Nos. 1161 of 2009 and connected appeals. Date of Decision: September 8 & Ors. v. State of Haryana

Judgment

1. 2. Whether the judgment should be reported in the Digest? RITU BAHRI, J.

1. The short issue involved in this bunch of 70* appeals, filed under Clause X of the Letters Patent against various orders passed by the learned Single Judges of this Court (see footnote) is whether the benefit of special increments granted to the petitioner-appellants from time to time under the statutory Rule 10.8 of the Departmental Financial Rule could be withdrawn by the respondent State by enforcing an executive circular dated

5.8.1968. LPA No. 1161 of 2009 and connected appeals 2

2. Since there is no dispute about the factual matrix of these appeals, therefore, we do not feel the necessity to notice the same in detail case-wise. However, it is suffice to note that the petitioner-appellants were working in the Beas and Bhakra project in work-charged capacity. Subsequently, they were engaged at Ranjit Sagar Dam in various capacities such as Work Mistry, Supervisor, Store Attendant, Beldar, Chargeman Special, Lady Beldar and Driver etc. etc. It has also come on record that their pay was fixed in accordance with a policy circular dated 27.11.1981 and benefit of retrenchment increments was also given to them towards pay protection of the past service rendered by them in other projects. The benefit of special increment in the form of advance increment was also granted to them keeping in view the fact that they were working in very tough and hazardous conditions by putting their lives in danger. In fact, about 300 employees of the said project lost their lives at the project site. Such special increments were granted in the year 1988 in pursuance to letter dated 3.8.1988.

3. The services of the work-charged employees of Ranjit Sagar Dam Project were regularised by the State of Punjab, Department of irrigation and Power, vide order dated 13.3.1996. After regularisation they were to be governed by the provisions of the Punjab Civil Services Rules in place of Certified Standing Orders, which govern them prior to their regularisation. As a matter of fact, the work-charged employees were being governed by the statutory Rules known as ‘Departmental Financial Rules’. The Chief Engineer constituted a committee of 4 members under the Chairmanship of Superintending Engineer Administration and Store Circle, Ranjit Sagar Dam Project, Shahpur Kandi Township, for the purposes of LPA No. 1161 of 2009 and connected appeals 3 fixation of pay, grant of casual leave, earned leave, field allowance, traveling allowance, terminal benefits etc. to such work-charged employees whose services were regularised in terms of order dated 13.3.1996. On

24.9.1996, the said Committee in its report recommended that the special increments granted to such employees may not be withdrawn because the same were granted to them for their good work and merged with their pay. On 22.11.1996, the Chief Engineer being the competent authority accepted the report of the said Committee. Accordingly, the pay of the petitioner- appellants and other employees were fixed and benefit of special increment was also given. The relevant extract of the order dated 22.11.1996 passed by the Chief Engineer/RSDC, Irrigation Works, Punjab, reads thus: “1. Pay Fixation The pay of each workman may be fixed as he was drawing on 13.3.1996 including all special increment etc. The date of increment may also be kept the same as at present.”

4. On 5.8.2005, the office of the Accountant General (A&E), Punjab, while dealing with the pension cases of the employees of the Ranjit Sagar Dam Project, raised an objection that on what ground or under which authority special increments were allowed because there is no such provision in the Punjab Civil Services Rules. It was also emphasised that either the same be withdrawn or got regularised from the Punjab Government. On 19.8.2005, the Chief Engineer replied to the said objection and clarified that special increments were granted to the work-charged employees prior to their regularisation on 13.3.1996 and at that point of time the provisions of Punjab Civil Services Rules were not applicable. LPA No. 1161 of 2009 and connected appeals 4 Thereafter the matter was taken to Finance Department, Punjab. On

24.3.2006, the Finance Department informed that special increments are to be reduced/ignored while calculating the pensionary benefits because the decision regarding grant of special increments as an incentive had been withdrawn vide Punjab Government circular dated 5.8.1968. Eventually, the Chief Engineer was directed vide letter dated 12.9.2006 to implement the letter dated 7.8.2006 issued by the Accountant General, Punjab, followed by another letter dated 7.1.2008 with the result that the Chief Engineer issued letter dated 14.1.2008 to re-fix pay of such work-charged who have been granted special increments. Feeling aggrieved, the petitioner-appellants filed various writ petitions challenging the same and prayed for grant of those increments with interest. The learned Single Judge, while partly allowing the writ petitions has given a direction that no recovery could be made from the petitioner-appellants in view of the Full Bench judgment of this Court rendered in the case of Budh Ram v. State of Haryana, 2009 (3) PLR 511. The learned Single Judge also upheld grant of retrenchment increments but declined the prayer for grant of special increments. Consequently, a direction has been given to re-fix the pay and then to release the retiral benefits within a period of two months. The petitioner-appellants were also held entitled to interest on the delayed payment of pension/retiral benefits at the statutory rate. Any recovery already made, is directed to be refunded.

