Punjab-Haryana High Court
D.C.Bansal vs State Of Punjab & Others on 8 August, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.1904 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.1904 of 2011
DATE OF DECISION: AUGUST 08, 2012
D.C.Bansal, Dy.Secy.-cum-Asstt.Labour Commissioner(Retd.)
.......Petitioner
Versus
State of Punjab & others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.HS Saini, Advocate for the petitioner.
Mr.BS Chahal, Deputy Advocate General, Punjab.
Mr.TPS Teji, Advocate for respondent No.2.
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TEJINDER SINGH DHINDSA, J.
I have heard learned counsel for the parties at length.
2. The petitioner, who was working as Assistant Labour Commissioner, Patiala, Department of Labour, State of Punjab, was appointed as Deputy Secretary in the Punjab Building and Other Construction Workers Welfare Board - respondent No.2 on 29.7.2009 by way of deputation. He retired from the post of Deputy Secretary on 30.4.2010 upon attaining the age of super- annuation. The present petition has been filed by the petitioner for the issuance of a writ in the nature of mandamus directing the respondents to re-fix his pay against the post of Deputy Secretary CIVIL WRIT PETITION NO.1904 of 2011 2 in the pay scale of `7880-11660 as also to grant him the benefit of increment(s), deputation allowance as also all other consequential benefits for the period that he had worked on the post of Deputy Secretary.
3. It has been pleaded that the petitioner had been appointed on deputation on the post of Deputy Secretary in the respondent No.2 - Board in pursuance to a decision taken by the Board on 9.6.2009 and the agenda item in regard thereto was in the following terms:
1. Name of the post: Dy.Secy.
2. No.: - 1
3. Mode of appointment: On deputation from Labour Deptt.
4. Educational qualification & Experience: Deputy Labour Commissioner/Asstt. Labour Commissioner posted in the Labour Deptt. Punjab.
5. Financial expenditure (per month)(in rupees):
Rs.7880-11660 (un-revised pay scale of Pb.Govt. + deputation allowance).
6. Annual expenditure (in rupees): 4.50 lakhs.
4. In terms of such agenda note, the name of the post had been referred to as Deputy Secretary and the mode of appointment was reflected as "on deputation from Labour Department" and the scale of pay was shown as `7880-11660.
5. The first grievance raised on behalf of the petitioner is that even though in terms of order dated 29.7.2009, Annexure P1, he had been appointed on deputation basis in the respondent- CIVIL WRIT PETITION NO.1904 of 2011 3 Board on the post of Deputy Secretary and it had been stipulated therein that the terms and conditions of his appointment would be issued later in point of time, but with regard to the agenda note the petitioner was vested with a right to have his pay fixed in the scale of `7880-11660 and the same has been denied to him.
6. The second claim raised by the petitioner is with regard to deputation allowance which also has not been released in his favour. Still further, the petitioner claims that upon having appointed to the post of Deputy Secretary on deputation, he was holding a post carrying duties and responsibilities of a greater importance and as such, in terms of the statutory provisions of the Punjab Civil Service Rules, Vol.1, Part 1, Rule 4.4., he was entitled to the benefit of increment(s). In support of such assertion, the petitioner has also placed reliance upon a certificate, Annexure P3, issued by the Labour Commissioner, Punjab wherein it has been noticed that the post of Deputy Secretary with the Punjab Building and Other Construction Workers Welfare Board is of higher financial responsibility than the post of Assistant Labour Commissioner i.e. the post the petitioner had held prior to his being appointed on deputation.
7. Upon notice of motion having been issued, separate replies have been filed on behalf of respondent No.2 and respondents No.1 and 3. The stand taken therein, however, is identical. As regards the claim of fixation of pay in the scale of `7880-11660, it has been stated that in the agenda item put up in the meeting of the respondent-Board held on 2.6.2009, the post of Deputy Secretary was to be filled up by way of deputation from CIVIL WRIT PETITION NO.1904 of 2011 4 incumbents to be taken from the Labour Department. Such officials could be either holding the post of Deputy Labour Commissioner or an Assistant Labour Commissioner. The post of Deputy Labour Commissioner carried the pay scale of `7880- 11660, whereas the post of Assistant Labour Commissioner in the Labour Department carried the scale of `7220-11660. In the agenda note, it was on account of omission, that it was only the pay scale of the post of Deputy Labour Commissioner that had been mentioned, but the scale of the post of Assistant Labour Commissioner which the petitioner, admittedly, was holding in the Labour Department, State of Punjab had been omitted.
8. It is, thus, clear that the petitioner while working on the post of Assistant Labour Commissioner was in the pay scale of `7220-11660 (old) and merely on account of an omission in the agenda note wherein the scale of a Deputy Labour Commissioner had only been mentioned would not vest with the petitioner a right to claim the scale of `7880-11660. As such, the first prayer raised by the petitioner with regard to fixation of pay against the post of Deputy Secretary in the pay scale of `7880-11660 is rejected.
9. As regards the second prayer of the petitioner claiming deputation allowance, even the same is without merit. Rule 10.21 (2), Vol.1, Part 1 of the Rules reads in the following terms:
"10.21 (2). The Grant to Deputation allowance to public Government employees who are transferred or to foreign service to other State Government or the Central Government or bodies (incorporated or not), CIVIL WRIT PETITION NO.1904 of 2011 5 wholly or substantially owned or controlled by Government, provided the transfer is outside the regular line and is in the public interest shall be regulated as under:-
(1) The deputation allowance shall be at the uniform rate of ten percent of the employee basic pay and shall be subject to a maximum three hundred rupees per mensem:
Provided that a Government employee on deputation or on foreign service or after the first day of January, 1978 but before the publication of the Punjab Civil Services Volume 1 (3rd amendment) rules, 1982, may, at his option to be exercised within a period of sixty days of such publication draw deputation allowance at the uniform rate of twenty percent of his un-revised pay till the expiry of the existing term of his deputation.
