By means of this petition, the petitioners are seeking quashing of the order dated 16.6.2006 with a further direction to the respondents to make regular payment of monthly salary to the petitioners as was being made and not to effect any reduction or deduction from their salary.
The petitioners were initially engaged in the work charged establishment of the U.P. Jal Nigam in different capacities. The petitioner nos. 1 to 8 were engaged on 29.1.1977, 17.2.1980, 1.7.1978, 15.6.1978, 20.7.1975, 1.1.1978, 1.2.1977 and 1.5.1978 respectively. They were subsequently granted regular appointment with effect from 1.4.1984. The petitioner no. 1 has been made water works clerk, petitioner nos. 2 and 3 as work agent, petitioner nos. 3 and 8 as pump operator, petitioner no. 4 as pump operator-I and petitioner nos. 5 and 6 as fitter. The order granting them regular appointment will evidence from the office order dated 23.2.2000. The case of the petitioners further is that on their regularization they have been sanctioned the same benefits as available to other regular employees of the U.P. Jal Nigan. It is further stated that the pay scales of the employees of the Jal Nigam have been revised on 1.1.1986 and thereafter with effect from 1.1.1996.
I have heard Shri Ahok Khare, learned Senior Counsel for the petitioner, learned standing counsel for the respondent no. 1 and the learned counsel appearing for the U.P. Jal Nigam.
It is submitted by Shri Ashok Khare that in order to avoid stagnation of employees, the State Government had provided the benefit of selection grade and promotional pay scale on fulfilment of certain conditions specified in the two Government Orders dated 3.6.1989 and 8.3.1995. In the G.O. dated 3.6.1989 it was provided that such employees whose maximum revised pay scale was upto Rs. 3,500 were entitled to the benefit of selection grade on completion of 10 years satisfactory service either with effect from 1.1.1986 or from the date of completion of 10 years of length of service. Such employees after having put in six years of satisfactory service in the selection grade were also entitled to the benefit of the next higher pay scale on a personal basis by way of promotional pay scale. It is also stated that similar benefit of selection grade and permanent pay scale was made available by the State Government to all its employees vide G.O. dated 2.12.2000, 10.4.2001 and 3.9.2001.
From the G.O. dated 2.12.2000 it is seen that the benefit takes the form of (i) sanction of one increment on completion of 8 years length of service as on 1.1.1996 or on any date thereafter (ii) grant of promotional pay scale as personal benefit on completion of total 14 years length of service, including six years in selection grade pay scale and (iii) sanction of additional advance increment in the promotional pay scale on completion of a total length of 19 years of service including five years of service in the promotional scale.
It is further submitted by Shri Khare that the benefit of one advance increment on completion of length of 8 years of service was available only to such persons who completed 8 years as on 1.1.1996 subsequent to 1.1.1996. Thus who had already completed 10 years length of service prior to 1.1.1996 had already been sanctioned the benefit of selection grade as available in the revision effective from 1.1.1986. The petitioners are covered in the second part, as they had already completed 10 years length of service prior to 1.1.1996.
Shri Khare further submits that the pay scale of all the petitioners could revised from 1.1.1986 and thereafter again from 1.1.1996 as will be evidence from the orders dated 31.8.1996, 15.2.2000 and 8.11.2001 (Annexure-12, 13 and 14 to the writ petition).
There is a categorical averment in paragraph 22 of the writ petition that each of the petitioners has been sanctioned selection grade with effect from 1.4.1994 i.e. the date of completion of 10 years regular service computed from the date of grant of regular appointment. This benefit was not sanctioned immediately but it was sanctioned subsequently by order dated 8.11.2001 and the petitioners have received the benefits of selection grade.
The submission of Shri Khare is that by the impugned order dated 16.6.2006 the benefits which have already accrued to the petitioners and which they have already received is sought to be adjusted against future pay. His submission is that the respondents instead of resorting to deduction of pay have come up with an ingenious strategy to adjust the said benefit against the pay to be received by the petitioners. This ultimately results in indirect deduction from the salary of the petitioners and the same is absolutely illegal.
