Regular Second Appeal No. 980 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 980 of 2010 Date of decision : February 09, 2011 R.S.Kundu ....Appellant versus Executive Engineer and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. DS Rawat, Advocate, for the appellant Mr. Anjum Ahmad, Addl. Advocate General, Haryana L.N. Mittal, J. (Oral) Plaintiff R.S.Kundu who has been partly successful in the courts below has filed the instant second appeal. The plaintiff was appointed as Junior Engineer in PWD Public Health, Department of Haryana. He was promoted as Sub Divisional Engineer (SDE). He was granted first Assured Career Progression (ACP) scale with effect from 1.1.1996 in revised pay scales on the basis of ACP Rules 1998. However, defendant no. 1 by issuing show cause notice dated 20.10.2000 proposed to withdraw the ACP scale. Defendant no. 1 ultimately vide order dated 25.1.2001 withdrew the ACP scale of the plaintiff holding it to have been erroneously given to him. The plaintiff claimed that he was legally entitled to ACP scale with effect from 1.1.1996 having completed five years service as SDE and the sale scale has been Regular Second Appeal No. 980 of 2010 -2- wrongly withdrawn by the defendants. Accordingly, the plaintiff challenged the instructions dated 24.8.2000 (basis of withdrawal of the ACP scale from the plaintiff) and the show cause notice as well as the impugned order dated 25.1.2001 in the suit. The plaintiff sought injunction against the withdrawal of the ACP scale and implementation of order 25.1.2001. Defendants, inter alia, pleaded that the plaintiff was promoted as SDE with effect from 16.3.1992 on adhoc basis only. It was also pleaded that ACP scale was erroneously granted to the plaintiff with effect from 1.1.1996 and the same has been rightly withdrawn vide order dated 25.1.2001 after issuing show cause notice dated 13.11.2000 and by passing order dated 25.1.2001. The said order is legal and valid. The plaintiff is not entitled to ACP scale with effect from 1.1.1996. It was alleged that only directly recruited SDEs are entitled to ACP scales and the plaintiff who is promotee SDE is not entitled to the same. Various other pleas were also raised. Learned Civil Judge (Junior Division), Rohtak vide judgment and decree dated 30.4.2009 partly decreed the suit ordering that defendants shall not recover the amount already received by the plaintiff in ACP scale with effect from 1.1.1996 till 25.1.2001. Both parties preferred first appeals against judgment and decree of the trial court. Learned District Judge, Rohtak vide common judgment dated 16.12.2009 dismissed both the appeals. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. It is undisputed that the plaintiff joined as Junior Engineer and Regular Second Appeal No. 980 of 2010 -3- was subsequently promoted as SDE. Vide order dated 13.3.1992 Ex. D1, the plaintiff was promoted as SDE on purely temporary and adhoc basis with effect from 6.4.1990 against vacancy reserved for direct recruit. However, vide notification dated 12.3.2001 published in gazette Ex. D2, the plaintiff was promoted as SDE with effect from 6.1.1995. It is, thus, manifest that plaintiff was promoted as SDE on regular basis with effect from 6.1.1995 only. For the purpose of ACP scale, only regular service is to be counted and adhoc and temporary service is not to be counted. According to ACP Rules, SDEs are entitled to ACP scale on completion of five years of regular satisfactory service. Consequently, the plaintiff became entitled to ACP scale with effect from 6.1.2000 only and not with effect from 1.1.1996. However, claim of the defendants is that in view of ACP Rules and instructions dated 10.8.2000 (Ex. P2 as well as Ex. D4), ACP scale is to be given to directly recruited SDEs only and not the promotee SDEs and since the plaintiff is promotee SDE, he is not entitled to the ACP scale. The contention cannot be accepted. ACP scale has been given in lieu of stagnation at the same level. Consequently, whether a person is promotee or direct recruit at any given level, if he gets stagnated on the said level for the requisite period, he becomes entitled to ACP scale. Therefore, there cannot be any distinction between directly recruited employee and promotee employee in the grant of ACP scale once they fulfill requisite condition of regular satisfactory service for required period. Instructions dated 10.8.2000 cannot over-ride ACP Rules. Division Bench of this Court in Suresh Kumar Mangal & others vs. State of Haryana and others, 2009 Regular Second Appeal No. 980 of 2010 -4- (2) RSJ 476 held that instructions cannot prevail over the Rules. A Division Bench of this Court in Ramesh Dahiya vs. Uttar Haryana Bijli Vitran Nigam Limited through its Managing Director, 2008(3) SLR 59 held that even promotee employee is entitled to benefit of ACP scales on completion of requisite period of service. No judgment to the contrary has been cited. Consequently, the plaintiff in the instant case is entitled to first ACP scale with effect from 6.1.2000 on completion of five years regular service. Following substantial question of law arises for determination in the instant second appeal :- Whether approach of the courts below in holding that the plaintiff is not entitled to ACP scale being promotee officer is illegal and perverse and therefore, unsustainable in law ? For the reasons already recorded, the aforesaid substantial question of law is answered in the affirmative i.e. in favour of plaintiff- appellant. As a necessary upshot of the aforesaid discussion, the instant second appeal is allowed partly and judgments and decrees of the courts below are modified and suit filed by the plaintiff is decreed holding that he is entitled to first ACP scale with effect from 6.1.2000 with all necessary consequential benefits. ( L.N. Mittal ) February 09, 2011 Judge 'dalbir'