Provided further that the basic pay plus the deputation allowance shall in case exceed three thousand rupees per mensem."
10. A perusal of the Rule would show that it is only when an employee is transferred from the State Government to a post out of their regular line in "public interest" that he is entitled to the grant of deputation allowance. Nothing has been brought on record to show that the petitioner's appointment by way of deputation on the post of Deputy Secretary in the respondent CIVIL WRIT PETITION NO.1904 of 2011 6 No.2-Board was by way of public interest.
11. On the other hand, learned counsel for the petitioner has not been able to refute the specific stand taken by the respondent-authorities that such appointment by way of deputation on the post of Deputy Secretary was in the light of a request having been submitted by the petitioner himself. Clearly, the appointment of the petitioner on deputation was in the interest of the petitioner. It was in no way calculated to serve any public interest. Accordingly, even the claim of the petitioner as regards grant of deputation allowance cannot be accepted.
12. However, I find that the petitioner is vested with a right for grant of financial incentive in terms of increment(s) on being appointed to the post of Deputy Secretary in the respondent-
Board on deputation. The relevant provision in this regard would be Rule 4.4(c)(i) contained in Chapter IV of the Rules, Vol.1, Part 1 and the same reads in the following terms:
"Notwithstanding anything contained in these rules, where a Government employee holding a post in a temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above his pay drawn by him in the lower post provided it is certified by the Head of the Department in which the Government employee was holding the lower post that CIVIL WRIT PETITION NO.1904 of 2011 7 he would have continued to officiate in the lower post but for his promotion/appointment to the higher post:
Provided that if a Government employee either- (a) has previously held substantively or officiated in-
(i) the same post or
(ii) a permanent or temporary post on the same time-
scale, or
(iii) a permanent post other than a tenure post, or a temporary post (including a post in a body, incorporate or not, which is wholly or substantially owned or controlled by the Government) on an identical time- scale or
(b) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated, then proviso to rule 4.4(b) shall apply in the matter of the initial fixation of pay and counting of previous service for increment.
(ii) The provisions of sub-rule (2) of rule 4.4 shall also be applicable in any case where the initial pay is fixed under this clause. In cases, where a Government employee is, immediately before his promotion or appointment to a higher post drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time scale of the higher post shall be fixed in the same manner as provided in sub clause (i) above."
13. In terms of the Rule re-produced hereinabove, if an CIVIL WRIT PETITION NO.1904 of 2011 8 employee is appointed on the post carrying duties and responsibilities of greater importance than those attached to the post held by him then his initial pay in the time-scale of the higher post is to be fixed at the stage next in the pay drawn by him in the lower post. There is no dispute as regards the certificate, Annexure P3, issued by the Labour Commissioner, State of Punjab wherein it has been certified that the post of Deputy Secretary under respondent No.2-Board carried a higher financial responsibility than the post of Assistant Labour Commissioner in the Labour Department, State of Punjab i.e. the post the petitioner was holding prior to having been appointed on deputation to the post of Deputy Secretary. The stand taken by the State to oppose such claim that such an increment is admissible only on promotion, is without any basis. The Rule clearly envisages the grant of financial incentive where the Government employee is promoted or appointed in his substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance. As such, even the appointment of the petitioner vide order dated 29.7.2009, Annexure P1, on deputation basis on the post of Deputy Secretary in respondent No.2-Board would fall within the ambit of Rule 4.4(c)(i) of the Rules. The petitioner is, accordingly, held entitled to the benefit of increment(s) for the period that he worked on the post of Deputy Secretary with respondent No.2- Board.
14. At this stage, the submission raised by Mr.BS Chahal, learned Deputy Advocate General, Punjab to the effect that in CIVIL WRIT PETITION NO.1904 of 2011 9 case the petitioner is allowed the benefit of such increment, all the Officers who were senior to the petitioner in his parent cadre in the Labour Department would also claim similar benefit, is being noticed only to be rejected. The petitioner is being held entitled to the benefit of increment(s) only on account of his holding a post of higher/greater responsibility having been appointed on deputation to the post of Deputy Secretary in terms of Rule 4.4(c)(i) of the Rules. The plea of discrimination, as such, would not be available to the other officials who may be senior to the petitioner in his parent cadre in the Labour Department.
15. For the reasons recorded above, the present petition is partly allowed. The petitioner is held entitled to the benefit of increment(s) in terms of Rule 4.4(c)(i) of the Rules for the period he has worked on the post of Deputy Secretary on deputation in respondent No.2 - Department i.e. with effect from 30.7.2009 to his date of super-annuation i.e. 30.4.2010. The necessary exercise be carried out within a period of two months from the date of receipt of a certified copy of this order and the pay of the petitioner be consequently re-fixed and his pensionary benefits be also revised accordingly. The admissible financial benefits be released to the petitioner within a period of one month thereafter.
16. Petition is partly allowed in the aforesaid terms.
( TEJINDER SINGH DHINDSA )
August 08, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? (Yes/No)