Punjab-Haryana High Court
Joginder Singh vs Pepsu Road Transport Corporation And ... on 8 January, 2025
Neutral Citation No:=2025:PHHC:001279
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CWP-19515
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-19515
19515 of 2022
Reserved on
on: 18.12.2024
Pronounced on: 08.01.2025
Joginder Singh
......Petitioner
Versus
Pepsu Road Transport Corporation and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by:: - Mr. Satwant Singh Rangi, Advocate, and
Mr. Y.P. Singla, Advocate,
for the petitioner.
Mr. Hitesh Sood, Advocate,
for Mr. Harsh Aggarwal, Advocate,
for the respondents.
NAMIT KUMAR, J.
1. The petitioner has filed the instant petition claiming the
following reliefs: -
(i) Writ in the nature of certiorari for quashing
impugned part of recommendations of the Dispute
Committee dated nil (Annexure P
P-9) recommending to
treat the promotion of petitioner
tioner to the post of Steno
Typist made on 28.02.1994 as new appointment and
consequential impugned order dated 12.03.2021
(Annexure P-11)
11) passed by respondent No.2 ordering to
treat the promotion of petitioner to the post of Steno
Typist as new appointmentt after expiry of more than 26
years from the date of his promotion made on 28.02.1994;
impugned order dated 24.05.2021 (Annexure P
P-12),
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thereby refixing the pay of the petitioner w.e.f. 28.02.1994
in terms of impugned order dated 12.03.2021; impugned
orderr dated 18.06.2021 (Annexure P
P-13), thereby illegally
deducting/effecting the recovery of Rs.50,240/
Rs.50,240/- out of total
admissible leave encashment amount of Rs.6,85,890/
Rs.6,85,890/-;
impugned order dated 10.08.2021 (Annexure P
P-14)
thereby illegally deducting/effecting th
the recovery of
Rs.6,02,528/- out of total admissible gratuity amount of
Rs.8,26,345/-;; and further impugned order dated
14.07.2022 (Annexure P-17)
17) passed by respondent No.1
vide which the appeal of the petitioner filed against
impugned order dated 12.03.202
12.03.2021 has been dismissed;
being illegal, arbitrary, nullity being without jurisdiction,
unjust, unwarranted, unconstitutional and violative of
Article 14 of the Constitution of India.
(ii) Writ in the nature of Mandamus directing the
respondents to restore all the service benefits having been
drawn by the petitioner w.e.f. 28.02.1994 on account of
his legal and valid promotion on the post of Steno Typist
and to release the illegally deducted/recovered leave
encashment amount of Rs.50,240/
Rs.50,240/- and gratuity amount of
Rs.6,02,528/- along with interest @ 18% per annum w.e.f.
01.05.2020 till actual payment of the same and further to
grant interest @ 18% per annum w.e.f. 01.05.2020 till
07.10.2021 on the delayed payment of remaining
pensionary benefits which were release
released to the petitioner
on 07.10.2021 after the delay of about one and half year
from the date of his superannuation on 30.04.2020.
2. The brief facts of the case, as have been pleaded in the
petition, are that the petitioner, who is a matriculate, was appointed as
work charge Motor Mate in the Pepsu Road Transport Corporation (for
short 'PRTC') in December, 1982 and joined as such on 01.01.1983.
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Thereafter, he was adjusted as work charge Plumber w.e.f. 01.03.1988
in the same pay scale of work charge Motor Mate. The service
conditions of the employees of the PRTC are governed by the
Regulations known as "Pepsu Road Transport Corporation (Conditions
of Appointment and Service Rules),
Ru 1981.. In the year 1991
1991-92, three
posts of Steno Typist under promotion quota were lying vacant, out of
which two posts were meant for general category and one for
Scheduled Caste category and in order to fill up these three posts,
various circulars
circulars were issued by the PRTC on 29.08.1991, 28.01.1992
and 07.07.1992, inviting applications from amongst the working
employees of any cadre of the PRTC who were possessing the
qualification of matriculation or equivalent with speed of 80/40 words
per minute in shorthand and typing, respectively with two years
experience in PRTC. The petitioner being eligible in all respects,
applied for one of the said posts and he was called for shorthand/
shorthand/typing
test conducted on 05.08.1993.
