CWP No.17958 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 31.05.2011 (1) CWP No.17958 of 1998 Amrik Singh Girn Vs. State of Punjab and another (2) CWP No.18340 of 1998 Bansi Lal Sharma and another Vs. State of Punjab and another (3) CWP No.5557 of 1999 Balam Singh Thandi Vs. State of Punjab and another Present: Ms.Renu Bala Sharma, Ms.Sangeeta Dhanda, Mr.GS Bhatia, Advocates, for the petitioners. Ms. Reeta Kohli, Addl. AG, Punjab, for the respondents. PERMOD KOHLI, J. In view of identical facts and common questions of law, these petitions are being disposed of by this common order. Petitioners in CWP No.18340 of 1998 and 5557 of 1999 are, in fact, claiming benefit of higher pay at par with Amrik Singh Girn, petitioner in CWP No.17958 of 1998. Therefore, the fate of these two writ petitions will depend upon the outcome of Amrik Singh Girn's case. Hence, facts are being taken from CWP No.17958 of 1998 (Amrik Singh Girn Vs. State of Punjab and another). CWP No.17958 of 1998 2 Amrik Singh Girn was recruited as a Clerk through Subordinate Services Selection Board and appointed on 24.02.1959 in the Punjab Civil Secretariat Service. He was promoted from time to time to the post of Assistant, Superintendent Grade-II and Superintendent Grade-I where from he retired on attaining the age of superannuation on 30.09.1995. After his retirement, recovery was sought from him on the ground of withdrawal of order relating to stepping up of his pay in the year 1994. The petitioner has detailed the circumstances whereunder his pay was stepped up at par with his junior, namely, Gurdial Singh Gill. Gurdial Singh Gill was working as Senior Translator in the pay scale of Rs.200-450/- in Punjab Vidhan Parishad. After re-organisation of the State of Punjab and abolition of Vidhan Parishad, the employees of Vidhan Parishad were absorbed in other departments of Punjab State. Gurdial Singh Gill was absorbed in Punjab Civil Secretariat as Assistant in the higher pay scale of Rs.225-500/- on 11.03.1970. He was appointed as an Assistant later than the petitioner. Similarly, Gurdial Singh Gill was promoted as Superintendent Grade-II on 12.01.1989, whereas the petitioner was promoted as Superintendent Grade-II on 20.09.1988. Again, for promotion to the post of Superintendent Grade-I, the petitioner was promoted on 29.06.1989, whereas Gurdial Singh Gill was promoted as Superintendent Grade-I on 27.02.1991. Gurdial Singh Gill retired from service on 31.12.1993, whereas the petitioner retired from service on 30.09.1995. It is stated that the pay scales of the Punjab Government employees were revised pursuant to the Third Pay Commission's recommendations, vide Punjab Civil Services (Revised Pay) Rules, 1988, CWP No.17958 of 1998 3 notified by the respondents. These rules were made effective from 01.01.1986. It is alleged that as a result of the application of the rules aforesaid, certain anomalies took place in the matter of pay and some junior employees were getting higher pay scale vis-a-vis their seniors. Pay of Gurdial Singh Gill was fixed in the higher pay scale than the petitioner. Keeping in view these anomalies, some similarly situated employees invited attention of the Government and the Government too wanted to remove such anomalies. Therefore, it was decided by the Department of Finance, under the orders of the President of India, that the pay of the senior employees who were getting less than their juniors, be stepped up in such a manner so as to bring them at par in relation to their juniors. A circular in this respect was issued by the respondents on 21.06.1990 which was made effective from 01.05.1990 for stepping up the pay of the senior employees at par with their juniors in order to rectify the anomaly. Accordingly, the petitioner made representation dated 30.05.1994 for stepping up of his pay at par with Gurdial Singh Gill in terms of the government instructions dated 21.06.1990. On consideration, the pay of the petitioner was stepped up at par with Guardial Singh Gill vide order dated 05.07.1994. The next increment was due on 01.04.1992 which was the date of next increment in the case of Gurdial Singh Gill. After his retirement, the petitioner was served with a communication dated 24.09.1997 (Annexure P-4) proposing to withdraw the order dated July 05, 1994. The petitioner represented against the aforesaid memo (Annexure P- 4) vide his representation dated 16.09.1997 (Annexure P-5). The Chief Secretary to the Government of Punjab, however, passed the order dated 13.03.1998 (Annexure P-6) withdrawing the benefit of stepping up of pay of CWP No.17958 of 1998 4 the petitioner at par with Gurdial Singh Gill. The petitioner, however, made further representations against the aforesaid order. He