Partly allowed

Sudarshan Kumar and Ors. v. State of Punjab and Anr.(Allowed on 5.1.2012)

Punjab & Haryana HC5 Jan 2012CWP/6950/1994

Case brief

AI extract

What is this about?

This writ petition challenged a counsel to release proficiency step up increments to employees by regularized after eight years of service. The Court held that only regular service counts, not ad hoc service, allowing entitlement based on regularization date of 01.04.1985.

What did the court decide?

Petitioners entitled to proficiency step up increment after completion of eight years of service, reckoned from regularization date 01.04.1985.

Sudarshan Kumar and Ors. Vs State… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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CWP No. 6950 of 1994

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No. 6950 of 1994 Date of Decision: January 05, 2012

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Dr. Sudershan Kumar and others.

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....Petitioners

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Versus

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State of Punjab and another.

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...Respondents

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CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

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Present: Mr. K.K. Gupta, Advocate, for the petitioners.

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Mr. Bhagwant Gupta, Sr. D.A.G., Punjab, for the respondents.

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Paramjeet Singh, J.

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Present writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus directing the respondents to release one additional increment on completion of 8 years service as a proficiency step up from the date it became due to the petitioners with arrears along with interest as admissible under the instructions of the State Government.

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Brief facts of the case are that the petitioners joined as Vaidya (later designated as Ayurvedic Medical Officer) on ad hoc basis against the sanctioned post through Employment Exchange, Punjab. Petitioner No.1 joined the department on 07.10.1976, petitioner no.2 joined on 24.03.1977 and petitioner no.3 joined on 03.10.1979. The services of the petitioners were regularized w.e.f. 07.10.1976, 24.03.1977 and 03.10.1979 respectively, i.e. their initial date of joining on ad hoc basis, by an order

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CWP No. 6950 of 1994

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dated 07.05.1985 (Annexure P/2). That order has become final. The State Government issued instructions dated 01.12.1988 (Annexure P/3), in furtherance to the recommendations of the Third Punjab Pay Commission. On the basis of said instructions, State of Punjab decided to grant proficiency step up increments on rendering 8 years and 18 years of service on or after the appointed day i.e. 01.01.1986. The petitioners moved several representations (Annexures P/4 to P/6) in the year 1993, but, no reply was given to them.

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Upon notice of this writ petition, respondents filed written statement and stated that proficiency step up is governed by non-statutory Government Instructions and there are no statutory rules governing the matter concerning proficiency step up. The writ jurisdiction in such situation cannot be invoked by the petitioners. In para No.7 of reply on merits, it has been admitted that the petitioners were regularized from the dates of their initial appointment vide order dated 07.05.1985 (Annexure P/2). It is, however, the case of the State that the services of the petitioners had been wrongly regularized w.e.f. the date of joining initial service i.e. ad hoc service. In fact, the petitioners were entitled to regularization only w.e.f. 01.04.1985.

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I have heard learned counsel for the parties and perused the

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record.

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Learned counsel for the petitioners argued that the petitioners joined the services through Employment Exchange. The selection of the petitioners was made by a Departmental Selection Committee, duly constituted in accordance with law. The petitioners joined service legally and not as back door entrants. Admittedly the petitioners are entitled to get

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CWP No. 6950 of 1994 3

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their services regularized, w.e.f. 01.04.1985. Even then in view of the Government instructions dated 01.12.1988 (Annexure P/3), they are entitled to increment by counting their entire service. The petitioners have completed more than 8 years of service on the cut off date i.e. 01.01.1986, and also on the date of filing the present writ petition, as well as submission of the representations. However, learned State counsel has opposed this contention of the petitioners and submitted that ad hoc service cannot be counted, only benefit of regular service can be given for the purpose of proficiency step up increment.

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I have considered the rival contentions.

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On careful consideration of the recommendations of the Third Punjab Pay Commission regarding proficiency step up, the President of India was pleased to decide as follows:-

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“1. Subject to suitability, besides the regular annual increment one additional increment on each occasion on completion of 8 years' and 18 years' service on or after 'the appointed day' as defined in Punjab Civil Services (Revised Pay) Rules, 1988, published in Punjab Government Gazettee (Extra) on 13th September, 1988) against a post, in the form of proficiency step up(s) shall be granted to all the Punjab Government employees except the Members of the Punjab Civil Service (Executive Branch), Deputy Superintendent of Police and Members of the Punjab Forest Service Class II.

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In adjudging the suitability for the proficiency step-up(s), the procedure for assessing the work and conduct to be satisfactory as applicable to a case of promotion, shall be followed and it shall be given only if the employee is found suitable for the same. An employee, who is not considered for a proficiency step up(s) , that is, whose assessment of work and conduct is below the requisite standard, shall not be given the additional increment(s) but his regular increment, if otherwise

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CWP No. 6950 of 1994

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due, shall be release as usual.”

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After issuance of instructions (Annexure P/2) granting proficiency step up increment to employees on completion of 8/18 years of service, some doubts were raised which led to the issuance of clarification on 01.09.1989 vide PG No.7/14/88/5FFI/16200 dated 1^st September, 1989. Item No.6 of the clarification reads as under:-

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“I am directed to say that various departments/offices have raised certain points for clarification in respect of grant of proficiency step up, the procedure for which was laid down in the letter dated 1^st December, 1988. The matter has been considered in detail in consultation with the department of Finance and the following clarifications are given on the various points.

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Points Clarification 1 to 5 xx xx 1 to 5 xx xx 6. An employee was appointed on 6. The period of eight or eighteen adhoc basis wherein he had put in 3 years is to be reckoned from the date years of service. Subsequent he was of appointment on regular basis. appointed on regular basis. For the Service rendered on adhoc basis is grant of Proficiency whether the not to be counted for the purpose of period of 8/18 years to be taken from grant of proficiency step up(s).” the date of his appointment on adhoc basis or from the date he joined on regular basis as appointed by the Subordinate Service Selection Board/Departmental Selection Committee/Punjab Service Commission etc.

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A perusal of the aforesaid clarification would show that the period of 8 or 18 years is to be reckoned from the date of appointment on

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CWP No. 6950 of 1994

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regular basis and any service rendered on ad hoc basis is not to be counted for the purposes of grant of proficiency step-up(s).

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I am, therefore, in agreement with the contention of the learned counsel for the State that ad hoc service cannot be counted for the purpose of proficiency step up. In the present case, the services of the petitioners were regularized vide order (Annexure P/2). Although, in the said order, the dates of regularization of the services of the petitioners have been mentioned as 07.10.1976, 24.03.1977 and 03.10.1979. However, it is specifically stated in the written statement that the regularization was against the rules and the instructions issued by the State for regularization of service of ad hoc employees. It is admitted by the respondents that the services of the petitioners were to be regularized w.e.f. 01.04.1985 (Annexure R/1). Taking the date of regularization as 01.04.1985, the petitioners are entitled to proficiency step up on completion of 8 years service w.e.f. 1.4.1985. The view that I have taken is supported by the law laid down by the Hon'ble Supreme Court in the case of State of Haryana vs. Haryana Veterinary and Ahts Association and another, 2000(8) SCC 4, that it is only regular service which is to be counted for the purpose of grant of ACP scale.

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In view of the above, I partly allow the writ petition to the extent that the petitioners would be entitled to the proficiency step up increment after completion of eight years of service in accordance with rules taking their services as regularized with effect from 01.04.1985. The parties are left to bear their own costs.

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( Paramjeet Singh ) Judge

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January 05, 2012 vkd

Sudarshan Kumar and Ors. v. State of Punjab and Anr.(Allowed on 5.1.2012)

Case brief

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Sudarshan Kumar and Ors. v. State of Punjab and Anr.(Allowed on 5.1.2012)

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