Learned counsel for the petitioner-appellants have vehemently argued that Rule 10.8 of the Departmental Financial Rules, which were applicable to the work-charged employees of the Ranjit Sagar Dam Project LPA No. 1161 of 2009 and connected appeals 5 prior to their regularisation on 13.3.1996, empowers the Chief Engineer to grant the benefit of special increments to the work-charged employees like the petitioner-appellants. Such special increments become part of the pay, which the work-charged employees have drawn for the period from 1979 to the date of their regularisation on 13.3.1996. According to the learned counsel the Committee which was constituted by the Chief Engineer to fix pay and other allowances of work-charged employees of Ranjit Sagar Dam Project after their regularisation also recommended that the special increments may not be withdrawn as they were granted to them for their good work and merged with their pay under Punjab Civil Services Rules. In that regard learned counsel have also drawn our attention to the order dated

22.11.1996 passed by the Chief Engineer while accepting the said recommendation of the Committee. According to the learned counsel the Departmental Financial Rules are statutory in nature and Rule 10.8 thereof has neither been receded nor amended. In other words, under Rule 10.8 of the Departmental Financial Rules the Chief Engineer had the authority to grant special increments to the work-charged employees of the Ranjit Sagar Dam Project. Learned counsel further argued that the circular dated

5.8.1968, issued by the State of Punjab has no application to the facts of these cases and, therefore, it should have been ignored by the department. Therefore, learned Single Judge has gravely erred in partly allowing the writ petitions while heavily relying upon the circular dated 5.8.1968.

6. On the other hand, Mr. Suvir Sehgal, learned State counsel tried to justify the action of the respondents by reiterating the stand taken before the learned Single Judge and by relying upon the circular dated 5.8.1968, which prescribes grant of cash award to Government employees for doing LPA No. 1161 of 2009 and connected appeals 6 work of exceptional merit. He has also referred to Rule 5.56 of the Punjab Civil Services Rules Volume-I, Part-I, which enables the Government to give cash incentive for special work. According to Mr. Sehgal once the benefit of grant of special increment has been converted into cash award, vide circular dated 5.8.1968, fixation of pay with effect from 13.3.1996 by including special increments was not in accordance with the Punjab Civil Services Rules and has been rightly withdrawn.

7. Another argument sought to be raised by Mr. Sehgal is that no approval was taken by the Chief Engineer either from the Administrative Department or from the Finance Department before issuing order dated

22.11.1996. He tried to justify the action of the Accountant General, as reflected in the letter dated 7.8.2006, by stating that after observing the provisions of the Punjab Civil Services Rules Volume-I Part-I, the Government has come to the conclusion that the benefit of special increment is not admissible to an employee working in the Punjab Government because the same was withdrawn by the Government way back in the year 1968.

8. Having heard learned counsel for the parties and perusing the paper books we are of the considered view that there is merit in these appeals and the same deserves to be allowed. At the outset it would be relevant to read Rule 10.8 of the Departmental Financial Rules, which is as under:- “10.8. To accord sanction to the creation of posts on work-charged establishments. Note (1) When the rate prescribed by the Higher Authority for any particular class of establishment is a time scale of pay a LPA No. 1161 of 2009 and connected appeals 7 Superintending Engineer or Executive Engineer can make an appointment, on a pay equal to any stage of the time scale, the maximum of which does not exceed Rs.400/- or Rs.200/- per mensem, respectively. The grant of advance increment to the personnel borne on work charged establishment should be subject to confirmation by the Chief Engineer. Note (2) The term “advance increment” used in Note I above includes the grant of advance increments on the initial appointment of a person against a post borne on work charged establishment as well as during the course of his service.”

9. A bare perusal of Rule 10.8 makes it clear that the Chief Engineer has been clothed with the power to grant advance increments to the personnel borne on work-charged establishment, which could be granted even on initial appointment of the person against a post as well as during the course of his service. The Chief Engineer continues to enjoy this power till date. Therefore, we have no hesitation to hold that the benefit of special increments, which was extended to various work-charged employees like the petitioner-appellants, did not require any sanction from any authority before its release to work-charged employees because the Chief Engineer is fully competent. We further find that the circular dated 5.8.1968 issued by the State of Punjab converting grant of special increments to cash rewards to its employees could not have been made applicable to the petitioner- appellants because prior to 1996 the Punjab Civil Services Rules Volume-I Part-I were not applicable to them and they were to be governed by the Departmental Financial Rules. At stated above, under Rule 10.8 of the LPA No. 1161 of 2009 and connected appeals 8 Departmental Financial Rules, the Chief Engineer was fully empowered to grant special increment to a person borne on work-charged establishment. It is also well settled principle of law that the executive instructions cannot override the powers of the authorities conferred upon them under the statutory Rules. Therefore, it is held that the Chief Engineer was competent to grant special increments under Rule 10.8 of the Departmental Financial Rules and the same could not have been withdrawn.

