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2008(3) Supreme 272
SUPREME COURT OF INDIA
S.B. Sinha & V.S. Sirpurkar, JJ.
Punjab State Electricity Board & Ors. — Petitioners
versus
Gurmail Singh — Respondent
Appeal (civil) 2898 of 2008
(Arising out of SLP © No. 5223 of 2004)
With
(Arising out of SLP © No.8130 of 2004)
Decided on : 22-04-2008
(2001) 6 SCC 446; (2007) 5 SCC 528; (2002) 5 SCC 756 – Relied upon.
(b) Service Law – Service condition – An employee given the option to opt for one or the other induction post or one or the other scheme is supposed to know his right or benefit – An employee cannot be permitted to opt for one or the other scheme again and again – Schemes are framed for the benefit of the employees ordinarily as a one time measure – If by reason of a wrong option, an employee suffers, he himself is to be blamed therefor and not the employer. (Para 24)
© Constitution of India – Article 14 – Article 14 being a positive concept, constitutional scheme of equality cannot be applied in illegality. (Para 26)
(d) Fundamental Rules – Rule 22(1)(a) – Pay of an employee may be stepped up when a junior to a senior officer belonging to the same category and the post from which they have been promoted and in the promoted cadre, the junior officer on being promoted later than the senior, gets a higher pay. (Para 28)
(1997) 3 SCC 177 – Relied upon.
(e) Service Law – Time bound Promotion – Respondent’s junior getting higher pay, not because of his earlier officiation in the higher post by way of officiating promotion – Appellants directed to put the respondent at the same scale of pay from the same day which was being paid to the employees next below him. (Para 30)
Facts of the case:
1. Respondent herein was appointed as a Steno-Typist on or about 28.8.1976. There existed a common cadre of the Steno-Typist and Lower Division Clerk. On the said post, he was placed on a scale of pay of Rs.1200-2200/-.
2. A scheme for grant of time bound promotion to a higher scale of pay was formulated by the Board in terms of which promotional scale was to be given to the employees upon completion of 9/16 years of regular service.
3. The revision in the scale of pay of LDCs was directed by an order dated 3.10.1990 w.e.f. 1.1.1986. It was clarified that in the list of LDCs circulated by the Board, the names of LDCs who had been promoted as UDCs included, then those UDCs would not be given the revised scale of LDCs
4. Another circular was issued by the Board on or about 18.7.1994 directing that those LDCs who are promoted as UDCs would not be given any option to decide UDC/LDC as their induction post, but some relaxation may be given while considering individual cases who had been promoted after 1.1.1986.
5. Respondent made a representation to the Board. He preferred UDC as his induction post by a letter dated 8.7.1995.
6. Respondent, thereafter, raised an industrial dispute. The Board was directed to consider his representation pursuant whereto and in furtherance thereof by an order dated 30.10.2002, representation of the respondent was rejected
7. The writ petition filed by the appellant questioning the legality and/or validity of the said order has been allowed by reason of the impugned judgment.
Findings of the Court :
In the fact situation of the case, respondents should be given the same pay scale as the persons next below them are getting.
Result : Appeals allowed.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. These two appeals, involving similar questions of fact of law, were taken up for hearing together and are being disposed of by this common judgment.
3. The factual matrix of the matter, however, would be noticed from the case of Gurmail Singh.
Appellant Board is constituted and incorporated under the Electricity (Supply) Act, 1948. It is entitled to frame regulations incorporating terms and conditions of service of its employees in terms of Section 79 © of the Act. The regulations so framed are known as Punjab State Electricity Board Ministerial Services (Class III) Regulations, 1985.
4. Respondent herein was appointed as a Steno-Typist on or about 28.8.1976. There existed a common cadre of the Steno-Typist and Lower Division Clerk. He was appointed on a scale of pay of Rs.110-250 which was revised to Rs.400-600 w.e.f. 1.1.1978 and Rs.950-1800 w.e.f. 1.1.1986. On the said post, he was placed on a scale of pay of Rs.1200-2200/-. A scheme for grant of time bound promotion to a higher scale of pay was formulated by the Board wherefor a circular bearing No.17/90 was issued by its Finance Department on 23.4.1990. In terms of the said scheme, promotional scale was to be given to the employees upon completion of 9/16 years of regular service. The revision in the scale of pay of LDCs was directed by an order dated 3.10.1990 w.e.f. 1.1.1986. The said revision of scale of pay, however, was to be granted on the basis of total number of years of service as LDC in the said cadre. The same was, however, implemented in respect of three categories of employees, namely, who have not been granted any promotion despite completion of minimum 10 years of service as LDC and Senior Clerk or five years of service as LDC and remaining of the LDCs not falling in the first two categories. The ratio for grant of the said promotional scale was fixed at 40:40:20 respectively. Material part of the said circular is as under :
“In continuation to this officer order Nol.129/Fin/PRC-1988 dated 11.11.1988, No.147/ Fin/PRC-1988 dated 21.03.89, No.168/Fin/PRC-1988 dated 15.6.89, No.169/Fin/PRC-1989 dated 26.6.89, No.181/Fin/PRC-1988 dated 20.10.89, No.189 Fin/PRC-1988 dated 19.01.1990, No.190 Fin/PRC-1988 dated 23.01.1990, No.211 Fin/PRC-1988 dated 4.7.1990 and office order No.271 Fin/PRC-1988 dated 13.8.1990, the Punjab State Electricity Board is pleased to further revise the scales of pay of the following categories of employees w.e.f 01.01.1986 as under :
XXX XXX XXX
3. The Punjab State Electricity Board has also decided that (i) – (ii) For UDCs joining PSEB, as a result of either through direct recruitment or by promotion from amongst LDCs after passing the Departmental Accounts Examination, the date of joining as UDC will be taken as the date of first induction in the PSEB for the purpose of grant of 9/16 years time bound scales.”
5. On or about 7.10.1992, the Board in continuation of Finance Circular No.58/90 dated 3.10.1990 issued a memo on or about 7.10.1992 whereby and whereunder it was clarified that in the list of LDCs circulated by the Board, the names of LDCs who had been promoted as UDCs included, then those UDCs would not be given the revised scale of LDCs stating :
“In accordance with the above instructions, a list of employees to whom scale of Junior Assistant (1500-2640) is payable w.e.f. 01.01.1988 has been prepared by this office and is being sent to your office for further action. While preparing this list, LDCs who have been promoted upto 31.12.87 their names have not been included in this list. Still if any employees has been promoted to higher post (UDC/Stenographer Divisional Accountant, Revenue Accountant) or have been appointed by direct recruitment by selection by the Board and have joined that post or the service or any employees have been terminated or have left the Board or has died but his name has been included in the list, this scale will not be given to those
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