Punjab-Haryana High Court
Amit Kumar Chakraborty vs Haryana Power Generation Corporation ... on 1 February, 2024
Neutral Citation No:=2024:PHHC:014268
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-2262 of 2018
Date of decision: 01.02.2024
Amit Kumar Chakraborty
......Petitioner
Versus
Haryana Power Generation Corporation Ltd. and others
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: - Mr. Vikas Chatrath, Advocate, for the petitioner.
Mr. R.S. Budhwar, Advocate, for the respondents.
NAMIT KUMAR, J.
1. Petitioner has invoked the extraordinary jurisdiction of this
Court by filing instant writ petition under Articles 226/227 of the
Constitution of India, seeking a writ of certiorari for quashing the
impugned letters dated 31.07.2015 (Annexure P-18) and 13.08.2015
(Annexure P-19) whereby his claim for converting five advance
increments into personal pay, has been rejected and the same have been
adjusted against the increments due to the petitioner in future.
2. Brief facts, as have been pleaded in the writ petition, are
that the petitioner was working with M/s Tata Davy Ltd. (T.D.L.),
Panipat, as Erector of Coal Handling Plant Stq.-III before being
selected and appointed in erstwhile Haryana State Electricity Board on
08.03.1990 as Foreman-II, vide appointment letter dated 12.04.1990. It
is the case of the petitioner that he had passed higher secondary +
CIT/ITI from West Bengal along with electrical working and
installation license from P.W.D. Andheri, Bombay. He had 15 years
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experience before joining respondent-department. His pay had been
fixed at Rs.1400/- in the pay scales of Rs.1400-40-1600-EB-50-2300-
EB-60-2600 along with allowances as applicable from time to time.
Petitioner joined as Foreman-II on 03.08.1990. Thereafter
memorandum was placed before the Board of Directors, HSEB,
Panchkula, wherein it had been decided to grant five advance
increments keeping in view petitioner's previous experience which was
duly approved by the Board of Directors. Relevant portion from the
said memorandum dated 04.10.1991 (Annexure P-2) reads as under:
"(1) SHRI AMIT KUMAR CHAKRABORTY
(A) His name was approved for the post of Foreman Grade-II
vide Sr. No. 9 of Board's decision dt. 29.1.90 in Annexure
'A' Shri Chakraborty joined the duty at the Thermal
Project in HSEB w.e.f. 3.8.90 on an assurance having
been given to him by the Project Authorities that in his
case 5 advance increments will be recommend for
sanction by the Board so as to protect the emoluments
drawn by him with is private employer. As intimated by
the General Manager, Panipat vide his office Memo No.
Ch- 15/ECM/ET-2001 dt. 28.3.91 Annexure 'C' the gross
salary of the officials in HSEB works out to Rs. 2400 P.M.
as against the following emoluments last drawn by him
with M/s Tata Davy Ltd. as certified by them in Annexure
'D'.
i) Salary Rs.2300 per
month
Increment Rs.75/-
ii) Perks
(a) LTA Rs.2000
(b) Medical Self Rs.1500 Rs.4100 per
and family annum
(c) Medical for Rs.600/-
parents
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(d) As per actual
Hospitalization
medicines etc.
(e) Light Rs.30/- for working beyond
refreshment normal 8 Hrs Holidays &
allowance Sundays
No other person (out of 45 Nos.) was given the assurance
for the grant of advance increments as was given to Sh.
Chakraborty. The assurance was given to him in view of
the facts that he is very useful man who helps in all trouble
shooting problems & works willingly for whole day &
night on many occasions. The General Manager, Panipat
recommends to grant 5 Nos. advance increments to him so
as to keep up the assurance given to the incumbent.
