REGULAR SECOND APPEAL No.1309 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1309 of 2010 DATE OF DECISION: FEBRUARY 25, 2011 State of Haryana & others .... Appellants Versus Dr. Rajinder Parshad Taneja .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Amit Goel, AAG, Haryana, for the appellants. Mr. D. R. Bansal, Advocate for the respondent. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by defendants (State of Haryana and its officers). Respondent-Dr.Rajinder Parshad Taneja was serving as Medical Officer under the defendants. He was appointed to the said post on 16.01.1975 and he was made regular on 21.01.1980. He retired from service on 31.03.2002. Pay scales of Medical Officers were revised by the defendants w.e.f. 01.05.1989. Revised entry pay scale was Rs.2,200-4,000 plus NPA. After five years of regular service, the scale was Rs.3,000-4,500 plus NPA. Selection grade was of Rs.4,100-5,300 plus NPA after 12 years of regular service. Accordingly, plaintiff was given scale of Rs.3,000-4,500 w.e.f. 01.05.1989 as he had already completed 5 years of regular service. He was also granted selection grade of Rs.4,100-5,300 w.e.f. 21.01.1992 on REGULAR SECOND APPEAL No.1309 OF 2010 -2- completion of 12 years of service. However, subsequently vide instructions dated 18.05.1997, the selection grade was restricted to 20% of the cadre posts and, therefore, selection grade of the plaintiff was withdrawn. On further revision of pay scales w.e.f. 01.01.1996, entry level functional scale of the Medical Officers was Rs.8,000-13,500. After 5 years of regular satisfactory service, the scale was Rs.10,000-13900 and after 11 years of regular satisfactory service, selection grade of Rs. 12,000-16,500 restricted to 20% of the cadre posts was to be given. The plaintiff's pay was fixed in the pay scale of 10,000-13,900 as on 01.01.1996 as he had already completed 5 years regular service and even in pre-revised scales, he had been given scale of Rs.3,000-4,500. The plaintiff claimed benefit of scale of Rs.12000-16500 w.e.f. 01.01.1996 as he had completed 12 years' service prior to it and he also fell within 20% of the cadre posts. He was also granted the said scale. However, the plaintiff at the time of promotion vide order dated 09.09.1998 made application dated 28.09.1998 to forego the promotion. Defendants thereafter fixed the pay of the plaintiff in pay scale of Rs.8,000-13,500 w.e.f. 01.01.1996 and ordered recovery of Rs.94,244/- being the difference of pay w.e.f. 09.09.1998 (since when the plaintiff had foregone the promotion). Making these averments, the plaintiff challenged the aforesaid action of the defendants and sought scale of Rs.12,000-16500 w.e.f. 01.01.1996 along with all arrears and also sought refund of amount of Rs.94,244/- recovery whereof had been ordered/effected from him. The defendants contested the claim of the plaintiff and pleaded that the plaintiff became dis-entitled to the Assured Career Progression (ACP) scales since 09.09.1998 the date when the plaintiff applied to forego the promotion and, therefore, his pay has been rightly fixed in pay scale of REGULAR SECOND APPEAL No.1309 OF 2010 -3- Rs.8000-13500 and recovery of excess amount already paid, has been rightly ordered. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jind vide judgment and decree dated 14.11.2007 partly decreed the plaintiff's suit, holding that he is entitled to refund of Rs.94,244 (which has been deducted from his retiral benefits) along with interest @ 9% per annum from the date of recovery till realization. Both parties preferred first appeals against judgment and decree of the trial court. Learned Additional District Judge, Jind vide common judgment dated 20.07.2009 modified the judgment and decree of the trial court, holding the plaintiff to be entitled to get his pay re-fixed in functional scale of Rs.10,000-13,900 w.e.f. 01.01.1996 and also held the plaintiff entitled to all consequential retiral benefits along with interest @ 6% per annum w.e.f. 01.01.1996 till recovery and with this modification, both the appeals were dismissed (disposed of). Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that vide order dated 11.11.2010, appellants were directed to place on record sanction granted by the competent authority for filing the instant appeal. Learned State counsel for the appellant has today placed on record copy of ex-post-facto sanction granted by the competent authority vide letter dated 07.12.2010 for filing the instant second appeal. Consequently requirement of the sanction stands satisfied. Learned counsel for the appellants contended that in view of Rule 8(11) of the Assure Career Progression Rules, 1998, the plaintiff ceased to be REGULAR SECOND APPEAL No.1309 OF 2010 -4- entitled to ACP scale and he was therefore rightly put in the functional pay scale of Rs.8,000-13,500. On the other hand, counsel for respondent contended that lower appellate court has granted functional pay scale of Rs.10,000-13,900 to which the respondent was entitled after 5 years of regular satisfactory service and even the lower appellate court has not granted the ACP scale of Rs.12,000-16,500 to which the plaintiff otherwise became entitled, but the same has been declined because the plaintiff had foregone his promotion. ACP scale of Rs.12,000-16,500 was granted to the plaintiff vide letter dated 19.05.1999 i.e. after the plaintiff had already foregone promotion in September, 1998. Consequently, it was held that plaintiff is not entitled to the said ACP scale of Rs.12,000-16,500. The plaintiff has not challenged the non-grant of the said scale. However, there is no reason to deny the functional pay scale of Rs.10,000-13,900 to the plaintiff w.e.f. 01.01.1996 to which he became entitled in view of 5 years regular satisfactory service already put in by him, irrespective of ACP Rules. The said scale has, therefore, been rightly granted by the lower appellate court to the plaintiff. Paragraph 9 of the Judgment of the lower appellate court is reproduced hereunder: “9. The learned counsel for the appellant/plaintiff contended that the learned lower court had erred in holding that after withdrawal of ACP scale, his pay was rightly fixed in the first functional pay scale of 8000-275-13500 w.e.f. 09.09.1998. On the other hand learned Govt. Pleader for the State has contended that since the plaintiff had forgone his promotion w.e.f. 09.09.1998 as is evident from letter Ex. P17 dated 12.02.2002, this pay was rightly fixed in the first REGULAR SECOND APPEAL No.1309 OF 2010 -5- functional pay scale of 8000-275-13500. To my mind there is force in the contention of learned counsel for the plaintiff/appellant. Shri Ram Niwas DW1 has deposed in his cross-examination that after five years of regular service, the plaintiff was drawing second functional scale of 3000-4500 in the revised scale of 1989 applicable w.e.f. 01.05.1989 as per Ex.P6. It is pertinent to mention here that on account of revision of pay scale, as per letter Ex. P13 the salary of plaintiff was fixed in second functional pay scale of Rs.10000-325-13900 w.e.f. 01.01.1996 as is evident from the extract of his service book Ex. P18. It is worthwhile to mention here that on coming into force of Assured Career Progression Rules, 1998, the salary of plaintiff was fixed in the pay scale of Rs.12000-16500 w.e.f. 01.01.1996 as is evident from letter Ex.P19 dated 19.05.1999. Since the plaintiff had foregone his promotion w.e.f. 09.09.1998, consequently as per Rule 8 sub-Rule 11 of the ACP Rules, 1998, he shall cease to be entitled to draw his pay in the ACP pay scales and shall draw his pay in functional pay scales prescribed for the post on which he is substantively working from the date of such forgo of promotion. As he has forgone his promotion w.e.f. 09.09.1998, the plaintiff was entitled to have fixed his pay in second functional scale of 10000-13900, which he was already drawing w.e.f. 01.01.1996 as is evident from REGULAR SECOND APPEAL No.1309 OF 2010 -6- the extract of his service book Ex.P18. Keeping in view these facts, the plaintiff/appellant is held to be entitled to get his pay re-affixed in the functional scale of 10000- 13900 w.e.f. 01.01.1996 and is also held to be entitled to all consequential retiral benefits along with interest @ 6% P.A. w.e.f. 01.01.1996 till realization.” In view of aforesaid observations of the lower appellate court, I find no illegality in the judgment of the lower appellate court in granting scale of Rs.10,000-13,900 to the plaintiff w.e.f. 01.01.1996. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of any merit and is, therefore, dismissed. (L. N. MITTAL) JUDGE 25th February, 2011 'raj'