Suresh Kumar Gupta vs State of Haryana and Others

R.P. Nagrath, J.—The petitioner seeks mandamus directing the respondents to release the pensionary benefits such as gratuity, commutation of pension, leave encashment, GIS and provident fund alongwith damages and interest at the rate of 18% per annum and further to release the arrears of pay in the pay scale of Rs. 4100-5300 with effect from 17.09.1993 to 30.11.1994, the date on which he superannuated. The facts relevant for disposal of this petition are that the petitioner was appointed as Junior Engineer on 12.12.1959 in joint Punjab and allocated to the State of Haryana in the year 1966 on reorganization of the State. He was promoted as Sub Divisional Engineer on adhoc basis with effect from 20.12.1976.

The petitioner was served with a charge-sheet on 29.05.1980 and reverted to the post of Junior Engineer. He filed CWP No. 2588 of 1980, challenging the order of his reversion. Since the department withdrew the reversion order after receipt of notice in the said writ petition that the writ petition came to be withdrawn on 18.09.1980.

In the departmental enquiry held against the petitioner, he was inflicted the punishment of reversion to the post of Junior Engineer apart from recovery of Rs. 68,449/- towards the pecuniary loss suffered by the department vide order dated 01.09.1987. The petitioner remained under suspension, pending finalization of departmental enquiry, from 18.07.1979 to 31.08.1987.

It is admitted that the petitioner filed a civil suit, challenging the order of punishment, which was decreed on 27.08.1991, holding the order of reversion and recovery of amount as illegal. The State went in appeal which was dismissed on 27.03.1993. The petitioner also filed Civil Appeal against the order of trial Court, granting liberty to the department to hold fresh enquiry, if so desired. His appeal was accepted vide the same judgment dated 27.03.1993. The State filed RSA Nos. 1606 and 1607 of 1993, which have been admitted and still pending in this Court.

The petitioner filed execution application before the Civil Court and in implementation of the decree, the department fixed his scale in the selection grade of Rs. 4100-5300 on completion of 12 years of service as Sub Divisional Engineer and was paid the arrears at the said scale for the period from 01.05.1989 to 16.09.1993. Vide order Annexure P-1 dated 20.11.1994, the department treated the period of suspension from 18.07.1979 to 31.08.1987 as period spent on duty and accordingly arrears were paid. After his reinstatement, the petitioner was transferred to the headquarters at Chandigarh but the scale of Rs. 4100-5300 was withdrawn and recovery made on account of excess amount paid to him. His pension was wrongly fixed in the lower scale of Rs. 3275/- instead of the scale of Rs. 4100-5300 to which he was entitled.

Learned Counsel for the petitioner and the Addl. AG, Haryana have been heard.

A fresh affidavit dated 12.10.2012 sworn-in by the Registrar office of the Engineer-in-Chief, Haryana has been handed over and taken on record.

The dispute in this petition, therefore, centers round the entitlement of selection grade. According to the respondents, the selection grade is to be granted after completion of 12 years of regular satisfactory service but the petitioner was never regularized in the service and his promotion always remained on ad-hoc basis till his retirement.

There is no dispute that for the grant of selection grade, the length of service is to be counted from the regular appointment and not the period of adhoc appointment. In State of Haryana Vs. Haryana Veternaty and A.H.T.S. Asson. and Another, , Hon''ble Supreme Court held as under:-

Coming to the Circular dated 2.6.1989, issued by the Financial Commissioner and Secretary to the Government of Haryana, Finance Department, it appears that the aforesaid Circular had been issued for removal of anomalies in the pay scale of Doctors, Deputy Superintendents and Engineers, and so far as engineers are concerned, which are in Class 1 and Class II, it was unequivocally indicated that the revised pay scale of Rs. 3,000 to Rs. 4,500 can be given alter completion of 5 years of regular service and Rs. 4,100 to Rs. 5,300 after completion of 12 years of regular service. The said Financial Commissioner had issued yet another Circular dated 16.05.1990, in view of certain demands made by officers of different departments. The aforesaid Circular was issued after re- consideration by the Government modifying to some extent the earlier Circular of 02.06.1989, and even in this Circular it was categorically indicated that so far as Engineers are concerned, they would get Rs. 3,000 to 4,500 after 5 years of regular and satisfactory service and Selection Grade in the scale of pay of Rs. 4,100 to Rs. 5,300. which is limited to the extent of 20% of the cadre post should be given after 12 years of regular and satisfactory service. The aforesaid two Circulars are unambiguous and unequivocally indicate that a government servant would be entitled to the higher scale indicated therein only on completion of 5 years or 12 years of regular service and further the number of persons to be entitled to get the selection grade is limited to 20% of the cadre post This being the position, we fail to understand how services rendered by Rakesh Kumar from 1980 to 1982, which was purely on ad hoc basis, and was not in accordance with the statutory rules can be taken into account for computation of period of 12 years indicated in the Circular. The majority judgment of High Court committed serious error by equating expression "regular service'' with "continuous service". In our considered opinion under the terms and conditions of the Circulars dated 02.06.1989 and 16.05.1990, the respondent Rakesh Kumar would be entitled for being considered to have the Selection Grade on completion of 12 years from 29.01.1982 on which date he was appointed duly against a temporary post of Assistant Engineer on being selected by the Public Service Commission and not from any earlier point of time. The conclusion of the majority judgment in favour of Rakesh Kumar, therefore, cannot be sustained.

