REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 04, 2010 Punjab State Electricity Board, Patiala .....Appellant VERSUS Ms.Asha Gupta ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Puneet Kaur Sekhon, Advocate, for the appellant. None for the respondent. **** RANJIT SINGH, J. Respondent-plaintiff filed a suit seeking declaration to the effect that the order passed by the appellate Board in withdrawing nine years time bound promotion/devised promotional scale granted w.e.f. 1.1.1986 and so also the recovery ordered from 11.1.986 to 31.3.2004 of Rs.1,67,000/-, being illegal and bad. Further grievance was that the order reducing the pay of the respondent-plaintiff and for withdrawing 8 years proficiency step up and denial of further promotion to be illegal, arbitrary, null and void. REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 2 }: The facts, in brief, are that the respondent-plaintiff had joined the service of the Board on 28.8.1975 as U.D.C. She had an unblemished service and so would claim that she was entitled to first time bound promotion/devised promotional scale of Rs.1640-2925 on completion of nine years of service w.e.f 1.1.1986. This was granted to the respondent-plaintiff on 19.7.1994 retrospectively w.e.f 1.1.1986. It is further averred that respondent-plaintiff was promoted to the post of Circle Assistant on 3.6.1986, when she was on maternity leave w.e.f 17.12.1984 to 13.3.1987. She was further on leave w.e.f. 26.6.1989 to 28.11.1991. Respondent-plaintiff would state that she was not given any information regarding promotion as Circle Assistant. Ultimately, through a communication dated 21.6.1994, she was intimated regarding her promotion and for joining as C.A at Jalandhar. She accordingly expressed her inability to join the promotion on account of family circumstances and, thus, made a request for foregoing her promotion for three years. This request was accepted through a communication dated 7.7.1994 and it was ordered that she would forego her promotion for three years. Respondent-plaintiff thereafter became entitled to second time bound promotion/devised promotional scale w.e.f. 28.8.1991 on completion of 16 years of regular service but was not granted the same. She also made representation to promote her as Circle Assistant but to no effect. On the contrary, the respondent-plaintiff received a letter dated 21.6.2004 intimating the withdrawal of 9 years first time bound promotional scale, which was granted to her on 19.7.1994. On this ground, recovery of Rs.1,67,000/- was also directed. The respondent-plaintiff would challenge the same on the ground that this REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 3 }: order was passed without affording any opportunity of hearing and, thus, would be illegal and arbitrary. The matter did not end there. Through another communication dated 30.6.2004, the earlier communication was amended and recovery was directed w.e.f 1.1.1986 to 31.3.2004 instead of 1.1.1986 to 31.12.2003 as earlier ordered. Her pay was also reduced from Rs.1640 to Rs.1440 w.e.f. 1.1.1986 and from Rs.8550 to Rs.7500/- w.e.f 1.3.2004. Through another communication dated 3.8.2004, the Appellate Board withdrew 8 years proficiency step up granted to the respondent-plaintiff w.e.f 1.1.1986, which led to further reduction of her pay to Rs.1410/- w.e.f. 1.1.1986 and to 7250 w.e.f. 1.3.2004. Accordingly, the recovery as directed also increased to Rs.2,23,114/-. It was further directed that the same be recovered in 35 instalments at the rate of Rs.6400/- per month, 35th instalment being of Rs.5514/-. This action and all these orders were accordingly challenge through the civil suit. The appellant appeared and defended the suit filed by the respondent-plaintiff. A preliminary objection about the maintainability of the suit was raised. Even the jurisdiction of the Court was challenged for lack of cause of action. It was admitted that 9 years time bound promotional scale was allowed to the respondent-plaintiff but the withdrawal thereof was justified on the ground that there was another letter dated 22.10.1993 on the basis of which the Audit party pointed out that this benefit was not admissible to the respondent- plaintiff. Accordingly, this benefit was ordered to be withdrawn on 21.6.2004. The cancellation of the order and the direction to recover the amount are, thus, justified. It is also conceded that the REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 4 }: respondent-plaintiff was promoted as Circle Assistant on 3.6.1986 and approval was granted to her to forego the promotion for three years vide order dated 7.7.1994. It is then pointed out that respondent-plaintiff was required to represent for her promotion as Circle Assistant on expiry of three years and only then she was to be considered for promotion. The respondent-plaintiff, however, failed to do so and, thus, was not entitled to second time bound promotion after 16 years of service w.e.f 28.9.1991 as U.D.C. It is also stated that the first time bound promotion granted on 19.7.2004 was by a mistake and the same was rectified, leading to recovery. The trial proceeded on the following issues:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the plaintiff is entitled to injunction as prayed for?OPP 3. