CWP No.10089 of 2008 : 1 : In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 01.07.2009 Krishna Gupta ... Petitioner Versus The State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Surinder Garg, Advocate, for the petitioner. Mr.S.S. Gill, Deputy Advocate General, Punjab, for the respondents. PERMOD KOHLI, J. (Oral): The petitioner has joined as Staff Nurse on 11.09.1976 and regularised with effect from December, 1976. At the time of filing of the writ petition, she was working as Nursing Sister. On the basis of the recommendations of the Third Pay Commission, the financial benefit in the nature of Proficiency Step up was introduced by the State of Punjab vide its circular dated 01.12.1988 (Annexure P-1). The relevant condition for reckoning the period of 8 and 18 years for grant of Proficiency Step up has been incorporated in paragraph 7 of the aforesaid circular which reads as under :- “For reckoning the period of 8 and 18 years of CWP No.10089 of 2008 : 2 : entire service in the time scale, senior scale and selection grade (of mere placement and not involving fixation of pay at higher level) etc. where-ever available in a cadre, shall be counted. If an employee joins a scale at a stage higher than the minimum as a result of promotion or otherwise, his proficiency step up (s) would stand postponed by a number of years equal to the numbers of increments already covered by him from the minimum of the scale at the time of initial fixation of pay in the scale. That the step up is related to the number of years of service in a particular scale of and if an employee's pay is fixed by process of promotion at the sixth stage of a scale, he will be entitled to earn a step up in that scale only after 8 years if an employee serves in a scale of pay for more than 18 years and is not promoted to a higher scale on account of lack of promotional opportunities or non-availability of a vacancy in the promotion scale, he would be granted two step up (s) in his emoluments.” The aforesaid circular was clarified vide letter dated 01.09.1989 (Annexure P-6). The relevant clarificatory part “b” of that circular is reproduced hereunder:- CWP No.10089 of 2008 : 3 : (b) Whether an employee (in the ordinary scale of pay) drawing pay less than the minimum of the senior scale/selection grade when placed in the senior scale/selection grade in a period less than eight years will loss the benefit of Proficiency Step-up though he has not been promoted to a higher post in the official hierarchy. OR Some Assistants drawing Rs.750 or Rs.775 in the scale of pay of Rs.600-1120 were placed in the senior scale of Assistant of Rs.800-1400 and their pay was fixed at Rs.800, i.e. at the minimum of the scale of Rs.800-1400. Thus, on placement they got the benefit of one or two increments on getting the minimum of the senior scale. Are they eligible for PROP on completion of eight years total service as Assistant? OR A Clerk drawing basic pay of Rs.1000/- with six years of service was placed in the senior scale of Rs.1200-2100 w.e.f. Ist April, 1988. His basic pay was fixed at Rs.1200/- i.e. the minimum of the senior scale in the revised scale. Whether he is eligible for Proficiency Step-up after completing 8 years service in the senior scale or his entire service from the date of his appointment as Clerk is to be counted for the same as in the former case he had already been allowed financial benefit? (b) As per provisions contained in paragraph 1 (7) of the instructions issued by the Department of Personnel and Administrative Reforms vide its circular letter No.7/14/88-5PP (1) (2269)/ 18527, dated the Ist December, 1988 , an employee will be eligible for proficiency increment(s) only if he has not gained any enhancement in his basic pay, except by way of annual increments and fixation of pay as a result of revision of pay scales from time to time. Thus, in case the pay in the senior scale/selection grade is fixed at the minimum, whereby one gets the benefit of one or more increment (s) the service rendered against the post prior to the date of such fixation of pay will not be counted for the purpose of grant of Proficiency Step -up (s). However, the period of eight or eighteen years service will further be reckoned for the purpose of grant of Proficiency Step-up (s) from the start of placement in the senior scale/selection grade. CWP No.10089 of 2008 : 4 : On the basis of the aforesaid circular, the petitioner was granted the benefit of Proficiency Step up with effect from 01.01.1986 on completion of 8 years of service. During the same period, the petitioner was placed in the Selection Grade with effect from 01.01.1986 under the relevant pay rules. The petitioner