was asked to appear for personal hearing before the Additional Secretary, Secretariat Administration, vide letter dated 05.06.1998 (Annexure P-10). The petitioner appeared before the Secretary aforesaid. Respondents, however, passed the impugned order dated 28.09.1998 (Annexure P-13). Consequently, petitioner's pay has been revised by withdrawing the stepping up order with effect from 01.04.1991 by issuing a salary slip dated 28.09.1998 (Annexure P-14). The petitioner has accordingly challenged the orders dated 13.03.1998 (Annexure P-6) and 28.09.1998 (Annexure P-13) as also the subsequent orders passed in this respect with a further prayer to stay the recovery. The State of Punjab has filed its detailed reply justifying the action of withdrawal and refixation of the petitioner's salary at par with Gurdial Singh Gill. It is stated that the petitioner was not entitled to up- gradation of his pay at par with Gurdial Singh Gill in terms of the government instructions dated 21.06.1990. I have heard the learned counsel for the parties at length. Both the parties have relied upon government instructions dated 21.06.1990. The petitioner is claiming benefit on the basis of the said government instructions whereas the respondents have pleaded that the petitioner is not entitled to the benefit of the said government instructions. Thus, it is relevant to notice the above mentioned government instructions dated 21.06.1990. The relevant extract of the instructions dated 21.06.1990 is as under:- “2) In cases where a Govt. employee is CWP No.17958 of 1998 5 promoted to a higher post prior to the 14th day of September, 1988 and draws a lower rate of pay in that post than another Govt. employee who is junior to him in the lower post and who has been promoted to another identical post on or after the 14th day of September, 1988 the pay of the Govt. employee who is senior shall be stepped up to an amount equal to the pay as fixed for the Government employee who is junior in that higher post. The stepping up shall be done with effect from the 1st day of May, 1990, in respect of the cases pertaining to the period prior to the 1st May, 90 and in respect of cases falling on or after 1st May, 1990, it shall be done with effect from the date of promotion of the Govt. employee who is junior or from the date of such Government employee starts drawing more pay than that of a Government employee who is senior, subject to the following conditions, namely: a) both the aforesaid Government employee should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre, b) both the aforesaid Government employee should be in the same scales of pay in the lower as well in the higher posts in which they are entitled CWP No.17958 of 1998 6 to draw pay; c) the Government employee who is senior is promoted before the 14th Day of September, 1988 and had been drawing equal or more pay in the lower post than that of the Government employee who is junior promoted on or after the 14th day of September, 1988; d) the anomaly should be directly as a result of the application of the provisions of rule 8 of the Punjab Civil Services (Revised Pay) Rules, 1988 or any other rule or order regulating pay fixation on such promotion. If in the lower post, the Government employee who is junior was drawing from time to time a higher rate of pay than the Government employee who is senior by virtue of fixation of pay under the normal rules or any advance increment is granted to him, the provisions contained in these instructions shall not be invoked to step up of the Government employee.” These instructions were issued for the removal of anomaly by stepping up the pay of a senior employee drawing less pay than a junior employee. From the perusal of these instructions, it is evident that the instructions are applicable where anomaly is created on account of pay revision. The necessary conditions for grant of benefit under these instructions have been enumerated from points “a” to “d”. For the CWP No.17958 of 1998 7 application of these instructions, it is necessary that both the government employees should belong to the same cadre and posts in which they have been promoted, both the employees should be in the same pay scale in the lower as well as in the higher pay scale in which they were entitled to draw the pay. The government employee who is senior and is promoted before 14th day of September, 1988 and had been drawing equal or more pay in the lower grade of pay with that of the government employee who is junior promoted on or after 14th day of September, 1988, and the anomaly should be directly as a result of the application of the provisions of the Rule 8 of the Punjab Civil Services (Revised Pay) Rules, 1988. It is further mentioned that if in