Prem Chand Manchanda & Ors. v. State of Haryana & Anr.
Case at a glance
Outcome
Disposed of
All the writ petitions are disposed of in terms of the above
Provisions considered
- Constitution of India art. 39(d)
Judgment
Whether Reporters of local papers may be allowed to see the judgment ? To be referred to the Reporters or not ? Yes Whether the judgment should be reported in the Digest ? Yes -.- Present: Mr. Raghuvinder Singh, Advocate and Mr. Ravi Sharma, Advocate for the petitioners. Mr. Harish Rathee, Sr. D.A.G., Haryana.
2. C.W.P. No.9780 of 2008 Kulwant Singh and others .............. Petitioners Vs. State of Haryana and others .............Respondents Present: Mr. Ravi Sharma, Advocate with Mr. Sunil Bhardwaj, Advocate for the petitioners.
Mr. Harish Rathee, Sr. D.A.G., Haryana. 3 C.W.P. No.12144 of 2008 Jarnail Singh and another .............. Petitioners Vs. State of Haryana and another .............Respondents Present: Mr. Ravi Sharma, Advocate with Mr. Sunil Bhardwaj, Advocate for the petitioners. Mr. Harish Rathee, Sr. D.A.G., Haryana. K.KANNAN, J. I. Nature of lis:- The benefit of retaining the stepped-up pay by giving effect to C.W.P. No.4563 of 2007 -2- Assured Career Progression Scales in the department of PWD and its subsequent withdrawal by the department gives rise to these bunch of writ petitions that affect fairly a large number of persons who have figured as petitioners in the respective writ petitions.
2. C.W.P. No.4563 of 2007 seeks for quashing of the proceedings of respondent No.2 dated 15.01.2007 (Annexure P-6) under which the increased pay scales granted to the petitioners earlier on 08.03.1996 had been withdrawn. The impugned order, however, clarified that no recoveries would be effected with retrospective effect but that recovery would be effected from 23.07.2003 i.e. from the date of issue of instructions by the Finance Department. The impugned order further stated that the pension of the retirees would be compounded/refixed notionally for the period prior to the date of issue of instructions dated 27.03.2003 and actually from the date of issuance of directions i.e. 23.07.2003. C.W.P. Nos.9780 and 12144 of 2008 impugned the order of respondent No.2 issued on 17.04.2008, similarly, withdrawing the benefits of stepping up of pay granted to the petitioners and for recovery in the manner stated in the earlier order. II. Facts giving rise to the dispute:-
3. All the petitioners had initially joined services of the respondent- department as Draftsmen. The promotional post for them was Head Draftsmen. During their employment with the respondent-department, pay scales of all categories had been revised w.e.f. 01.01.1986 and consequent upon some anomalies pointed out by the employees association in some departments, pay scales were modified w.e.f. 01.05.1990 instead of
01.01.1986. The modification of the pay scales meant better emoluments but they had the benefit only from 31.04.1990 through modified instructions issued on 23.08.1990. The department came to issue another set of instructions on 08.02.1994 providing for Assured Career Progression Scales C.W.P. No.4563 of 2007 -3- to prevent stagnation in service. The issue of how these instructions operated in the manner of their application together with the subsequent modifications that were effected gives rise to the core controversy between the parties. III. Details of instructions for claiming ACP Scales:-
The instructions which were applicable to all the Government employees of Group 'C' and Group 'D' provided, inter alia, that persons who had completed 20 years of regular service or more of satisfactory service before 01.01.1994 but who had got only one promotion or promotional scales/higher time scale/selection grade/, could be allowed in the place of present pay scale, the first higher standard scale with respect to the pay scale of the post applicable from 01.01.1986. Any employee who completed such regular satisfactory service of 20 years after 01.01.1994 but had got only one promotion or the higher pay scale could be allowed the first higher standard scale with effect from the first day of the month following the month in which he completed such service. In case of an employee who had got promotion already but the pay scale of the promotional post was only equal to or lower than the pay scale of the feeder post, the benefit of higher standard scale was also to be given. IV. The petitioner's grievance:-
The petitioners' complaint was that in spite of the applicability of the instructions for the higher scales, they had not been awarded the same and certain representations yielded to fresh instructions dated 29.12.1995 granting the benefit of stepping up of their pay with effect from 01.04.1995 instead of 01.01.1994 as has been previously said in the earlier instructions. The instructions had also specifically given the scales of pay at the various levels, namely, at Rs.1400-2300 as was applicable w.e.f. 01.01.1986. The corresponding higher pay scale was given as Rs.1600-2660. This scale of C.W.P. No.4563 of 2007 -4- Rs.1600-2660 was higher than the revised pay scale of Rs.1400-2600 and as such benefit of first higher pay scale was admissible. However, in the case of Head Draftsmen, the modified pay scale w.e.f. 01.05.1990 remained at par with the higher standard pay scale admissible on the basis of pay scale of Rs.1600-2660.
In such an event, the instructions stated that the benefit of higher standard pay scale could not be availed but they would be entitled for stepping up their pay in the manner specifically set forth in the notification. It could be noticed that the Assured Career Progression Scheme itself was only to act as an incentive in the nature of employment with assured promotions. If any employee had already received two promotions or more, by implication, the benefit of Assured Career Progression Scales was not applicable at all. According to the petitioners, it was this aspect which was lost sight of. Assured Career Progression Scales had been given across the board to all persons holding the posts of Draftsmen and who, in some cases, had been promoted as Head Draftsmen. The instance of a mistake, as pointed out by the petitioner, was the case of Abhnashi Lal Chugh who was originally a Tracer, later promoted as Draftsman and still later promoted as Head Draftsman, had also been given the Assured Career Progression Scales but during the relevant period, the said person had received two promotions and that his initial appointment was on a lower post as Tracer and the benefit granted under the Assured Career Progression Scale for him who had obtained two promotions was clearly wrong.
