CWP No.2779 of 1992 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.2779 of 1992 Date of decision: 20.5.2010. Shri Dev Raj Sharma ....................Petitioner v. The State of Punjab and others .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.SD Sharma,Senior Advocate with Ms.Bindu Goel,Advocate for the petitioner. Ms.Anu Pal,Assistant Advocate General,Punjab for respondents. Jaswant Singh.J. Petitioner, who retired as Deputy Superintendent of Police, Punjab, on 31.5.1991 has filed the present writ petition under Articles 226 and 227 of the Constitution of India for quashing the orders dated 18.5.1989 (Annexure P1) passed by DIG Jalandhar Range, Jalandhar; dated 16.6.1989 (Annexure P2) passed by respondent no.3 (I.G. Police,UT Chandigarh); order dated 27.8.1990 (Annexure P5) and order dated 16.10.1991 (Annexure P7) passed by respondent no.2 (DGP Punjab,Chandigarh. Further prayer is for issuance of a writ of mandamus directing the respondents to give the benefit of salary of Inspector with effect from 12.5.1977. The petitioner joined Punjab Police on 28.3.1955 as CWP No.2779 of 1992 2 Constable. He was promoted to the post of Head Constable on 23.7.1963 and thereafter was sent to Vigilance Department,Punjab as Assistant Sub Inspector on 7.5.1970. During his posting in the Vigilance Department, he got promotion to the post of Sub Inspector on adhoc basis with effect from 1.5.1971. He was further promoted as Officiating Inspector on adhoc basis w.e.f. 12.5.1977 in Vigilance Bureau in the pay scale of Rs.320-600, which stood revised to Rs.880- 1400 w.e.f. 1.1.1978 and his pay was fixed as under:- Date Pay fixed 01/01/78 800/- 08/02/78 825/- 01/05/78 850/- 01/05/79 880 Petitioner was promoted as Sub Inspector against Range vacancy w.e.f. 18.2.1977 and thereafter in 1983 he was promoted as Inspector in Parent Range. At that time his basic pay was Rs.1000/-. On 1.11.1985 he was drawing basic pay of Rs.1080/-. After the implementation of report of Third Pay Commission his pay was fixed at Rs.2250/- w.e.f. 1.1.1986, in the revised pay scale of Rs.1800-3200. It is averred in the petition that on 23.5.1985 he was sent on deputation to U.T. Chandigarh as Inspector in the same pay scale he was drawing in the Vigilance Department, Punjab where he worked as such till 21.12.1989. Thereafter he was sent back to Vigilance Department, Punjab w.e.f. 22.12.1989, where he was promoted as Deputy Superintendent of Police w.e.f. 2.5.1990 in the pay scale of Rs.1800-3200 on the basis of letter dated 18.5.1989 (Annexure P1) and CWP No.2779 of 1992 3 his basic pay was fixed at Rs.2200/-. The grievance of the petitioner is that his pay as Deputy Superintendent of Police should have been fixed at Rs.2580/- instead of Rs.2200/- as he had already earned increments in the rank of Inspector w.e.f. 12.5.1977. For seeking the said relief he made representation dated 31.5.1990 (Annexure P4) to respondent no.2 (DGP Punjab), which reads as under:- “Respectfully, I state that I remained in the Vigilance Bureau previously since 1971 to 1985 in different ranks, mostly on adhoc basis. I have again been posted in Vigilance Bureau as Inspector and consequently promoted and posted as Deputy Superintendent of Police in the Vigilance Bureau. It is, therefore, requested that while fixing my pay as DSP the period and pay of adhoc promotion in the Vigilance Bureau may also kindly be taken into account.” Thereafter petitioner made another detailed representation dated 10.8.1991 (Annexure P6) seeking the same relief. The said representation was rejected by respondent no.2 vide letter dated 16.10.1991 (Annexure P7), the relevant extract of which reads as under:- “2. It is intimated that your representation has been considered and rejected, as the benefit of CWP No.2779 of 1992 4 ex-cadre promotions earned by you in the Vigilance Bureau, Punjab, is not admissible under rule 4.4(b) of the Punjab CSR Volume-I, Part I, in the matter of pay fixation.” Notice of motion was issued. Two separate written statements have been filed on behalf of respondents 1 & 2; and respondent no.3. Factually the averments made by the petitioner regarding his tenure of posting and salary he was getting have not been seriously disputed in the written statement filed by respondents 1 and 2- Government of Punjab. However, it is specifically stated in reply to para no.3 that vide office order dated 13.3.1980, Director Vigilance Bureau, Punjab while fixing the pay of the petitioner w.e.f. 1.1.1978 to 1.5.1979 had clearly mentioned that on reversion from Vigilance Bureau the pay of the petitioner will be re-fixed in the revised scale in the manner which he would have drawn from time to time had he not been on deputation to the Vigilance Bureau. Further in reply to para 9 of the writ petition it has been reiterated that the above note was recorded by the Director Vigilance Bureau in accordance with the provisions contained in Government letter dated 29.2.1980 (Annexure R1) and the entry in this regard was also made at page 8-C of the Character Role of the petitioner. It is further denied that the posting of the petitioner in the U.T. Police, Chandigarh could be considered on deputation in terms of Rule 10-21(2)(5) of Punjab Civil Service CWP No.2779 of 1992 5 Rules,Volume-I, Part I (for short the rules) and as such the petitioner was entitled to draw pay which was admissible to him according to his parent department. Therefore, the pay of the petitioner had to be reduced according