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SUKHDEV SINGH versus STATE OF PUNJAB & ORS.

High Court of Punjab and Haryana, Chandigarh

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Sukhdev Singh v. State of Punjab & Ors. - CWP-7566-1997 [2006] RD-P&H 2694 (27 April 2006)

CWP NO. 7566 OF 1997. :-1-:

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH.

C.W.P. No. 7566 of 1997.

Date of Decision: April 19, 2006.

Sukhdev Singh

....Petitioner

through

Mr. A.K.Walia, Advocate

Versus

State of Punjab & Ors.

...Respondents

through

Mr. B.S.Sewak,DAG,Punjab

CORAM:
HON'BLE MR. JUSTICE SURYA KANT.

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest? SURYA KANT,(ORAL)

The petitioner, who retired as a Deputy Superintendent of Police from the Punjab Police, has approached this Court with a prayer to modify the order dated 21.8.1995 (Annexure P-4) to the extent of refixation of his pay after the grant of deemed date of promotion as Deputy Superintendent of Police (for short "DSP") as well as for quashing of the order dated 4.9.1995 (Annexure P5) whereby the `compensatory pay' and `motor cycle allowance' which were drawn by him in the rank of Inspector, have been withdrawn. The petitioner also seeks a writ in the nature of mandamus for the grant of some other monetary benefits for the period when he worked as an Assistant Sub Inspector/Sub Inspector in the police department.

CWP NO. 7566 OF 1997. :-2-:

[2] Shorn of un-necessary details, the petitioner was recruited as a Constable in the Punjab Police on 21.8.1950 and he retired in the rank of DSP w.e.f. 31.8.1990. It appears that on account of more than one adverse entries in his confidential reports, the petitioner was denied promotion.

Aggrieved, he approached this Court by way of Civil Writ Petition (No.10437 of 1994) which was allowed on 12.12.1994 with a direction to the respondents to reconsider his case for promotion. Pursuant to these directions, the order dated 14.2.1995 (Annexure P-2) was passed by the Director General of Police, Punjab, whereby the petitioner's date of confirmation as ASI, date of promotion as SI, his inclusion in promotion List "F" and placement in the seniority list of Inspector were ante-dated.

Consequently, the Government of Punjab promoted the petitioner as a DSP retrospectively w.e.f. 17.8.1987 (instead of 15.12.1989). The petitioner's pay in the promotional rank of DSP was thereafter fixed vide order dated 21.8.1995 (Annexure P-4) from the deemed date of promotion, i.e., 17.8.1987. Another order dated 4.9.1995 (Annexure P-5) was passed by the Senior Superintendent of Police, Patiala, withdrawing the `compensatory pay' and `motor cycle allowance' which the petitioner had earned as an Inspector for the period from 18.8.1987 to 31.8.1990 and which, according to the aforesaid authority, was not admissible to a Gazetted Officer.

Aggrieved at the incorrect fixation of his pay on the deemed date of promotion as DSP as well as the order, Annexure P-5, that the petitioner has approached this Court.

[3] As far as the fixation of the petitioner's pay in the rank of DSP is concerned, Shri Walia, learned counsel for the petitioner has relied upon the Punjab Civil Services (Revised Pay) Rules, 1988 (in short "the 1988 CWP NO. 7566 OF 1997. :-3-:

Rules") framed under proviso to Article 309 of the Constitution of India and which were notified on 13.9.1988 but have been enforced retrospectively in terms of Rule 1(2) thereof w.e.f. 1.1.1986. According to Shri Walia, the petitioner was entitled for the benefit of minimum two increments from the date of his deemed promotion as DSP in terms of Rule 8 of these Rules but no such benefit has been granted to him.

[4] Shri Sewak, learned State Counsel, on the other hand, relies upon the stand taken in para no. 7 of the written statement and contends that the petitioner's pay, on his deemed promotion as DSP w.e.f. 17.8.1987 has been correctly fixed as per Rule 4.4(a)(i) read with Rule 4.13 of the Punjab Civil Services Rules, Volume-I, Par-I.

[5] In order to appreciate the rival contentions, it will be apposite to reproduce Rules 1, 8 and 11 of the 1988 Rules which read as follows:- "1. Short title and commencement.-(1) These rules may be called the Punjab Civil Services (Revised Pay) Rules, 1988.

(2) They shall be deemed to have come into force on and with effect from the first day of January, 1986.

8. Fixation of pay on promotion.- Notwithstanding anything contained in these rules, in case of promotion to a higher post effected after the date of publication of this Notification in Punjab Government Gazette, the benefit of minimum two increments shall be given while fixing the pay in the scale of the higher post. The next increment in the scale of the higher post shall be allowed after the completion of twelve month's qualifying service in that scale.

