CWP No.16323 of 2008.doc - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.16323 of 2008 Date of Decision: 02.03.2010 **** Smt. Sudarshana Devi and another . . . . . Petitioners VS. State of Punjab and others . . . . . 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. Tribhawan Singla, Advocate for the petitioners Ms. Charu Tuli, Sr. DAG, Punjab ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWPs No.15818, 18741, 14823, 16977, 14703, 14580, 11549, 9801, 5692, 14258, 18362, 19387, 16035, 17105, 17672, 17798. 19412, 20220 of 2009; 123, 344, 383, 653, 1063, 1242, 1301, 1904, 3036, 3082 of 2010 as common questions of law and facts are involved in these cases. All the petitioners are serving or retired employees of the Education Department, Government of Punjab. For brevity, the facts are being extracted from CWP No.16323 of 2008. CWP No.16323 of 2008.doc - 2 - (2). The petitioners were appointed as Hindi Teachers in the Education Department, Government of Punjab, on 02.06.1975 & 29.01.1970 (ad hoc) and their services were regularized w.e.f. 01.04.1977 & 01.01.1973. They retired as such on attaining the age of superannuation on 31.08.2008 & 31.10.2007, respectively. (3). The petitioners seek a writ of certiorari for quashing the letter-cum-orders dated 19.08.2008 (Annexure P5 & P6), whereby, the benefit of Proficiency Step-up, which was earlier granted to them w.e.f. 01.01.1986, has been withdrawn and after refixing their pay, consequential recovery is sought to be effected. (4). Notice of motion was issued and pursuant thereto, counsel for the parties have been heard at some length and the records perused. (5). There are two issues which arise for consideration of this Court. Firstly, whether or not the petitioners were entitled to the grant of Proficiency Step-up w.e.f. 01.01.1986? Secondly, if not, can the respondents be permitted to effect recovery of the excess or undeserved salary paid to the petitioners as a result of erroneous grant of the Proficiency Step-up? CWP No.16323 of 2008.doc - 3 - (6). In order to resolve the first issue, it may be noticed that as a result of the pay-revisions of the employees of Government of Punjab w.e.f. 01.01.1986, the petitioners were initially placed in the time-scale of Rs.1640-2925 w.e.f. 01.01.1986. However, on the basis of their seniority in the cadre, they became entitled and got the selection grade of Rs.1800-3200 w.e.f. 01.01.1986. (7). Thereafter, the Government of Punjab, through the Department of Finance, issued a Circular dated 01.12.1988 essentially for implementing the recommendations of Third Pay Commission and to grant Proficiency Step-up (PROP) to the employees. The salient features of the Scheme were as follows:- (1) Subject to suitability, besides the regular annual increment, one additional increment on each occasion on completion of 8 years’ and 18 years’ service on or after ‘the appointed day’ [as defined in Punjab Civil Services (Revised Pay)] Rules, 1988, published in Punjab Government Gazette (Extra.) on 13th September, 1988 against a post, in the form of proficiency step-up(s), shall be granted to all the Punjab Government employees except the Members of the Punjab Civil Service (Executive Branch), Deputy Superintendents of Police and Members of the Punjab Forest Service Class II; xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx CWP No.16323 of 2008.doc - 4 - (7) For reckoning the period of 8 and 18 years, the entire service in the time scale, senior scale and selection grade (or mere placement and not involving fixation of pay at higher level) etc., wherever available in a cadre, shall be counted. If an employee joins a scale at a stage higher than the minimum as a result of promotion or otherwise, his proficiency step-up(s) would stand postponed by a number of years equal to the number of increments already covered by him from the minimum of the scale at the time of initial fixation of pay in the scale. That the step-up is related to the number of years of service in a particular scale and if an employee’s pay is fixed by process of promotion at the sixth stage of a scale, he will be entitled to earn a step-up in that scale only after 8 years. If an employee serves in a scale of pay for more than 18 years and is not promoted to a higher scale on account of lack of promotional opportunities or non- availability of a vacancy in the promotional scale, he would be granted two step-up(s) in his emoluments.” (8). The Proficiency Step-up Scheme gave rise to certain queries which were responded and clarified vide Circular dated 01.09.1989, the relevant extracts in the context of the controversy involved herein, are as under: CWP No.16323 of 2008.doc - 5 - Points b) Whether an employee (in the ordinary scale of pay) drawing pay less than the minimum of the senior scale/selection grade when placed in the senior scale/selection grade in a period less than eight years will lose the benefit of proficiency Step-up though he has not been promoted to a higher post in the official hierarchy. OR some assistants drawing Rs.750/- or Rs.775/- in the scale of pay of Rs.600- 112 were placed in the senior scale of Assistant of Rs.800-1400 and their pay was fixed at Rs.800/-, i.e. at the minimum of the scale of Rs.800-1400. Thus, on placement they got the benefit of one or two increments on getting the minimum of the senior scale. Are they eligible for PROP on completion of eighty years’ or