Punjab-Haryana High Court
Ashok Kumar & Others vs State Of Punjab & Others on 8 February, 2013
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.12594 of 1990 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.12594 of 1990
Date of decision:08.02.2013
Ashok Kumar & others .....Petitioners
Versus
State of Punjab & others .....Respondents
CWP No.13066 of 1990
Date of decision:08.02.2013
Satish Kumar & others .....Petitioners
Versus
State of Punjab & others .....Respondents
CWP No.13424 of 1992
Date of decision:08.02.2013
Baldev Raj & others .....Petitioners
Versus
State of Punjab & others .....Respondents
CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: None for the petitioners,
Mr.Aman Bahri, Addl.A.G., Punjab.
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G.S.Sandhawalia J. (Oral)
1. This order shall dispose of CWP No.12594 of 1990, CWP No.13066 of 1990 and CWP No.13424 of 1992 as dispute in all the three cases is pertaining to the grant of proficiency step up after taking into account the services rendered by the petitioners on work charge basis. The additional prayer is for staying the recovery of the benefit given to the petitioners in the shape of proficiency step up. For the sake of convenience, CWP No.12594 of 1990 2 facts have been taken from CWP No.12594 of 1990.
2. The pleaded case of the petitioners, who are 121 in number and working as Motor Mates, Drivers, Cleaners, Work Inspectors, Work Munshis, Beldars, Chowkidars, Surveyors, Road Inspectors etc. were appointed from period ranging from 1951 onward till 13.04.1980, on work charge basis. The services of the petitioner were subsequently regularized. The Third Pay Commission submitted its report on 11.07.1988 and made recommendations of revision and re-fixation of pay scales. Almost all the recommendations of the Commission were accepted and notifications were issued and benefits were granted to the employees w.e.f. 01.01.1986. The Commission recommended the introduction of proficiency step up on the basis of suitability of the employees after 8 and 18 years of service. On the recommendations of the Commission, it was decided by the State of Punjab that besides the regular annual increments, one additional increment, on each occasion, after completion of 8 and 18 years of service, on or after 01.01.1986, against a particular post in the form of proficiency step up was also to be granted to the Punjab Government regular employees. A copy of the said letter dated 01.12.1988 has been appended. In view of the said letter, the petitioners became eligible for the proficiency step up from 01.01.1986, after completion of 8 and 18 years of regular service on the appointed day and they were entitled to the grant of proficiency step up. However, the work charged period had not been counted for the purpose of grant of proficiency step up although the benefit of work charged service rendered by them had already been granted to the petitioners for the purpose of increment/efficiency bar, leave and fixation of pay on earlier occasions. The respondents, without giving any notice or opportunity of hearing, had CWP No.12594 of 1990 3 stopped the increments of proficiency step up and they had illegally ignored the period of work charge services rendered by the petitioners while fixing their pay. Vide letter dated 07.03.1990, the Chief Engineer, Punjab P.W.D. B & R Branch, Patiala had intimated to the Superintending Engineer, Construction Circle, P.W.D. B & R Pathankot that the case has been referred to the Punjab Government for clarification and till then, the work charge service was not to be counted for proficiency step up. Accordingly, the action of the respondents in not granting the benefit of proficiency step up after taking into account the work charge period was challenged.
3. The State, in its written statement, submitted that there was no statutory rule regarding proficiency step up which is a concession. The petitioners cannot claim proficiency step up as a matter of right. The period of service rendered as work charge could not be taken into account for pay fixation and proficiency step up as that would result in junior employees drawing higher salaries than their seniors as seniority was to be counted from the date of regularization of service and not from the date of appointment on work charge basis. The Government had decided to grant proficiency step up to its employees after completion of 8 and 18 years of regular service and the time spent as work charge was not to be counted. As per Government instructions dated 01.09.1989, at point 6, it had been clarified that the period of 8 and 18 years of service is to be reckoned from the date of appointment on regular basis. Accordingly, it was pleaded that the petitioners have no such legal right and it was only a concession.
