IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 5360 of 1995 (O&M) Date of Decision: April 1, 2011 Chaman Lal Goyal ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MS JUSTICE RITU BAHRI Present: Petitioner in person. Mr. Suvir Sehgal, Additional Advocate General, Punjab 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI, J. 1. The instant petition filed under Article 226 of the Constitution seeks a writ in the nature of certiorari declaring Rule 8 of the Punjab Civil Services (Revised Pay) Rules, 1988 (for brevity, 'the Rules') ultra vires Articles 14 and 16 of the Constitution. A further prayer has been made to direct the respondents to fix the pay of the petitioner after granting him the benefit of two increments on promotion as Superintendent Central Jail, without taking into account the time as envisaged under Rule 8 of the Rules. 2. There is no dispute insofar as the factual position is concerned. On 22.11.1957, the petitioner joined as Clerk in the respondent State of Punjab. During the course of employment he got various promotions. On 1.1.1969, he joined the Punjab Prisons Service Class II as Deputy Superintendent Grade-II. On 14.5.1981, C.W.P. No. 5360 of 1995 (O&M) he was promoted as Deputy Superintendent Jail Grade-I and posted as Superintendent District Jail, Nabha, vide order dated 13.6.1986. Lastly, he was posted as Superintendent Central Jail, Gurdaspur, vide order dated 11.12.1986, where he joined on 2.1.1987. 3. On 14.9.1988, the State of Punjab notified ‘the Rules’ for implementation of the recommendations of the Third Punjab Pay Commission. Rule 2 prescribes the date of enforcement of ‘the Rules’ as 1st day of January, 1986. However, Rule 8, which deals with grant of two increments on promotion to the higher posts, makes a stipulation that the benefit of two increments would be admissible to only those persons who are promoted to a higher post after the date of publication of notification in Punjab Government Gazette notifying ‘the Rules’, which is 14.9.1988. Rule 2 and relevant extract of Rule 8 of ‘the Rules’ reads thus:- “2. They shall be deemed to have come into force on and with effect from the first day of January, 1986. “8. Fixation of pay on promotion: Notwithstanding anything contained in these rules, in case of promotion to a higher post effected after the date of publication of this Notification in Punjab Government Gazette, the benefit of minimum of two increments shall be given while fixing the pay in the scale of the higher post. The next increment in the scale of the higher posts shall be allowed after the completion of twelve months qualifying service in that scale.” 2 C.W.P. No. 5360 of 1995 (O&M) 4. On 6.2.1989, the pay of the petitioner was fixed in the revised pay scale (P-2). While fixing his pay in the revised scale of pay under Rule 8 of ‘the Rules’ he was granted the benefit of only one increment on promotion w.e.f. 3.1.1987 because he was promoted as Superintendent Central Jail earlier to the publication of ‘the Rules’ in the Punjab Government’s Gazette. The petitioner made a representation dated 7.3.1989 (P-3), followed by a notice under Section 80 CPC on 17.11.1990 (P-4). The grievance of the petitioner was that he was promoted to the higher post on a date prior to publication of ‘the Rules’ in the official gazette, thus, could not get the benefit of fixation of pay by getting two increments. The petitioner submitted that the condition stipulated under Rule 8 of ‘the Rules’ was in contravention and has an over-riding effect to Rule 2 which prescribes that ‘the Rules’ shall come into force from the 1st day of January, 1986. 5. It is pertinent to mention here that one Shri G.S. Grewal, who was working as a Chief Engineer in the State of Punjab filed CWP No. 15523 of 1990 in this Court challenging Rule 8 of 'the Rules'. Subsequently, a number of other writ petitions were also filed. On 16.11.1992, the CWP No. 15523 of 1990 and other writ petitions were disposed of by a learned Single Judge of this Court by holding as under: " After hearing counsel for the parties, I am of the view that the petitioner was entitled to the benefit of two increments at the time of his promotion. As already observed earlier, Rule 8 in its implementation is discriminatory and the anomaly having come to the notice was sought to be removed only w.e.f. 1.5.90. If 3 C.W.P. No. 5360 of 1995 (O&M) there is an anomaly in the implementation of the