C.W.P.No.1427 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.1427 of 2009 Date of Decision:- 02.05.2011 Mohinder Paul Chopra ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Inderjit Kaushal, Advocate, for the petitioner. Ms.Monica Chhibber Sharma, DAG, Punjab. Mr.N.S.Boparai, Advocate, for respondents No.2 and 3. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present writ petition is for setting aside the order dated 14.11.2008 (Annexure P-26) vide which the representations dated 7.11.2007 and 16.1.2008 (Annexures P-23 and P-24) respectively, stand rejected and his claim with regard to the release of leave salary and gratuity has been declined, apart from his claim for revised pay-scales as per the decision dated 17/18.11.1998 (Annexure P-6). Counsel for the petitioner, after arguing the case for some time, does not press his claim with regard to the grant of leave encashment and gratuity but restricts his claim only to the grant of revision of his salary as per the decision of the respondents dated 17/18.11.1998. Counsel for the petitioner contends that the petitioner retired on C.W.P.No.1427 of 2009 -2- attaining the age of superannuation from Punjab Agro Industries as Manager (Accounts) on 30.11.1997. He was appointed as a Consultant in Punjab Energy Development Agency (hereinafter referred to as 'PEDA') on a consolidated salary of Rs.4000/- per month vide appointment letter dated 26.03.1998. As per Clause 6 thereof, he was liable to be transferred by the Appointing Authority from one post to another, within the Agency or to any place within which it may consider necessary, in the interest of PEDA. He joined the said post as a Consultant but thereafter vide order dated 16/17.4.1998, he was transferred as Manager (Finance). He continued to work as such and thereafter was transferred to Punjab Renewal Energy Development and Power Generation Company Limited, a subsidiary company of PEDA and performed his duties there as well. His term of appointment came to an end on 7.11.2007. During the interregnum, the amount of consolidated salary of Rs.4000/- was increased to Rs.4500/- on 12.2.1999 and thereafter to Rs.7000/- vide order dated 9.4.2001 (Annexure P-16). He submits that a Committee was constituted by the Punjab Energy Development Agency vide its decision dated 11.6.1998 (Annexure P-4) to consider the case for grant of pay scales to different categories of contractual employees. The Committee so constituted made its recommendations for revision of salaries of contractual employees which was accepted by PEDA and an office order dated 17/18.11.1998 (Annexure P-6) was passed. According to the said office order, a formula was specified with regard to fixing of the basic salary of the employee who was working on contractual basis on 22.5.1998 and was drawing consolidated salary. The petitioner although was also appointed on contractual basis and was drawing a consolidated salary but this benefit was not granted to him C.W.P.No.1427 of 2009 -3- and instead certain jumps were provided to him which have already been pointed out earlier. He submits that since the petitioner possessed all the requirements which were to be fulfilled as per the decision dated 17/18.11.1998, the non-grant of the revision in the salary to the petitioner cannot be sustained and the claim as made by the petitioner in the present writ petition qua this deserves to be allowed. On the other hand, counsel for the respondents submits that the terms of appointment letter of the petitioner would govern his conditions of service. He contends that the petitioner was appointed as a Consultant on a consolidated salary of Rs.4000/- per month. He was given the said salary and thereafter his salary was increased to Rs.4500/- and Rs.7000/- respectively. He contends that though the emoluments were determined on various dates but as per his terms of appointment, the petitioner was not entitled to the claim of fixation of his salary as in the case of other contractual employees on revision thereof. Further, he contends that the petitioner had been given contractual appointment after his superannuation and for that reason also, he would not be entitled to the same benefit as has been granted to the other contractual employees. In support of his contention that the terms of appointment of the petitioner are to be governed as per the contract of his appointment, reliance whereof has been placed on the Supreme Court judgment in the case of State of Haryana and others vs. Charanjit Singh and others, (2006) 9 Supreme Court Cases 321. A further contention has been raised by him wherein he contends that past practice which may have been followed by the Corporation would not confer any right on the petitioner when his conditions of service were to be governed by his term of C.W.P.No.1427 of 2009 -4- appointment, cannot be used as a precedent for granting him the same benefit. In support of this contention, he relies upon the judgment of the Hon'ble Supreme Court in the case of State of U.P. and another vs. Santosh Kumar Mishra and another, 2010 (3) Apex Court Judgments 