11. Over-riding effect.- The provisions of the Punjab Civil CWP NO. 7566 OF 1997. :-4-:

Services Rules, Volume I, Part I, the Punjab Civil Services Rules, Volume II and the Punjab Civil Services (Revised Scale of Pay) Rules, 1979 and any other rules for the time being in force, shall not, save as otherwise expressly provided in these rules, apply to cases where pay is regulated under these rules to the extent they are inconsistent with these rules".

[6] On a plain reading of the above reproduced provisions of the 1988 Rules, it is apparent that though for the purpose of fixation of revised pay, these rules were enforced retrospectively w.e.f. 1.1.1986, but for the purpose of grant of benefit of two increments on promotion to a higher post, the operation of the Rules was restricted prospectively, namely, `from the date of publication of these rules in the Punjab Government Gazette'.

There can be no doubt that in view of the over-riding effect as contained in Rule 11 of 1988 Rules, the benefit of Rule 8 could be claimed by an employee notwithstanding the fact that on promotion to a higher post, pay is otherwise fixed under the Punjab Civil Services Rules, Volume I, Part I.

[7] Since in the present case, the petitioner is deemed to have been promoted as DSP w.e.f. 17.8.1987 and Rule 8 of the 1988 Rules came into force w.e.f. 13.9.1988 only, otherwise also the petitioner could not have claimed benefit of the said rules irrespective of the over-riding effect of Rule 11. However, it appears that the prospectivity of Rule 8 of the 1988 Rules came to be challenged before this Court in a bunch of writ petitions including CWP No.15523 of 1990. Though the relief was declined by this Court but certain directions were issued to the State of Punjab and in compliance thereto, the Government of Punjab, through its Department of Finance issued a classificatory circular dated 16.5.1996, para No. 3 whereof CWP NO. 7566 OF 1997. :-5-:

reads as follows:-

"3. After examining the matter carefully in the department of Finance, it is now clarified that the pay of such employees who were promoted to the higher posts during the period from 1.1.1986 to 13.9.1988 may be fixed notionally strictly in accordance with the Revised Pay Rules, 1988 on the date of promotion and in case any employee was in service on 13.9.1988, arrears may be paid w.e.f. 14.9.1988. The cases in which the employees had retired before 14.9.1988 after fixation of pay notional their pension may be revised but arrears may be paid w.e.f. 14.9.1988 only. In other words, pay, pension for the period from 1.1.1986 to 13.9.1988 may be fixed notionally and no arrears on account of fixation of pay/pension would be payable to such beneficiaries for the said period". (emphasis applied).

[8] It, thus, emerges that the respondents themselves have given retrospective effect to Rule 8 of the 1988 Rules though for notional pay fixation only . No exception can, therefore, be made in the case of the petitioner also. Consequently, it is held that on his retrospective promotion as DSP w.e.f. 17.8.1987, the petitioner is also entitled for notional fixation of his pay on the premise as if the benefit of two increments in terms of Rule 8 of the 1988 Rules has been granted to him. However, it is made clear that the benefit of such increments shall flow in his favour only to the extent as permitted vide para 3 of the Finance Department Circular dated 16.5.1996, reproduced above. The order, Annexure P-4, to the above stated extent cannot sustain and is accordingly set aside.

[9] So far as challenge to the order dated 4.9.1995 (Annexure P-5) whereby `compensatory pay' and `motor cycle allowance', which the petitioner had drawn while working as an Inspector, I do not find any merit in this petition. The petitioner can not be permitted to blow hot and CWP NO. 7566 OF 1997. :-6-:

cold. Once the petitioner has been granted the deemed promotion as DSP w.e.f. 17.8.1987, he, by legal fiction, shall be treated as a Gazetted Officer from that date for all intent and purposes. As a necessary corollary thereof, the petitioner shall be presumed to have not worked as an Inspector from 18.8.1987 till he retired on 31.8.1990. It is not the case of the petitioner that `compensatory pay' and/or `motor cycle allowance' is admissible to a Gazetted officer also. No fault, thus, can be found with the order dated 4.9.1995 (Annexure P-5).

[10] Coming to the petitioner's claim for other monetary benefits, some of which find mentioned in the letter, Annexure P-7, I am afraid, no relief can be granted to him at this belated stage. The petitioner, if so advised, may pursue the matter with the departmental authorities.

[11] Consequently, this writ petition is partly allowed. The order, Annexure P-4 is set aside and a direction is issued to the respondents to refix the petitioner's pay on his promotion as DSP w.e.f. 17.8.1987 keeping in view Rule 8 of the 1988 Rules but to the extent of its scope mentioned in the Finance Department circular dated 16.5.1996. The arrears, if any, on account of such re-fixation shall be paid to the petitioner within a period of four months from today. Needless to say that as a consequence of such re- fixation of his pay, the post retiral benefits inclusive of pension payable to the petitioner shall also be re-fixed. Necessary steps in this regard shall be taken within a period of four weeks thereafter. The claim regarding interest is, however, declined.

Disposed of accordingly.

April 19, 2006. ( SURYA KANT )

dinesh JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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