CWP No.12161 of 2008.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.12161 of 2008 Date of Decision: 04.08.2010 **** Tarsem Lal Aggarwal . . . . Petitioner VS. Punjab State Electricity Board & Anr. . . . . . 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. VK Shukla, Advocate for the petitioner Mr. PS Mattewal, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). The petitioner who has retired from Punjab State Electricity Board from the post of Internal Auditor seeks w.e.f. 31.03.2008 seeks quashing of the order dated 9th June, 2008 (Annexure P7) to the extent of recovery of Rs.1,18,167/- from the Gratuity payable to him on retirement. He also seeks re-fixation of his pay. (2). The petitioner joined the respondent-Board as a Lower Division Clerk on 30.06.1969, followed by his promotions as UDC and Circle Assistant w.e.f. 15.11.1978 & 19.06.1998, respectively. Meanwhile, the petitioner was granted time-bound CWP No.12161 of 2008.doc - 2 – promotional pay scale on completion of 16 years of service w.e.f. 15.11.1994 and second time-bound pay-scale on completion of 23 years of service w.e.f. 15.11.2001. The petitioner was thereafter offered promotion to the post of Internal Auditor on 06.01.2004 which he declined and opted to forego the same. The petitioner was again offered and he accepted the promotion on the post Internal Auditor w.e.f. 05.03.2008 and soon thereafter retired w.e.f. 31st March, 2008 on attaining the age of superannuation. (3). The respondents have now ordered the recovery of Rs.1,18,167/- from the Gratuity of the petitioner on the plea that in terms of the Board’s Circular dated 08.04.2003 (Annexure R1), the second time- bound promotional pay-scale granted to him on completion of 23 years’ service w.e.f. 15.11.2001 was inadmissible as he had refused to accept promotion on 06.01.2004. (4). The respondents, thus, intend to recover the alleged excess pay received by the petitioner w.e.f. 15.11.2001 in the second promotional pay-scale, referred to the above. The respondents have also re-fixed the petitioner’s pay after withdrawing the second promotional pay scale. CWP No.12161 of 2008.doc - 3 – (5). I have heard the learned counsel for the parties and perused the records. (6). There are two issues that arise for consideration. Firstly, whether or not the respondents are justified in law to effect recovery from the petitioner? It is nowhere averred in the written statement that the petitioner misrepresented the facts or played fraud or deceived the authorities to secure the second promotional pay- scale on completion of 23 years of service. The respondents at their own continued to pay the second promotional pay-scale to the petitioner even after he had refused to accept promotion w.e.f. 06.01.2004, notwithstanding the circular dated 08.04.2003 (Annexure R1). That being so and in the light of the Full Bench decision of this Court in Budh Ram & Others vs. State of Haryana & Others, 2009(3) PLR 511 as well as the recent decision by the Supreme Court in Registrar, Cooperative Societies Haryana and others v. Israil Khan and others, (2010) 1 SCC 440, no recovery can be allowed to be effected from the petitioner. (7). Adverting to the second issue, namely, re-fixation of the petitioner’s pay after stopping/withdrawal of CWP No.12161 of 2008.doc - 4 – the second promotional pay-scale, it would be apposite to reproduce the circular dated 08.04.2003 (relevant extracts only) which reads as follows:- “In this connection, it is stated that as per instructions issued vide this office Memo No.77/194427/E.N.G/G-212 dated 22.10.93, if any employee forego his promotion for 3 years then in that eventuality the payment made to him on account of first/second time bound promotional scale of 9/16 is liable to be stopped. If that employee do not get promotion after 3 years again or forego promotion for ever or before completion of his 3 years period of his promotion he avails voluntarily retirement from the services of the board or at the age of 58 years gets retired from the services of the above, in that eventuality the time promotional scale given to him under 9/16 years first/second time is liable to be withdrawn. So far as its recovery is concerned, it could be made in lumpsum or in more instalments.” (8). The solitary object of granting the time bound promotional pay-scale to an employee is to remove stagnation in his service career. The Board has obviously restricted the grant of time bound promotional pay scales to those employees only who do not get an opportunity for promotion. It is apparent that if an employee foregoes the promotion offered to him, the first and second CWP No.12161 of 2008.doc - 5 – time-bound promotional pay scale, if already granted to him, are liable to be stopped. In case he refuses to accept promotion even on second time, in that event these promotional pay-scales are also liable to be withdrawn. The petitioner declined promotion in first opportunity though he accepted the same when offered second time on 05.03.2008. The promotional pay scales in his case were, thus, liable to be stopped. However, the respondents continued to pay these promotional scales to the petitioner without any misrepresentation on his part, therefore, no recovery can be effected from him but the refixation of his pay on stopping/withdrawal of these pay scale(s) is consistent and in consonance with the Board’s Circular dated 08.04.2003 (Annexure R1) and warrants no interference by this Court. (9). For the reasons afore-stated, the writ petition is allowed in part and the impugned order dated 09.06.2008 (Annexure P7) to the extent of ordering recovery of Rs.1,18,167/- is hereby quashed. However, the order qua re-fixation of the petitioner’s pay is upheld. The amount, if any, recovered from the petitioner shall be refunded to CWP No.12161 of 2008.doc - 6 – him within a period of three months from the date of receipt of a certified copy of this order. (10). Ordered accordingly. (11). Dasti . (SURYA KANT) JUDGE 04.08.2010 vishal shonkar