10. As a sequel to the above discussion, these appeals are allowed. The orders passed by the official respondents withdrawing the benefit of special increments are set aside. The orders passed by the learned Single Judges are also modified to that extent. The benefit of special increments is restored back to the petitioner-appellants.

11. A photo copy of this judgment be placed on the files of connected appeals. September 8, 2010 Anoop/Pkapoor (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE * Sr. No.

4. LPA No. 976 of 2009 977 of 2009 CWP No. Date of Order Title 5568 of 2008 5580 of 2008

27.05.2009 Charan Dass and others Vs. State of Punjab and others

28.05.2009 Joginder Pal and others Vs. State of Punjab and others 980 of 2009 15178 of 2007 981 of 2009 11930 of 2007

28.05.2009 Gurdev Kaur Vs. State of Punjab and others

27.05.2009 Kamlesh Raj Vs. State of Punjab and others LPA No. 1161 of 2009 and connected appeals 9

9. 982 of 2009 983 of 2009 984 of 2009 985 of 2009 13142 of 2007 16957 of 2008 17256 of 2008 5582 of 2008 1014 of 2009 12382 of 2007

10. 1015 of 2009

11. 1016 of 2009 16507 of 2008 13136 of 2007

12. 1017 of 2009 3752 of 2009

13. 1018 of 2009 12285 of 2007

14. 1019 of 2009 5570 of 2008

15. 1020 of 2009

16. 1021 of 2009

17. 1022 of 2009

18. 1161 of 2009

19. 1224 of 2009 16955 of 2008 12301 of 2007 12025 of 2007 9909 of 2008 5991 of 2008

20. 1232 of 2009 17603 of 2008

21. 1233 of 2009

22. 1234 of 2009

23. 1264 of 2009 4352 of 2008 7998 of 2008 5675 of 2009

24. 1265 of 2009 16415 of 2008

28.05.2009 Roop Lal Vs. State of Punjab and others

27.05.2009 Mast Ram Vs. State of Punjab and others

27.05.2009 Dhan Pat Rai Vs. State of Punjab and others

28.05.2009 Surinder Kumar Vs. State of Punjab and others

27.05.2009 Gian Chand Vs. State of Punjab and others

27.05.2009 Raghubir Singh and others Vs. State of Punjab and others

28.05.2009 Darshan Singh Vs. State of Punjab and others

27.05.2009 Pran Nath Vs. State of Punjab and others

28.05.2009 Jagdish Chand vs. State of Punjab and others

28.05.2009 Mohinder Singh Vs. State of Punjab and others

27.05.2009 Sewa Singh Vs. State of Punjab and others

28.05.2009 Ajit Singh Vs. State of Punjab and others

28.05.2009 Parkash Chand Vs. State of Punjab and others

27.05.2009 Tarlok Chand and others Vs. State of Punjab and others

27.05.2009 Sethi Ram and others Vs.State of Punjab and others

27.05.2009 Raj Kumar Kapila and others Vs. State of Punjab and others

27.05.2009 Surinder Pal Singh and others Vs. State of Punjab and others

27.05.2009 Pushap Raj Vs. State of Punjab and others

27.05.2009 Partap Singh Vs. State of Punjab and others

27.05.2008 Danku Ram Vs. State of Punjab and others LPA No. 1161 of 2009 and connected appeals 10

25. 1266 of 2009

26. 1267 of 2009

27. 1268 of 2009 5244 of 2008 5710 of 2009 5623 of 2008

28. 1269 of 2009 14954 of 2008

29. 1274 of 2009

30. 1275 of 2009

31. 1276 of 2009

32. 1277 of 2009 5590 of 2008 5717 of 2009 14913 of 2008 10240 of 2009

33. 1278 of 2009 9978 of 2009

34. 1351 of 2009

35. 1461 of 2009

36. 145 of 2010

37. 146 of 2010

38. 147 of 2010

39. 148 of 2010 14950 of 2008 15049 of 2009 18746 of 2009 12296 of 2009 17596 of 2009 12298 of 2009

