CWP No. 12540 of 2007. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 12540 of 2007. [O&M] Date of Decision: 11th March, 2011. Sher Ali Petitioner through Mr. A.K.Walia, Advocate Versus The Punjab State Electricity Board & Ors. Respondents through Mr. Suvir Sehgal, Advocate. 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? SURYA KANT, J. [ORAL] This order shall dispose of CWP Nos. 12456 of 2006 and 12540 of 2007 as common questions of law and facts are involved in both these cases. For the sake of brevity, the facts are extracted from CWP No. 12540 of 2007. [2]. The petitioner seeks quashing of the order dated 10.10.2005 [Annexure P-12] whereby his pay has been re-fixed and reduced retrospectively after his retirement w.e.f. 29.02.2004 and consequential recovery has been ordered to be effected. [3]. The petitioner joined the respondent Board as a Sub Station Attendant on 15.11.1973. While serving as such, the petitioner was granted the first time-bound promotional scale w.e.f. 30.03.1987 on completion of nine years' service followed by the second time-bound promotional scale on completion of 16 years' service. [4]. Thereafter, the petitioner was offered promotion to the CWP No. 12540 of 2007. ::-2-:: post of Assistant Executive Engineer on 11.10.2001 which he decided to forego allegedly due to family circumstances. The petitioner ultimately retired as Junior Engineer-cum-Sub Station Attendant w.e.f. 29.02.2004. [5]. The respondents vide the impugned orders have withdrawn the first and second time-bound promotional scale granted to the petitioner w.e.f. 30.03.1987 and 30.03.1994 respectively on the premises that later on he had foregone the promotion offered on 11.10.2001. [6]. The question as to whether the time-bound promotional scale earlier granted to an employee can be withdrawn on the ground that he refused to accept the promotional post offered subsequently, was considered by this Court in the light of the Punjab Government policy decision dated 23.04.1990 in CWP No. 2587 of 2009 decided on 12.8.2010 [Rattan Chand v Punjab State Electricity Board & Ors.] holding:- “(9). In the case in hand, the 1st and 2nd time-bound promotional scales were granted to the petitioner on 11.10.1990 and 18.06.1993, respectively. There is indeed no denial to the fact that the petitioner got no offer for promotion as Lineman before 18th June, 1993. As a matter of fact the first ever promotion offered to the petitioner was on 27th December, 2001 only, which he declined to accept may be due to the fact that he was nearing retirement and was not willing to shift to a new place of posting. (10). The clarificatory Circular dated 26.07.1990 (Annexure R3/1) nowhere provides nor it can lead to such absurd consequences that a promotion offered after 16 years of service would take away the service benefit CWP No. 12540 of 2007. ::-3-:: given to an employee on completion of 9 years’ service. Since the petitioner never refused to accept the promotion before he was granted the time-bound promotional pay scales on completion of 9/16 years of service, the subsequent offer for such promotion and that too at the fag end of his career, cannot take away the time bound promotional scales which were rightly granted to him being a stagnated employee”. [7]. Learned counsel for the respondent Board, however, has made an attempt to defend the decision in Rattan Chand's case [supra] explaining that subsequently the Board had issued a circular dated 10.11.2004 clarifying as follows:- [i] Where the officials were promoted from LDCs to UDCs after availing 2nd TBPS and the promotion was foregone by them. After three years they were again promoted as UDCs and they availed the promotion. The benefit should be held-in-abeyance and be restored from the date of joining the promoted post instead of the date it was due. [8]. The afore-stated clarification issued in the case of UDCs/ LDCs was made applicable to the other category of employees vide Circular dated 29.11.2004 [Annexure R-2] which reads as follows:- “Necessary clarification regarding grant of Time Bound Promotional Scales to the employees who have foregone their promotions after/before availing time bound promotional scales, has already been issued vide this office endst. No. 161562/162413 dated 10.11.2004. A copy of the same has been endorsed to all EICs/GMs/CEs for taking necessary action in the matter, which may be referred to. However a copy of the same is attached herewith for ready reference. If still any clarification is required, individual case complete in all CWP No. 12540 of 2007. ::-4-:: respects giving full justification along with service record, can be sent to this office”. The afore-stated clarification was reiterated vide subsequent circular dated 31.12.2004 [Annexure R-3]. [9]. Learned counsel also pressed into aid a Division Bench decision of this Court in Rakesh Kumar v State of Haryana & Ors., 2010[1] RSJ, 715 to contend that even if an employee foregoes his promotion subsequent to the grant of such pay scale, the promotional pay scale could still be withdrawn. [10]. I have considered the afore-stated additional submission made on behalf of the respondent, however, I am unable to accept the same. I say so for the reason that firstly the executive instructions dated 10.11.2004, 29.11.2004 and 31.12.2004 [Annexures R-1 to R- 3] were not in existence at the time when the petitioner was offered promotion on 11.10.2001 or even during the period of his service till he retired on 29.02.2004. These instructions though classified as clarificatory in nature have substantially changed the original policy dated 23.04.1990 and since the same intend to withdraw a service benefit already granted to an employee, these instructions can not be given retrospective effect. In the very nature of things, the instructions would be prospective in nature and would not apply in the case of the petitioner inasmuch as the first and second time- bound promotional scales were given to him in 1984 and 1990 and offer of promotion was made to him on 11.10.2001. Similarly, the Division Bench decision of this Court in Rakesh Kumar's case [supra] is also distinguishable as in that case Rule 11 of the ACP Rules [framed under proviso to Article 309 of the Constitution and CWP No. 12540 of 2007. ::-5-:: statutory in character] expressly provided that if a government employee chooses to forego any functional promotion on any ground whatsoever, drawing his pay in any ACP scale with reference to him, he shall cease to be entitled to draw his pay in the ACP pay scales and shall draw his pay in the functional pay scale prescribed for the post on which he is substantively working from the date of such forego of promotion. The Division Bench while giving literal meaning to the Rule has held that the grant of ACP in the case of Haryana Government employees would be regulated by Rule 11 and if after the grant of ACP an employee has been offered promotion which he foregoes, he shall cease to be entitled to be placed in the ACP scale from the date of foregoing his promotion. Contrary to it, the policy dated 23.04.1990 as clarified subsequently vide Memo dated 26.07.1990 issued by the respondent Board does not contain any such clause. That being so, it is held that the petitioner's case would be covered by the ratio-decidendi of Rattan Chand's case [supra]. [11]. For the reasons afore-stated, the writ petitions are allowed and the impugned order dated 10.10.2005 [Annexure P-12] is quashed. Recovery, if any, made from the petitioner shall be refunded to him. All the retiral dues of the petitioner shall also be re- fixed within a period of three months from the date a certified copy of this order is received. [12]. Disposed of. Dasti. March 11, 2011. ( SURYA KANT ) dinesh JUDGE