Punjab-Haryana High Court
Dr. Daizy Sood vs State Of Punjab And Another on 27 February, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 7233 of 2008
Date of Decision : 27.2.2013
Dr. Daizy Sood ..... Petitioner(s)
Versus
State of Punjab and another ..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. V.K. Shukla, Advocate, for the petitioner (s).
Ms. Monica Chhibber Sharma, DAG Punjab.
AUGUSTINE GEORGE MASIH, J.
Petitioner was appointed as Medical Officer in the State of Haryana, Department of Health and Family Welfare on regular basis, vide order dated 7.11.1984. She cleared her probation period in February, 1987. Petitioner while working in General Hospital, Kaithal, came on deputation in the State of Punjab for a period of one year, vide order dated 18.12.1998 (Annexure-P-1). This deputation period was further extended by the Government of Haryana, vide letters dated 30.1.2000 and 12.2.2001 (Annexures-P-2 and P-3 respectively). During this deputation period, State of Haryana extended benefit of higher pay scales to the Medical Officers on completion of 5/9/14 years of service which benefit was granted to the petitioner in the years 1989, 1995 and 1999 respectively. She started CWP No. 7233 of 2008 -2- drawing the basic pay of Rs. 12500/- in the year 1999 because of grant of higher pay scale.
While she was on deputation with the State of Punjab, vide order dated 26.12.2001 (Annexure-P-4), petitioner was offered appointment as Medical Officer in the Punjab Civil Medical Services-I (in short 'PCMS') by the Punjab Government by way of transfer from the Haryana Government in the pay scale of Rs. 7880-13500 with the initial start of Rs. 8000 plus other allowances sanctioned by the Government from time to time. This appointment was initially temporary, but the same was likely to continue. Probation period of two years was provided which could be extended as per the service Rules. Further condition of appointment was that till the post is temporary, petitioner will have no right to be confirmed after completion of probation period. There were various other conditions which were imposed. Petitioner accepted this offer and consequently joined Primary Health Centre, Daroli Bhai in the office Civil Surgeon, Moga on 3.1.2002.
After joining the Department of Health and Family Welfare, Punjab, she submitted a representation Annexure-P-6, claiming therein that since she has been absorbed in the PCMS, she be granted the benefit of service rendered by her in the State of Haryana and be granted the pay protection. It was contended that since the year 1999, she was drawing the pay scale of Rs. 12500/-. The benefit of Punjab Government policy letter dated 15.11.2000 (Annexure-P-5) was sought by the petitioner which had been issued with reference to Rule 4.4 (i) of the Punjab Civil Services Rules, Volume-1, Part-I (in short 'PCS Rules') asserting that the benefit of previous service for the purpose of time bound promotion/grant of higher scale to the new post/service should be counted. Prayer was thus, made for revision of CWP No. 7233 of 2008 -3- fixation of pay. This representation of the petitioner was forwarded by the Civil Surgeon, Moga, on 6.2.2002 (Annexure-P-7) to the Principal Secretary, Health and Family Welfare, Punjab-respondent No. 1. When nothing was heard from the respondent, petitioner served a notice of demand through counsel dated 28.2.2008 (Annexure-P-8) upon the respondents, but that also did not solicit any response, leading to the filing of the present writ petition wherein the petitioner is claiming a writ of mandamus directing respondents to count previous service of the petitioner, rendered by her as Medical Officer in the State of Haryana for the purpose of protection of pay as well as grant of higher pay scale etc., after being appointed in the same capacity as Medical Officer in the State of Punjab by way of transfer, vide order dated 26.12.2001 (Annexure-P-4), relying upon the Punjab Government policy letter dated 15.11.2000 (Annexure-P-5).
