Charan Dass v. Punjab State Electricity Board, Patiala & Anr.

This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court, whereby appeal filed on behalf of defendant-respondents was accepted and suit of the plaintiff-appellant for declaration that action of the respondents not granting him proficiency step up after 8 and 18 years of service was illegal and further that he was entitled to all rights, benefits which accrued or likely to accrue in future, was dismissed. The appellant filed the present suit stating in the plaint that he was employed by the respondents on daily wage basis in the year 1979 but subsequently after the expiry of three months, he was appointed on work charged basis. He was not granted the benefit of proficiency step up after 8 and 18 years of service and the aforesaid action of the respondents was illegal, unconstitutional and against the service rules. Hence the present suit. Upon notice, the respondents appeared and filed their written statement raising various preliminary objections. On merits, it was RSA No.222 of 2010(O & M) 2 admitted that plaintiff was employed on work charged basis. It was further stated by the respondents that plaintiff-appellant was not entitled to the benefit of proficiency step up after 8 and 18 years of service as per Circular No.210246/896/PRC/Fin-1/1988/L-VI dated 04.10.1989. The aforesaid circular was again considered and another Circular No.3/92 was issued vide memo dated 17.01.1992 and it was clarified that benefit of proficiency step up was not admissible to work charged employees on completion of 8 and 18 years of service and thus the appellant was not entitled to the benefit as claimed. With these submissions, while refuting the pleas contained in the plaint, dismissal of the suit was sought. Replication was filed wherein averments of the plaint were reaffirmed and those contained in the written statement were controverted. From the pleadings of the parties, the following issues were framed:

1. Whether the plaintiff is entitled for declaration as prayed for? OPP

2. If issue no. 1 is decided in favour of the plaintiff, whether the plaintiff is entitled for consequential benefits, if yes, to what extent? OPP

3. Whether the plaintiff has got no cause of action to file the present suit? OPP

4. Whether the suit is not maintainable in the present form? OPD

5. Relief. Before the trial Court, it was argued by learned counsel for the appellant that his services were regularized on the directions of this Court and he was granted the pensionary benefits after calculating his period of work charged service as regular and therefore the plea of defendants that benefit of proficiency step could not be given to him being RSA No.222 of 2010(O & M) 3 a work charged employee, was not tenable. On the other hand, respondents relied upon Circular No.3/92, according to which it was clarified that benefit of proficiency step up was not admissible to the work charged employee on completion of 8 and 18 years of service as such. The trial Court held that the benefit of work charged service is liable to be granted towards the total service for giving benefit of additional increment and higher pay scale and decreed the suit. Feeling aggrieved from the aforesaid judgment and decree of the trial court, defendant-respondents preferred an appeal which was accepted by the Lower Appellate Court vide impugned judgment and decree dated 15.01.2009. I have heard learned counsel for the appellant and perused the impugned judgment and decree in question. The only point for consideration before this Court is as to whether the service rendered by the appellant as work charged prior to his regularization was to be taken into consideration for the purpose of counting his service while awarding him proficiency step up on completion of 8 and 18 years of service. Admittedly, the appellant joined the Punjab State Electricity Board as work charged employee in the year 1979. Though, appellant has based his arguments on a judgment dated 05.09.2005 passed by this Court whereby his services were regularized, however, there is no mention in his pleadings that his services were regularized by this Court vide order dated

05.09.2005 and he was awarded proficiency step up after taking into consideration his previous services as work charged employee before he RSA No.222 of 2010(O & M) 4 was regularized in accordance with the orders of this Court. It is established principle of law that no amount of evidence led which is beyond pleadings can be read into evidence. Thus, factum of regularization of service on the basis of the order of the High Court dated 05.09.2005 and the counting of work charge service before the period of regularization is certainly beyond pleadings and cannot be considered in view of the judgments cited as 2004(2)RSJ 425 Mukand Ltd.vs.Mukand Staff & Officers Association and Bachhaj Nahar versus Nilima Mandal & Ors 2008(13)(S.C) JT 255, It is also a matter of record that the service of the appellant as work charge employee were regularized w.e.f.19.07.1999 and he retired on 03.06.2002. Thus, on the date of retirement he had only a two and eleven months of regular service to his credit. As per Circular No.144 of 1990 the service starting from the date of entry into the regular service only can be taken into consideration for the grant of proficiency step up. The relevant para of the Board Circular No.144 of 1990 reads as follows: “The service starting from the date of entry into the regular service only of the PSEB will be taken into consideration for the grant of proficiency step up.” The aforesaid circular was further clarified by the respondent-Board vide Circular No.3/1992. The relevant para of which reads as follows: “The benefit of proficiency step up is not admissible to work charge employees on completion of 8/18 years of service.” From the reading of the aforesaid circulars, it is clearly established that appellant is not entitled to the benefit as claimed. Both the circulars have not been challenged by the appellant. It may be noticed here that much stress has been laid down by the appellant that entire work charge service was to be counted for determining the period of 8 and 18 RSA No.222 of 2010(O & M) 5 years of service in view of the fact that work charge service was regularized. It is also relevant to mention, at this stage, that a Division Bench of this Court in Hanumant Singh & ors.vs.State of Haryana & ors. 2008(4)SCT 427. after considering the case of State of Haryana vs.Ravinder Kumar & Ors. Civil Appeal No.5740-41 of 1997 held that ad hoc/work charge service followed by regular service shall not be counted for the purposes of grant of higher pay scale/benefit of higher pay scale/benefit of scheme of 8/18 years of service and the ad hoc service was only to be counted for the purpose of grant of additional increment in the running scale. Moreover in Ravinder Kumar's case(Supra) the Hon'ble Court was discussing a scheme of State of Haryana which is entirely different than the scheme of PSEB in hand. In the case of Sita Ram versus State of Haryana 2004(4) SCT 562 this court had found that definition of "Regular Satisfactory Service" as defined under Rule 5(1) of Haryana Civil Services(Assured Career Progression) Rules, 1998; included the period of work charge service of the petitioners. For the aforesaid reason, the judgment in the case of Sita Ram's case(Supra) is not applicable in the present case. Even in accordance with the rules and regulations governing the service of appellant, it was only regular service which was to be counted for the purpose of granting proficiency step up on completion of 8 and 18 years of service as per Board Circular No.144 of 1990 and 3 of

1992. In view of the aforesaid discussion, I am of the opinion that no substantial question of law arises in this appeal. No merit. RSA No.222 of 2010(O & M) 6 Dismissed. CM No.718-C of 2010 Since the appeal is dismissed on merits, application for condonation of delay of 171 days in filing the appeal does not survive.

13.07.2010 (RAKESH KUMAR GARG) JUDGE