C.W.P. No. 20868 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 20868 of 2010 Date of Decision : May 03, 2011 Rajinder Singh son of Shankar Singh .... PETITIONER Vs. The Punjab State Power Corporation Ltd. and another ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. A.K.Walia, Advocate, for the petitioner. Mr. S.S.Virk, Advocate, for the respondents. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) The petitioner has challenged the office order dated 22.05.2009 (Annexure P-6) issued by the Chief Engineer/Thermal, Gurunanak Dev Thermal Plant, Bathinda-respondent No. 2 and also letter dated 18.10.2010 (Annexure P-7/T), whereby the benefit of higher pay scale granted to the petitioner after completion of 9 and 16 years of C.W.P. No. 20868 of 2010 2 service, as per the time bound promotion scales scheme, has been withdrawn and recovery of ` 3,76,952/- has been ordered to be effected from the petitioner respectively. Counsel for the petitioner contends that the petitioner was working as Sub Station Attendant in the year 1978. He continued as such with the respondents and vide order dated 06.08.1991, he was granted the first time bound promotional scale w.e.f. 09.08.1987 on completion of 9 years of service and thereafter, vide order dated 14.07.1995, he was granted second time bound promotional scale w.e.f. 09.08.1994 on completion of 16 years of service. Vide order dated 14.10.1998, the petitioner was offered promotion to the post of Junior Engineer Sub Station, The petitioner submitted a representation for permission to forego the promotion which was accepted by respondent No. 1 vide order dated 31.12.1999. The case of the petitioner for promotion again was considered after three years as per the instructions dated 22.10.1993 and was promoted on 26.07.2004, which promotion he accepted. Vide order dated 21.11.2008, a show cause notice was issued to the petitioner, to which the petitioner filed a reply and the same was not accepted. The impugned order dated 22.05.2009 (Annexure P-6) was passed withdrawing the benefit granted to him of higher pay scale as per the scheme of time bound promotional scale on completion of 9 and 16 years of service. The ground for passing such an order was that as per the clarification dated 31.12.2004 issued to the instructions of 22.10.1993, the benefit of time bound promotional scale of 9 and 16 years, which was earlier granted, was to be stopped from the date an employee forgoes the promotion and thereafter, letter dated 18.10.2010 (Annexure P-7/T) was passed vide which recovery of ` 3,76,952/- has been ordered because of the order dated 22.05.2009 (Annexure P-6). C.W.P. No. 20868 of 2010 3 The facts, as stated by the counsel for the petitioner, have not been denied by the counsel for the respondents. The contention, which has been raised by the counsel for the petitioner, is that the 2004 instructions cannot be made applicable retrospectively and the right, which has been conferred on the petitioner and which the petitioner has availed of, cannot be withdrawn by a subsequent clarification. These very instructions have been duly considered by this Court in CWP No. 18572 of 2009 titled as Surjeet Kaur vs. Punjab State Electricity Board and others, which was decided on 29.04.2011 and this Court had held that the instructions dated 22.10.1993 were only prospective in operation and since the petitioner had already availed of the benefits before he had foregone his promotion, the same cannot be withdrawn as a consequence of the clarification dated 31.12.2004. It was held as follows:- “ A reading of the basic instructions i.e. 1993 instructions would show that it debars a person for consideration to the grant of the time bound promotion scale in future and the promotion is barred for three years. The 2004 instructions provides for withdrawal of the already granted scale to the employee. The intention of the 1993 instructions is apparent and clear that it encourages promotion and these instructions come into effect only from the date when a person foregoes his promotion and not prior thereto meaning thereby that an employee is entitled to consideration and grant of time bound promotion. Time bound promotional scale is earned by an employee on the basis of his length of service and it was C.W.P. No. 20868 of 2010 4 introduced with an intention to remove stagnation in a time scale. The purpose and intent, therefore, was not only to inculcate interest in the employee to continue with his service but he would also look forward to improve in his career at least on the economic front because promotions are limited and dependent upon the availability of posts which is an incident in service and, therefore, no time frame can be fixed for a particular person to be promoted to the next post. A right which accrued to him under the Scheme and the fruits of which he is receiving cannot be withdrawn merely because another right of promotion has accrued to him which he chose not to avail of. It is virtually forcing a person to take a promotion which, according to the Rules, he is entitled to forego. There is no rule or regulation which has been brought to the notice of the Court which would mandate a person to accept promotion. The right of promotion only confers a right of consideration but if a person choses not to avail of the same, he is fully justified to do so especially when the Rules/Regulations governing the service do permit so, which cannot be curtailed or withdrawn by the instructions, reliance whereon has been placed by the respondent-Board. It is not in dispute that before the date the petitioner became eligible for promotion, she had already availed of the benefit of time bound promotional scale of 9 and 16 years. Obviously, this benefit, which had accrued to her, cannot be withdrawn merely because she chose not to avail of her another right which had accrued to her during her service for C.W.P. No. 20868 of 2010 5 consideration for promotion especially when the Rules do provide for an option not to avail of that promotion. The instructions relied upon by the respondents to pass order dated 7.10.2009 withdrawing the already accrued and granted time bound promotional scale to the petitioner is not sustainable and, therefore, cannot be said to be in accordance with law. Instructions which cannot withstand the test of reasonableness cannot be put into effect to the prejudice of an employee. In the given facts and circumstances of the case and as held above, the impugned order dated 7.10.2009 cannot be sustained. The rights which have accrued to the petitioner under the time bound promotional scheme which she had availed of prior to her refusing the option for promotion cannot be withdrawn in the manner as has been done by the respondent-Board. However, she would not be entitled to further benefits under the time bound promotional scheme as per the conditions accepted by her under the instructions/circular dated 22.10.1993.” The issue involved in the present case is fully covered by the judgment of this Court in Surjeet Kaur's case (supra) and accordingly, following the same, the present writ petition is allowed. The impugned order dated 22.05.2009 (Annexure P-6) and also letter dated 18.10.2010 (Annexure P-7/T) are hereby quashed. If any amount is recovered in pursuance of the impugned letter dated 18.10.2010 (Annexure P-7/T), the same shall be refunded to the C.W.P. No. 20868 of 2010 6 petitioner within a period of two months' from the date of receipt of a certified copy of this order. (AUGUSTINE GEORGE MASIH ) May 03, 2011 JUDGE pj -