) upholding the constitutional validity of Regulation 5(1) of the Regulations, has to govern the conditions of service of the petitioner-respondent(s). The constitutional validity of the aforesaid Regulations has been upheld and the petitioner(s) therein have been held entitled to payment of pay as member minus the pension which they were drawing on account of superannuation from their earlier posts either as IPS officers or IAS officer. Accordingly, the appeals filed by the State of Punjab deserves to be allowed in terms of the Division Bench judgment rendered in G.L. Batra’s case (supra). We order accordingly. 8. However, Mr. Sanjeev Sharma, learned counsel for the petitioner- respondent(s) prays that since they have not played any fraud or misrepresented any fact, the Commission could not effect recovery of any amount paid to them before re-fixation of their pay. Accordingly, we direct that no recovery be effected from the petitioner-respondent(s) in respect of the period prior to re- fixation of their pay. For the aforesaid view we place reliance on a Full Bench judgment of this Court rendered in the case of Budh Ram and others v. State of Haryana, 2009 (3) SCT 333. 9. The appeals are accordingly disposed of in the aforesaid terms. A photocopy of this order be placed on the file of connected appeal. 5 L.P.A. No. 1344 & 1345 of 2010 (O&M) (M.M. KUMAR) JUDGE (RITU BAHRI) November 29, 2010 JUDGE Pkapoor 6