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 4. Whether this Court has no jurisdiction to try the present suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Relief.” The Trial Court decided Issue Nos.1,2 and 3 in favour of the respondent-plaintiff and Issues No.4 to 6 against the defendant. The suit was, thus, decreed. The Appellate Board filed an appeal against the same, which has also been dismissed. The Board has, REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 5 }: thus, filed this Regular Second Appeal. Learned counsel for the appellant-Board would refer to the contents of the circular regulating the grant of promotion/devised promotional scale, which are reproduced in the grounds of appeal to say that the employee who forego his promotion will not be entitled for promotional/devised promotional scale. The memo dated 22.10.1993, which is also reproduced in the grounds of appeal, read as under:- “An employee who foregoes his promotion shall be eligible for reconsideration for promotion after being debarred for three years for promotion as well as for grant of 9/16 years time bound promotion/devised promotional scale and if he still foregoes his promotion after three years, it shall make him permanently ineligible for promotion as well as for the grant of 9/16 years time bound promotional/devised promotional scales.” It is on this basis urged that the Courts below have failed to appreciate that the proficiency step up was rightly withdrawn as the respondent-plaintiff had foregone the promotion offered to her and, thus, was not eligible for grant of proficiency step up. This submission can be advanced on the basis of a factual finding that the respondent-plaintiff had foregone her promotion. Even if it was so, the respondent-plaintiff was entitled to be considered for promotion after expiry of period of three years thereafter. Circular dated 22.10.1993, would clearly show that the respondent-plaintiff was eligible for consideration after three years of her first refusal. The Courts have, thus, rightly observed that the evidence on record REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 6 }: clearly shows that the respondent-plaintiff was reconsidered as she had earlier refused to accept the promotion and accordingly was promoted w.e.f 10.11.2004 with all benefits. It was the appellant Board, which in fact had reconsidered the case of the respondent- plaintiff and had granted her the promotion. There was no allegation of fraud or misrepresentation on the part of respondent-plaintiff. Accordingly, a direction to recover the amount of Rs.2,23,114/- was not legally correct approach in view of the law laid down by this Court in Som Nath Vs. State of Haryara, 2005 SCT 303. Similar view has been taken by the Full Bench of this Court in Budh Ram and others Vs. State of Haryana and others, 2009 (3) SCT 333. Learned counsel could not show anything of substance to challenge this finding and the view which is fully settled. Another reason for which this action of the appellant Board has been faulted is that respondent-plaintiff was not afforded any opportunity of hearing before passing this order, leading to serious civil consequences for her. Such an order, could not have been made in violation of principle of natural justice. This order, was, thus, held to be bad on this ground as well. No submissions were made on this ground. That would be enough not to call for any interference in the concurrent findings recorded by both the Courts. Similarly, learned counsel for the appellant could not show any infirmity in the view taken by the Court while holding that proficiency step up on completion of 9 and 16 years of service could not have been disallowed. The reference has rightly been made to a circular whereby respondent-plaintiff could forego her promotion and that was no valid ground to defeat her right for consideration in future. The REGULAR SECOND APPEAL NO.3747 OF 2009 :{ 7 }: submission made by the counsel that the respondent-plaintiff has slept over her right and did not seek her promotion would not mean that this would result in defeating the rights of the respondent-plaintiff merely on account of delay either in filing the suit or making the claim. In any case, I have not been able to appreciate this submission that respondent-plaintiff was required to approach the appellant Board for grant of promotion. This is something, which is required to be considered by the Board. I am, thus, unable to accept this submission that with the passage of time the rights of the respondent-plaintiff would be washed away to seek proficiency step up on completion of 8/18 years of service. No substantial question of law, thus, arise in this case and the appeal is dismissed. February 4, 2010 ( RANJIT SINGH ) khurmi JUDGE