Punjab-Haryana High Court
Sanjeev Kumar Garg vs Bhakra Beas Management Board on 30 January, 2024
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 1 2024:PHHC:012348
121
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-27584-2023
Date of Decision:30.01.2024
SANJEEV KUMAR GARG ......... Petitioner
Versus
BHAKRA BEAS MANAGEMENT BOARD AND ANOTHER
..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Varun Sharma, Advocate and
Ms. Aakriti Sharma, Advocate
for the petitioner.
Mr. Karan Nehra, Advocate and
Mr. Harvinder Singh, Advocate
for the respondent No.1-BBMB.
Ms. Nikita Goel, Advocate
for respondent No.2-HPGCL.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of order
dated 24.08.2023 (Annexure P-1) whereby respondent has withdrawn
first and second time bound promotional scales (for short 'TBPS')
granted to the petitioner vide order dated 02.12.2015 while working with
Bhakra Beas Management Board (for short 'BBMB').
2. The petitioner on 25.09.1989 joined Haryana State
Electricity Board (for short 'HSEB') as Junior Engineer. The petitioner
was promoted as Assistant Engineer on ad hoc basis w.e.f. 30.10.1998.
The petitioner with the consent of HSEB joined BBMB as Assistant
1 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 2 2024:PHHC:012348
Engineer (ad hoc) and he opted for BBMB pay scales. In August' 1991,
the HSEB came to be bifurcated into four organizations and Parent
Department of the petitioner became Haryana Power Generation
Corporation Limited (for short 'HPGCL'). The petitioner and various
other employees, in compliance of judgment dated 17.12.2004 passed by
this Court in LPA No.657 of 1997 were granted deemed promotion as
Assistant Engineer (regular) w.e.f. 1992. The petitioner was promoted
vide order dated 15.09.2005 as Assistant Engineer (regular) w.e.f.
19.02.1992. The said order was passed by Parent Department of the
petitioner and pursuant to said order, BBMB accepted formal joining
from the petitioner as Assistant Engineer (regular) w.e.f. 19.02.1992. The
BBMB re-fixed pay of the petitioner w.e.f. 19.02.1992. The seniority
assigned to petitioner and other employees came to be challenged by
employees of Parent Department of the petitioner vide Civil Writ Petition
No.16330 of 2005. This Court vide interim order dated 23.10.2006 stayed
seniority granted to the petitioner. On account of stay granted by this
Court, Parent Department of the petitioner vide communication dated
21.12.2006 informed BBMB that petitioner may not be granted further
promotion and time scale as Assistant Engineer till interim order dated
23.10.2006 passed by High Court is in operation. In the said
communication, it was categorically noted that petitioner and other
employees are not required to be reverted because there is no stay on
promotion of the petitioner. The relevant extracts of the letter dated
21.12.2006 read as:
"The requisite legal advice/clarification has now been
received from the standing counsel of HPGCL vide his note
dated 30.11.2006 and the same is given as under:-
2 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 3 2024:PHHC:012348
The petitioner in CWP No. 16330 of 2005 -
Parveen Arora and ors Versus Haryana Power
Generation Corporation Limited etc. have not
challenged the very promotion of Sh. Rajinder Singh
Redhu and ors promoted as AE against the quota of
direct recruites. The only grievance in the said writ
petition was with regard to granting seniority to
Rajinder Singh Redhu and others in the cadre of AE.
Hon'ble High Court vide its order dated 23.10.2006
has stayed the operation of the order dated 15.09.2005
only qua grant of seniority with retrospective effect in
the cadre of AE and not the promotion as AE as such.
Thus Rajinder Singh. Redhu and others promoted as
AE are not required to be reverted as per stay order
dated 23.10.2006.
As I have opined that Rajinder Singh Redhu and
ors are not required to be reverted back to their
original post, the question of issuance of a show cause
notice does not arise. However, if the department still
want to revert any employee a show cause is must.
Rajinder Singh Redhu and others can not be
given seniority in the cadre of AE and cannot
considered for promotion on higher post on the basis
of their service as AE till such time order dated
23.10.2006 is in operation. Even arrears of pay on
account of deemed date of promotion as AE and time
scale in the cadre of AE cannot be given to Rajinder
Singh Redhu and others on account of stay order
dated 23.10.2006."
The LR, HVPNL has agreed with the above
advice/clarification as given by the standing counsel
of HPGCL and desired to take further necessary
3 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 4 2024:PHHC:012348
action in the matter accordingly.
You are, therefore, requested not to proceed further in
the matter for grant of time scales to the officers promoted
as AE and posted on deputation in BBMB vide this office
order No. 330/HPG/GE-623 dated 15.09.2005 till such time
the High Court's interim order dated 23.10.2006 are in
operation and final decision in the CWP No.16330 of 2005 is
pronounced by the Hon'ble High Court. A copy of the note
dated 30.11.2006 of the standing counsel HPGCL is sent
herewith."
3. The petitioner vide letter dated 06.12.2012 requested the
respondent-BBMB to grant TBPS and arrears on account of promotion
with retrospective effect. The application of the petitioner came to be
rejected vide order dated 27.05.2013. The Civil Writ Petition No.16330
of 2005 against seniority came to be disposed of vide order dated
09.01.2014. In the said order, it was specifically mentioned that order
dated 15.09.2005 whereby petitioner was promoted would not effect
rights of other parties. The respondent-HPGCL was directed to re-
consider question of seniority of all the effected parties. The relevant
extracts of order dated 09.01.2014 read as:
"The Haryana Power Generation Corporation Limited was
directed to work out a solution so that rights and entitlement
of the petitioners and the respondents, inter se, is not
harmed. In response thereto, on 17.5.2012, a proposal was
placed on record. The said proposal reads thus:-
"Matter discussed today i.e. on 15.5.2012 in the
chamber of Chairman of Haryana Power Utility
wherein all M.Ds were also present. As per the
discussion held only workable solution which is also
legally sustainable is that the quota post of promotees
be calculated as per availability of quota in terms of
policy in vogue and they may be re-assigned seniority
4 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 5 2024:PHHC:012348
from the date their quota post is available. The above
will settle grouse of direct recruits who were
otherwise appointed in the year 1993 i.e. much after
date of promotions/deemed dates given in 1991 to
Rajinder Singh Redu & others. Even otherwise as per
the settled law a direct recruit will get seniority from
the date he is borne on the cadre while a promotee
will get seniority from the date quota post is available.
Re-fixation of seniority may entail reversion of
promotions carried out in excess of quota or non-
availability of quota and consequently refixation of
pay. The Standing Counsel may be apprised of the
above stand of Utilities by way of short affidavit in
order to comply with the directions contained in order
dated 9.5.2012."
In the proposal made, a solution has been offered. Counsel
for the petitioners are satisfied with the proposal made and
have no objection to the same. Counsel for respondents No.3
to 17 states that in earlier round of litigation, some
favourable judgments were passed in favour of the
respondents, protecting their rights and those may be kept in
mind when acting upon the proposal, so made. Those
judgments have been placed on record as Annexures P7 &
P8, respectively.
In view of above facts, the above writ petitions are disposed
of. The authorities are directed to act in terms of the decision
taken on 15.5.2012 which was placed on record of this Court
on 17.5.2012. In terms of that decision, let fresh exercise be
done to settle right of the parties. When making that
exercise, judgments, passed in favour of respondents No.3 to
17 and similarly situated other persons be kept in mind.
When making above said exercise, the decision taken on
15.9.2005 (Annexure P1) shall not affect rights of the
parties. The exercise shall be done within five months from
the date of receipt of a certified copy of this order. Liberty
5 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 6 2024:PHHC:012348
shall remain with the parties not satisfied with the order to
be passed to approach this Court."
4. The petitioner after disposal of the aforesaid writ petition
filed application dated 14.08.2015 seeking benefit of first and second
TBPS, considering him as Assistant Engineer. The respondent-BBMB
without seeking opinion of Parent Department, allowed application of the
petitioner and he was extended benefit of first and second TBPS. On
account of extension of benefit of TBPS, a substantial amount was
released to the petitioner.
5. The respondent-BBMB on a complaint initiated investigation
with respect to grant of TBPS to the petitioner and others. The respondent
concluded that petitioner in connivance with other officials has got
released TBPS as AE though, he was holding post as AE (ad hoc)
whereas TBPS as AE could be issued, had he been holding post of AE
(regular). Forming this opinion, the respondent has issued demand notice
to the petitioner which is under challenge.
6. Mr. Varun Sharma, learned counsel for the petitioner asserts
that there was no concealment of fact on the part of petitioner. The
petitioner since 1998 was discharging duties of AE with BBMB and he
was promoted as AE (regular) pursuant to order passed by this Court. The
promotion of the petitioner was never under challenge though, there was
dispute of seniority among directly appointed vis-a-vis promoted officers.
The claim of the respondent that BBMB was unaware of litigation
pending between directly recruited and promotees is fallacy because
respondent is relying upon letter dated 21.12.2006 addressed to BBMB
and foundation of said letter was stay order dated 23.10.2006 granted by
this Court in Writ Petition No.16330 of 2005. The petitioner had joined
6 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 7 2024:PHHC:012348
JE with his Parent Department in 1989 and as per rules applicable to JE,
he is entitled to 3 TBPS i.e. 9 years, 16 years and 23 years. If the
petitioner is considered JE, he would be entitled to 3 TBPS whereas he
has been granted two TBPS as AE.
