Civil Writ Petition No. 16108 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Civil Writ Petition No. 16108 of 2010 Date of Decision : 29.4.2011 Jagdish Kumar Sehgal .......... Petitioner Versus The Punjab State Power Corporation Ltd. & another ...... Respondents CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. A.K. Walia, Advocate for the petitioner. Mr. Vishal Chaudhary, Advocate for the respondents. **** AUGUSTINE GEORGE MASIH, J. (ORAL) Challenge in this writ petition is to the order dated 31.3.2008 (Annexure P-7) vide which the benefit of 23 years promotional scale as per “the time bound benefit of promotional scale instructions dated 23.4.1990” (hereinafter referred to as 'the instructions dated 23.4.1990') was withdrawn, and consequential order dated 3.4.2008 (Annexure P-8) vide which the pay of the petitioner was refixed w.e.f. 18.4.1992 by reducing it and further the order dated 5.8.2008 (Annexure P-9) whereby recovery of Rs.1,60,360/- has been made from the gratuity of the petitioner as over drawn amount from 18.4.1992 to 31.3.2009. Counsel for the petitioner contends that the petitioner was appointed as Oil Cleaner in the year 1968. He was promoted as Sub Civil Writ Petition No. 16108 of 2010 2 Station Attendant on 24.9.1971 and further promoted as Sub Station Officer on 30.8.1985. He, thus, gained only two promotions by the time, he became eligible for the grant of promotional increments under the time bound promotional scale on computation of 23 years service in the year 1992. Respondent-Board issued instructions dated 23.4.1990, of which, clause 10 provided for the eligibility of an employee for claiming the benefit of promotional increment on completion of 23 years of regular service. As the petitioner fulfilled those requirements, he was granted the promotional scale of the post of Additional Assistant Engineer (A.A.E.) vide order dated 23.8.1995 w.e.f. 18.4.1992. He continued to draw the same, when a show cause notice dated 3.3.2006 (Annexure P4/T) was issued to the petitioner, on the basis of clarificatory instructions dated 6.8.2004, which said that for grant of third promotional scale benefit to the post of AAE (J.E.-I) an employee is required to pass Subordinate Accounts departmental examination. On this basis, as the petitioner had not passed the subordinate accounts departmental examination show cause notice was issued to him calling upon him to explain as to why the benefit granted to him vide order dated 23.8.1995, be not withdrawn. The reply filed by the petitioner was not accepted and vide order dated 31.3.2008 (Annexure P-7) promotional benefit granted to him after completion of 23 years of service was revoked. Resulting in refixation of pay of the petitioner w.e.f. 18.4.1992 vide order dated 3.4.2008 (Annexure P-8) and passing of the order of recovery dated 3.4.2008 (Annexure P-9). Thereafter, the petitioner was regularly promoted as AAE on 18.12.2006. He contends that the impugned orders cannot be sustained in the light of the instructions Civil Writ Petition No. 16108 of 2010 3 dated 23.4.1990 (Annexure P-1), according to which he was granted the benefit of 23 years promotional scale and even if instructions dated 6.8.2004, which has been relied upon to withdraw the benefit of promotional scale granted to him vide order dated 23.8.1995, would only be prospective in affect, as it put a new condition which was neither envisaged, nor provided in the instructions dated 23.4.1990. Accordingly, he prays for quashing of the impugned orders as the same are not sustainable. On the other hand, counsel for the respondents submits that the petitioner would not have been entitled to the promotion, firstly, in the light of the fact that he had not passed the Departmental Subordinate Accounts Examination (DSAE), which is mandatory for a person to be granted the benefit of 23 years promotional scale, of the post of AAE or JE-I. As the petitioner had not passed the DSAE he was not eligible for promotion for the post of AAE / J.E.-I and therefore could not have been granted the benefit in the year 1992 vide order dated 23.8.1995. He states that claim of the persons under the time bound promotional scheme and the regular promotions are through two different channels and the petitioner having been promoted vide order dated 18.12.2006, the petitioner cannot now claim benefit of the time bound promotional scale. He further submits, relying upon a letter dated 24.3.2008 ( Annexure R- 1) addressed by the petitioner to the Chief Engineer / Thermal, GNDTP, Bathinda, wherein he has himself permitted the deduction of the amount due i.e. Rs. 1.5 lacs to be made from his retiral benefits. Thus, contends that the petitioner admits that the increment amount on his fixation while granting him 23 years promotional scale, was Civil Writ Petition No. 16108 of 2010 4 wrongly given to him. On this basis, he prays that the writ petition is without any merit and deserves to be dismissed. I have heard counsel for the parties and have gone through the records of the case. The claim of the petitioner is dependent upon the instructions dated 23.4.1990. It is an admitted case that the petitioner was appointed as a Oil Cleaner in the year 1968, promoted as Sub Station Attendant on 24.9.1971 and thereafter further promoted as Sub Station Officer on 30.8.1985. He