05.08.1993. The petitioner appeared and cle
cleared the
said test at the requisite speed and the result of the same was declared
on 11.08.1993 and thereafter on the approval of respondent No.2, the
Departmental Promotion Committee examined the promotion case of
the petitioner and recommended to promote him to the post of Steno
Typist on regular basis after considering his satisfactory work and
conduct during the entire tenure of service and his successfully passing
the stenography/typing
stenography test. It was also observed that the petitioner is
performing the duties of Steno Typist since 1983. However, before
issuance of formal order of promotion of the petitioner in terms of the
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recommendations of the DPC, legal opinion from Senior Legal Advisor
of the PRTC was also sought as to whether a work charge employee
can be promoted.
promoted. The Senior Legal Advisor opined that it is a case of
promotion and the petitioner fulfils the requisite qualification and
experience required for the post of Steno Typist as prescribed at serial
No.9 of Appendix 'A' of the PRTC Service R
Rules, 1981 and has also
qualified the typing speed test, therefore, he can be promoted to the
post of Steno Typist against a vacancy under the promotion quota.
Thereafter, the petitioner was promoted to the post of Steno Typist vide
order dated 28.02.1994 (Annexure P-6).. Thereafter, he was further
promoted to the post of Senior Assistant in December, 2016 and on
attaining the age of superannuation, he retired as such on 30.04.2020.
Thereafter, while considering the case of the petitioner for release of
pensionary
ensionary benefits under the Pension Regulations, 1992, the pension
branch of the PRTC,
PRTC vide its office note dated 19.06.2020
19.06.2020, sent the case
of the petitioner to the committee constituted under office order No.652
dated 30.01.2015 for disposal of disputed cases of pension of PRTC
employees on the ground that under PRTC Pension Regulations, 1992
1992,
petitioner was required to fill up his option form but his option is not
available in the pension branch. Thereafter, the case of the petitioner
was considered by the said committee in its meeting held on
25.08.2020 and while making reference to earlier similar nature of
cases, wherein also options were not exercised by the employees of the
PRTC Pension Regulations, 1992 and still they were made its
members, and concluded that there was no need to fill up option form
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of pension scheme by the employees who were appointed on regular
posts after implementation of pension scheme on 15.06.1992 as per
item 3(1) of Chapter II of the PRTC Pension Regulations, 1992.
Further, it was recommended by the said committee that appointment
of the petitioner to the post of Steno Typist can be treated as new
appointment from 28.02.1994 itself because there was no provision in
the PRTC Service Regulations of 1981 for promotion oof Plumber to the
post of Steno Typist and as such order of promotion of the petitioner as
Steno Typist was not correct under the Rules and he is required to be
treated as member of GPF after treating his appointment on the post of
Steno Typist as new appointment
appointment on 28.02.1994 and pay/allowances
will also be admissible to him accordingly w.e.f. 28.02.1994 after
treating it as a new appointment at that stage. Thereafter, the admin
branch referred the draft of order of partial amendment in order
No.1808 dated 28.02.1994 to the Senior Legal Advisor for vetting
before issuing the formal modified orders to the petitioner. The Senior
Legal Advisor on 14.12.2020 opined that treating an employee/retiree
as fresh appointee after so many years of appointment and not to grant
benefit of service rendered as Plumber may create legal implications in
future, however, keeping in view the recommendations of the Dispute
Committee and acceptance thereof by the competent authority, the draft
order was vetted by the Senior Legal Advisor. Consequently, vide
order dated 12.03.2021, the promotion order dated 28.02.1994 was
modified by treating the petitioner as newly appointed Steno Typist on
28.02.1994 instead of promotion. Thereafter, the pay of the petitioner
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was refixed w.e.f. 28.02.1994 vide order dated 24.05.2021 and
consequently, vide order dated 28.06.2021 excess payment of
Rs.50,240/-- on account of leave encashment and vide order dated
10.08.2021, recovery of Rs.6,02,528/-
Rs.6,02,528/ already drawn by the petitioner
as salary on account
account of his promotion w.e.f. 28.02.1994 was also
ordered to be deducted from his outstanding gratuity amount of
Rs.8,26,345/ .
Rs.8,26,345/-. Thereafter, the petitioner submitted appeal dated
12.10.2021 against the order dated 12.03.2021, raising his grievance
against treating
ating him as newly appointed Steno Typist instead of
promotion w.e.f. 28.02.1994. The petitioner was called for personal
hearing on 04.07.2022 and he submitted written submissions, however,
without appreciating the said contentions raised in the appeal as well as
in the written submissions, his appeal has been rejected vide order
dated 14.07.2022 (Annexure P-17)
P 17) by upholding the order dated
12.03.2021. The said orders dated 12.03.2021 (Annexure P
P-11),
24.05.2021 (Annexure P-12),
P 12), 18.06.2021 (Annexure P
P-13), 10.08.2021
(Annexure P-14)
P 14) and 14.07.2022 (Annexure P
P-17) have been impugned
in the present petition.