When they found out the mistake and sought the recovery against Abhnashi Lal Chugh, they applied the same yardstick to all the persons such as petitioners who had obtained promotion in some cases as Draftsmen. The order of withdrawal of the stepped up pay scales was given effect by the proceedings impugned in the writ petition on 15.01.2007. The petitioners treated all the Draftsmen at par and visited to some persons with similar orders of withdrawal of ACP Scales C.W.P. No.4563 of 2007 -5- and for recoveries subsequently by its proceedings dated 17.04.2008 which came to be challenged in the other two writ petitions referred to above. V. The State's defence:-
The justification proferred by the respondents was that the claim for grant of ACP was originally applied as Rs.10,000/- and Rs.20,000/- in the time scale but to Group 'C' and Group 'D' employees vide letter of the Government dated 14.05.1991 to take effect from 01.01.1991 itself and was implemented on 07.08.1992. The subsequent claim for ACP referred to its application that refers to the completion of years of service, namely, 8/18 years. This period of 8/18 years had been subsequently changed as 10/20 years by Government letter dated 08.02.1994 which was to take effect from
01.04.1994. This claim was again modified on 01.01.1996 by the introduction of Haryana Civil Services Assured Career Progression (Rules 1998).
When this scheme through its notifications and later through the rules came into effect, it gave rise to some anomalous situation requiring several clarifications to be issued over a period of time. In a writ petition filed by Surinder Singh and others in C.W.P. No.7255 of 1997, this Court dealt with the issue of counting of ad hoc service for computing 'regular satisfactory service' for entitlement to ACP Scheme. In the factual position that the case grappled with, the Court observed that the benefit of higher standard pay scale to a senior on the ground that the pay of his junior had been fixed higher to his pay in terms of the scheme contained in circular shall not be admissible to such a senior. This observation was purported to be in consideration of the instructions dated 08.02.1994. The rationale of such a statement was that the ACP Scales were intended to provide for higher scales based on length of service without involving higher responsibilities and hence in cases where a junior earned higher pay under C.W.P. No.4563 of 2007 -6- fortuitous circumstances, no benefit of step up of pay would be admissible only on the basis of seniority. The judgment sent the department scurrying to issue the notification dated 23.07.2003 that withdrew the clarification that it had given on 29.12.1995 (Annexure P-3) in C.W.P No.4563 of 2007 in answer to a query that the scale of senior employee would be stepped up to the level of his junior provided this benefit shall not be admissible to a senior government employee besides junior government employee who had been appointed on temporary basis. It only confirmed the earlier instructions made on 08.02.1994 (Annexure P-2) that the higher standard pay scale being in the nature of compensation for stagnation and as an incentive based on length of service without involving their responsibilities, there would be no benefit of stepping up of pay to a senior just under the head of seniority. The Government felt that it had stepped up the scales of pay to the seniors only on the basis of the seniority over the scales of some of the juniors and sought to withdraw the benefit and also obtained recoveries in the manner referred to in the impugned notice. Preparatory to the action, the Government had issued a show cause notice and a final order had been made. VI. Relevant considerations: (a) Basis of Surinder Singh's Case
The impugned order is on a perception that while applying the ACP Scales, instead of taking the relevant number of years qualifying for the entitlement, there had been wrong application of the normal principle applied in service jurisprudence that the scales of pay of the seniors should be stepped up to match with the scale of a junior. It had been found that such a stepping up of scales were made for certain seniors when the juniors had been given a higher pay and purporting to apply the principle of law laid down by this Court in Surinder Singh and others Vs. State of Haryana in C.W.P. No.4563 of 2007 -7- C.W.P. No.7255 of 1997 dated 10.09.1997 that the benefit of higher standard pay scale to a senior on the ground that pay of his junior had been fixed higher to his pay in terms of the scheme contained in the circular ought not to be admissible to such senior. This decision had been rendered particularly in reference to a point raised before the Bench whether period of ad hoc service should be counted for reckoning the qualifying number of years of service for extending the benefit of the ACP Scheme. The Bench was merely reaffirming a clarification that had already been given by the Department that such a benefit could not be extended only on the ground of seniority, without reference to the number of years of regular satisfactory service within the cadre. (b) Parity of scales for senior and junior admit of exceptions
The application of ACP Scales have always to be done with reference to the terms of the Scheme itself. It would be wrong to apply the principle that a senior would always be entitled to a higher pay merely because a junior had obtained to such a higher scale. There could be several instances when such a situation may not happen. Stepping up of pay on the only ground that a junior is drawing more pay will be untenable where a junior is enjoying special pay for some arduous work and earns a higher pay, as pointed out by the Hon'ble Supreme Court in Surinder Kumar V. Union
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: All the writ petitions are disposed of in terms of the above
Which statutory provisions did this judgment involve?
Constitution of India — art. 39(d).
Which court decided this case, and when?
Punjab & Haryana High Court, on 09 Jan 2009. The bench was MEHTAB S GILL, K KANNAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.