(B) As per clause (i) of the general conditions mentioned
in Board's decision Annexure 'A' the pay last drawn by an
incumbent is to be protected only on account of the
experience, if any, gained in a Government/public
undertaking. Shri Amit Kumar Chakraborty Foreman-II
does not fulfill this condition for the purpose of grant of 5
Nos. advance increments to him within the existing
decision of the Board. As such the issue regarding grant of
Chakraborty in the pay scale of Foreman-II (Rs. 1400-40-
1600-50-2300-EB-60-2600) raising his pay (basic) from
the initial Rs. 1400/- of the pay scale of the extent of 5
annual increments viz Rs. 1600/- P.M. as recommended by
the General Manager, Panipat, falls within the
competency of Board to consider and decide.
x x x x
4. Administrative approval to place the issues before the
Board for consideration and decision has been accorded
by the Member Administration. The Board is requested to
consider the desirability to review its decision dated
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29.1.90 (Annexure-A) in respect of the following specific
issues:-
(i) To accord sanction to the grant of 5 Nos. advance
increments to Sh. Amit Kumar Chakraborty,
Foreman Grade-II so as to keep up the assurance
having been given to him by the Panipat Thermal
Project authorities, to persuade him to join duty
in the HSEB in the interest of Board's work, in
relaxation of clause (i) of the conditions
mentioned in Board's decision dated 29.1.90 that
last pay drawn will be protected on a/c of the
experience in Government/public undertaking
which Sh. Chakraborty does not fulfill."
3. Consequently, a letter dated 10.12.1991 (Annexure P-3)
was addressed by the Additional Secretary, HSEB, Panchkula, to the
General Manager, Plants, PTPS, HSEB, Panipat, wherein it was stated
that the matter has been considered by the Board of Directors in its
meeting held on 29.11.1991 and the same has been approved and
further action in the matter be taken accordingly. Consequently,
sanction was accorded for grant of five advance increments to the
petitioner in the pay scale of Rs.1400-2600 by raising his pay from
Rs.1400 to Rs.1600 per month with effect from his date of joining as
Foreman-II in the Board vide letter dated 02.04.1992 and the same
reads as under: -
"HARYANA STATE ELECY. BOARD.
Office Orders No. 207/EOM/G-233/Vol. II Dt: 2-4-92
In view of the approval of the Board accorded in its
meeting held on 29.11.91 as conveyed by the Addl.
Secretary HSEB Panchkula vide his Memo No. CH-
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26/NGE/G-65/Vol. II dated 10.12.91, sanction is hereby
accorded for the grant of 5 No. advance increments to Shri
Amit Kumar Chakraborty Foreman Grade-Il in the pay
scale of Rs. 1400-40-1600-50-2300-EB-60-2600 raising
his pay from Rs. 1400/- to Rs. 1600/- per month w.e.f. the
date of his joining duty as Foreman Grade-II in the Board.
This issues with the approval of General
Manager/Thermal Plants PTPS HSEB Panipat.
Administrative Officer,
For G.M./Plants PTPS HSEB,
Panipat."
4. Thereafter, when the petitioner was to retire in the month
of November 2014 i.e. after many years of granting him advance
increments, show-cause notice dated 14.08.2014 (Annexure P-7) was
issued to the petitioner by Senior Accounts Officer for recovery of
Rs.2,43,037/- from the leave encashment/gratuity/other dues on
account of excess salary paid to him for the period 01.08.1991 to
30.06.2014. The same was duly replied by the petitioner vide his reply
dated 20.08.2014 (Annexure P-8). Comments were sought by the
Senior Accounts Officer from the Chief Engineer, H.P.G.C.L., Panipat,
and in response thereto, the Chief Engineer vide letter dated 10.10.2014
(Annexure P-9) stated that the petitioner was rightly granted advance
increments vide letter dated 02.04.1992 in accordance with the decision
of the Board and as such no further action is required to be taken by the
office in this case and it was requested to take appropriate action in the
case at his end in accordance with the instructions applicable therein
and decision taken by the Board. However, vide letter dated
22.10.2014 (Annexure P-10) again, reply of the petitioner was called by
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the Senior Accounts Officer, within 15 days failing which recovery will
be effected from his pay for the month of November 2014. Petitioner
replied to the said letter on 12.11.2014 (Annexure P-11) by stating that
he has already submitted the reply dated 20.08.2014 and his case for
converting five advance increments into personal pay is under process.