3. Written statement on behalf of the respondents/PRTC has
been filed wherein the petition has been opposed by stating that since
there is no provision to give promotion to a work charge (Plumber) to a
regular post of Steno Typist, therefore, promotion of the petitioner
dated 28.02.1994 has been treated as a fresh appointment and,
therefore, his earlier service rendered on work charge basis from
01.01.1983
83 to 27.03.1994 cannot be counted.
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4. Learned counsel for the petitioner has submitted that
before passing the impugned orders dated 12.03.2021 (Annexure P
P-11),
24.05.2021 (Annexure P-12),
P 12), 18.06.2021 (Annexure P
P-13) and
10.08.2021 (Annexure P-14)
P neither any show cause notice was issued
to the petitioner nor an opportunity of personal hearing was granted
which is in violation of principles of natural justice and the action of
the respondents in making recovery of Rs.50,240/
Rs.50,240/- vide order dated
28.06.2021 and
an Rs.6,02,528/- vide order dated 10.08.2021 is also in
violation of 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.
195. He further submitted that the promotion of the
petitioner
tioner made by the PRTC on 28.02.1994 to the post of Steno Typist
has wrongly been treated as a fresh appointment after a period of about
27 years and that too after his retirement, which is totally illegal. In
support of this contention, learned counsel has also placed reliance
upon the judgment of the Jharkhand High Court in W.P.(S) No.5240 of
2021 - Phul Chandra Thakur v. The State of Jharkhand and others
decided on 12.09.2024.
12.09.2024
5. Per contra, learned counsel for the respondents, while
referring to the averments made in the written statement, has opposed
the claim of the petitioner.
6. I have heard learned counsel for the parties and perused
the record with their able-assistance.
able
7. The facts are not in dispute that petitioner initially joined
the PRTC as work charge Motor Mate on 01.01.1983 and thereafter he
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was adjusted as work charge Plumber on 01.03.1988. Three posts of
Steno Typist became vacant in the year 1991
1991-92 and various circulars
were issued by the respondents/PRTC such as dated 29.08.1991
29.08.1991,
28.01.1992 and 07.07.1992 for filling up the said posts and the
petitioner, being fully eligible, also applied in pursuance to the said
circular dated 07.07.1992 and appeared in the stenography/typing test
and successfully passed the same and his case fo
for promotion was
recommended by the PRTC and after taking legal opinion from the
Senior Legal Advisor,
Advisor he was promoted as Steno Typist vide order
dated 28.02.1994 and thereafter he was further promoted to the post of
Senior
enior Assistant in December, 2016
201 and retired
etired as such on 30.04.2020.
Vide order dated 12.03.2021, the promotion of the petitioner made to
the post of Steno Typist on 28.02.1994, has been treated as a fresh
appointment on the post of Steno Typist w.e.f. 28.02.1994 instead of
promotion and consequently
consequently his pay has been revised w.e.f. 28.02.1994
and recovery of Rs.50,240/-
Rs.50,240/ and Rs.6,02,528/
Rs.6,02,528/- has been made from the
petitioner. All this has been done in violation of the principles of
natural justice as neither any show cause notice was issued to the
petitioner nor an opportunity of hearing was afforded to him. Further,
the promotion made to the post of Steno Typist on 28.02.1994 has been
treated as fresh appointment on 12.03.2021 after a period of 27 years
and that too after retirement of the petitioner
petitioner and while ignoring the
fact that in December, 2016 he was further promoted to the post of
Senior Assistant.
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7-A Further, the petitioner was promoted to the post of Steno
Typist on the basis of Circular dated 07.07.1992, which reads as
under:-
"No.7783/PRTC/Admn.2 Dated 7.7.92
To
The Depot Manager,
Pepsu Road Transport Corporation,
Patiala-1/2, Bathinda-1/2,
1/2, Barnala, Budhlada, Faridkot
Sangrur, Kapurthala, Ludhiana and Chandigarh
Sub: Filling up of vacant posts of Steno Typists through
promotion
Ref:
With reference to this office letter No.26869 dated
28.1.1992, it is again intimated that in order to fill up three
vacant posts of steno typist lying vacant under promotion quota
out of which 2 posts are of general category and one is for
schedule caste, test is to be conducted from any cadre of
P.R.T.C.
You are requested that employees working under your
control specially of scheduled caste who are fulfilling requisite
qualifications under rules should send their applications by
24.7.1992 through proper channel:
"Matriculate or equivalent qualification, speed of
80 and 40 WPM in shorthand and type respectively
with two years experience in P.R.T.C."
Sd/-
Administrative Officer
Pepsu Road Transport Corporation
Copy: 7784 Dt. 7.7.92
All officers and Branch Incharge in Head Office,
Notice Board HO, Steno/M.D. Upper M.D. and
Administrative Officer."