7. Mr. Karan Nehra, learned counsel for the respondent-
BBMB asserts that it is a case of embezzlement on the part of petitioner.
The application of the petitioner was specifically rejected in 2013 still he
filed second application which was processed by another beneficiary of
same benefit. The matter was investigated by Vigilance Department of
the respondent and misappropriation committed by petitioner was
detected. The petitioner was never promoted as AE (regular), thus, he
was not entitled to benefit of TBPS as AE (regular).
8. On being asked, learned counsel for the respondent concedes
that petitioner since 1998 has worked with BBMB as AE and he was paid
salary as AE. He further confirms that petitioner during the entire period
with BBMB has discharged duties of AE. If petitioner is denied benefit of
TBPS as AE, he would be entitled to benefit of TBPS as JE, however, he
submits that petitioner has not filed application in this regard.
9. I have heard the arguments of both sides and with the able
assistance of learned counsels have perused the record.
10. The conceded position emerging from the record is that the
petitioner was appointed JE on 25.09.1989. He was promoted to the post of
AE (ad hoc) by his Parent Department i.e. HPGCL. The petitioner, under
State quota joined BBMB as AE (ad hoc) on 06.11.1998. The petitioner vide
order dated 15.09.2005 passed by HPGCL was promoted as AE (regular).
The said promotion was made w.e.f. 19.02.1992. The BBMB pursuant to
said order accepted his joining w.e.f.. 19.02.1992 as AE (regular). This
7 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 8 2024:PHHC:012348
Court initially stayed seniority of the petitioner and thereafter while passing
final order categorically mentioned that letter dated 15.09.2005 shall not
effect rights of the parties. The said petition was relating to seniority
between direct and promotee employees. There was no dispute with respect
to promotion and it was confined to seniority. The said order was based
upon proposal dated 15.05.2012 furnished by HPGCL. It was conceded by
HPGCL that seniority of all the parties would be re-fixed and it would be as
per available quota and re-fixation may entail reversion of promotion carried
out in excess of quota or non-availability of quota. The HPGCL has carried
out exercise of re-fixation of seniority of all the employees holding post of
JE/AE. As per the tentative list, the petitioner would become AE from 2007
instead of 1992. The dispute has emanated on account of grant of two TBPS
to the petitioner. As per respondent, the petitioner has been wrongly
extended two TBPS and respondent-BBMB has every right to effect
recovery because petitioner by concealment of facts has availed benefit, to
which he otherwise was not entitled.
11. There was dispute between petitioner and directly appointed
employees with respect to seniority. The petitioner was promoted as AE
(regular) by order dated 15.09.2005. The petitioner is working with BBMB
as AE since November' 1998. The petitioner has not been extended benefit
of further promotion. As per rules and regulations of BBMB, an employee is
entitled to time bound promotion scale, if he does not get promotion within
specified period. The petitioner has availed two TBPS as AE i.e. on
completion of service of 9 years and 16 years. As per respondent, the
petitioner was never promoted to the post of AE (regular), thus, he is not
entitled benefit of TBPS as AE, however, respondent is unable to controvert
the fact that petitioner has discharged duties as AE and if he is considered as
8 of 9
Neutral Citation No:=2024:PHHC:012348
CWP-27584-2023 9 2024:PHHC:012348
JE still he is entitled to benefit of TBPS.
12. Keeping in mind, order dated 27.05.2013 whereby application
of the petitioner seeking TBPS was rejected and communication dated
21.12.2006 whereby parent department of the petitioner had informed
BBMB not to grant TBPS as AE, this Court is of the considered opinion that
petitioner could not be extended benefit of TBPS as AE, however, he cannot
be denied benefit of TBPS as JE. He joined his parent department w.e.f..
25.09.1989 as JE. If he is not considered as AE for the purpose of TBPS, he
needs to be considered as JE for the said purpose. The respondents have
denied benefit of TBPS as AE, however, they have not calculated benefit of
TBPS as JE. The petitioner cannot be denied benefit of TBPS as AE as well
as JE.
13. In the wake of aforesaid discussion and findings, this Court is
of the considered opinion that petitioner though is not entitled to benefit of
TBPS as AE, however, he is entitled to said benefit as JE. The respondents
are directed to re-calculate TBPS benefit of petitioner as JE and adjust the
same against the benefit already availed. If it is found that petitioner has
availed excess benefit, he would return the differential amount within 3
months from the date of re-determination. Till the re-calculation of benefits,
the respondent shall not effect further recovery.
14. Disposed of in the above terms.
( JAGMOHAN BANSAL )
JUDGE
30.01.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2024:PHHC:012348
9 of 9
