Regular Second Appeal No. 1315 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1315 of 2004 Date of decision: 02.02.2010 Prem Singh Cheema ...appellant Versus State of Punjab and others ...respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. G.C. Gupta, Amicus Curiae for the appellant. Mr. N.D.S. Mann, Addl.A.G., Punjab for the State. ***** RANJIT SINGH J. The appellant has filed this Regular Second Appeal in person. He had filed a suit for declaration challenging the delay in sanctioning enhanced pension, gratuity, commuted pension w.e.f. February, 1997 and also for non payment of increment arrears, withdrawl of family planning benefits, wrong fixation of pay and delayed payments. It is pleaded that the payment was released with delay, which is arbitrary and unjustified. The appellant-plaintiff retired as Divisional Soil Conservation Officer on 31.1.1997. Government of Punjab had revised the pay scale on 16.1.1998 w.e.f. 1.1.1996. The plea is that one Sh. Sh. Balbir Singh Sandhu, Divisional Soil Conservation Officer, who is junior to the appellant has been granted pay scale of Regular Second Appeal No. 1315 of 2004 2 12000-16350 w.e.f. 1.1.1996 through order dated 14.7.1998. The plaintiff accordingly claimed that he being senior to Sh. Balbir Singh Sandhu was fixed in the scale of Rs. 7880-11660 i.e. Rs. 15500 on 1.1.1996. He also claimed that later his pay was reduced to Rs. 15208/- and sum of Rs. 7041/- was deducted from the revised/enhanced gratuity. He would term this action to be arbitrary and discriminatory and in violation of the principal of natural justice. The appellant-plaintiff also claimed that he is entitled to a scale of 12000-16350 by fixing his pay Rs. 15500/- w.e.f. 1.1.1996 and Rs. 15900/- w.e.f. 1.1.1997. Appellant also claimed 3 Bunching increments as he had undergone vasectomy operation on 15.11.1971. He had applied for these increments on 25.08.1993, which was sanctioned by Divisional Soil Conservation Officer on 11.12.1997. A sum of Rs. 9,540/- was paid to him, which was later recovered on 21.1.1999. Further grievance made by the appellant- plaintiff is that the revised pensionary benefits were due to him w.e.f. 1.2.1997 but were paid on 4.3.2000. Accordingly, sum of Rs. 41,790/- was paid as revised/enhanced pension, sum of Rs. 2,85,000/- as enhanced commuted pension and Rs. 1,35,642/- as enhanced gratuity. He also claimed interest on the delayed payment at the rate of 18% per annum from the date these were due to the date of payment. In the written statement filed, preliminary objection that the suit has barred by limitation and not maintainable is taken. Plea for not joining necessary party and jurisdiction of the Court was also raised. Reference is made to contempt petition filed by the appellant- plaintiff for implementing the order passed in LPA No. 587 of 1992 Regular Second Appeal No. 1315 of 2004 3 decided on 30.5.1997. It is stated that on the basis of order, the pay of the plaintiff was fixed in the scale of Rs. 940-1850 in the selection grade of Rs. 1700-2000 w.e.f. 1.1.1978. The interest on the delayed payment of arrears was also released, to the entire satisfaction of the Court when the contempt petition was dismissed on 11.11.1998. It is accordingly pleaded that the suit filed by the appellant-plaintiff is liable to be dismissed. On merit, it is submitted that the Government had revised the scale of pay of Divisional Soil Conservation Officer on 16.1.1998 w.e.f. 1.1.1996. It is stated that the pay of Sh. Balbir Singh Sandhu was fixed wrongly as Divisional Soil Conservation Officer by the Director and Special Secretary to Government on his appointment in the Kandi project, where he had gone on deputation. The pay of Sh. Balbir Singh Sandhu was fixed as Rs. 12375/- w.e.f. 1.1.1996 in the scale of Rs. 12000-16350, whereas the pay of appellant-plaintiff has been fixed at Rs. 15208/- w.e.f. 1.1.1996, which is higher than that of Sh. Balbir Singh Sandhu. The pay of Sh. Balbir Singh Sandhu was to be re-fixed in the scale of Rs. 7220-11600 w.e.f. 1.1.1996 and in this regard letter dated 31.8.1998 was written. Some officers working in the department challenged the advice before this Court through CWP No. 18400 of 1998, in which stay order dated 23.8.1998 was passed. Accordingly, no change could be made in the pay fixation of Sh. Balbir Singh Sandhu till the decision of said CWP. The plea is that the pay of appellant-plaintiff has been re-fixed at Rs.15208/- and on that basis payment of arrears has also been made to him. This revision in the pay scale has been accepted by the Accountant General, Punjab. It is also submitted that appellant-plaintiff paid Rs. Regular Second Appeal No. 1315 of 2004 4 540/- being the amount of arrears of one increment for family