Therefore, no deduction of any amount be made from his salary till the
case is finalized. This was followed by other two representations
submitted by the petitioner dated 18.11.2014 and 30.03.2015
(Annexures P-13 and P-14). However, when the petitioner retired on
30.11.2014, a sum of Rs.2,43,037/- was deducted from the retiral
benefits of the petitioner and memorandum regarding conversion of
five advance increments into personal pay of the petitioner was put up
before the Board of Directors vide letter dated 06.04.2015 (Annexure
P-15) and the petitioner was called for personal hearing vide letter
dated 20.04.2015 (Annexure P-16) before the Chief Engineer/PTPS-2,
HPGCL, Panipat, on 21.04.2015 at 11.30 a.m. The petitioner duly
appeared for personal hearing and submitted that his pay had been
increased by granting him advance increments by erstwhile Board upon
approval by the Board of Directors and he had also submitted that
similarly situated employees, namely, Sh. Mohinder Singh and Sh.
Ram Nagina had been granted similar benefits keeping in view Rule
2.47(b) of the Punjab Civil Services Rules, as applicable to Corporation
for grant of advance increments. He also submitted that since there was
no mis-representation on his part when his pay was fixed, therefore, the
recovered amount of Rs.2,43,037/- should be refunded to him keeping
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in view the law laid down by the Hon'ble Supreme Court in State of
Punjab and others v. Rafiq Masih (White Washer) and others,
2015(1) SCT 195 and thereafter the Corporation refunded the said
recovered amount to the petitioner vide cheque No.640609 dated
26.05.2015, which was given to the petitioner vide letter dated
06.07.2015 (Annexure P-17). Although the said recovered amount was
refunded to the petitioner, however, the matter for converting five
advance increments into personal pay still remained pending along with
grant of increment due w.e.f. 01.07.2014 and refixation of the pension
by taking into account advance increments granted to him and vide
impugned orders dated 31.07.2015 and 13.08.2015 (Annexure P-18 and
P-19) the same have been rejected by relying upon instructions of the
State Government dated 22.07.2002, which have not been placed on
record by the respondents, and whereas the five advance increments
were granted to the petitioner on 02.04.1992 with effect from his date
of joining as Foreman-II i.e. 03.08.1990. The said orders have been
challenged by the petitioner in the present writ petition.
5. Written statement on behalf of the respondents has been
filed wherein the abovesaid facts have not been disputed, however,
with regard to grant of similar benefits to other similarly situated
employees has been replied as under: -
"It is submitted that Sh. Ram Nagina, FM-IV was granted
four advance increments vide office order no.949/EOM/G-
129 dated 26.10.1998 for his exemplary and excellent
performance of duties on 4x110MW Turbine Equipments
and its Auxiliaries during overhauling as well as
routine/preventive maintenance of Unit-4 during
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February-April, 1997. Similarly, Sh. Mohinder Singh, FM-
II was granted two advance increments vide office order
no.105/EMD-402/Vol. IV dated 24.04.1985 for his
outstanding services as Work Charge AFM. The services
of Sh. Mohinder Singh, FM-III were regularized w.e.f.
15.01.1986 as FM-III and he was subsequently granted 2
no. advance increments with the approval of WTD vide
C.E./Admn., HPGCL, Panchkula office order no
154/PS/CE/Admn-M&P dated 13.11.2000 for his
outstanding and exemplary services to HPGCL. While
granting the advance increments to the above mentioned
officials, it was intended that the benefits of advance
increments is of the permanent nature i.e. in addition to
his normal subsequent earned increments and to be
counted towards pensionary benefits. As such, the case
was put up to the Board of Directors for kind
consideration and accorded approval for converting the 4
no. advance increments into personal pay already
sanctioned to them from the date of sanction of advance
increments. As such, the advance increments of Sh.
Mohinder Singh and Sh. Ram Nagina were converted into
personal pay from the date of sanction of advance
increments after taking approval of BODs in its meeting
held on 14.01.2010."
