Punjab-Haryana High Court
Haryana Power Generation Corporation ... vs Harkesh Chand And Others on 26 July, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
LPA No. 865 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
LPA No. 865 of 2010
Date of decision 26 .7.2010
Haryana Power Generation Corporation Ltd. and others ... Appellants
Versus
Harkesh Chand and others ... Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Mohnish Sharma Advocate for
Mr. Narinder Hooda,Advocate for the appellant
1.To be referred to the Reporter or not ?
2.Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The sole question which requires adjudication in the instant appeal filed by the Haryana Power Generation Corporation Ltd. is whether the period of training would count for consideration as regular satisfactory service for the purpose of grant of ACP scale (Assured Career Progression Scale). The Letters Patent Appeal filed under Clause X is directed against judgement dated 19.2.2010 rendered in CWP No. 1383 of 2009 whereby the learned Single Judge has held that the aforesaid period of training would qualify for the purposes of grant of 1st ACP scale on completion of 10 years service and 2nd ACP scale on completion of 20 years of service while interpreting statutory order and instructions. The learned Single Judge has noticed clause (2) of the Haryana State Electricity Board Order No. 703, issued by the Finance Department dated 17.2.1988 which provides for grant of ACP scale. The aforesaid notification sets out class of persons to whom the Scheme LPA No. 865 of 2010 2 was not to apply. The petitioners, who are Technical Grade II, admittedly are not excluded from the application of the Scheme. The learned Single Judge then referred to clause 3(e) dealing with 1st ACP scale and clause 3(q) dealing with grant of 2nd ACP scale. The note accompanying clause 3(q) has also been relied upon which defines regular satisfactory service. According to the Note every employee of the Board after regular service of minimum period of 10 years who has not enjoyed any financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post on 31.12.1995 on which he was recruited as direct recruit is entitled to 1st ACP scale. Likewise, the 2nd ACP scale is admissible to the Board employee who have completed 20 years of service provided that he has not got more than one functional upgradation. The Note accompanying Clause 3(q) clarifies that regular satisfactory service would mean continuous service counting towards seniority under HSEB including continuous service in the PSEB before reorganization commencing from the date on which the Board employee joined service after being recruited through the prescribed procedure or rules/regulations for regular recruitment. The learned Single Judge has then placed reliance on memo dated 27.3.1991 circulated to all departments that the period of training of all employees shall be treated as duty for all intents and purposes, that is, for grant of increments in accordance with the provisions contained in the policy. Another Note dated 19.4.1991 has also been relied upon to clarify that the trainee would also be eligible for all benefits allowed by the Board . The memo dated 2.1.1992 states that the period of training shall be treated as duty for all intents and LPA No. 865 of 2010 3 purposes i.e. seniority, leave etc. and such period was to be treated/ counted as experience in service for the purposes of promotion as per memo dated 20.1.1992. Accordingly, the learned Single Judge has held in para 3 of the judgement as under:
".......The communications at various levels therefore clearly indicate that the period of training has been reckoned as relevant literally for all purposes namely, for obtaining increments for benefits for leave, salary, seniority and for promotion. If we juxtapose all these communications to what is stated in the note that sets out the eligibility for ACP, it becomes clear that the regular satisfactory service that has to be counted for a minimum period of 10 years shall include also the period spent by a person as trainee. "
The learned Single Judge has also held that withdrawal of ACP during the pendency of proceedings was absolutely unwarranted and has quashed the same by observing as under:
" 4. However, the withdrawal of the 1st ACP has been done by reading of the notification dated 14.03.1990 relating to Clause (4) which we have extracted in para 1 above. Clause (4) applies only to cases for consideration of when the trainee's claims for increment shall be considered and that is stated to arise on completion of the training. Clause (4) will have no operation to override what the office order dated 27.02.1998 provides for and how the regular satisfactory service shall be reckoned. The withdrawal of the 1st ACP during the pendency of proceedings is, therefore, clearly wrong and for the same reason, the non grant of the 2nd ACP at the time when the petitioners had completed 20 years of service which would include the period of training, was also unjustified. Although not specifically prayed for in the writ petition, but as proceedings which have come about subsequent to the filing LPA No. 865 of 2010 4 of the writ petition, the extraordinary power of the Court is invoked to do complete justice in the manner contemplated under Article 226 of the Constitution and the proceedings withdrawing the 1st ACP scale through proceedings dated 23.04.2009 (R-5 to R-7) are quashed and there shall be a mandamus directing the respondents to afford to the petitioners both 1st and 2nd ACP scales reckoning the period of training also as constituting regular satisfactory service."
We have heard learned counsel for the appellant at a considerable length and are of the view that once the rules and other legislative instructions which have the force of law itself lays down for inclusion of period of training as a qualifying service for the purpose of reckoning 10 years and 20 years for grant of ACP scale then no doubt is left that the order passed by the learned Single Judge is unassailable. The learned counsel for the appellant has not been able to point out any contrary statutory instrument to displace the view taken by the learned Single Judge. The appeal is wholly without merit and does not warrant admission.
As a sequel to the above discussion, the appeal fails and the same is dismissed.
(M.M.Kumar) Judge (A. N. Jindal ) 26.7.2010 Judge okg