State of Punjab & Ors. v. S.S. Kalsi

Smt. Janamjit Kaur and others ---Respondents Versus CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Chetan Mittal, Addl. A.G., Punjab for the appellant(s). Mr. Sanjeev Sharma, Advocate for the respondent (in LPA No. 1160 of 2010) None for the respondents (in LPA Nos. 1343 and 1364 of 2010)

1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J.

1. This order shall dispose of LPA Nos. 1160, 1343 and 1364 of 2010 as all these appeals are directed against common order dated 27.08.2008 passed by the learned Single Judge of this Court holding that the writ petitioner-respondents were entitled to the LPA No. 1160 of 2010 (O&M) -2- benefit of a judgment rendered by a learned Single Judge in CWP No. 85 of 2009 decided on 26.02.2005 (M.P. Pandove v. State of Punjab & ors.). It could not be disputed before us that the judgment in M.P. Pandove's case (supra) and another judgment rendered in CWP No. 15159 of 1996 by a learned Single Judge in (Ramphal Singh v. State of Haryana & ors) have been overruled by a Division Bench judgment of this Court rendered in the case of G.L. Batra v. State of Haryana & others, 2010 (1) SCT 582 (One of us M.M. Kumar J., is a member of that Division Bench).

2. The writ petitioner-respondent in LPA No. 1364 of 2010 was appointed as Chairman of the Punjab Public Service Commission on 01.12.1999. The petitioner-respondent in LPA No. 1343 of 2010 was appointed as member of Punjab Public Service Commission on

30.11.1990 (Annexure P-3 in CWP No. 3048 of 1997). He was then appointed as its Chairman on 28.09.1992. The writ petitioner- respondent in LPA No. 1160 of 2010 was appointed as Member of Punjab Public Service Commission on 06.01.1992 (Annexure P-1 in his petition No. 16568 of 1997). His services are governed by statutory Regulations known as Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 (for brevity '1958 Regulations). Regulation 5, which is relevant to the controversy in hand reads thus: “5. (1) The Chairman shall receive a remuneration of Rs. 2,250 a month and each of the other Members a remuneration of Rs. 1,800 a month : LPA No. 1160 of 2010 (O&M) -3- Provided that- (i) If the Chairman or a Member at the time of appointment as such is a retired Government servant, either his pension shall be held in abeyance, or his remuneration shall be decreased to the extent of his pension; (ii) If an officer, who is already in service, is appointed whether as Chairman or a Member, he shall till his retirement from such service receive his own grade pay plus 250 per mensem as additional pay, subject to an overall maximum of Rs. 3,500 per mensem in any individual case. (iii) a Member, who, immediately before the commencement of these regulations, was in receipt of pension in addition to the remuneration payable to him as member so as to make the total exceed Rs. 1,800 a month, shall be entitled to receive for the period he continues to serve as such member, the same remuneration and pension he was drawing at the time of his appointment. (2) A Member, who, in the absence of the LPA No. 1160 of 2010 (O&M) -4- Chairman on leave or otherwise is asked to perform the additional functions of the Chairman, shall be entitled to additional remuneration of Rs. 250 per mensem (Rupees two hundred and fifty) which will neither be paid for a period of more than two months nor for a period of less than 14 days.” A perusal of the aforesaid regulations show that the pay of the Chairman shall be Rs. 3000/- per mensem. He shall also be entitled to get such other allowances as may be admissible to Punjab Government servants from time to time who are getting similar pay. However, there is a significant proviso underneath Regulation 5(1) which says that if the Chairman is a retired government employee he would draw the pay of Chairman as per provisions of Regulation 5(1) or the last pay drawn by him immediately before his retirement whichever is greater. However, his pension together with the amount calculated on the basis of his death-cum-retirement gratuity are to be held in abeyance.

3. Mr. Sanjeev Sharma, learned counsel for the writ petitioner-respondent has argued that the impugned order dated

10.03.1997 (Annexure P-9) passed by the Punjab Public Service Commission, re-fixing the pay of writ petitioner-respondent by applying the proviso added by way of amendment on 26.02.1993 (Annexure P-15) is vitiated because there service conditions cannot be changed to their detriment as they have all joined service on

30.11.1990, 28.09.1992 and 06.01.1992. As a result thereof, the LPA No. 1160 of 2010 (O&M) -5- pay admissible to Chairman or Member has been reduced by the amount of pension which he was drawing at the time of appointment. According to Mr. Sharma, such a course is inadmissible because proviso to Article 318 of the Constitution accord complete protection to the conditions of service of Chairman or member of the Punjab Public Service Commission. He has further argued that even if amendment is not taken into account still 3rd proviso of Regulation 5, which was added on 16.03.1990 (Annexure P-14) would still accord the protection to their remuneration and pension as Member or Chairman which they were drawing at the time of his appointment.

4. Having heard learned counsel for the parties, we are of the considered view that the Chairman or Member of the Public Service Commission would be governed by Regulation 5(1)(i) and if he is a retired government employee, he has to draw the pay as a member or Chairman as per the proviso (i) to Regulation 5(1) or the pay last drawn by him immediately before his retirement, whichever is greater. In that Regulation there is a significant condition that his pension together with the amount calculated on the basis of death- cum-retirement gratuity has to be held in abeyance or his remuneration has to be decreased to the extent of his pension. They cannot continue to draw pension alongwith death-cum- retirement gratuity plus full remuneration as Chairman/ Member. The aforesaid condition exists in the Regulation before the writ petitioner-respondents had become Member or Chairman of PPSC. LPA No. 1160 of 2010 (O&M) -6- The proviso added to Regulation 5 on 26.02.1993 has merely clarified the position already existing under Regulation 5. It is well settled that a re-employed pensioner cannot charge more to the state then what he was drawing as a full government employee by receiving full salary of the post as well as pension plus death-cum- retirement gratuity. It is cardinal principles of service law with regard to fixation of pay that re-employed pensioners are always paid salary minus pension. Therefore, the view taken by the Division Bench in G.L. Batra's case (supra) where the 1958 Regulations has been interpreted deserves to be reiterated.

5. The arguments of Mr. Sharma, learned counsel for the writ petitioner-respondent placing reliance on Clause 3 (i) of Regulation 5(1) has to be repelled because it applies to a Member or Chairman who immediately before the commencement of 1958 Regulations, was in receipt of pension in addition to the remuneration payable to him as member so as to make total amount exceeding Rs. 2500/- a month. Obviously, the writ petitioner-respondents were not in receipt of any pension in 1958 before the commencement of 1958 Regulations. Hence, clause 3(i) deals with entirely different category of members. The Regulations, in any case does not apply even in the case of Chairman. Therefore, the view taken by the learned Single Judge is not sustainable in the teeth of the Division Bench judgment rendered in G.L. Batra's case (supra). The judgment of Division Bench fully applicable and would govern the rights of the petitioner-respondent. LPA No. 1160 of 2010 (O&M) -7-

6. Accordingly, all the appeals are allowed and order of the learned Single Judge is set aside. The payments which have already been made to the writ petitioner-respondents cannot be recovered as there was no fraud or misrepresentation on their parts. The aforesaid view is fortified by a Full Bench judgment rendered in the case of Budh Ram v. State of Haryana 2009 (2) SCT 333.

7. A photocopy of this order be placed on the file of connected cases. (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE November 29, 2010 Atul