6. Learned counsel for the petitioner submitted that the
petitioner was granted five advance increments vide order dated
02.04.1992 (Annexure P-4) after a conscious decision was taken by the
Board of Directors and on the approval of the Board in its meeting held
on 29.11.1991, his pay was raised from Rs.1400/- to Rs.1600/- per
month with effect from his date of joining and at the fag end of his
service career, petitioner was issued show-cause notice dated
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14.08.2014 (Annexure P-7) when he was due to retire on 30.11.2014,
by the Senior Accounts Officer, PTPS-I, HPGCL, Panipat, who had no
authority to issue the same and without considering his reply, an
amount of Rs.2,43,037/- was also recovered though later on it was
refunded to the petitioner, however, the said five advance increments
have not been treated as personal pay and the said claim has been
rejected by the respondents vide impugned orders dated 31.07.2015 and
13.08.2015 (Annexure P-18 and P-19) by relying upon instructions of
the State Government issued in 2002, which cannot be made applicable
retrospectively and further once the said benefit was granted to the
petitioner after approval by the Board of Directors, Chief Engineer has
no competence to withdraw the said benefit. He further submitted that
the petitioner continue to get the benefit for 26 years and it is only at
the fag end of his service that the said issue has been raked. He further
submitted that it is a case of discrimination and arbitrariness and
violation of Articles 14 and 16 of the Constitution as similar benefit has
been granted to two employees, namely, Sh. Mohinder Singh and Sh.
Ram Nagina. He has further referred to Rules 1.3, 2.44, 2.47, 2.52 and
4.10 of the Punjab Civil Services Rules in support of his contentions.
He also submitted that the impugned orders passed by the respondents
being non-speaking and cryptic are liable to be set aside.
7. Per contra, learned counsel for the respondents submitted
that case of the petitioner is not at par with the employees, namely, Sh.
Mohinder Singh and Sh. Ram Nagina, as the said persons were granted
benefit of advance increments in lieu of their exemplary service
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rendered in the Corporation itself and whereas the petitioner was
granted the benefit of five advance increments for his 15 years
experience in Tata Davy Limited, which he gained prior to joining the
Corporation.
8. I have heard learned counsel for the parties and perused
the record.
9. Ex facie, the facts are not in dispute. A perusal of
memorandum (Annexure P-2) shows that petitioner was assured by the
authorites before his joining duties as Foreman-II that he will be
compensated by granting five advance increments keeping in view his
vast experience in M/s Tata Davi Limited, Panipat, where he was
working as Erector of Coal Handling Plant and also keeping in view his
educational/professional qualifications. Accordingly, the matter was
placed before the Board of Directors and after approval granted by it,
petitioner was sanctioned five advance increments vide order dated
02.04.1992 by raising his pay from Rs.1400/- to Rs.1600/- per month
with effect from his date of joining in the Board. The same was
required to be treated as personal pay and was not required to be
adjusted in the future increments. If the same is to be adjusted in the
future increments then no benefit would have accrued to the petitioner
as his pay would have been at par with other Foreman-II after five
years. Further, the factum of his 15 years experience in a private
company and not of the Corporation was considered while granting him
five annual advance increments and now also his claim has been
rejected on this ground.
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10. Rule 4.10 of the Punjab Civil Services Rules, Vol. I (as
application to Haryana) as applicable to the HPGCL is reproduced as
under: -
"4.10. Subject to any general or special orders that may
be made by the competent authority in this behalf, an
authority may grant a premature increment.
Note 1:- A proposal to grant an increment in advance of
the due date should always be scrutinized with special
jealousy as it is contrary to the principle of a time-scale of
pay to grant an increment before it is due. Such a grant
should not be made or advised except in very rare
circumstances which would justify a personal pay to a
Government employee whose pay is fixed.
Note 2:- The expression "scale of pay" represents the
maximum of the scale which is to be taken into account for
determining the authority competent to sanction
increments rather than the stage of it.
Note 3:- The grant of premature increments to members of
the Provincial Civil Medical Service is governed by the
rules in Appendix XI to the Punjab Medical Manual.
Note 4:- In the case of increments granted in advance, it is
usually the intention that the Government employee should
be entitled to increments in the same manner, as if he had
reached his position in the scale in the ordinary course
and in the absence of special orders to the contrary he
should be placed on exactly the same footing, as regards
future increments, as a Government employee, who has so
risen."
11. Similar issue arose before this Court in Priya Sood v. State
of Punjab and others, 2011(3) SCT 319, wherein the judicial officer
was granted three advance increments in lieu of her qualification of
LL.M., however, the same were neither treated as 'additional' nor
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'special' and while considering the provisions of Rules 4.7, 4.9 and
4.10 of the Punjab Civil Services Rules and recommendations made by
Justice Shetty Pay Commission, it was held that advance increments
granted to the judicial officer possessing higher qualifications cannot be
treated as a temporary measure only to be adjusted against their future
increments to which they are otherwise entitled to as a matter of right
and it was held that the advance increments granted on account of
acquiring higher qualifications to be treated over and above the annual
increments admissible to them. Against the said judgment, matter went
in appeal and the said judgment was upheld by the Division Bench of
this Court in Punjab and Haryana High Court v. Priya Sood and
others, 2011(3) SCT 334, wherein it was held as under:
"2. The writ petitioner-respondent No. 1 was aggrieved
that advance increments have been given but they are not
considered as 'additional' or 'special' increments. In other
words, those increments have been regarded as advance
as a substitute to the annual grade increment which an
officer is otherwise entitled. Accordingly, the learned
Single Judge after referring to various paras of the
recommendations of the Shetty Commission, has come to
the conclusion that the expression 'advance increment' has
been interchangeably used with phrase 'additional
increment'. According to the learned Single Judge the
solitary object of such recommendation was to grant extra
benefit to those officers who joined the judicial service
with higher qualification and therefore, the word 'advance'
is to connote the same meaning as the word 'additional' is
understood in common parlance. The learned Single
Judge further held that under no circumstance the Shetty
Commission can be said to have recommended the grant
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of increment as a short term gain in the manner it has
been construed by the appellant because such a restrictive
meaning would lead to anomalous result and would bring
equality amongst un-equals.
3. We have heard learned counsel for the appellant at a
considerable length and are of the view that the opinion
expressed by the learned Single Judge is un-exceptionable
and deserves to be sustained in law. In our view, the
learned Single Judge has rightly concluded that the words
'advance increment' have been interchangeably used by
the Shetty Commission with the words 'additional
increment'. Moreover, educational qualifications are
always the basis for grant of higher pay scale, as has been
held by Hon'ble the Supreme Court in the cases of State of
Mysore v. P. Narasinga Rao, AIR 1968 SC 349; V.
Markendeya v. State of Andhra Pradesh, (1989) 3 SCC
191; State of Rajasthan v. Gopi Kishan Sen, 1992(3) SCT
490 : 1993 Supp (1) SCC 522; Shyam Babu Verma v.
Union of India, 1994(2) SCT 296 : (1994) 2 SCC 521;
Rajasthan State Electricity Board Accountants
Association, Jaipur v. Rajasthan State Electricity Board,
1997(2) SCT 18 : (1997) 3 SCC 103; Government of
West Bengal v. Tarun K. Roy, 2004(1) SCT 78 : (2004) 1
SCC 347; M.P. Rural Agriculture Extension Officers
Association v. State of M.P., 2004(2) SCT 431 : (2004) 4
SCC 646 and U.P. State Sugar Corporation Ltd. v. Sant
Raj Singh, 2006(3) SCT 56 : (2006) 9 SCC 82.
4. In the present case the degree of Masters of Laws would
certainly bring efficiency in discharging duties by a
Judicial Officer in comparison to those who do not possess
such a degree. There is no real benefit of advancing
advance increments if in the due course of time the writ
petitioner-respondent No. 1 is to become equal to those
who do not have additional higher qualification. Such an
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interpretation adopted by the appellant would not advance
the basic object of the recommendation made by the Shetty
Pay Commission. Therefore, we are of the view that the
instant appeal does not merit admission and the view
taken by the learned Single Judge deserves to be upheld.
5. As a sequel to the above discussion, this appeal fails
and the same is accordingly dismissed.