continued to draw emoluments which, inter alia, include the Selection Grade benefit and the Proficiency Step up vide communication dated 03.09.2007 (Annexure P-3) issued from the office of the Assistant Controller (F & C), office of Civil Surgeon, Ferozepur, to the S.M.O., Incharge, Civil Hospital, Abohar, where the petitioner was working, was asked to effect recovery from the petitioner after fixation of her pay as per government letter dated 05.10.2006. Based upon the aforesaid letter, Senior Medical Officer, Incharge, Civil Hospital, Abohar, informed the Civil Surgeon, Ferozepur, that an amount of Rs.78,453/- is recoverable from the petitioner with effect from 01.01.1986 to 29.02.2008 and an entry to this effect has already been made in the service book of the petitioner. Aggrieved of the aforesaid recovery and re- fixation, the petitioner has filed the present petition. Mr.Surinder Garg, learned counsel for the petitioner has vehemently argued that the petitioner was entitled to both the benefits i.e. placement in the Selection Grade under the pay rules and the Proficiency Step up in view of the recommendations dated 01.12.1988 on completion of 8 and 18 years of service. According to him, placement in the Selection Grade does not involve promotion and, thus, the petitioner was entitled to both the benefits. His further contention is that the clarificatory circular was issued by the Government only on 01.09.1989 (Annexure P-6) and it has only prospective operation. Thus, the benefit conferred upon the petitioner CWP No.10089 of 2008 : 5 : with effect from 01.01.1986 cannot be withdrawn. Circulr issued later on has no application in this case. To the contrary, the stand of the State is that the petitioner was not entitled to the benefit of Selection Grade as well as the First Proficiency Step up increment for the same period. I have heard the learned counsel for the parties at length. From the reading of paragraph 7 of the 1988 circular referred to above, it is evident that for reckoning the period of 8 and 18 years for the purpose of Proficiency Step up, the entire service in the Time Scale, Senior Scale and Selection Grade has to be counted, provided there is no fixation of pay at higher level. However, in the present case, admittedly, the pay of the petitioner was fixed at higher level while granting him selection grade. Clarificatory circular clearly provides for post-ponment of the Proficiency Step up and the period to be reckoned for 8 and 18 years of service with effect from the date financial benefit of Selection Grade or Senior Scale has been granted. The clarificatory circular clearly provides that where the benefit of Senior Scale/Selection Grade and the Proficiency Step up fall for the same period, it is impermissible in law. A public servant is entitled either to Selection Grade or Proficiency Step up at the same time. In such a situation, where the employee has already been placed in a higher pay scale by virtue of the grant of Selection Grade, the benefit of Proficiency Step up has to be postponed and to be reckoned from the date the Selection Grade is granted. In view of the above circumstances, the petitioner was not entitled to the benefit of Selection Grade as well as the Proficiency Step up CWP No.10089 of 2008 : 6 : with effect from 01.01.1986 and the later benefit of Proficiency Step up was to be post-poned and to be reckoned for initial 8 years with effect from 02.01.1986. The respondents have, thus, rightly refixed the pay of the petitioner by withdrawing the benefit conferred upon the petitioner on account of the First Proficiency Step up. In view of the above, it is held that the pay of the petitioner has been rightly fixed by the respondents. Otherwise also, it is not the case of the respondents that the benefit was conferred upon the petitioner on her misrepresentation or fraud in any manner. It was totally on account of misunderstanding or misinterpretation of the circular that the respondents conferred this benefit upon the petitioner. The issue is squarely covered by a Full Bench judgment of this rendered in CWP No.2799 of 2009 (Budh Ram and othes Vs. State of Haryana and others), decided on 22.05.2009. In view of the above, the respondents even though are entitled to refix the salary of the petitioner, yet they are not entitled to recovery any amount already paid to the petitioner. If any amount has been recovered in the meantime on account of the aforesaid recovery, the same shall be refunded to the petitioner within a period of two months from the date a certified copy of this order is made available to the competent authority. 01.07.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? NO