eighteen years’ total service as Assistant? OR A clerk drawing basic pay of Rs.1000/- with six years of service was placed in the senior scale of Rs.1200-2100 w.e.f. 1.04.1988. His basic pay was fixed at Rs.1200/- i.e. the minimum of the senior scale in the revised scale. Whether he is eligible for Proficiency step up after completing 8 years service in the senior scale or his entire service from the date of his appointment as Clerk is to be counted for the same as in the former case he had already been allowed financial benefit? Clarification b) As per provision contemplated in paragraph 1(7) of the instructions issued by the Department of Personnel and Admn. Reforms vide its circular letter No.7/14/88-5PP(I) (2269)/ 18527, dated the 1st December, 1988, an employee will be eligible for proficiency increment(s) only if he has not gained any enhancement in his basic pay, except by way of annual increments and fixation of pay as a result of revision of pay scales from time to time. Thus, in case the pay in the senior scale/selection grade is fixed at the minimum, whereby one gets the benefit of one or more increment(s) the service rendered against the post prior to the date of such fixation of pay will not be counted for the purposes of grant of Proficiency Step-up(s). However the period of eight or eighteen years service will further be reckoned for the purpose of grant of Proficiency step-up(s) from the start of placement in the senior scale/selection grade. CWP No.16323 of 2008.doc - 6 - (9). On a plain reading of the Circular dated 01.12.1988 read with the subsequent Circular dated 01.09.1989, it appears that subject to his/her suitability, an employee was entitled to the Proficiency Step-up on completion of 8 and 18 years of service on or after the appointed day i.e. 01.01.1986. It is further apparent from Para 7 of the original Scheme that for reckoning 8 and 18 years period for granting Proficiency Step-up, the entire service in the Time- Scale, Senior-Scale and Selection-Grade (or mere placement and not involving fixation of pay at higher level etc.) was to be taken into account. (10). If one reads the subsequent clarification dated 01.09.1989 in conjunction with paragraph 7 of the original Scheme dated 01.12.1988, it is leaves no room to doubt that even as per the original Scheme dated 01.12.1988, if an employee had been granted the Selection-Grade which resulted into fixation of his pay at a higher level, the prescribed eligibility period for the grant of proficiency Step-up was to be reckoned with from the date of such placement at a higher level. That is the precise import of the subsequent Circular dated 01.09.1989 which being clarificatory in nature, operates from the date the original Scheme was implemented. CWP No.16323 of 2008.doc - 7 - (11). Applying the above interpretation and adverting to the facts of the case in hand, there is indeed no quarrel that the petitioners were in the Time-Scale of Rs.1640-2925 when they were granted the higher pay scale of Rs.1800-3200 i.e. the Selection-Grade w.e.f. 01.01.1986. This, for all intents and purposes, placed them in a higher pay scale and at a higher level. The contention raised on behalf of the petitioners that the grant of Selection-Grade is not a ‘Promotion’ and thus, cannot postpone the grant of Proficiency Step-up, is wholly misconceived for the reason that an employee stands ‘promoted’ not only when he is granted the higher rank but also with his placement in the higher pay scale. (12). It would essentially mean that the petitioners who got the higher pay-scale i.e. Selection-Grade w.e.f. 01.01.1986, were entitled to be considered for the grant of proficiency step-up only on completion of 8 or 18 years of service in the said pay scale, as the case may be. (13). Keeping the anomalous situations highlighted in these cases, it needs to be further clarified that wherever an employee got the benefit of Proficiency Step-up after 8-years of service from the date of his CWP No.16323 of 2008.doc - 8 - placement in the Time-Scale w.e.f. 01.01.1986 and if he was also granted the Selection-Grade later on, such an employee would be entitled to the benefit of proficiency step-up only on completion of 18 years of service in the said selection-grade. However, if no such proficiency step-up was earlier granted to him, then he would be entitled to be considered for proficiency step-up on completion of 8 years of service in the selection-grade. (14). Such an interpretation or consequences, being consistent with the object sought to be achieved through the subject-Circulars referred to above, it appears that the impugned orders dated 19.08.2008 (Annexure P5 & P6) are partly justified to the extent of withdrawal of the Proficiency step-up which was granted to the petitioners erroneously w.e.f. 01.01.1986, namely, from the same date on which they also got the Selection Grade of Rs.1800-3200. The impugned orders, however, are silent and do not disclose as to from which later date(s) the petitioners would be entitled to the grant of Proficiency step-up. In other words, the impugned orders have fallen short in determining as to whether or not the petitioners were entitled to the grant of Proficiency Step-up and if so, from which later date(s)? The afore-said exercise, CWP No.16323 of 2008.doc - 9 - therefore, has to be undertaken by the respondents after ascertaining the correct facts based upon the service