Rules and the same had to be removed, it goes without saying that it should be removed from the date when the Rules come into force. There would, in my opinion, be no meaning in removing an anomaly from the date subsequent to the date when the Rules came into force and the fixation of the subsequent date of 1.6.90 for removing the hardship anomaly in the case of seniors is equally arbitrary and the affected seniors are entitled to the benefits of Rule 8 from the date of enforcement of the Rules no matter they are promoted before the promulgation of the Rules. No reason or justification has been pointed out on behalf of the respondents as to why May 1, 1990 was fixed as the date with effect from which the anomaly was sought to be removed. Thus, if pay of the senior employees had to be stepped up in order to remove the hardship then it should be stepped up from the date of enforcement of the Rules. The question that now arises is as to whether Rule 8 should be struck down as unconstitutional. If it is struck down the result would be that no employee whether promoted before or after the promulgation of the Rules will be entitled to the benefit of two increments which will work still greater hardship. Instead of striking down Rule 8 of the Rules, in my opinion, it should be read down as to give the benefit to all the employees who are promoted after the coming into force of the Rules irrespective of their dates of promotion whether they be 4 C.W.P. No. 5360 of 1995 (O&M) before or after the date of promulgation. For the reasons recorded above, the writ petitions are allowed and the petitioner are held entitled to the benefit of two increments at the time of their promotion with all consequential reliefs including the arrears and refixation of pension as a result thereof. The respondents are directed to grant the arrears and refix the pension of the petitioners on or before March 31, 1993. Parties are left to bearing their own costs." 6. It has also come on record that the judgment dated 16.11.1992, rendered by the learned Single Judge was challenged by the respondent State of Punjab in LPA No. 667 of 1993, which was dismissed in limine vide order dated 20.9.1993. The State of Punjab further filed SLP No. 5647 of 1994 which was also dismissed. Claiming the same relief, the petitioner also filed the instant petition. 7. During the pendency of the instant petition, on 16.5.1996 (P-11), the respondent State of Punjab issued a clarification regarding Rule 8 of 'the Rules', to the following effect:- "2. After examining the matter carefully in the Department of Finance, it is now clarified that the pay of such employees who were promoted to the higher posts during the period from 1.1.1986 to 13.9.1988 may be fixed notionally strictly in accordance with the provisions of Rule 8(1) of Punjab Civil Services (Revised Pay) Rules, 1988 on the date of their promotion and in case any employee was in service on 14.9.1988, arrears may be paid w.e.f. 14.9.1988. The cases in which the employees 5 C.W.P. No. 5360 of 1995 (O&M) had retired before 14.9.1988, after fixation of pay notionally their pension may be revised but arrears may be paid w.e.f. 14.9.1988 only. In other words pay/pension for the period from 1.1.1986 to 13.9.1988 may be fixed notionally and no arrears on account of fixation of pay/pension would be payable to such beneficiaries for the said period." 8. The matter in hand went to the Lok Adalat. On 18.10.2007, the Lok Adalat of this Court directed the respondents to reconsider the matter within three months and to submit the report. On 8.2.2008, the Director General of Police (Prisons), Punjab, passed an order re-fixing the pay of the petitioner (P/A-1). However, it has been mentioned in the said order that no arrears would be given for notional fixation of pay up to 13.9.1988. Thereafter, the petitioner filed an application bearing Civil Miscellaneous No. 2552 of 2008 seeking permission to avail appropriate remedy by filing civil suit to claim arrears, interest and damages etc. from the respondents. 9. In view of the fact that the relief has been granted to the petitioner vide order dated 8.2.2008 (P/A-1) and nothing survives for adjudication by this Court. The instant petition has been rendered infructuous and disposed of accordingly with liberty to the petitioner to avail any other remedy in accordance with law. (M.M. KUMAR) (RITU BAHRI) JUDGE JUDGE April 1, 2011 Anoop/Pkapoor 6