Parul Goyal & Ors. vs State Of Punjab & Ors.

Harsimran Singh Sethi, J. (Oral)

By this common order, three civil writ petitions, the details of which have been given in the heading, are being decided as these petitions involve the same question of law on similar facts.

The present petitions have been filed challenging the notification No.01/06/2020-5lg4 dated 14.10.2021 (Annexure P-14), issued by Department of Local Government, Punjab-respondent No.1 vide which notification No.PWSSB/SECY/2015/11079 dated 24.06.2015 has been de-notified. The challenge raised by petitioners qua notification dated 14.10.2021 is that same is to be implemented prospectively rather than retrospectively on the promotions which have already been done.

Certain facts needs to be mentioned for the correct appreciation of the issue in hand.

Brief facts of the case are that the petitioner(s) were appointed as Sub-Divisional Engineers in December, 2011. At the time when the petitioner(s) were appointed, “Punjab Water Supply & Sewerage Board (Services) Regulations, 1981 (hereinafter referred to as ‘Regulations 1981’)”, were governing the service for promotion and as per these rules 8 years of service was an essential criteria for being promoted from the post of Sub-Divisional Engineer to Executive Engineer. According to the said 1981 Regulations, the petitioner(s) would have become eligible for promotion in December, 2019. While the petitioners were working as Sub-Divisional Engineer, the respondents amended 1981 Regulations and introduced ‘Punjab Water Supply & Sewerage Board (Services) Regulations, 2015 via amendment dated 24.06.2015 by which 8 years of required service for promotion was reduced to 4 years.

Keeping in view the aforesaid amendment, petitioners names were duly considered by DPC for promotion to the post of Executive Engineer as they completed 4 years of service. The petitioners in view of order dated 29.01.2016 (Annexure P-4) were promoted from post of Sub-Divisional Engineer to Executive Engineer.

The petitioner(s) were continuing working as Executive Engineer, when the State decided to denotify the notification dated 24.06.2015 with immediate effect via notification dated 14.10.2021. The said notification dated 14.10.2021 denotifying the notification dated 24.06.2015 was passed after approximately five years of service of the petitioner(s) on a promoted post as Executive Engineer.

Upon passing of the said notification dated 14.10.2021, though the same was prospective in nature, but was implemented upon the employees/Sub-Divisional Engineers, who already had been promoted on the basis of the notification dated 24.06.2015 prior to 14.10.2021. Keeping in view the said notification dated 14.10.2021, the benefit of promotion which has already been granted to the petitioner(s) as Executive Engineer was withdrawn and such withdrawal of promotion via notification dated 14.10.2021 has been challenged by the writ petitioners.

Learned Senior counsel appearing on behalf of petitioner(s) submits that the first argument is that even if the notification dated 14.10.2021 remains as it is, the same has to be applied prospectively, keeping in view the wording of the notification which has been brought into operation “with immediate effect” thus same cannot be applied retrospectively to withdraw the benefit of the notification dated 24.06.2015 which has already been extended prior to 14.10.2021 qua the promotions of the employees from the post of Sub-Divisional Engineers to that of Executive Engineers.

Learned Senior Counsel further submits that promotions have already been made under a particular Rule which existed in January, 2016 and when the order of promotion of petitioners were made same were valid at that point of time keeping in view the rule which existed qua the number of years of experience as S.D.E. The same cannot be re-considered upon a subsequent amendment via Rule/notification dated 14.10.2021 especially and the same can only be made applicable prospectively and not retrospectively.

On the other hand, learned counsel appearing on behalf of respondent(s) submits that once, the notification dated 24.06.2015 has been denotified on 14.10.2021, the same has to be treated as non-existent for all intents and purposes and once the said notification dated 24.06.2015 is washed off, then, the promotion of the petitioner(s) which is based upon such notification was liable to be reconsidered and same has rightly been reconsidered by the respondents, hence, the prayer made by the petitioners that their promotions were made in January, 2016 from the post of Sub-Divisional Engineer to that of Executive Engineer cannot be reconsidered, is incorrect hence, the writ petition may kindly be dismissed.

We have heard learned counsel for the parties and have gone through the record with their able assistance.

The main question which arises for consideration is that as to whether the promotion of the petitioner(s) in January, 2016 from the post of Sub-Divisional Engineer to that of Executive Engineer is valid or not and can be reconsidered, via notification dated 14.10.2021 in any manner.

As mentioned earlier, as per the 1981 Regulations governing the service of the petitioner(s). Petitioner(s) were not eligible to be promoted till they attain the 8 years of service. On 24.06.2015, Regulations 1981 were amended to hold that the Sub-Divisional Engineers who have 4 years experience are eligible for promotion as Executive Engineers subject to certain conditions imposed under such regulations.

Keeping in view the said Amendment dated 24.06.2015, as the petitioner(s) completed 4 years of service in December, 2015 and in January, 2016, they were promoted as Executive Engineer and were put on probation this means that the said promotion was regular and not temporary. On that date, when the said order of promotion of petitioner was passed, the 1981 Regulations as amended on 24.06.2015 were existing, which provided 4 years experience as Sub-Divisional Engineer to be promoted as Executive Engineer, which the petitioner(s) fulfilled.