Similarly in the State of Punjab and Others Vs. Gurdeep Kumar Uppal and Others, it was held that only regular service rendered by the employee is to be counted for giving of higher pay scale under proficiency step up.

The challenge in this case is also to the order (Annexure P-11) dated 21.02.1992 vide which the department regularized the service of 26 Sub Divisional Engineers, who were initially promoted on adhoc basis w.e.f. 06.06.1980, but taking into consideration the service record of the petitioner, he was superseded alongwith 12 others. This order states that a requisition for 78 posts of Sub Divisional Engineers were sent to the Government in the year 1980. 51 out of those posts were meant for direct recruits and 27 for promotion quota from Junior Engineer, AMIE/Degree holders and Circle Head Draftsman category and the requisition dated 02.04.1980 was sent for direct recruitment on 51 posts to the Haryana Public Service Commission.

It is mentioned in Annexure P-11 that in the meantime, the minutes of the meeting of the Screening Committee for promotion was sent to the Haryana Public Service Commission on 09.06.1980. To keep the wheels of administration moving and to grant adhoc promotions to the officials, who had been superseded in the year 1980, and 1981. The petitioner had, however, been promoted as adhoc Sub Divisional Engineer on 20.12.1976 about more than 31/2 years before this recommendation. The Haryana Government approved the proceedings of the Screening Committee vide memo dated 12.09.1989, in pursuance whereof the Government issued regular promotion vide orders dated 15.03.1990 and 16.05.1991 of 26 officials with effect from 06.06.1980. However, 13 officials were superseded on the basis of the service record, and that list included the name of petitioner, Suresh Gupta, at serial No. 9, out of those 13 Junior Engineers. This is despite the fact that petitioner was promoted as Sub Divisional Engineer on adhoc basis.

That was obvious because the petitioner was placed under suspension in contemplation of disciplinary proceedings on 18.07.1979. He was charge-sheeted on 29.05.1980 and punishment was imposed in the year 1987, ordering his reversion and also imposition of penalty of recovery of amount. The petitioner challenged the order of punishment in civil suit dated 09.02.1988, which was decreed in his favour on 27.08.1991 and affirmed in appeal vide the judgment dated 27.03.1993.

It is, thus, apparent that the order (Annexure P-11) superseding the petitioner, was passed on 21.02.1992, which was much before dismissal of the first appeal filed by the State. The State filed two Regular Second Appeals, one pertaining to setting aside the punishment order, and second relating to petitioner''s appeal against the trial Court decree, granting liberty to the department for holding fresh enquiry. It is not disputed that no stay has been granted by this Court in both these appeals, rather the judgment passed by the Civil Court in favour of the petitioner has since been implemented by the department vide order (Annexure P-1) during execution proceedings filed before the executing Court.

Vide Annexure P-1 dated 20.11.1994 passed by the department, it was ordered that the petitioner be paid full pay and allowances for the period of his suspension from 18.07.1979 to 31.08.1987 and this period was treated as period spent on duty for all intents and purposes, subject to decision of RSA Nos. 1606 and 1607 of 1993.

The petitioner remained under suspension for the period 18.07.1979 to 31.08.1987 i.e. for about 8 years during departmental enquiry and was ultimately inflicted punishment of reversion and imposition of penalty of recovery of Rs. 68,449/-. He, thus, remained working as Junior Engineer till the decree passed in his favour by the Civil Court, was implemented in the year 1994. So, there was no service record of the petitioner as Sub Divisional Engineer right from 18.07.1979, when he was suspended till he was restored to the post of Sub Divisional Engineer in the year 1994 in compliance with of the Civil Court decree. The order dated 21.02.1992 (Annexure P-11) of supersession of petitioner is set aside and the matter for regularization of services of petitioner as Sub Divisional Engineer be reconsidered de hors the nonexistence of the service record for almost the complete length of the relevant term as Sub Divisional Engineer. On passing of such an order the case of petitioner would then be considered for grant of senior scale and selection grade as per the instructions and to pay him the arrears of salary and pensionary benefits accordingly. The needful be done within a period of three months, from the date of receipt of a certified copy of this order, failing which interest @ 8% per annum shall be payable on the delayed payment from the date of this order.

The petition is allowed on the above terms.