to the provisions of Rule 4.4(b) of the Rules and as such the pay of the petitioner has been rightly fixed vide order dated 18.5.1989 (Annexure P1). In the written statement filed on behalf of respondent no.3- UT Chandigarh, it has been admitted that the petitioner was taken on deputation by U.T.Chandigarh w.e.f. 23.5.1985 and he was paid the pay according to last pay certificate issued by the Director,Vigilance Bureau, Punjab. It is further stated that petitioner made an application to respondent no.3 for re-fixation of his pay in view of the foot note recorded in his Character Role at page 8-C which was required to be refixed on reversion from Vigilance Bureau as the officer had been drawing special pay continuously up to 22.5.1985. The said application was sent to DGP Punjab-respondent no.2, vide letter dated 12.10.1988 and on the advice of respondent no.2 the said application was sent to DIG Jalandhar Range for taking appropriate action. Ultimately DIG Jalandhar Range vide his letter dated 18.5.1989 (Annexure P1) intimated Inspector General of Police,UT Chandigarh- respondent no.3 that his office did not agree with the pay re-fixed by respondent no.3 vide office memo dated 29.11.1988 and further mentioned that the pay of the official is to be fixed as per detail given in the letter dated 18.5.1989. In pursuance of Annexure P1, the pay of CWP No.2779 of 1992 6 the petitioner was re-fixed by respondent no.3, vide letter dated 16.6.1989 (Annexure P2) and accordingly amount of overpayment of Rs.6911/- for the period from 23.5.1985 to 31.5.1989 was ordered to be recovered at the rate of Rs.300/- per month. I have heard learned counsel for the parties and perused the record. A perusal of para 8 of the writ petition reveals that on 1.1.1990 while working as Inspector the petitioner was drawing the basic pay of Rs.2460/- in the pay scale of Rs.1800-3200. Vide order dated 20.4.1990, the petitioner was promoted in the rank of officiating Deputy Superintendent of Police in the pay scale of Rs.2200-4000 and his basic pay was fixed at Rs.2275/- (Rs.2200 Basic Pay plus Rs.75/-). In reply to this para, respondents 1 and 2 have admitted the basic pay of the petitioner with the rider that the basic pay drawn by the petitioner was only adhoc and not which he would have drawn had he not gone on deputation to Vigilance Bureau. It is not the case of the respondents 1 and 2 that the petitioner had not worked in the Vigilance Bureau. Rather it is case of both the parties that the petitioner had remained in Vigilance Bureau right from 1970 till his retirement, except the period he remained on deputation with U.T. Chandigarh (from 23.5.1985 to 13.12.1989). It is also not in dispute that Vigilance Bureau is a Department of Government of Punjab. Thus, re-fixation of pay of the petitioner by DIG Jalandhar Range vide memo dated 18.5.1989(P1), addressed to respondent no.3 is erroneous, without any basis and not CWP No.2779 of 1992 7 sustainable in the eyes of law. Moreover, while passing the impugned order dated 18.5.1989 (P1) no reasons have been recorded as to why the pay of the petitioner has been reduced to his detriment. Once it is held that order dated 18.5.1989 (P1) is not sustainable, the order dated 16.6.1989 (P2) passed by respondent no.3, which was based on order Annexure P1 is also liable to be set aside. So far as impugned order dated 27.8.1990 (Annexure P5) fixing the pay of the petitioner in the rank of Officiating DSP, as Rs.2200/- is concerned, the same has also been passed to the detriment of the petitioner without giving him any opportunity of being heard, as specifically mentioned in para 8 of the writ petition the petitioner was drawing basic pay of Rs.2580/- as on 1.3.1990. This action of respondents is violative of principles of natural justice and hence not sustainable in the eyes of law as the it is well settled that no order of civil consequence can be passed without affording opportunity of hearing to the affected person. The order dated 16.10.1991 (Annexure P7) whereby the representation of the petitioner was rejected on the ground that benefit of ex cadre promotion earned by him in the Vigilance Bureau Punjab was not admissible under Rule 4.4(b) of the Rules in matter of pay fixation is also liable to be set aside due to the reasons that once the petitioner has been promoted as DSP on the basis of his service record, then it does not lie in the mouth of the respondents to say that the service rendered by the petitioner was on ex-cadre basis. If the service rendered by the petitioner on such ex-cadre post can be the basis for CWP No.2779 of 1992 8 promoting him as DSP then there is no reason to deny him the benefit of that service for fixation of his pay. For the reasons stated above, the impugned orders dated 18.5.1989 (Annexure P1) passed by DIG Jalandhar Range, Jalandhar; dated 16.6.1989 (Annexure P2) passed by respondent no.3 (I.G. Police,UT Chandigarh); order dated 27.8.1990 (Annexure P5) and order dated 16.10.1991 (Annexure P7) passed by respondent no.2 (DGP Punjab,Chandigarh, are hereby set aside and the respondents are directed to give the benefit of salary of Inspector to the petitioner with effect from 1.5.1983. However, the petitioner would be entitled to actual monetary benefits of pay which are restricted to three years prior to the date of filing of the writ petition i.e.27.2.1992. It is clarified that the pension of the petitioner will be fixed accordingly. 20.5.2010 (Jaswant Singh) joshi Judge