It was only in October 2021, Regulations 1981 were further amended so as to denotify the Amendment dated 24.06.2015. The said amendment is reproduced as under:

A bare perusal of the above would show that the said amendment dated 14.10.2021 was denotified in the amendment dated 24.06.2015 “with immediate effect” only which means, prospectively and not retrospectively, and any amendment which is done prospectively can only operate qua the circumstances which will occur thereinafter and any action already taken cannot be reconsidered.

Learned counsel for the respondent(s) has argued that denotifying of the notification dated 24.06.2015 “with immediate effect” will amount to white washing the said notification to mean that the same was never in existence. The said interpretation which has been followed by the Respondent(s)/Department is not correct.

Any valid notification which was in operation on a particular day when action under such notification was taken and subsequently notification was withdrawn “with immediate effect” means prospectively. Had the respondent(s)/Department intended to white wash the notification dated 24.06.2015, the same could have been done by withdrawing the same from the date of the issue so as to take away the vested right of the candidate who had already been granted the benefits of the Notification dated 24.06.2015.

Further, once the notification dated 24.06.2015 was only denotified “with immediate effect” via notification dated 14.10.2021, the same has to operate prospectively and any action taken under the Notification dated 24.06.2015, up to 14.10.2021 when such notification was denotified such action has to be treated as validly taken, and such action which is taken by the respondent(s)/department cannot be reconsidered so as to withdraw the benefit as already granted in the present case.

Furthermore, it is a settled principle of law that any vested right or any benefit granted under a particular notification, cannot be withdrawn unless and until the said notification is retrospectively made applicable. In the present case, the notification dated 14.10.2021 is prospective in effect and not retrospective, therefore, implementation of the same even upon the promotion already been made 5 years prior to the year 2021 is incorrect and such notification dated 14.10.2021 is wrongly interpreted. The aforesaid observation of this Court qua strengthen as per law settled by the Hon’ble Supreme Court of India in Civil Appeal No.1667 of 2020 arising out of SLP No.32417 of 2016 titled as “Gelus Ram Sahu and Others vs. Dr. Surendra Kumar Singh and Others”. The relevant paragraph of the judgment is reproduced as under:

It may be noticed that while issuing notice of motion, the reversion of the petitioner(s) was stayed and they continue to work as Executive Engineer.

Keeping in view the fact mentioned hereinbefore the promotion of the petitioner(s) made in January, 2016 after having 4 years of experience in view of amendment dated 24.06.2015 is valid. Hence, the petitioner(s) will be treated having rightly been promoted as Executive Engineer from January, 2016 onwards for all intents and purposes and such promotion cannot be withdraw vide notification dated 14.10.2021 impugned order of reversion dated 25.04.2019 (Annexure P-10) is set aside.

At this stage, learned Senior counsel for the petitioner(s) submits that with regard to the question of law raised in CWP-10622-2020, even the pay scale for the post of Executive Engineer was not granted to the petitioner(s) despite the promotion order been passed in January, 2016 on the pretext that for a period of 8 years, till the completion of 8 years service from the date of the appointment as Sub-Divisional Engineer, even the said scale cannot be granted which is incorrect interpretation of the notification dated 24.06.2015.

Learned Senior counsel further submits that Board has considered the said issue and found the assertion of the petitioner(s) on merits but sought the concurrence of the Department of Finance. The same representation of the petitioner has been denied by a non-speaking order without giving reasons as to why, the basic pay scale for the post of Executive Engineer cannot be granted to the petitioner(s). Learned Senior counsel submits that the terms and conditions of the notification dated 24.06.2015 was not to grant the increment till the completion of 8 years of service from the date such Executive Engineer was appointed as Sub-Divisional Engineer and not the pay scale.

Learned counsel appearing on behalf of respondent(s) has not been able to show as to what reasons have been given by the State for in declining the benefit of pay scale of the post of Executive Engineer to the petitioners especially when the notification dated 24.06.2015 has been made applicable upon the petitioner(s) in view of certain terms and conditions which include the grant of the pay scale to the petitioners of the post of Executive Engineer.

Keeping in view the above, the Board is directed to take appropriate decision in the matter within a period of 8 weeks after receipt of certified copy of this order and pass an appropriate order with regard to the claim of the petitioner(s) for the grant of the pay scale of Executive Engineer from the date they have been discharging the duty in pursuance to their promotion dated 29.01.2016. In case, the petitioner(s) are found eligible for the benefit, the same be released along with arrears as petitioner(s) have been continuously working on the post of Executive Engineer and in case, the same is to be declined the due reasons, should be given, keeping in mind the notification dated 24.06.2015 which has been held to be applicable upon the petitioner(s).

All the civil writ petitions stands disposed of accordingly.

A photocopy of this order be placed on the connected case files.