356. Accordingly, he prays for the rejection of the claim of the petitioner and dismissal of the writ petition. I have heard counsel for the parties and have gone through the records of the case. The claim of the petitioner is dependent upon the decision dated 17/18.11.1998 (Annxure P-6). The only question which needs to be decided in this case is whether the said decision would be applicable to the case of the petitioner or not. The facts relevant in this regard would be that the recommendations which were made by the Committee which was constituted by the PEDA for grant of pay-scales to different categories of contractual employees vide order dated 11.6.1998, shows that the recommendations so made by the Committee for revision in the salaries of contractual employees was accepted by PEDA according to which the recommendations were to be given effect to with effect from 22.5.1998. The emoluments drawn by each contractual employee on 22.5.1998 were to be discounted back into the basic salary as per the formula provided in those recommendations. On the basis of the formula, if an employee was getting a consolidated salary of the specified amount, it was worked out as to what would be the basic salary of the employee. The annual increments were also enumerated therein and even the calculation of DA and HRA was also specified therein. The office order puts no embargo with regard to the age or the appointment after superannuation as far as the applicability of C.W.P.No.1427 of 2009 -5- this order to the contractual employees was concerned. It would, thus, be applicable to all contractual employees as on 22.5.1998. Admittedly, the petitioner was one of them. If that be so, the petitioner cannot be denied the benefit of the office order dated 16/17.11.1998. The stand which has been taken by the respondents for denying the benefit to the petitioner is that his appointment was on contractual basis and, therefore, his service conditions were governed by that, would not be a good ground, for the reason that other contractual employees were also appointed on purely contractual basis with their terms and conditions also specified therein but still they were held entitled to the said benefit and were granted as well. The judgment in Charanjit Singh's case (supra), would thus not be applicable to the case in hand. Similarly, the contention of the counsel for the respondents relying upon the judgment of the Supreme Court in Santosh Kumar Mishra's case (supra) would also not be applicable to this case as the present case is one where the petitioner had a right of consideration on the date when this office order i.e. 22.5.1998 came into effect and the petitioner on all fours is covered by the ambit and applicability of the order itself, he being a contractual employee. This is not a case where some benefit has been granted and is being claimed as a precedent but it is a case where the employee is in service on the date the order is passed and, therefore, would be applicable entitling him ipso facto the benefits. The contentions, thus, as raised by the respondents not accepting the claim of the petitioner cannot be sustained as the same is neither justified nor in accordance with the office order dated 17/18.11.1998 (Annexure P-6). At this stage, counsel for the respondents has come up with an argument that the claim, if any, should have been made by the petitioner C.W.P.No.1427 of 2009 -6- while he was in service. He having accepted initially the increase in his salary from Rs.4000 to Rs.4500 vide office order dated 12.2.1999 (Annexure P-7) and thereafter from Rs.4500 to Rs.7000/- vide office order dated 9.4.2001 (Annexure P-16), cannot now turn around and make a claim based on an office order dated 22.5.1998 (Annexure P-6) after having accepted and taken the benefit thereof. This contention of the counsel for the respondents cannot be accepted for the reason that it is a recurring loss and the cause of action does not come to an end as it would accrue to him every month. Another aspect which has been highlighted by the counsel for the respondent is that his claim for gratuity and leave encashment was rejected under Rules 7.1 and 7.2 of the Punjab Civil Service Rules Vol.2 Chapter VII and Rule 6.16 C (3)(C) Vol.II of the said Rules. That may be so but since the petitioner has foregone his claim for the grant of gratuity and leave encashment, no adjudication on that issue is required by this Court in the present case. In view of the above, the present writ petition is allowed to the limited extent of his prayer for grant of claim of pay revision as per the office order dated 17/18.11.1998 (Annexure P-6) from the date of its accrual till the date of his relinquishing the charge. The benefits be released to the petitioner within a period of three months from the date of receipt of copy of this order. It would, however, be open to the respondents to adjust the amount of salary which has been paid to him at the rates as and when granted to him during his term as an employee of the PEDA. May 02, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE