CWP No.5558 of 2009 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANT AT CHANDIGARH CWP No.5558 of 2009 Date of Decision: August 19, 2010 Sukhbir Singh …..Petitioner Versus Uttari Haryana Bijli Vitran Nigam Ltd. and others …..Respondents CORAM: HON’BLE MR. JUSTICE PERMOD KOHLI Present: Mr. R.K. Malik, Sr. Advocate with Mr. Nikhil Sharma, Advocate for the petitioner. Mr. Sagar Deswal, Advocate for the respondents. PERMOD KOHLI, J. Petitioner was initially recruited as a Peon in the Haryana State Electricity Board in the year 1973 and he was promoted as Bill Distributor and then Lower Division Clerk on 22.11.1979 and thereafter as Upper Division Clerk on 07.03.2006. He retired from service on 30.04.2008 on attaining the age of superannuation. It is stated that he was granted GPF and Leave Encashment but gratuity, pension and commutation of pension has not been released to him till date. It is further stated that the petitioner has not been granted 1st and 2nd ACP on rendering 10 years and 20 years of regular service. After his retirement respondents calculated an amount of Rs.2,37,000/- as recoverable from the petitioner on account of withdrawal of the benefit of increments from the date when the petitioner was promoted as LDC. Petitioner served a legal notice 1 CWP No.5558 of 2009 claiming the payment of unpaid retrial benefits. In response to the legal notice, he was informed by the Executive Engineer, Sub-Urban Division, UHBVN, Sonepat vide letter dated 06.04.2009 that due to finalization of recovery on account of non-passing of type test there has been a delay in payment of retiral benefits. Aggrieved against the action of the respondents, the petitioner has filed the present petition to challenge withdrawal of increments granted to him and consequent recovery and also claimed ACP benefits. In the reply filed it is stated that the petitioner was required to pass type test within six months on joining the promotional post of LDC. The petitioner, however, failed to pass the type test and thus, the increments released to him are recoverable. While promoting the petitioner as LDC vide order dated 22.11.1979 following conditions was incorporated: “….2. The above officials from Sr. No.2 to 8 will have to qualify a Type Test within six months on their joining as LDC and on the qualification of the said test their regular promotion orders will be issued.” It is not in dispute that the petitioner did not pass the type test within the stipulated period or even thereafter. However, it is admitted position that the petitioner was promoted to the post of UDC on 07.03.2006. During the period, the petitioner remained in service all increments due to him were released but no action was proposed in any manner. At the time of promotion of the petitioner there was no statutory requirement of passing of such test 2 CWP No.5558 of 2009 notwithstanding such condition having been incorporated in the promotion order. Haryana State Electricity Board however, amended its recruitment and promotion policy vide office order dated 23.02.1989 and a condition was incorporated for passing of the type writing test in Hindi/English at a speed of 25/30 words per minute within one year of promotion, failing which annual increment, was to be denied. This amendment in the recruitment policy was further reiterated vide notification dated 19.10.1990. The relevant condition incorporated in the recruitment and promotion policy is reproduced as under: “….1.2.3. Such official shall have to qualify test in type-writing in Hindi/English at the speed of 25/30 WPM respectively within one year of his promotion. IN case, a promotee fails to qualify the prescribed test within the stipulated period, he/she shall not be allowed any annual increment till the passing of said test. However, no reversion will be made on lower post from which he/she was promoted as LDC. The benefits of all increments earned but not allowed due to non-passing of test will be allowed from the date of passing of the prescribed test. The benefits of increments, so allowed, be given towards pay fixation only and no arrear will be paid for the period during which he/she could not qualify the test.” I have heard learned counsel for the parties at length. 3 CWP No.5558 of 2009 Learned counsel appearing for the respondents has vehemently argued that in view of the condition in the promotion order, amendment in the recruitment policy in the year 1989-90, the petitioner was required to pass type test and on failure to pass type test he was not entitled to increments. No doubt, there was a stipulation in the promotion order but such stipulation was without any legal sanction. The petitioner was promoted in the year 1979. In the promotion order there was no stipulation regarding penal consequences for non-passing of the type test and petitioner was only required to pass the type test within 6 months but on expiry of six months no action was contemplated or initiated against the petitioner. He continued to work as LDC and even promoted to the post of Upper Division Clerk without any action against him. It was only in the year 1989 the promotion policy was amended with incorporation of penal clause of non-grant of annual increments which was reiterated in the year 1990 policy. Petitioner’s promotion is prior to these policies and these policies are only prospective and cannot be applied retrospectively to the date of promotion of the petitioner. Thus, action of respondents in withdrawing the increments already granted to the petitioner after his retirement is unwarranted and illegal. Otherwise also a Full Bench of this Court in Budh Ram & Others Vs. State of Haryana and others held as under: “We have therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interception or application of 4 CWP No.5558 of 2009 any rule, regulation, circular and instructions have not in any way contributed to such erroneous interception nor 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.” It is not the case of the respondents that the increments were released to the petitioner on account of any fraud or mis- representation. The ratio of the judgment of Full Bench referred to above is fully applicable in case of the petitioner and thus no recovery is permissible from the petitioner. Insofar the claim of the petitioner for grant of ACPs is concerned, learned counsel for the petitioner submits that the persons junior to him are/were getting higher pay than the petitioner by placing them in ACP scales. There is no such specific averments in this regard. Respondents have stated that the petitioner is not entitled to ACP benefits. In absence of specific averments, it is not possible to adjudicate upon this controversy. Learned counsel for the petitioner submits that he may be permitted to make a detailed representation to the respondents for the release of ACP. Since, the action of the respondent in effecting the recovery by withdrawing the annual increments is totally unwarranted, the petitioner is entitled to refund of the amount, if any, recovered from him. This petition is accordingly allowed. Respondents are directed 5 CWP No.5558 of 2009 to release the benefit of all increments to the petitioner earned by him during his service without making any recovery. Retiral benefits of the petitioner be re-determined and revised pensionary benefits be also released within a period of two months from the date of receipt of certified copy of this order. Petitioner, shall have the liberty to make the representation for ACP benefits. 19.08.2010 (PERMOD KOHLI) vcgarg JUDGE Note: Whether to be referred to the Reporter or not? Yes. 6