IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.9744 of 2008 Date of Decision : November 09, 2010. Dilbag Singh (since deceased) through his legal representatives .....Petitioner versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.V.B.Aggarwal, Advocate, for the petitioner. Mr.Vivek Chauhal, AAG, Punjab. Mr.Balwinder Singh Sudan, Advocate, for respondent No.2 Mr.N.S.Bawa, Advocate, for respondent Nos.3 & 4. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner (since deceased and represented by his legal representatives) is aggrieved by the order dated 1.8.2006 (Annexure P-2) whereby the benefit of time bound promotional increments granted to him w.e.f. 30.7.1992 on completion of 23 years of service, has been withdrawn. He also seeks quashing of consequential order dated 31.1.2007 (Annexure P-3) ordering recovery of Rs.90,327/- from him. The undisputed facts are that the deceased employee joined the Punjab State Electricity Board-respondent No.2 as an Oil Cleaner on C.W.P.No .9744 of 2008 2 27.12.1969. He was later on promoted/appointed as Junior Engineer and finally he retired from the post of Additional Assistant Engineer w.e.f. 31.8.2006, on attaining the age of superannuation. The Punjab State Electricity Board vide its Finance Circular No.17/90 dated 23.4.1990 (Annexure P-1) decided to grant time bound promotional increments to its stagnated employees. The circular stipulates the following conditions for the grant of promotional increments on completion of 23 years' of regular service:- “(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 and (iv) The increments referred to in para-2 above are in the nature of advance promotional benefit to be absorbed in next regular promotion.” The petitioner completed 23 years' service in the year 1992 and being eligible as per the above-reproduced conditions, was granted the promotional increments w.e.f. 30.7.1992 vide an order dated 5.7.1994. The petitioner, however, got a crude farewell from the respondents when a few days before retirement he was served with a notice dated 1.8.2006 (Annexure P-2) withdrawing the promotional increments retrospectively i.e., w.e.f. 30.7.1992 on the plea that as per the audit objection “23 years promotional increments are not permissible........” as he had not “passed the D.A.E. for Engineering Subordinate”. The C.W.P.No .9744 of 2008 3 impugned order was followed by another office order dated 31.1.2007 (Annexure P-3) directing recovery of Rs.90,327/- from the petitioner on account of payment of the excess pay and allowances to him. The respondent-P.S.E.B. has filed its reply-affidavit maintaining that the promotional increments were admissible to those employees only who possessed the requisite qualifications for the promotional post and since the deceased employee failed to qualify the prescribed departmental test, the subject increments could not have been granted to him. It is urged that an erroneous benefit can always be withdrawn as and when the mistake is detected. Reliance is also placed on a recent decision of the Hon'ble Supreme Court in Bhakra Beas Management Board versus Krishan Kumar Vij and another (2010) 8 Supreme Court Cases 701, Respondent Nos.3 & 4-BBMB have also filed their reply- affidavit explaining that the deceased employee was allowed to avail the benefit of promotional increments while on deputation with BBMB as per the PSEB circular. Having heard learned counsel for the parties at some length and on perusal of the records, I am of the considered view that the writ petition must succeed for more than one reasons. Firstly, it is not in dispute that no opportunity of hearing has been afforded to the petitioner before passing the impugned order on 1.8.2006 (Annexure P-2) which admittedly visits him with civil consequences. The impugned order can be set-aside on this score alone, moreso, when no such opportunity can now be granted C.W.P.No .9744 of 2008 4 due to unfortunate demise of the petitioner. Secondly, the petitioner never misrepresented the facts nor played any fraud or deceived the authorities to secure the monetary gain. Assuming that the benefit was erroneously granted to him, no recovery can still be effected from the petitioner as ruled by a Full Bench of this Court in Budh Ram and others versus State of Haryana and others, 2009 (3) S.C.T.333 and also in view of the decision of the Hon'ble Supreme Court in (2010) 1 SCC 440 (Registrar, Cooperative Societies, Haryana and others versus Israil Khan and others). Thirdly, the very basis for the withdrawal of the promotional increments is erroneous and contrary to the record. I say so for the reason that the petitioner fully satisfied the eligibility conditions contained in the Circular dated 23.4.1990. There is no denial to the fact that the deceased- employee never got the benefit of the Scheme of 9/16 years' time bound promotional scale nor he earned three regular promotions in his service career. Similarly, he did not earn his third promotion in between 16th and 23rd years of regular service. Likewise, he never got regular promotion till his retirement which could justify the absorption of promotional increments in such promotion. The decision in Bhakra Beas Management Board's case (supra), also does not advance the case of the P.S.E.B. as in that case, the Circular dated 24.5.1990 itself specified the “promotional scales for Assistant Engineers and the condition precedents for eligibility thereof”. Since the beneficiaries in the cited case were concededly ineligible, the C.W.P.No .9744 of 2008 5 Hon'ble Supreme Court found no fault with the action of the authorities in withdrawing the benefits. For the reasons afore-stated, the writ petition is allowed; the impugned orders dated 1.8.2006 (Annexure P-2) and 31.1.2007 (Annexure P-3) are hereby quashed and the respondents are directed to refund the amount deducted from the deceased-employee and deposited with the BBMB authorities, to the petitioner(s) alongwith interest @ 7% per annum within a period of three months from the date of receiving a certified copy of this order. The petitioner(s) shall also be entitled to the arrears of pension, family pension and other retiral dues to be re-determined after absorbing the benefits of the subject increments. The consequential arrears thereof shall also be paid to them alongwith interest @ 7% per annum within the stipulated period. Since the impugned action has been taken at the instance of the PSEB authorities, the interest amount shall be paid by the PSEB only, without prejudice to its right to claim re-imbursement from the BBMB authorities, if so permissible in law. Dasti. November 09, 2010 (SURYA KANT) Mohinder JUDGE