record of each petitioner. (15). The second issue, namely, whether or not the respondents can recover the alleged excess payment from the petitioners retrospectively, is no longer res- integra as a Full Bench of this Court in Budh Ram & Others vs. State of Haryana & Others (CWP No.2799 of 2008 decided on 22.05.2009) reported as 2009(3) PLR 511 has ruled that an employee who was not guilty of misrepresentation, fraud or deception while receiving any monetary gain under the mistake of the functionary of the State Government, deserves to be dealt with independently and cannot be called upon to refund to the Government the undeserved payment(s) that he/she has already received. (16). The petitioners were granted the Proficiency Step-up w.e.f. 01.01.1986 by the respondent- authorities may be on a misinterpretation of the Policy-circular(s). It is not their case that the petitioners concealed the facts or they played fraud etc. to secure any monetary gains. CWP No.16323 of 2008.doc - 10 - (17). In this view of the matter, the benefits already drawn by the petitioners are fully protected under principle (II) laid down in Budh Ram’s case (supra) and the impugned orders dated 19.08.2008 (Annexure P5 & P6) to the extent of directing recovery of the alleged undeserved payments made to the petitioners, are hereby quashed. So far as their claim for the grant of Proficiency Step-up from the date they are found eligible, it appears that the matter requires re-consideration by the Officers’ Committee constituted hereinafter. (18). There is yet another set of cases wherein the pay of the petitioner-retirees was stepped-up with a view to remove ‘anomaly’ and bring the same at par with their juniors. They have been drawing the benefit of stepped-up pay for years till their retirement(s). The respondents have now passed the orders withdrawing the benefit of stepping-up, mainly on the ground that the instances/examples of ‘juniors’ drawing higher pay, given by the petitioner-retiree(s) while alleging ‘anomaly’, have been found factually incorrect. According to the respondents, in most of the cases the alleged ‘juniors’ were not serving in the same ‘cadre’. The respondents have also referred to the subsequent CWP No.16323 of 2008.doc - 11 - Instructions on the subject, besides placing reliance on some decisions in support of their contentions. (19). The petitioners on the other hand contend that in a catena of judgements, this Court has already accepted the instances/examples of their “juniors” getting higher pay than the petitioners and that as per these decisions, it is not necessary that to constitute an ‘anomaly’ a ‘junior’ must be serving in the same ‘cadre’. (20). Having regard to the umpteen number of cases pertaining to the interpretation of various sets of Government Instructions/Policies and Rules and the consequential benefits flowing therefrom, especially to the Teachers/Masters etc. who have since retired from service(s), it appears to me that the individual claims need to be thoroughly examined by an Officers’ Committee to be headed by Respondent No.2 along with two Nominees, preferably from the Finance and the Personnel Departments, respectively. The Officers’ Committee shall issue a public notice inviting objection(s)/ representation(s) from the aggrieved employees and upon consideration of the multifarious issues and taking a holistic view, the said Committee shall resolve the same by passing speaking orders. CWP No.16323 of 2008.doc - 12 - The Committee shall decide the controversy, as early as possible and preferably within a period of six months from the date of receipt of certified copy of this order. Wherever the Committee finds that a retiree is entitled to the grant of Selection-Grade, Proficiency Step-up, ACP etc. and/or other service benefits withdrawn under the impugned orders, the same shall be restored from the due date and consequential benefits along with revised retiral benefits shall be granted to such retiree within a period of four months thereafter. (21). It is made clear that the petitioners shall continue to draw their retiral benefits as per the re- fixed pay till the Officers’ Committee takes fresh decisions. However, as directed earlier, no recovery shall be effected from any of the petitioners. The amount, if already recovered, shall be refunded to the petitioner concerned within a period of four months from the date of receipt of certified copy of this order. Likewise, in the case of those retirees to whom the retiral benefits have not been released so far, the respondents are directed to release the same at the earliest at the re-fixed rates but without prejudice to their claims to be adjudicated by the Officers’ Committee. CWP No.16323 of 2008.doc - 13 - (22). It may also be clarified here that several contentions raised on behalf of the petitioner(s) have not been delved upon nor decided as each case has its own distinct facts, which shall be gone into by the Officers’ Committee constituted under the directions of this Court. The petitioner(s) shall accordingly be at liberty to raise their respective pleas before the Officers’ Committee who shall consider the same in accordance with law. (23). Let a copy of this order under the signatures of the Bench Secretary be handed over to the learned State counsel for information and necessary compliance. (24). Ordered accordingly. (25). Dasti. (SURYA KANT) JUDGE 02.03.2010 vishal shonkar