planning granted to him from 01.11.1983. It is stated that the Government had later clarified that the financial benefit of family planning increment is admissible from 14.5.1997 and accordingly the arrears paid erroneously to the plaintiff was rightly recovered from him. The representation filed by the appellant-plaintiff was also rejected where he had challenged the recovery ordered on this count. It is also stated that the contempt proceeding arising out of the LPA filed in the year 1972 was disposed of when the entire payment was released to the appellant-plaintiff. Admittedly the plaintiff had claimed interest on the delayed payment of arrears, which was prior to his retirement. It appears that the appellant-plaintiff had filed Civil Writ Petition No. 6159 of 1986 before this Court, on the basis what he was granted selection grade w.e.f. 1.1.1978 on 27.10.1998. As per the reply, he was held entitled to get arrears on enhanced pay w.e.f. 1.7.1979 to 3.6.1981. Accordingly, the right of the appellant-plaintiff to claim interest on this amount which he claimed through writ petition was denied. Otherwise, it was conceded in the reply that the appellant-plaintiff had retired on 31.1.1997. Revised pension case of the appellant-plaintiff was received on 22.12.1999 and the same was finalized by issuing report authorizing the amount of gratuity, change in rate of pension and revised commutation respectively. It is accordingly pleaded that there was no delay in releasing the pensionary benefits. The suit proceeded on the following issues:- “ 1. Whether the plaintiff is entitled to the declaration as Regular Second Appeal No. 1315 of 2004 5 prayed for ? OPP 2. Whether the plaintiff is entitled to the compensation as prayed for? OPD 3. Whether the suit is barred by limitation?OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is bad for non-joinder of necessary party? OPD 6. Whether the Court has no jurisdiction to try the present suit? OPD 7. Whether the suit of the plaintiff is liable to be dismissed?OPD 8. Relief.” The trial Court came to the conclusion that there was no deliberate delay on the part of respondent No. 2 i.e. Accountant General, Punjab and held issues No. 1 and 2 against the plaintiff. Issues No. 3 and 4 were held in favour of the plaintiff. Issue of limitation was decided in favour of the plaintiff without much discussion. The issue of maintainability was held against the plaintiff and in favour of the defendant. Similarly, issue No. 5 of the non- joinder of the necessary party was also held against the plaintiff. The issue of jurisdiction was also held in favour of the plaintiff but the suit was dismissed. The present appellant filed the First Appeal. The First Appellant Court, however, found that the pay fixed in respect of Sh. Balbir Singh Sandhu was subject matter of challenge through writ petition before this Court and accordingly it was observed that there Regular Second Appeal No. 1315 of 2004 6 was no merit in the submission of the appellant-plaintiff. Similarly, the issue of wrong fixation was held against the appellant and so also the interest claimed by the appellant on the delayed payment of his arrears. He is accordingly before this Court through the present Regular Second Appeal. I am of the view that the First Appellate Court was unjustified in declining the prayer of the appellant to reject his submission that he was entitled to revision of his pay as was in the case of Sh. Balbir Singh Sandhu. Even if the pay scale, which was allowed to Sh. Balbir Singh Sandhu, who concededly is junior to the appellant had been withdrawn yet that order is to acquire finality. On a challenge raised by Sh. Balbir Singh Sandhu, this Court had stayed the operation of the order passed by the Government and said Sh. Balbir Singh Sandhu continues to draw the pay, which was allowed to him. Merely because the matter is pending here would not mean that he has been wrongly granted this pay. At the most, the Court could have waited till the decision of this Court to ultimately decline the prayer made on this ground. Thus, in my view, following substantial question of law would arise to the effect, “Whether the pendency of the writ petition where the stay is operating could lead to a finding that the appellant was not entitled to the scale which was granted to his junior or not”. The matter can be looked from another angle. During the course of arguments, the appellant who was appearing in person has placed before me an order passed by the Government whereby the pay scale of Sh. Balbir Singh Sandhu, concededly is junior to the Regular Second Appeal No. 1315 of 2004 7 appellant, has been fixed in the scale of Rs. 14300-18150 w.e.f. 1.1.1996. This order indicates that this scale has been allowed to