Reply to the writ petition has been filed by the respondents wherein the factual aspect is not disputed. It is stated that Department of Health and Family, Punjab, vide letter dated 25.12.2001, had given the petitioner fresh appointment and posted at Subsidiary Health Centre, Ghal Kalan under Primary Health Centre Daroli Bhai, District Moga. Emphasis on condition No. 4 of the appointment letter has been laid where probation period of two years from the date of joining has been prescribed. Even petitioner was required to submit afresh medical fitness certificate. It has been further stated that the probation period of the petitioner was cleared with effect from 3.1.2004 on the basis of her joining report dated 3.1.2002 on completion of two years. As regards the claim of the petitioner for grant and protection of pay scale/pay which she was drawing in the State of Haryana by giving her the benefit of previous service, it has been stated that since offer of appointment CWP No. 7233 of 2008 -4- to the petitioner was for a fresh appointment with a basic pay specified therein and the initial start, petitioner was not entitled to the protection of her pay drawn previously in the State of Haryana before joining the Punjab Government service.
As regards the claim based on the Punjab Government instructions dated 15.11.2000 (Annexure-P-5), it has been stated that the petitioner is not covered under the said instructions and the same are applicable to only such Government employees, who had rendered their service within the State of Punjab and since the petitioner had rendered her service in the State of Haryana, therefore, these instructions are not applicable to the case of the petitioner. It has further been pointed out that the claim of the petitioner was duly considered by the respondents on the basis of her representation and the same was rejected by respondent No. 1, vide order dated 5.8.2004 (Annexure-R-2). In the affidavit dated 15.2.2011 filed by Dr. J.P. Singh, Director, Health and Family Welfare, Punjab, it has been stated that apart from the petitioner, there were other Medical Officers who were appointed on transfer from Haryana Government, but none of them was given the benefit of pay fixation/protection. It has rather been said that as per Rules/record, no service benefit and no benefit of pay fixation has been granted to any Medical Officer, who has been appointed from other State. On this basis, prayer has been made for dismissal of the writ petition.
Counsel for the parties have, on the basis of the pleadings, argued their respective cases and taken me through the records of the writ petition as also the Statutory Rules. On consideration thereof, I am of the view that the claim as made by the petitioner in the present case, writ petition cannot be accepted.
CWP No. 7233 of 2008 -5-
The short question, in the light of the undisputed questions of fact in the case, is the applicability of Punjab Government policy letter dated 15.11.2000 (Annexure-P-5).
The statutory Rules governing the service of the petitioner were 'The Punjab Civil Medical Service (Class-II) Rules, 1982. Rule 2 are the definitions. 2 (b) defines 'direct appointment' to mean an appointment made otherwise than by promotion or by transfer of a person already in service of the Government of India or of a State Government. Sub Rule (c) defines 'Government' to mean the Government of State of Punjab in the Department of Health and Family Welfare. Rule 8 provides method of appointment, according to which, all appointments to the service shall be made by direct appointment, provided that the Government may fill any vacancy by transfer of any person already in service of Government of India or of a State Government. Rule 11 provides a period of probation of two years for a direct appointee. In view of these rules, it is clear that the appointment of the petitioner although by transfer is as a fresh direct appointee as is apparent from the appointment letter dated 26.12.2011 (Annexure-P-4).
Reference, at this stage, to the relevant contents of the policy letter dated 15.11.2000 (Annexure-P-5) would also be essential, which is reproduced as below :-
"Subject :- Protection/fixation of pay of Government employees appointed by transfer/open selection etc. from one service to another.
Sir/Madam, I am directed to refer to the subject noted above and to say that a number of references are being received from various departments for protection of pay on employment who CWP No. 7233 of 2008 -6- are already in Government service and are appointed to another service/cadre by way of transfer/open selection as per the service rules applicable to such service/cadre.
2. According to existing proviso below Rule 4.4 (i) of Punjab Civil Services Rules Volume I, Part-I, if an employee has held a post in the same or identical time scale in some other department or a body whether incorporated or not which is wholly on substantially owned by the Government, his pay on appointment in the Government service is to be fixed at the same level. Cases are now arising where an employee before being selected for a post under the State Government is drawing pay in the higher pay scale/senior/selection pay scale. Apparently, the present provisions of proviso below Rule 4.4 (b) do not permit protection of pay in such cases. However, it is held that when a person already in service selected for service under the Government through proper channel his past service should not be washed out, as far as fixation of pay in the new post is concerned. However, such an employee cannot count this period for seniority which disturbs the legal right of officials already senior in service.
