RSA No.4785 of 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4785 of 2009 (O & M) Date of Decision: 10.12.2010 Punjab State Electricity Board and another .....Appellants Versus Teja Singh, JE-II ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Pavit Mattewal, Advocate for the appellants. Mr. Arun Walia, Advocate for the respondent. L. N. MITTAL, J (ORAL) Defendants-Punjab State Electricity Board (PSEB) and its Chief Engineer are in second appeal, having failed in both the Courts below. Facts in this case are not in dispute. Respondent Teja Singh joined PSEB as Sub Station Attendant (SSA) on 17.06.1980. In view of policy of PSEB, the plaintiff was granted promotional scale of Rs.1640-2925 with effect from 17.06.1989 on completion of nine years service and further second promotional scale of Rs.2000-3500 with effect from 17.06.1996 on completion of 16 years of service. On revision of pay scales with effect from 01.01.1996, his pay was fixed in the corresponding scale. Plaintiff was promoted as Junior Engineer of sub-station vide memo dated 26.12.2001, but the plaintiff made request to forego his said promotion as scale of Junior Engineer was lower than the scale being already drawn by the plaintiff. Said request of the plaintiff was accepted order dated 13.03.2002 by the defendants RSA No.4785 of 2009 (O & M) -2- allowing the plaintiff to forego promotion for three years. No stipulation was made in the said order regarding withdrawal of benefit of second promotional scale which had been granted with effect from 17.06.1996. The plaintiff applied for promotion before completion of three years. Plaintiff was promoted vide order dated 04.03.2005 and he joined on the promoted post on 30.04.2005. Defendant No.2-Chief Engineer vide impugned order dated 27.01.2004 ordered withholding benefits of the time bound promotional scales with effect from 13.03.2002, the date from which plaintiff's request to forego promotion had been accepted. The plaintiff challenged the said order in the suit alleging it to be illegal and arbitrary, being non-speaking and also having been passed without issuing show cause notice and without granting opportunity of hearing. The defendants pursuant to impugned order refixed the pay by reducing the pay of the plaintiff and threatened to recover arrears difference of pay. Defendants, without broadly disputing the factual position, contended that in view of policy of PSEB, plaintiff after foregoing promotion is not entitled to time bound promotional scale. The impugned order was alleged to be legal and valid. Various other pleas were also raised. Learned Civil Judge (Junior Division), Bathinda vide judgment and decree dated 03.12.2007 decreed the plaintiff's suit. First appeal preferred by the defendants stands dismissed by learned Additional District Judge, Bathinda vide judgment and decree dated 01.04.2009. Feeling aggrieved, defendants have preferred the instant RSA No.4785 of 2009 (O & M) -3- second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that there is stipulation in the relevant instructions that an employee, who foregoes his promotion shall be debarred for three years for promotion as well as grant of time bound promotional scales on completion of 9 and 16 years of service and, therefore, promotional scales of the plaintiff were rightly withdrawn with effect from 13.03.2002, the date from which the plaintiff was allowed to forego his promotion. Learned counsel for the appellants also contended that refixation of pay pursuant to impugned order cannot be set aside and at best recovery of difference of pay for the preceding period may be set aside as held by this Court in unreported judgment dated 24.05.2007 in CWP No.3827 of 2006 title as Sardara Singh versus Punjab State Electricity Board and others. On the other hand, learned counsel for the plaintiff contended that the plaintiff was given the promotional scales with effect from 17.06.1989 and 17.06.1996 and long thereafter he was allowed to forego his promotion vide order dated 13.03.2002 and, therefore, the promotional scales already granted to the plaintiff could not be withdrawn on the ground that the plaintiff had foregone his promotion subsequently. Reliance in support of this contention has been placed on unreported judgment dated 02.08.2005 Annexure R- 1 in RSA No.858 of 2004 titled as PSEB versus Daljit Kaur against which Special Leave Petition (Civil) No.2798 of 2006 was dismissed by Hon'ble Supreme Court vide order dated 17.02.2006 Annexure R- RSA No.4785 of 2009 (O & M) -4- 2. I have carefully considered the rival contentions. If the plaintiff had foregone his promotion before he became eligible to time bound promotional scale, then under the instructions relied on by counsel for the appellants, the plaintiff would have been ineligible to grant of time bound promotional scale thereafter. In the instant case, however, the plaintiff had been granted time bond promotional scales with effect from 17.06.1989 and 17.06.1996 and long thereafter the plaintiff made request to forego his promotion which was allowed. However, on the basis of said subsequent event, the promotional scales already granted to the plaintiff on account of eligibility for the same could not be withdrawn. In this view, I am supported by judgment Annexure R-1 in the case of Daljit Kaur (supra). Judgment in the case of Sardara Singh (supra) relied on by counsel for the appellant is not applicable because in that case, the writ petitioner did not challenge the correctness of withdrawal of the benefits at the time of hearing of the writ petition and the writ petitioner confined his prayer only to set aside the order of recovery from him. The said prayer was allowed. Thus in that case correctness of withdrawal of time bound promotional scale was not agitated nor adjudicated upon. On the contrary, facts of the case of Daljit Kaur (supra) are identical. In that case also, plaintiff- respondent Daljit Kaur had been granted time bound promotional scales and subsequently she made request to forego promotion which request was allowed. On its basis, time bound promotional scale was withdrawn. The said action was set aside. The said judgment is, therefore, fully applicable to the facts of the instant case. RSA No.4785 of 2009 (O & M) -5- Consequently, impugned order dated 27.01.2004 passed by defendant-appellant No.2 withdrawing the benefit of time bound promotional scales of the plaintiff-respondent is completely illegal and unsustainable. In addition to the aforesaid, it may be added that the impugned order was passed without issuing show cause notice and without affording opportunity of hearing to the respondent-plaintiff. For this added reason also, the said order is null and void. For the reasons aforesaid, I find no infirmity in the impugned judgments of the Courts below. There is no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed. 10.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE