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2010 DIGILAW 212 (PNJ)

Sudhir Kant v. Punjab State Electricity Board

2010-01-11

RANJIT SINGH

body2010
Judgment RANJIT SINGH, J. 1. When this Regular Second Appeal was filed, no substantial question of law was formulated. The counsel for the appellant contends that substantial question of law would arise in this case. It is urged that substantial question of law that would arise in this case is that if an amendment of Regulation can take away the accrued right retrospectively. The counsel for the appellant would further contend that the amendment which was not in existence at the time of filing the suit could not have been validly and legally taken into consideration by the appellate Court to upset the finding recorded by the Trial Court by placing reliance on such an amendment which was effected subsequent to the filing of the suit. These two substantial questions of law indeed would arise in this case. 2. The facts noticed in brief are that the plaintiff filed a suit against the respondent-Punjab State Electricity Board for denying him the benefit of increment in the revised pay scale in terms of Para 7 of the PSEB (Revised Scale of Pay) Regulation, 1980 (for short, "the Regulations ). The appellant was working as Sectional Officer (Mech.) (Junior Engineer-II) in p. S. E. B. , Arrear Divisional Electrical, Guru Nanak Dev Thermal Plant, Bathinda. Concededly, he was drawing pay of Rs.220/- as on 1.1.1978 in the old scale applicable to the employees in the scale of Rs.200-10-250-270-15-350 with annual increment falling on Ist March every year. These pay scales were revised in terms of the abovesaid Regulations and the Line superintendent/sectional Officer (Mechanical) were placed in the scale of rs.700-25-850-30-1000-40-1200. The pay of the appellant was fixed at the minimum of the scale i. e. Rs.700/- as on 1.1.1978 in this revised scale. As per para 6 of the Regulations, the appellant was entitled to the next increment on 1.1.1979. On 15.10.1981, the appellant represented to the Executive Engineer, arrears Division to the effect that Sh. R. K. Arora, Line Superintendent, was drawing Rs.200/- in the old scale as on 1.1.1978 and his pay scale in the revised scale has also been fixed at Rs.700/-, which is at par with that of the appellant. On 15.10.1981, the appellant represented to the Executive Engineer, arrears Division to the effect that Sh. R. K. Arora, Line Superintendent, was drawing Rs.200/- in the old scale as on 1.1.1978 and his pay scale in the revised scale has also been fixed at Rs.700/-, which is at par with that of the appellant. The appellant accordingly prayed that in terms of Para 7.1 proviso (ii) of the Regulations, he was entitled to the first increment with effect from 2.2.1978 as R. K. Arora was drawing pay less than that of the appellant in the unrevised pay scale, which on the relevant date was Rs.225/-, so far as the appellant was concerned. On the basis of these pleadings and the evidence led, the suit filed by the appellant was decreed. This primarily was on the basis of the provisions of Para 7 of the regulations referred to above, which reads as under:- "7. Date of increment in the revised scale:- (1)The next increment of a Government employee whose pay has been fixed in accordance with Rule 6 shall be granted on the date on which he would have drawn his increment had he continued in the existing scale; Provided that: (i) Where the revised pay is fixed at the minimum of the time scale and on such fixation the revised pay exceeds the existing emoluments by more than Rupees Seventy five, the next increment shall be granted on the date it falls due in the revised scale; (ii)the next increment shall be granted on the next succeeding day following the appointed day, to a Government employee whose pay fixed on the appointed day in the revised scale is at the same stage as the one fixed for another Government employee drawing pay at a lower stage than his in the same existing scale. " 3 The respondent-Electricity Board filed an appeal against the same and the Appellate Court had reversed the judgment and decree passed by the trial Court by taking into consideration the revised proviso (ii) to Para 7.1 of the Regulations. " 3 The respondent-Electricity Board filed an appeal against the same and the Appellate Court had reversed the judgment and decree passed by the trial Court by taking into consideration the revised proviso (ii) to Para 7.1 of the Regulations. This para of the regulations was revised with effect from 17.5.1983 and reads as under:- " (ii) the next increment shall be granted on the next succeeding day following the appointed day, to a Government employee, whose pay fixed on the appointed day in the revised scale does not exceed the existing emoluments by more than seventy five rupees and is at the same stage as the one fixed for another Government employee drawing pay at a lower stage than his in the same existing scale. " 4. It is on this basis, the learned counsel for the appellant has submitted that a substantial question of law would arise in this case to the effect that whether the amendment, which was not in existence at the time of filing of the suit was not considered by the Trial Court while allowing the relief claimed in the suit, could be taken into consideration by the Appellate court to upset the finding returned by the Trial Court or not. In other words, the learned counsel would plead that amendment, which was introduced subsequent to the date of filing of the suit in the year 1983 could not have been considered as it would then give a retrospective effect to the amendment and also it would take away the accrued right of the appellant. 5. Counsel for the appellant has placed reliance on Chairman, Railway board and Ors. Vs. C. R. Rangadhamaiah and Ors. Etc. , 1997 (4) SLR 759. In this case, the Honble Supreme Court has held that a rule which operates in future so as to govern future rights of those already in service can not be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution but a rule which seeks a reverse from an anterior date a benefit which has been granted or availed e. g. , promotion or pay scale, can be assailed as being violative of articles 14 and 16 of the Constitution to the extent it operates retrospectively. The counsel has also relied upon Food Corporation of India etc. etc. Vs. The counsel has also relied upon Food Corporation of India etc. etc. Vs. Om Parkash Sharma and others, 1998 (3) RSJ 504, where the proposition of law held in the above noted case was reiterated. Mr. J. S. Chahal, learned counsel appearing for the respondent-Electricity Board, however, would contend that in view of the amendment in the Regulations, the pay of the appellant was rightly fixed and the Appellate Court was justified in relying upon this amendment as that will govern the case of fixation of pay in all such cases. 6. I have considered the rival contentions made before me. Concededly, this suit was filed on 28.10.1982 and was decreed on 17.1.1984. Though this amendment in the proviso to the Regulations was made on 17.5.1983, yet this amendment was not brought to the notice of the Trial Court. Subsequently, however, the Board relied on this amendment and on that basis the first appellate Court had reversed the finding given by the Trial Court. Learned counsel appearing for the appellant is justified in making a grievance in this case. With the revision in pay scale having been introduced, the appellant had a right to get his pay scale fixed in terms of the proviso (ii) of Regulation 7.1 of the Regulations. This Regulation in a very clear and uncertain terms provide that in case person who was drawing less pay in the unrevised pay scale is fixed at par with the senior person who was drawing more in the unrevised pay scale than the senior person shall be entitled to seek another increment on the very next date of fixation of pay in the revised pay scale. However, this provision was subsequently amended to make it read that in case the revised scale does not exceed the existing emoluments by more than seventy five rupees and is at the same stage as the one fixed for another Government employee drawing pay at a lower stage than him in the same existing scale, then the next increment need not be granted to him. This amendment first could not have been taken into consideration as it was not before the Trial Court. The plea, which was not raised by the appellant before the Trial Court could not be taken before the appellate Court. This amendment first could not have been taken into consideration as it was not before the Trial Court. The plea, which was not raised by the appellant before the Trial Court could not be taken before the appellate Court. Even otherwise, as held in the case of C. R. Rangadhamaiah (supra), the accrued rights could not have been retrospectively taken away. This amendment was, thus, to operate prospectively and could not have been given effect to in those cases where the rights have already accrued and on the basis of which the claim was made. In this view of the legal position, the judgment under appeal can not be sustained and the same is set-aside. 7. The present Regular Second Appeal is allowed and the judgment and decree passed by the Appellate Court is set-aside and that of the Trial Court is restored. Let the revised decree be prepared accordingly.