xxxxxx xxxxxx xxxxxx
5. In view of the above it has been decided that :-
(i) An employee who has previously held substantively or officiated in the same post, or a permanent post on the same time scale or a post having identical three/four times pay scales or in which time bound placement/grant of higher pay are provided as in the new post, in a Government department or a body incorporated or not which is wholly or substantially owned by the Government, shall in addition to the protection of pay actually drawn in the corresponding scale as per provisions of Rule 4.4 (b) of Punjab Civil Services Rules, Volume I, Part-I count his previous service for the purpose of time bound promotion/grant of higher scale to the new CWP No. 7233 of 2008 -7- post/service. This protection will be as a measure personal to him. He shall not be entitled to benefit of this time bound promotion towards seniority and shall be placed lower to those already higher up in the seniority list.
(ii) Where an employee is already getting senior/higher pay scale or earns a senior/higher pay scale in the previous service where a percentage of senior/higher scale is prescribed after he has joined the new post/service; pay as fixed in the senior/higher scale in the old service shall also be protected as a measure personal to him in the initial scale of the new post and he shall be placed in the senior scale when his turn comes for the same in the normal course.
Any employee shall not be entitled to take benefit of this protection towards seniority nor any official senior to him shall have any claim for re-
fixation of pay on the basis of protection is allowed as above.
(iii) These instructions shall not apply in case of employees of various Public Sector Undertakings who are offered employment in the Government on compassionate grounds on being declared surplus or otherwise. They should be deemed to be joining service under the Government for the first time as at present.
(iv) These instructions will come into effect
immediately. The cases decided on or after
15.12.1998 may be reviewed in consultation with the Finance Department in order to ensure uniformity.
6. Necessary amendments to Rule 4.4 (b) of Punjab Civil Services Rules, Volume 1, Part-I will be issued in the due course."
CWP No. 7233 of 2008 -8-A perusal of the above would show that this is a further explanation to Rule 4.4 (i) proviso below 4.4 (b) of the PCS Rules. Rule 4.4 or the instructions dated 15.11.2000 do not define Government, whether it is Punjab or any other State. Since these instructions are an explanation to Rule 4.4 (b) of the PCS Rules, for definition of the term 'Government', which would be determinative factor as far as the present case is concerned, the Court has to fall back upon the definition given in Chapter-II of the PCS Rules. Rule 2.1 reads as follows :-
"Rule 2.1 : Unless there is something repugnant in the subject or context, the terms defined in this Chapter are used in these Rules in the sense here explained."
Term Government has been defined in Rule 2.24 which reads as follows :-
"Rule 2.24 : Government means the Punjab Government in the Administrative Department."
In the light of the definition given in the PCS Rules, it is apparent that the Government employees and Government service would mean an employee of the Government of Punjab and service of the Government of Punjab unless specifically said otherwise. Perusal of Rule 4.4 leaves no manner of doubt that the same is applicable to Punjab Government employees only which has been further required to be read in the context in which policy instructions/letter dated 15.11.2000 makes it applicable to. It expands the applicability of the Rule not only to the Punjab Government Employees, but to those employees who were or are employees of a body incorporated or not which is wholly or substantially owned by the Government as is apparent from para-5 (i) of the said letter. This policy letter, therefore, cannot be CWP No. 7233 of 2008 -9- extended to an employee who was erstwhile an employee of the State of Haryana. Merely because the petitioner has been appointed under the Statutory Rules by way of transfer which would give legal sanctity to such appointment, but this does not entitle her to the pay protection and the service benefits which she had earned while working in the State of Haryana, moreso when the offer of appointment dated 26.12.2001 (Annexure-P-4) clearly specifies the pay scale and initial start of pay which petitioner would be entitled to. The appointment of the petitioner was a fresh one as is apparent from the Clauses 2, 3 and 4 of the said offer of appointment wherein probation period, fresh medical certificate and verification of conduct and antecedents were to be again done afresh of the petitioner. Petitioner having accepted the offer, as made to her cannot, now claim the benefit of previous service, rendered by her in the State of Haryana. The reliance placed upon the policy decision dated 15.11.2000 (Annexure-P-5) by the petitioner for pay protection and other benefits is of no help to the petitioner as the same is not applicable to her case.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH) JUDGE 27.2.2013 sjks