the lower post government employee who is junior was drawing from time to time a higher rate of pay than the government employee who is senior by virtue of fixation of pay under the normal rules or any advance increment is granted to him, thus, the senior government employee will not be entitled to the benefit of these instructions. It is clear and categorical case of the state-respondents that Gurdial Singh Gill who was transferred and adjusted from the service of Vidhan Parishad on its abolition was already drawing higher pay than the petitioner at the time of his adjustment. When Gurdial Singh Gill was adjusted and absorbed in the Punjab Civil Secretariat service as an Assistant, he was in the higher pay scale of Rs.225-500/-. As a matter of fact, Gurdial Singh Gill was always drawing higher pay than the petitioner after his absorption. Otherwise also, instructions dated 21.06.1990 are applicable where the anomaly is created on account of revision of pay under the Revised Pay Pules, 1988. Further a senior is entitled to the benefit of these instructions if he was promoted before 14th day of September, 1988 and had been drawing equal or more CWP No.17958 of 1998 8 pay than that of the government employee who is junior and promoted on or after 14th day of September, 1988. It is not the case of the petitioner that he was drawing equal or more pay than Gurdial Singh Gill before his promotion to the post of Superintendent Grade-II. The petitioner was granted the benefit of stepping up of pay at par with Gurdial Singh Gill vide order dated July 05, 1994, with effect from 01.04.1991 i.e. in the cadre of Superintendent Grade-I. The petitioner was promoted as Superintendent Grade-I1 on 29.06.1989 i.e. much after 14th day of September, 1988, the date specified in the government instructions dated 21.06.1990. The anomaly in the pay scale was not on account of revision of pay under the Revised Pay Rules, 1988. Under these circumstances, the benefit granted to the petitioner vide order dated 05.07.1994 was apparently contrary to the government instructions dated 21.06.1990, The respondents have rightly withdrawn this benefit from the petitioner. Though the petitioner was not entitled to up-gradation of his pay at par with that of Gurdial Singh Gill, but one thing is clear that the benefit was granted to the petitioner on the bonafide interpretation of the government instructions dated 21.06.1990 and not on account of any mis- representation or fraud on the part of the petitioner. Even though the respondents are entitled to withdraw the benefit, however, no recovery is permissible in view of the dictum of the Full Bench judgment of this Court rendered in Budh Ram and others Vs. State of Haryana and others, (CWP No.2799 of 2008) decided on 22.5.2009, wherein the following observations have been made:- “We have, therefore, no hesitation in holding that in case the employees who are recipient of the CWP No.17958 of 1998 9 benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not been any way contributed to such erroneous interpretation or have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them.” Petitioners in CWP Nos.18340 of 1998 and 5557 of 1999 have been granted stepping up of pay at par with Amrik Singh who was junior to them. Since Amrik Singh has not been found entitled to the benefit, these petitioners are also not entitled to any such benefit. However, in their case as well, the benefit was not granted on the basis of misrepresentation or fraud on their part. Therefore, no recovery can be effected from the petitioners in the aforesaid two petitions as well. In the totality of the circumstances these writ petitions are disposed of with the following directions: i) Challenge to the impugned orders in the writ petitions in so far they relate to withdrawal of the benefit and refixation of the pay of the petitioners is unsustainable. Therefore, the writ petitions regarding challenge to the withdrawal of the benefit and refixation of pay, are dismissed. Consequently, respondents may re-fix the pay and resultantly the pensionary benefits of the petitioners. CWP No.17958 of 1998 10 ii) However, respondents are not entitled to recover any amount from the petitioners in view of the dictum of the Full Bench judgment of this Court in Budh Ram's case (supra). iii) The action of the respondents in making recovery from the petitioners is uncalled for and is hereby set aside. If any recovery has been made from the petitioners, the same shall be refunded to them within a period of three months from the date a certified copy of this order is made available. A copy of this order be placed on the record of other connected files. 31.05.2011 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? NO