40. 149 of 2010 1760 of 2009

41. 150 of 2010 18656 of 2009

42. 151 of 2010

43. 152 of 2010 9730 of 2009 5712 of 2009

44. 153 of 2010 11931 of 2009

27.05.2009 Ramesh Chand Vs. State of Punjab and others

27.05.2009 Tarlok Singh Vs. State of Punjab and others

27.05.2009 Gurdial Singh Vs. State of Punjab and others

27.05.2009 Om Kar Singh Vs. State of Punjab and others

27.05.2009 Bohru Ram Vs. State of Punjab and others

27.05.2009 Kartar Singh Vs. State of Punjab and others

27.05.2009 Karam Chand Vs. State of Punjab and others

31.07.2009 Harmesh Chand vs. State of Punjab and others

27.05.2009 Dharam Pal Vs. State of Punjab and others

27.05.2009 Baldev Singh Vs. State of Punjab and others

25.09.2009 Sukhdev Kumar Vs. State of Punjab and others

16.12.2009 Kapura Ram Vs. State of Punjab and others

12.11.2009 Kashmira Singh Vs. State of Punjab and others

17.11.2009 Ram Lal Vs. State of Punjab and others

12.11.2009 Om Parkash and others Vs. State of Punjab and others

17.11.2009 Ganesh Dass Vs. State of Punjab and others

16.12.2009 Ajit Singh Vs. State of Punjab and others

02.09.2009 Ram Naresh Vs. State of Punjab and others

14.09.2009 Labhu Ram Vs. State of Punjab and others

02.09.2009 Moti Lal Vs. State of Punjab and others LPA No. 1161 of 2009 and connected appeals 11

45. 154 of 2010

46. 155 of 2010 11935 of 2009 13589 of 2009

47. 196 of 2010 9973 of 2009

48. 197 of 2010

49. 198 of 2010

50. 259 of 2010

51. 260 of 2010

52. 266 of 2010

53. 267 of 2010

54. 286 of 2010

55. 320 of 2010

56. 345 of 2010

57. 358 of 2010

58. 395 of 2010

59. 573 of 2010 17593 of 2009 17601 of 2009 17464 of 2009 18699 of 2009 13656 of 2009 14381 of 2009 17325 of 2008 17349 of 2008 5377 of 2009 1363 of 2009 11933 of 2009 17587 of 2009

60. 589 of 2010 4352 of 2008

61. 592 of 2010 17325 of 2008

62. 597 of 2010

63. 642 of 2010

64. 718 of 2010 5568 of 2008 3167 of 2010 4925 of 2010

31.07.2009 Prem Parkash Vs. State of Punjab and others

02.09.2009 Bakshish Singh Vs. State of Punjab and others

31.07.2009 Gurdial Singh Vs. State of Punjab and others

17.11.2009 Jagdish Ram Vs. State of Punjab and others

17.11.2009 Dewan Chand Vs. State of Punjab and others

13.11.2009 Ashok Kumar Vs. State of Punjab and others

16.12.2009 Kamal Saroop Vs. State of Punjab and others

02.09.2009 Bachittar Kaur Vs. State of Punjab and others

15.09.2009 Sher Singh Vs. State of Punjab and others

27.05.2009 Som Raj and others Vs. State of Punjab and others

27.05.2009 Thein Dam Workers Union (Regd) Vs. State of Punjab and others

29.05.2009 Baldev Singh Vs. State of Punjab and others

02.09.2009 Tarsem Singh Vs. State of Punjab and others

02.09.2009 Banarsi Dass Vs State of Punjab and others

17.11.2009 Naseeb Kaur Vs. State of Punjab and others

27.05.2009 Ajit Kumar and others Vs. State of Punjab and others

27.05.2009 Vinod Kumar and others Vs. State of Punjab and others

27.05.2009 Raj Kumar and another Vs. State of Punjab and others

23.02.2010 Des Raj Vs. State of Punjab and others

18.03.2010 Hari Singh Vs. State of Punjab and others LPA No. 1161 of 2009 and connected appeals 12

65. 719 of 2010

66. 834 of 2010

67. 840 of 2010

68. 843 of 2010

69. 847 of 2010

70. 1112 of 2010 4886 of 2010 5991 of 2008 5665 of 2010 1862 of 2010 12230 of 2009 15099 of 2009

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27.05.2009 Varinder Kumar and others Vs. State of Punjab and others

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04.02.2010 Zulfi Ram Vs. State of Punjab and others

12.11.2009 Kanta Devi v. State of Punjab and another

25.09.2009 Sansar Chand Vs. State of Punjab and others (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE September 8, 2010 Anoop/Pkapoor