Perusal of the above Circular would show that the
applications were invited from the employees of the PRTC who were
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having the qualification of matriculation or equivalent with speed of 80
and 40 WPM in shorthand and typing, respectively, with two years
experience in PRTC. Since the petitioner was fulfilling the abovesaid
essential qualifications, he was considered for the said post and after
passing shorthand/typing test, his name was recommended for
promotion by the Departmental Promotion Committee. Legal opini
opinion
of the Senior Legal Advisor was also sought before promoting the
petitioner to the said post, meaning thereby proper procedure was
followed before promoting the petitioner to the post of Steno Typist.
The said promotion cannot be set aside after 27 yea
years by treating the
same as a fresh appointment.
8. The Jharkhand High Court in Phul Chandra Thakur's
case (supra), while considering the somewhat similar issue has held as
under:-
"7. Having heard learned counsel for the parties and
after going through the documents available on records it
appears that the case of the petitioner has been rejected
on the ground that since there was no sanctioned post of
typist in S.P. College Dumka thereby the adjustment of the
petitioner could not have been done on the ppost of Library
Assistant in view of the report of Justice S.B. Sinha
Commission.
As a matter of fact, the University in its pay fixation
charge has already mentioned about the fact that since no
post of typist was available in the said college therefore,
the petitioner was adjusted on a sanctioned vacant post of
Library Assistant through a resolution in the same college
wherein the petitioner was working and therefore, the
action of the respondent state in rejecting the claim of the
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petitioner is not tenable
le as it does not comes under the
ambit of the report of Justice S.B. Sinha Commission as it
is not the case where an employee has been adjusted in a
different college in a different subject; rather in the
present case the petitioner has been adjusted in tthe same
college and on a sanctioned vacant post.
8. Moreover during the entire service period of the
petitioner, the respondent state has never raised any
objection with regard to the appointment of the petitioner
and it was only raised at the time of appr
approval of pay
fixation of the petitioner which is after a lapse of almost
13 years of his retirement which is not justified in the eyes
of law and also the same issue has been set at rest by a
Co-ordinate
ordinate bench of this Court in the case of Ratni
Oraon (supra) which has been upheld up to the Hon'ble
Apex Court in S.L.P.(C) No.24661 of 2016, wherein it has
been held that when during the entire service period of an
employee no objection with regard to the appointment was
raised then it is not open for the respon
respondent to raise the
issue of appointment after his retirement/death."
9. The action of the respondents in making recovery from the
petitioner is also totally contrary to the law laid down by the Hon'ble
Supreme Court in Rafiq Masih (White Washer) and others case
(Supra).. The relevant portion of the aforesaid judgment is reads as
under:-
"18. It is not possible to postulate all situations of
hardship, which would govern employees on the issue of
recovery, where payments have
ave mistakenly been made by
the employer, in excess of their entitlement. Be that as it
may, based on the decisions referred to herein above, we
may, as a ready reference, summarise the following few
situations, wherein recoveries by the employers, would bbe
impermissible in law:
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(i) Recovery from employees belonging to Class
Class-III
and Class-IV
IV service (or Group 'C' and Group 'D'
service).
(ii) Recovery from retired employees, or employees
who are due to retire within one year, of the order of
recovery.
(iii) Recovery from employees, when the excess
payment has been made for a period in excess of
five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to
work against an inferior post.
(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee,
would be iniquitous or harsh or arbitra
arbitrary to such an
extent, as would far outweigh the equitable balance
of the employer's right to recover."
10. Keeping in view the above, the present petition is allowed.
The
he action of the respondents in treating the promotion of the petitioner
as Steno Typist
Typist as fresh appointment after 27 years, is held to be illegal
and hereby quashed and set aside; order dated 24.05.2021 whereby pay
of the petitioner was refixed is also quashed and consequently orders
dated 18.06.2021 and 10.08.2021 whereby recovery of Rs.
Rs.50,240/- and
6,02,528/-,, respectively has been made from the petitioner are also held
to be illegal and are set aside.
aside In view of Full Bench judgment in A.S.
Randhawa v. State of Punjab and others, 1997(3) S.C.T. 468 and Co-
ordinate Bench judgment in J.S. Cheema v. State of Haryana,
2014(13) RCR (Civil) 355,
355 the respondents are directed to refund the
said amount to the petitioner along with interest @ 6% per annum from
the date of deduction till the date of payment. Respondents are also
directed to restore
restore the pay of the petitioner as he was getting at the time
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of his retirement and release the consequential benefits
benefits, within a period
of three months,
months from the date of receipt of certified copy of this order.
(NAMIT KUMAR)
08.01.2025 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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