4. From the above pleadings, it would be clear that the petitioners were claiming their right of getting counted the period of services rendered on work charge basis without any rule or Government instructions. The CWP No.12594 of 1990 4 State, in its reply, has stated that it was a mere concession which was to be granted and as per the instructions dated 01.09.1989, it was clarified that the period of 8 and 18 years was to be reckoned from the period of appointment on regular basis and services rendered on work charge basis was not to be counted for proficiency step up.
5. The issue has now been settled by the Hon'ble Apex Court in Punjab State Electricity Board & others Vs. Jagjiwan Ram & others 2009 (3) SCC 661. The Hon'ble Apex Court, after relying upon State of Haryana Vs. Haryana Veterinary & AHTS Association 2000 (8) SCC 4 and State of Punjab Vs. Gurdeep Kumar Uppal 2003 (11) SCC 732 held that work charged employees constituted a distinct class and they cannot be equated with any other category much less regular employee and that the work charged employees were not entitled to the service benefits which were admissible to regular employees under the relevant rules or policy framed by the employer. The said ad hoc period cannot be used for the purpose of grant of revised pay scales, senior/selection grade, proficiency step-up and for fixation of seniority. Accordingly, it was held that the benefit of promotional scale were to be given to the employees only on completion of 9-16-23 years of regular service. The relevant paragraph reads as under:
"12. In State of Punjab and others v. Ishar Singh and others, 2002 (1) SCT 72: [(2002) SCC 674] and State of Punjab and others v. Gurdeep Kumar Uppal and others [(2003) 11 SCC 732], the two Judge Benches referred to the judgment in State of Haryana v. Haryana Veterinary & AHTS Accociation (supra) and held that adhoc service rendered by the respondents cannot be clubbed with their regular service for the purpose of grant of revised pay scales, senior/selection grade, proficiency step-up and for CWP No.12594 of 1990 5 fixation of seniority."
6. Accordingly, in view of the said settled position, no benefit can be granted to the petitioners regarding the counting of the ad hoc period for the purposes of grant of proficiency step up and the writ petitions are dismissed qua the said relief claimed.
7. However, the other issue which has to be redressed is regarding recovery which was stayed at the time of admission of the case by the Division Bench of this Court on 18.09.1990. The petitioners, who are Motor Mates, Drivers, Cleaners, Work Inspectors, Work Munshis, Beldars, Chowkidars, Surveyors, Road Inspectors etc., have retired or at the verge of retirement, which would be clear from Annexure P-1 since they were appointed on ad hoc basis wayback in the year 1974 and the last appointment was made in the year 1980. The stand of the State is that the benefit was given from 20.03.1989, in view of the revision but subsequently, was withdrawn in view of the instructions dated 01.09.1989. Thus, there has been no misrepresentation by the petitioners for the benefits which they have received. It was the State themselves who had given the said benefit and then later sought to withdraw the same. Due to its fault, the petitioners cannot be, now, penalized by recovering the said amount.
8. The principles laid down in a Full Bench judgment of this Court in Budh Ram & others Vs. State of Haryana & others 2009 (3) PLR 511 would come into play. A three Judge Bench of the Hon'ble Apex Court in Syed Abdul Qadir & others Vs. State of Bihar & others (2009) 3 SCC 475 has held that in the case of a retired employee, no recovery is to be effected if there is no misrepresentation or fraud. Subsequently also, the Hon'ble Apex Court, in Chandi Prasad Uniyal & others Vs. State of Uttarakhand CWP No.12594 of 1990 6 & others (2012) 8 SCC 417 while up-holding the judgment of the Division Bench of the Uttarakhand High Court, has held as under:
"14. We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
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17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."
9. Accordingly, keeping in view the above principles and in view of the fact that the petitioners would have retired, while disposing of the writ petitions, the respondents are restrained from recovering any monetary benefits granted to the petitioners earlier on the ground of counting the work charge period for purpose of proficiency step up.
08.02.2013 (G.S.Sandhawalia) sailesh JUDGE