has, during this period, earned only two promotions in his career, therefore, he would not be entitled to the benefit of 9/16 years time bound promotional scale under the Scheme, and would only be eligible for claiming benefit of 23 years regular service promotional scale. Instructions dated 23.4.1990, deals with such a situation and under Clause 10 thereof eligibility of an employee to claim such benefit has been given, which reads as follows :- “10. The Punjab State Electricity Board has further decided to allow benefit of promotional increment(s) to an employee on completion of 23 years of regular service provided :- (i) He has not been benefited by the scheme of 9/16 years time bound promotional scale. (ii) He has not earned three regular promotions in his career. (iii) He has not earned third promotion in his regular service between 16th and 23rd, years of service.” The petitioner fulfills all the three conditions and, Civil Writ Petition No. 16108 of 2010 5 therefore, is entitled to the benefit of promotional increments on completion of 23 years of regular service. If he fulfills the conditions, as has been provided under the instructions and he had completed more than 23 years of service on the date when he was granted the time bound promotional scale vide order dated 23.8.1995 w.e.f. 18.4.1992, the petitioner was rightly granted under the applicable instructions. He continued to draw the said benefits and it was only on the basis of clarification issued vide instructions dated 6.8.2004, reliance whereof has been placed in the order dated 3.3.2006 (Annexure P-4), that for grant of benefit after 23 years of service, the official must be fulfilling the eligibility condition for third promotion. In the case of the petitioner, as he was not entitled to promotional scale to the post of JE-I, for which the official was required to pass the subordinate Account Departmental Examination, which admittedly the petitioner had not passed, his promotional scale was sought to be withdrawn. Instructions dated 6.8.2004 adds a new condition, which was not available in the instructions dated 23.4.1990, which only required a regular service of 23 years; who had not earned benefit by scheme of 9/16 years time bound promotional scale; and had not earned third promotion in his regular service between 16th and 23rd years of service. There was no condition that the person must fulfills the eligibility condition for the third promotion envisaged therein. Vide instructions dated 6.8.2004, which is in the form of clarification, a new condition with regard to the official fulfills the eligibility condition for third promotion which was made mandatory. This addition to the instructions of the year 1990 vide instructions dated 2.8.2004, would Civil Writ Petition No. 16108 of 2010 6 only be prospective in nature and can not affect the benefits granted to the employees under instructions dated 23.4.1990. Meaning thereby that the instructions dated 6.8.2004 would be prospective in operation. If that be so, the benefit granted to the petitioner being in accordance with the instructions prevailing at that time when he was granted the benefit cannot be said to be either in violation of the instructions or not in accordance with law. Accordingly, the impugned order dated 31.3.2008 (Annexure P-7) can not be sustained. It goes without saying that all consequential acts done and orders passed by the respondents, which are the results of the impugned order dated 31.3.2008 (Annexure P-7) also can not be sustained and cannot be said to be in accordance with law. The contention of the counsel for the respondents is that since the petitioner had been granted the regular promotion vide order dated 18.12.2006 as AAE disentitling the petitioner to promotional scale, would not have any consequence as this was a regular promotion, which had come into being only after the petitioner had become eligible to the grant of the promotional scale on his completion of 23 years of service in the year 1992. That would not fall within the parameters as prescribed under the instructions dated 23.4.1990, which would dis-entitle the petitioner to the benefit which had already been granted to him. Accordingly, the submission made by the counsel for the respondent cannot be accepted. In view of the above, the present writ petition is allowed the impugned orders dated 31.3.2008 (Annexure P-7), dated 3.4.2008 (Annexure P-8) and dated 5.8.2008 (Annexure P-9) are Civil Writ Petition No. 16108 of 2010 7 hereby quashed. Recovery effected from the petitioner from his gratuity be released to him within a period of two months from the date of receipt of certified copy of this order. The pay of the petitioner be refixed in the light of the above observations as also the pension and arrears thereof be paid to him within four months. It goes without saying that the amount recovered vide order dated 5.8.2008 was for the pay, which was given to him as per the order dated 23.8.1995 granting him promotional scale, on completion of 23 years w.e.f. 18.4.1992, if no further amount is to be paid on re-fixation of pay then so be it, and pay be refixed notionally. In case the instructions provided for payment of interest the same shall also be paid to the petitioner on delayed payment. 29.4.2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE