Hari Singh Vs Pspcl and Ors.

Instant writ petition has been filed under Article 226/227 of the Constitution of India for issuance of writ in the nature of certiorari seeking quashing of the letter dated 27.10.2017 (Annexure P-20) issued by respondent No.6 and letter dated 19.12.2017 (Annexure P-21) issued by respondent No.3, vide which claim of the petitioner for fixing his pension @ Rs.26,640/- per month was rejected and further to issue a writ in the nature of mandamus

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directing the respondents to fix pension of the petitioner @ Rs.26,640/- per month, instead of Rs.24,240/- per month.

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Learned counsel for the petitioner, inter alia, contends that the petitioner was appointed as a Telephonist under the respondents on 05.09.1977 and was later merged into the clerical cadre vide order dated 21.01.1982. Subsequently, the petitioner applied through open selection and was duly appointed as a Sub-Station Attendant (SSA) against an advertisement issued by the Board, with the appointment order dated 29.04.1986. Owing to administrative delays not attributable to the petitioner, he was ultimately placed at the disposal of Bhakra Beas Management Board (BBMB) and joined as SSA on 06.05.1989. Thereafter, on the basis of an unblemished service record, the petitioner was promoted as Junior Engineer (Sub-Station) on an ad hoc basis by BBMB w.e.f. 10.12.1991, which promotion was later regularized by the respondent-Board vide order dated 19.05.2006 (Annexure P-6). The petitioner served continuously in that capacity until his retirement on 31.07.2011, drawing a final basic pay of Rs.26,640/- per month. Learned counsel further submits that the core grievance of the petitioner pertains to denial of time-bound promotional scales under the Board’s policy circulated vide office order dated 23.04.1990, which grants such scales after completion of 09 and 16 years of regular service in a cadre w.e.f. 01.01.1986. The respondents’ own clarification dated 15.09.2003 (Annexure P-10) expressly stipulates that if an existing employee is directly appointed to a higher post through open selection, the service for time-bound

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promotion shall be counted from the date of joining such higher post. It is further argued that the petitioner’s induction into the cadre of SSA was through a direct open selection process, therefore, as per the Board’s own policy, his service for the grant of time-bound promotional scales ought to be counted from 06.05.1989 i.e the date, on which he joined as SSA.

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Further, the petitioner, along with others, had challenged the promotion of his juniors by filing CWP-14536-1991, which was allowed by this Court vide judgment dated 03.07.2014. In compliance with the said judgment, the petitioner was granted deemed date of promotion as SSA w.e.f. 12.03.1981 and as Junior Engineer (Sub-Station) w.e.f. 11.10.2002. However, while purporting to implement the judgment, the respondents have acted in a manner contrary to its spirit and intent. Instead of granting the consequential benefits of seniority and time-bound promotional scales from the deemed dates, the respondents have illegally and unilaterally changed the petitioner’s induction post from SSA to Telephonist without any show-cause notice or opportunity of hearing. This retrograde alteration, effected after the petitioner’s retirement, has resulted in the wrongful reduction of his pensionable pay from 26,640/- to₹ ₹24,240/- per month and has deprived him of the promotional benefits, that rightfully accrued to him upon implementation of the Court’s directions. 4. Learned counsel for the petitioner further submits that impugned action of the respondents is arbitrary, discriminatory, violative of the principles of natural justice and in direct contravention of the Board’s own service

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regulations as well as the specific directions issued by this Court in CWP-145361991. Moreover, this Court in CWP-14536-1991 never issued any direction to change the induction post of the petitioner. Respondents No.1 to 3 have admitted in their reply that the petitioner was given ad hoc promotion as Junior Engineer by BBMB. Learned counsel for the petitioner relies upon the judgments rendered by the Coordinate Benches of this Court in Swinder Singh and others Vs. State of Punjab and others (CWP No.5234 of 2002) decided on 04.05.2001 and Rajinder Kaur Vs. Punjab State Electricity Board and others (CWP No.8347 of 2012) decided on 11.07.2016.

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Per contra , learned counsel for respondents No.1 to 3 submits that the petitioner retired as an employee of the respondent-Corporation and it is an admitted fact that the petitioner joined on 05.09.1977 and was deputed to BBMB. On 25.04.1989, respondents No.1 to 3 issued posting order of the petitioner and placed his services at the disposal of BBMB, as discernible from Annexure P-4 (colly.) and within two years, he was granted ad hoc promotion to the post of Junior Engineer. Perusal of the promotion order clearly reveals that the promotion of allocated employees was made valid only till the time, they are working in BBMB and purely temporary on ad hoc basis as stop gap arrangement and it would not confer upon the promotee any right of seniority in the integrated list or continuation in the post and pay scale.

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Learned counsel for respondents No.1 to 3 further submits that while implementing the order passed by this Court in CWP-14536-1991, date of

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joining of the petitioner was changed and as such, with the changed deemed appointment, he was not entitled to time bound Assured Career Progression (ACP) scales and accordingly, his salary was fixed.

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Learned counsel for respondents No.4 to 6 submits that the petitioner was entitled to his pay and leave encashment upon his retirement and BBMB has already paid all the admissible dues. However, as far as pension is concerned, the petitioner being an employee of respondents No.1 to 3, same is to be paid by them.

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Having heard learned counsel for the parties and after perusing the record of the case file with their able assistance, it transpires that an employee, who is on deputation, has a lien on his post in his parent department. As such, he is entitled to such service benefits, which are prevailing in his parent department. The petitioner was placed at the disposal of BBMB on 25.04.1989, as discernible from Annexure P-4 and thereafter, he was given ad hoc promotion on 10.12.1991 (Annexure P-5), which was purely a temporary stop gap arrangement. It is trite law that any benefit with regard to seniority of the petitioner has to be determined in line with the seniority list of his parent department. The BBMB may have granted the petitioner further promotion and he may have been passed on the benefit of higher pay, however, in view of his lien in the parent department, upon his retirement, the pension has to be paid by the respondentCorporation, which has to be fixed in terms of the service condition prevailing in his parent department.

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Furthermore, it transpires that while implementing the order passed in earlier writ petition filed by the petitioner i.e. CWP-14536-1991, the respondent-Corporation revised the petitioner’s date of joining and promotion, which inadvertently disturbed the benefits of ACP, that the petitioner may have been entitled to. However, it is a settled principle that any recovery of excess payments made on account of such refixation is impermissible in law, particularly when the employee is not at fault. What is permissible, however, is the re-fixation of pensionary benefits on a notional basis, taking into account the corrected service record, without effecting any recovery from the petitioner. The respondent-Corporation is, therefore, required to undertake such refixation in accordance with the rules applicable to the parent department, ensuring that no recovery is made from the petitioner for any period during, for which he received pay based on the earlier incorrect fixation.

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