CWP No. 3457 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P.No. 3457 of 2006
Date of decision 17.9.2008
Sham Labhaya ...Petitioner
Versus
Punjab State Electricity Board and another
.....Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Ashwani Talwar Advocate for the petitioner.
Mr. H.S.Sran, Advocate for respondent nos. 1 and 2 .
1. Whether Reporters of local papers may be allowed to see the
judgement ?
2 To be referred to the Reporter or not ?
3 Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The petitioner has approached this Court with a prayer for
quashing order dated 17.1.2006 ( Annexure P.5) passed by respondent no. 2
whereby the benefit of two increments granted to him vide order dated
15.1.1991 has been reduced to one increment.
Brief facts of the case are that the petitioner joined as Upper
Division Clerk in the office of respondent- Board on 31.5.1974. He was
promoted/posted as Assistant Revenue Accountant/Circle Assistant on
19.7.1985. He was further promoted as Internal Auditor on 6.6.1995. In
view of the time bound promotion scale scheme introduced by Finance
CWP No. 3457 of 2006 2
Circular No.17/90, vide order dated 15.1.1991 ( Annexure P.1), the
petitioner was granted the time bound promotional scale on completion of
16 years service in the Board and accordingly two annual increments were
given to him. His pay was fixed in the scale of 1800-3200. At the time of
grant of second promotional scale the petitioner was posted as Assistant
Revenue Accountant w.e.f. 19.7.1985 and continued to be the same after the
grant of scale. He was not actually promoted to any higher post nor he was
assigned any higher responsibility. On 12.5.2004 ( Annexure P.2) the
respondent board passed an order reducing the benefit of two increments
granted to the petitioner vide office order dated 15.1.1991 to one.
Accordingly a consequential order was passed by fixing his pay w.e.f.
31.5.1990. The order dated 12.5.2004 was challenged by the petitioner in
this Court by filing CWP No. 8773 of 2004 which was disposed of by this
Court on 26.4.2005 . The Division Bench while quashing order dated
12.5.2004 directed the respondents to pass a fresh order in accordance with
law after hearing the petitioner. The petitioner made a representation on
5.9.2005 ( Annexure P.4) which has been declined vide order dated
17.1.2006 ( Annexure P.5). The afore-said order is subject matter of
challenge in the instant petition.
The stand taken by the respondent- Board in the written
statement is that the petitioner was already granted first promotion as
Assistant Revenue Accountant on 9.7.1985 and therefore he was not entitled
to the first time bound promotional scale. It is further stated that petitioner
completed 16 years of service on 31.5.1990. The petitioner was promoted
from the post of UDC to that of Assistant Revenue Accountant on 9.7.1985
in the pay scale of Rs.620-1200 which scale was revised to 1800-3200 w.e.f.
CWP No. 3457 of 2006 3
1.1.1986. As the next promotion from the post of Assistant Revenue
Accountant is to that of Senior Assistant/ Internal Auditor having the same
pay scale of 1800-3200 which is equivalent to the post of Assistant
Revenue Clerk i.e. the lower post and therefore on completion of 16 years
of service on 31.5.1990 the petitioner could not get second promotion.
Therefore, according to the instructions dated 3.9.1993, the petitioner was
entitled to only one increment whereas due to inadvertence he was granted
two increments. The said mistake was rectified vide order dated 12.5.2004
( Annexure P.2).
When the matter came up for hearing on 9.9.2008, the
following order was passed:
” During the course of arguments it has transpired
that the circular dated 3.9.1993 ( Annexure P.6) has placed
reliance on another circular to which reference has been made
in para 3. On a close scrutiny, we find that the afore-mentioned
circular is to be applied when an employee is promoted to the
next higher post and his pay is to be fixed in that scale.
However, in the present case the petitioner has been promoted
from the post of Upper Division Clerk to the post of Assistant
Revenue Accountant who started getting the pay scale of 1800-
3200/- w.e.f. 1.1.1986 which scale, he also becomes entitled to
on 31.5.1990 i.e. after completing 16 years of service. The
circular Annexure P.6 cannot be applied to the case of the
petitioner as it talks of promotion to the next higher post i.e.
promotion to the post which carries pay scale higher than 1800-
3200/-.
