Punjab-Haryana High Court
D.C.Bansal vs State Of Punjab And Others on 25 January, 2013
Author: Rakesh Kumar Jain
Bench: A.K.Sikri, Rakesh Kumar Jain
L.P.A. No.1768 of 2012 (O&M) [1]
L.P.A. No.91 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) L.P.A. No.1768 of 2012 (O&M)
Date of Decision:25.01.2013
D.C.Bansal ...Appellant
Vs.
State of Punjab and others ...Respondents
(2) L.P.A. No.91 of 2013 (O&M)
Date of Decision:25.01.2013
State of Punjab and others ...Appellants
Vs.
D.C.Bansal ...Respondent
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. H.S.Saini, Advocate,
for the appellant D.C.Bansal.
Mr. Alok Jain, Addl. A.G., Punjab.
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Rakesh Kumar Jain, J.
C.M.No.4623-LPA-2012 in LPA-1768-2012 For the reasons mentioned in the application, supported by an affidavit, delay of 34 days in filing of the appeal is hereby condoned.
C.M. stands disposed of.
C.M.No.299-LPA-2013 in LPA-91-2013 For the reasons mentioned in the application, supported by an L.P.A. No.1768 of 2012 (O&M) [2] L.P.A. No.91 of 2013 (O&M) ***** affidavit, delay of 81 days in filing of the appeal is hereby condoned.
C.M. stands disposed of.
LPA No.1768 of 2012 & LPA No.91 of 2013 Aggrieved against the order of the learned Single Judge dated 08.08.2012, partly allowing the writ petition, two appeals have been preferred, both by the writ petitioner and the respondents, namely, LPA No.1768 of 2012 and LPA No.91 of 2013. Both the appeals are being decided by this common order as both are inter-connected.
The facts, however, are extracted from the appeal preferred by the writ petitioner who was working as Assistant Labour Commissioner, Patiala and was appointed as Deputy Secretary in the Punjab Building and other Construction Workers Welfare Board, by way of deputation on 29.07.2009. He has already retired from the said post of Deputy Secretary on 30.04.2010 after attaining the age of superannuation. He filed the writ petition raising the grievances, firstly for re-fixation of his pay against the post of Deputy Secretary in the pay scale of `7880-11660, secondly for grant of benefit of increment(s) and thirdly for deputation allowance and all other consequential benefits for the period he worked on the said post of Deputy Secretary.
The learned Single Judge rejected the first prayer of re-fixation of pay on the ground that the post of Deputy Secretary carried the pay scale of `7880-11660, whereas the post of Assistant Labour Commissioner carried the pay scale of `7220-11660 but on account of some omission, only the pay scale of the post of Deputy Labour L.P.A. No.1768 of 2012 (O&M) [3] L.P.A. No.91 of 2013 (O&M) ***** Commissioner had been mentioned and the scale of the post of Assistant Labour Commissioner, which the appellant was admittedly holding, was omitted. It was, thus, held that he would not be entitled to the pay scale of `7880-11660, which is meant for the post of Deputy Labour Commissioner.
As regards the deputation allowance, it has been held that as per Rule 10.21(2) of the Punjab Civil Service Rules, Vol.1, Part 1 (hereinafter referred to as the "Rules"), it could be claimed if an employee is transferred outside the regular line in public interest but as the appointment of the appellant on the post of Deputy Secretary was on the basis of his request, it was found that he did not serve any public interest and, thus, he was not entitled for grant of deputation allowance. However, insofar as the financial incentives in terms of increment(s) are concerned, the learned Single Judge has relied upon Rule 4.4(c)(i) contained in Chapter IV of the Rules, Vol.1, Part 1 and held that the post held by the appellant carrying duties and responsibilities of greater importance then those attached to the post held by him before coming on deputation and was entitled for increment(s) for the period he worked on the said post of Deputy Secretary.
The appellant D.C. Bansal is unhappy with the rejection of his claim regarding re-fixation of pay as well as deputation allowance.
Learned counsel appearing on behalf of the appellant D.C.Bansal has argued that vide decision dated 02.06.2009 taken by the Board, the post of the Deputy Secretary of the Board was approved in the pay scale of `7880-11660 and for the said post, the candidates holding the L.P.A. No.1768 of 2012 (O&M) [4] L.P.A. No.91 of 2013 (O&M) ***** post of Deputy Labour Commissioner or Assistant Labour Commissioner was considered to be eligible. He further argued that the learned Single Judge has erred in relying upon the averment made by the Board in the written statement about the omission to mention the pay scale of Assistant Labour Commissioner at the time of preparing agenda of approving the post of Deputy Secretary but the agenda is still intact and has not been modified or rectified.
On the issue of deputation allowance, it is submitted that the appointment of the appellant, on deputation, in any case is in public interest which should not have been ignored merely on the ground that the appellant had made a request in that regard.
In reply, learned State Counsel has submitted that the post of Deputy Secretary was to be filled up by way of deputation from the incumbents to be taken from the Labour Department who should be either holding the post of Deputy Labour Commissioner or the Assistant Labour Commissioner. The post of Deputy Labour Commissioner carried the pay scale of `7880-11660, whereas the post of Assistant Labour Commissioner carried the pay scale of `7220-11660 and as the appellant was working as Assistant Labour Commissioner in the pay scale of `7220-11660, he should not have been paid the pay scale of `7880-11660 meant for the Deputy Labour Commissioner. He has further argued that Rule 10.21(2) of the Rules clearly stipulates that the transfer outside the regular line, if made in public interest, then the deputation allowance @ 10% of the basic pay is payable.
We have heard learned counsel for the parties and are of the L.P.A. No.1768 of 2012 (O&M) [5] L.P.A. No.91 of 2013 (O&M) ***** considered opinion that the appellant-employee has miserably failed to prove, as a matter of fact, that his pay scale was not `7220-11660. It has been argued before us that the agenda item approved on 02.06.2009 has not been rectified. Even if the same is not done but the fact of the matter is that the employee was working on the post of Assistant Labour Commissioner in the pay scale of `7220-11660 when he was sent on deputation on the post of Deputy Secretary who has claimed the pay scale of `7880-11660 which is meant for the post of Deputy Labour Commissioner but, to our mind, there is no error committed by the learned Single Judge in this regard who has rightly rejected the claim of the employee.
As regards the deputation allowance, Rule 10.21(2) of the Rules provides that if the deputation is in the public interest only then the deputation allowance is payable, whereas , admittedly, the employee has been sent on deputation on his own request and not in the public interest and as such, he has been rightly declined the grant of deputation allowance.
Insofar as the appeal filed by the State is concerned, it is argued by the learned State Counsel that the learned Single Judge has erred in awarding increment(s) to the employee for holding the post of Deputy Secretary carrying duties and responsibilities of greater importance.
We do not find any substance in his submission in view of Rule 4.4(c)(i) of the Rules which has been rightly interpreted by the learned Single Judge in the following terms:-
L.P.A. No.1768 of 2012 (O&M) [6]L.P.A. No.91 of 2013 (O&M)
***** "13. In terms of the Rule re-produced hereinabove, if an 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 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.
L.P.A. No.1768 of 2012 (O&M) [7]L.P.A. No.91 of 2013 (O&M)
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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 superannuation 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."
In view of the aforesaid discussion, both the appeals are found to be without any merit and hence the same are hereby dismissed, though without any order as to costs.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
January 25, 2013
vinod*