Harinderpal Singh vs The State of Punjab

Ranjit Singh, J.—Harinderpal Singh, an Ex-serviceman, has filed this appeal to impugn the judgments passed by the trial Court as well as first Appellate Court. The issue involved is for pay fixation in the Punjab Education Board where he joined after his retirement from the Army service. He has a grievance that his pay has not been properly fixed in terms of the Rules applicable to the Board employees.

The facts necessary to appreciate the controversy are that the appellant was released from service on 12.8.1973. At that time, the appellant was drawing Rs. 279/- as his basic pay w.e.f. 1.1.1973. He was appointed as a Clerk in the Punjab Education Board on 1.1.1975. His pay was revised from 1.1 .1978 in the scale of Rs. 400-600. With effect from 17.1.1980, a new pay scale was introduced and the appellant opted for being re-fixed as per the change of the scale. Since his pay was not fixed in a proper manner, he filed a suit seeking declaration that he is entitled to pay in the scale of Rs. 400-600 w.e.f. 15.1.1980.

The suit was contested by the respondent-State. A preliminary objection was raised that the appellant has no cause to file the suit. It was pointed out that the State has already accepted the claim of the appellant and has passed the order fixing his pay. This was on the basis of option given by the appellant for being fixed in the pay scale w.e.f. 15.1.1980 after giving him the benefit of service rendered by him in the Military.

The trial Court framed the following issues:

Whether the pay of the plaintiff has not been fixed in accordance with Punjab Govt. Gazette notification dated 15.1.80? OPP.

Relief.

On the basis of the evidence led, the suit was dismissed. Aggrieved against the same, the appellant filed an appeal which was also dismissed. He has accordingly filed this Regular Second Appeal.

The plea is that as per the fitment table annexed with the revised pay scale, the pay of the appellant should have been fixed at Rs. 680/- on the assumption that he retired from the Military and joined the civil service. This argument was rejected as the pay was fixed in the revised scale of Rs. 400-600 w.e.f. 1.1.1978. Counsel for the appellant has drawn my attention to the amended Rule 7.20 of Punjab Civil Services Rules Volume-1. This amendment has been introduced w.e.f. 15.1.1980 and reads as under:

When a junior Commissioned Officer or other rank formerly in Military Service obtain employment in Civil Department, after having been granted military pension, he shall continue to draw his military pension. His pay in the Civil Post shall be fixed at a stage in the time scale of the Civil Post which is equal to the basic pay exclusive of allowances of any kind drawn at the time of retirements, or, if there is no such stage, the stage next below that pay plus personal pay equal to the difference to be absorbed in the next increments subject to the condition that it shall not in any case be below the minimum or above the maximum of the time scale of the Civil Post in which he is re-employed. He will be allowed to draw usual annual increments in the time scale of the Civil Post.

Note;-1 A - The existing incumbents will have the option to switch over to the new pay fixation formula, if they so desire, within four months from the date of issue of the Punjab Civil Service Volume-II (Ist Amendment Rules, 1980 subject to the condition that on fixation of pay according to the new pay fixation formula, no arrears will be paid prior to the date of issue of the aforesaid rules nor any overpayment, which may become due will be recovered. The option once exercised shall be final.

It is on the basis of this amendment that the appellant had exercised his option for switching over to the new pay fixation formula as given in Rule 7.20. It is stated that on the basis of pay of the appellant in the Army being Rs. 279/-, the pay of the appellant would work out to be Rs. 457/- inclusive of additional dearness allowance and in this manner, it was observed that his pay was rightly fixed in the scale of Rs. 400-600. The submission that the pay of the appellant was required to be fixed in terms of the fitment table was found without merit. It was observed that the pay was being fixed in terms of Rule 7.20 of the Rules for which the appellant had exercised his option.

There being no dispute that the pay of the appellant was required to be fixed on the basis of basic pay draw by him at the time of retirement, it is not understood as to how the fitment table, which was relied upon by the appellant, could be ignored by the courts below. However, during the course of arguments, it was felt that the fitment table, which was being relied, was not on record of the case. The counsel had then sought permission to place this fitment table on record by way of additional evidence, which was allowed on 12.5.2010. This document has been taken on record as additional evidence. Annexure P-1 is the copy of the amended rules, whereas Annexure P-2 is a fitment table. Concededly, the appellant had exercised option under these amended rules. Once he was allowed to exercise option, his pay would be governed by the fitment table annexed with the amended rules.

The perusal of the fitment table would show that the pay scale from Rs. 275/- to Rs. 284/- is equated with Rs. 680/- in the fitment table. In this background, the pay scale of the appellant would have to be fixed as per the fitment table. The view taken by the first Appellate Court as well as by the trial Court, thus, cannot be sustained. However, the State counsel is justified in urging that amendment cannot be given retrospective effect. This position, the counsel for the appellant readily concedes. As per the counsel, the appellant would not be entitled to any arrears w.e.f. 1.1.1975. However, his pay has to be fixed in the scale in view of the amendment w.e.f. 1.1.1975 and allowed to him only notionally but he shall not be paid the difference, if any.

The Regular Second Appeal is accordingly allowed as a substantial question of law in regard to the pay fixation at the proper rate in terms of the rule would arise in this case. The same is answered accordingly. The judgments under appeal are accordingly set-aside and direction is issued to re-fix the pay of the appellant in terms of the observations made above.