CWP No. 3457 of 2006 4
After hearing learned counsel for the parties, we find that
it would be appropriate if we asked the counsel for the Board to
find out as to whether, the Board is following the policy of
passing such like orders, in all the cases or it is only an
individual case. Mr.Sran shall obtain instructions in this
regard………”
The learned counsel for the Board could not point out any case
of such a nature. Therefore, we proceed to dispose of the matter.
We have heard the learned counsel for the parties at some
length and have gone through the paper book with their able assistance. It
is admitted position that on his posting from the post of UDC to that of
Assistant Revenue Accountant on 9.7.1985 the petitioner was not granted
any increments in terms of Regulation 8 of the Punjab State Electricity
Board (Revised) Pay) Regulation 1988 which would be admissible to an
employee on his promotion. The action of the respondents in reducing the
benefit of two increments to one increment is not sustainable in view of the
provisions contained in Para 3 of Finance Circular No. 17/90 dated
23.4.1990 which reads thus:
” At the time of placement in the time bound
promotional/devised promotional scale, the employee will be
allowed promotional increment(s), as are admissible on
promotion under the provisions of Regulation 8 of the PSEB
(Revised Pay) Regulations 1988 and as amended from time to
time.”
It is thus evident that when the petitioner was promoted from
the post of Assistant Revenue Accountant to that of Senior
CWP No. 3457 of 2006 5
Assistant/Internal Auditor on 6.6.1995, his pay scale continued to be the
same at 1800-3200. The Circular dated 3.9.1993 (Annexure P-6) has not
been correclty interpreted and applied to the case of the petitioner. It would
be necessary to read operative part of the Circular which is as under:-
” In case an employee has already availed of the benefit of
placement to the time bound promotional/devised promotional
scale(s) and is promoted to the next higher post, his pay would
be fixed at the next stage in the same scale and his next date of
increment will remain unchanged. In case, he is promoted to a
post which is lower than the scale in which he has already been
placed on time bound promotional devised promotional scale;
he will not be entitled to any increment and continue to draw
the pay of the scale in which he has already been placed.”
A perusal of the afore-mentioned para would clearly show that
in a case where an employee has already availed the benefit of placement to
the time bound promotional/devised promotional scale(s) and such an
employee is promoted to the next higher post, then his pay would be fixed at
the next stage in the same scale without any change in the date of his
increment. If the afore-mentioned provision is correctly applied to the
petitioner, then it becomes evident that the petitioner was granted the scale
of 1800-3200 w.e.f. 9.9.1986 which was the revised pay scale of the post of
Upper Division Clerk w.e.f. 1.1.1986 and he also became entitle to be
placed in that scale of 1800-3200 on the completion of 16 years service on
15.1.1991. He was further promoted to the post of Internal Auditor on
6.6.1995 in the same pay scale of 1800-3200. The Finance Circular
No.34/93, dated 3.9.1993, would not apply to the case of the petitioner as he
CWP No. 3457 of 2006 6
has not been promoted and his pay scale continued to be Rs. 1800-3200 nor
he was given the benefit of placement in the higher scale of Rs. 1800-3200.
Therefore, impugned order dated 17.1.2006 (Annexure P.5) passed by the
respondent No.2, is not sustainable in the eyes of law. We further find that
the Circular dated 23.4.1990 was amended later on 3.9.1993 and the
amendment does not suggest that it is to operate retrospectively w.e.f.
23.4.1990. For this additional reason, we also find that any instruction
contrary to Circular dated 23.4.1990 issued at the hands of respondents, in
any case, cannot be applied to the case of the petitioner.
In view of the above, the writ petition succeeds and the same is
allowed. Order dated 17.1.2006 ( Annexure P.5) is quashed. Respondents
are directed to release the difference of pay to the petitioner within a period
of two months from the date of receipt of certified copy of this order.
(M.M.Kumar)
Judge
(Jora Singh)
17 .9.2008 Judge
okg