(M.M. KUMAR)
JUDGE
(GURDEV SINGH)
May 30, 2011 JUDGE"
12. Therefore, in this view of the matter, the said five advance
increments granted to the petitioner are required to be considered as his
personal pay. Further, once the said benefit was granted after the
approval was accorded by the Board of Directors, the said benefit
cannot be withdrawn by the Chief Engineer as it is well-settled
proposition of law that even successor in office cannot review the order
passed by the predecessor. Reference can be made to the Division
Bench Judgment of this Court in Sarv Mittar Sharma, Special Secy.,
Punjab and Haryana High Court v. Punjab and Haryana High
Court, Chandigarh through its Registrar, 1992(3) SCT 392.
Although, at one point of time a sum of Rs.2,43,037/- was recovered
from the retiral benefits of the petitioner on his retirement and
thereafter after issuance of show-cause notice to the petitioner, to which
he submitted his reply and after considering the comments of the Chief
Engineer, the sum was refunded back to the petitioner vide memo dated
06.07.2015 (Annexure P-17). The said benefit was granted to the
petitioner vide order dated 02.04.1992 (Annexure P-4) with effect from
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03.08.1990 and the said benefit cannot be withdrawn from the
petitioner or cannot be treated in any other manner to his dis-advantage
especially when no mis-representation or fraud was committed by the
petitioner.
13. Further, the present case appears to be a case of
discrimination and arbitrariness particularly when similar benefit was
granted to similarly situated employees, namely, Sh. Mohinder Singh
and Sh. Ram Nagina after the approval by the Board of Directors.
Learned counsel for the respondents has tried to distinguish the cases of
these two persons by stating that they were granted the advance
increments on account of their exemplary services rendered in the
Board/Corporation itself and whereas petitioner was granted the benefit
of advance increments on account of his 15 years experience on the
post of Erector of Coal Handling Plant in the Tata Davy Limited. To
my mind, petitioner cannot be discriminated on this ground as the
object of grant of advance increments in both the cases is the same and
in case of the petitioner he was given assurance by the Corporation
before his joining to the post of Foreman-II to the effect that he would
be compensated for his vast experience of 15 years gained by him.
Accordingly, the respondents cannot be allowed to act in arbitrary and
discriminatory manner and it is a case of sheer harassment to the
employee who was first given assurance that he will be compensated
for his vast experience of 15 years and acting upon the said assurance,
petitioner joined and was granted benefit of five advance increments.
However, the same are not being treated as his personal pay to enable
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him to enjoy the said benefit, who has already retired in the year 2014
after rendering 24 years of service and now he is 67 years old and
pursuing his cause since 2018. The net effect of the action of the
respondents is that although the petitioner has been granted the advance
increments, however, the said benefit would not be meaningful to the
petitioner if the same is not treated as his personal pay. Adjusting the
said advance increments in future annual increments would frustrate the
very purpose of grant of advance increments.
14 It is worth mentioning that the petitioner has an experience
of 15 years in a private company, not in the Corporation, which was
considered by the Board of Directors in its meeting held on 29.11.1991
and on approval, the said benefit was granted and for same reason the
said benefit of advance increments is not being treated as special pay.
It has also been noticed that despite the fact that approval was accorded
by the Board and acting upon the said approval, five advance
increments were granted to the petitioner. However, at the fag end of
the retirement of the petitioner, show-cause notice was issued by the
Senior Accounts Officer for recovery of a sum of Rs.2,43,037/- and
comments of the Chief Engineer were sought, who again opined that
since the benefit has been granted to the petitioner after approval by the
Board, therefore, nothing further is required to be done.
15. In view of the foregoing discussion and settled proposition
of law, present petition is allowed. Impugned orders dated 31.07.2015
and 13.08.2015 (Annexure P-18 and P-19) are hereby quashed and the
respondents are directed to treat five advance increments granted to the
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petitioner vide order dated 02.04.1992 (Annexure P-2) as personal pay
of the petitioner and accordingly grant consequential benefits to him
after revising his pay and pension, within a period of three months from
the date of receipt of certified copy of this order.
(NAMIT KUMAR)
01.02.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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