An employer cannot unilaterally withdraw long-standing financial benefits granted to an employee due to procedural delays in exercising options, especially when the employer had initially accepted the belated compliance and failed to afford an opportunity of being heard before re-fixing pay after a significant lapse of time.

Jiya Lal Bhardwaj, Judge (Oral)

Whether approved for reporting?¹Whether reporters of Local Papers may be allowed to see the judgment?

The petitioner by way of present writ petition, has prayed for the following substantive reliefs:-

(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 18.01.2008 (Annexure P-9), dated 01.08.2008 (Annexure P-10) & dated 28/05/2012 (Annexure P-18) of the writ petition, as unconstitutional and illegal and contrary to the law.

b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent to pay the arrears of illegally refixed pay and allowances with all the consequential benefits and interest thereon @18% pa.

The facts as emerge from the pleadings are that the respondent-Board had issued Office Order No.12 dated 31.01.1991 (Annexure P-1), whereby a time bound benefit of promotional scales was introduced. As per this Scheme, an employee who has not received the benefit of 9/16 years time bound promotional scale has not earned three regular promotions in his career and has not earned third promotion in his regular service between 16th and 23rd years of service, was entitled to Advance Promotional Increments (two increments) on completion of 23 years of regular service.

The petitioner who had completed 23 years service and covered under the ibid scheme was granted the benefit of two Advance Promotional Increments on 25.08.1993, without exercising the option by him and his pay was fixed w.e.f. 01.01.1994. The respondent-Board had issued the letter dated 23.05.1995, wherein it was decided that in cases where the pay of an employees happen to be changed with retrospective effect for any reason as a result of change/amendment of Board’s decision, they shall be entitled to exercise the option within three months. Thereafter, another letter was issued on 12.10.1995 to exercise the option within three months. However, the petitioner had exercised the option on 03.09.1996. As per the ibid office order, the scheme had to take effect from 01.01.1986. However, the payment of arrears would be spread over the next three years. During vetting of pay by the Accounts Officer (Pay Fix.), it was noticed that the petitioner had not exercised the option within the stipulated period and instead exercised it on 03.09.1996 for the grant of benefit of Annual Promotional Increment on completion of 23 years of service. As such, the same cannot be considered until special relaxation to exercise the option at a belated stage is granted by the Secretary of the respondent-Board as per letter dated 18.01.2008(Annexure P-9). Thereafter, vide office order dated 01.08.2008 (Annexure P-10), his pay was re-fixed.

The petitioner, feeling aggrieved by the said order, had made representations to the respondent-Board, which were not decided, and thus, the petitioner approached this Court by way of CWP No. 7810 of 2010-I, titled, Paras Ram vs. HPSEB Ltd., which was disposed of on 21.03.2012 with a direction to the respondent-Board to decide the representations made by the petitioner with an open mind, untrammeled and uninfluenced by the orders already passed, and further to pass appropriate orders after affording an opportunity of hearing to the petitioner within a period of two months from the date of production of a copy of the judgment.

In sequel to the directions issued by this Court, the respondent-Board vide order dated 28.05.2012 (Annexure P-18), rejected the representations, holding that the petitioner had not exercised the option within a period of three months from the date of office order dated 12.10.1995 and exercised option on 03.09.1996 to grant the Advance Promotional Increments on completion of 23 years of service on 25.08.1993 to fix his pay under saving clause of FR-22(1)(a)(i) w.e.f. 01.01.1994. Since the provision is statutory in nature and the option exercised was time barred, the claim of the petitioner is devoid of merit