Sh. Balbir Singh Sandhu, in view of the order passed in CWP No. 13493 of 2004 decided on 27.7.2004. Since the appellant was appearing in person, he perhaps is not aware of the legal niceties to raise the plea on the ground, which may have subsequently arisen. Accordingly, Mr. G.C. Gupta, Advocate, who was present in the Court was requested to assist as Amicus Curiae to help the appellant. On instructions of the appellant, Mr. Gupta has prepared the miscellaneous application making a prayer under Order 41 Rule 27, to permit him to place on record the order passed by this Court in CWP No. 13493 of 2004 decided on 27.7.2007 by way additional evidence. The application is handed over in the Court and is taken on record. Registry may give number to this application. Notice of the application is issued to the State counsel, who does not wish to file any reply as an evidence pertains to an order passed by this Court. This order is per se admissible. It is not disputed before me that this Court has indeed passed an order dated 27.07.2007. Rather Mr. Mann, counsel appearing for the State, very fairly points out that LPA No. 135 of 2008 was filed against this order, was also dismissed on 27.05.2008. Mr. Mann, further points out that the Department has filed review against this judgment, which is pending adjudication. This application for additional evidence is allowed. The order/judgment dated 27.7.2007 is taken on record as additional evidence. This order appears to have been implemented and that Regular Second Appeal No. 1315 of 2004 8 is how Sh. Balbir Singh Sandhu, who was junior to the appellant has been fixed in the scale of 14300-18150 w.e.f. 1.1.1996. In view of this additional evidence, the same relief can not be denied to the appellant. Accordingly, the judgment and decree under appeal would need correction on this ground and the same is ordered accordingly. However, it is made clear that if on any subsequent date, the judgment is reviewed and any order is passed to effect change in the scale of Sh. Balbir Singh Sandhu, the respondent-State would be at liberty to seek review of the present order as well. I also find that the Courts were not justified in declining interest on the delay payment of pensionary benefits released to the appellant. It is noticed by the First Appellate Court that there was no unnecessary delay in releasing the benefits. The appellate Court was misconceived in saying that there was a delay of 2-3 months in processing the case. Infact, the appellant had retired on 31.1.1997 and concededly these benefits released to him somewhere in January, 2000. The case of revised pension was received on 20.12.1999 by the AG's office. There was certainly a delay on the part of the respondent to send the case of the appellant for finalisation, especially so, when the revised scale was allowed in January, 1998. There cannot be any justification to send this case only in December, 1999 to AG for finalisation. The delay is required to be seen from the angle of release of the amount. There may not be any responsibility on the part of the AG's office for delay but fact remains that the huge amount which was due to be appellant remained with the respondent. If he had got this amount in time, he would have been able to utilise the same. In such cases, there is no Regular Second Appeal No. 1315 of 2004 9 need to see whether said delay is deliberate, intentional or mala fide. The culpability is to be seen from the angle whether there is any unexplained and unjustified delay. There is hardly any justification in sending the case in December, 1999 when the revised pay scales were allowed during January, 1998. I find that delay in releasing the amount from the date when the revised scales were allowed leading to revision in retiral benefit is found unexplained and unjustified and accordingly the appellant is held entitled to interest from the date of revised pay and allowances or commutation pension became due to him to the date of payment. The appellant had claimed interest at the rate of 18% per annum. To me it sounds little excessive. As per the norms, 9% interest would sound reasonable. Accordingly, the appellant would be entitled to these arrears at the rate of 9% interest from the date as held above to the date of release of benefits. Rest of the relief claimed had earlier been agitated in the writ petition and were adjudicated therein. Accordingly, I am not inclined to go into those aspects. The view taken by the Courts on those aspects is, therefore, upheld. In view of the above noted observation, the present Regular Second Appeal is partly allowed to the extent as stated above. The Registry is directed to prepare the modified decree sheet accordingly. February 02, 2010 ( RANJIT SINGH ) rts JUDGE