In the counter affidavit, the averments made in paragraphs 7 to 48 of the writ petition are replied in a single paragraph 5 and it is stated as follows:
"that the contents of paragraphs no. 7 to 48 of the writ petition are not admitted, as stated......................"
The submission of learned counsel for the respondent nos. 2 to 7 is that in the 139th meeting of the Board of Directors of the U.P. Jal Nigam a decision was taken that the benefit of Time Scale Benefit will be provided to regular employees (field) for the first time only from 1.1.1996. His further submission is that the order dated 8.11.2001 had been passed by the Chief Engineer in anticipation of acceptance by the Board of Directors to pay the Time Scale benefit after completion of 10 years of satisfactory service. This arrangement was rejected by the Board of Directors in its 139th meeting vide the impugned order dated 16.6.2006. It is not disputed by the respondents that the difference of salary was sought to be adjusted in terms of the impugned order dated 16.6.2006.
In my opinion since it is not disputed by the respondents that the petitioners had already received the benefit which had accrued to them and which is now sought to be adjusted by the impugned order dated 16.6.2006, the order dated 16.6.2006 is, on the face of it, an illegal and arbitrary order and is not sustainable in law.
The law in this regard is well settled by the Supreme Court that the benefits accrued and already received cannot be withdrawn from the employee.
The Supreme Court in the case of Gurmail Singh and others Vs. State of Punjab and others reported in (1991) 1 SCC 189 has held as follows:
"................It was very fair on the part of the State Government to decide that, as the tubewells would be operated by the Corporation, it would be prudent to tun them with the help of the appellants rather than recruit new staff therefor and that the government should bear the burden of any losses which the Corporation might incur as a result of running the tubewells. But having gone thus far, we are unable to see why the government stopped short of giving the appellants the benefit of their past services with the government when thus absorbed by the Corporation. Such a step would have preserved to the appellants their rightful dues and retirement benefits. The conduct of the government in depriving the appellants of substantial benefits which have accrued to them as a result of their long service with the government, although the tubewells continue to be run at its cost by a Corporation wholly owned by it, is something which is grossly unfair and inequitable. This type of attitude designed to achieve nothing more than to deprive the employees of some benefits which they had earned, can be understood in the case of a private employer but comes ill from a State Government and smacks of arbitrariness. Acting as a model employer, which the State ought to be, and having regard to the long length of service of most of the appellants, the State, in our opinion, should have agreed to bear the burden of giving the appellants credit for their past service with the government. That would not have affected the Corporation or its employees in any way ? except to a limited extent indicated below ? and, at the same time, it would have done justice to the appellants. We think, therefore, that this is something which the State ought to be directed to be."
Further in the present case there was no misrepresentation on the part of the petitioners by which it may be said that by some action of theirs they were responsible for the grant of those benefits.
The petitioners were granted the benefits in terms of G.O. dated 2.12.2000, as explained by the G.O. dated 10.4.2001 and 3.9.2001. It is not the case of the respondents in their counter affidavit that these G.Os. were not applicable to the petitioner or that the benefits granted to the petitioners were not covered by and contrary to the provisions of the above G.Os. The G.O. dated 15.2.2000 relied on by the respondents only relates to the period of wages received from 1.1.1996 to 31.3.1996 but does not in any manner fetter the rights and benefits already accrued to the petitioners nor does it even refer to the G.os. dated 2.12.2000 or 10.4.2001 or 3.9.2001 and therefore, the G.O. dated 15.2.2000 has no application in the case of the petitioners.
In view of the above position and the law laid down by the Supreme Court, in my opinion the benefits already accrued and actually received by the petitioners cannot be recovered from them under the garb of 'adjusting' the same.
The impugned order dated 16.6.2006 is therefore, quashed and the writ petition is allowed. There shall be no order as to cost.
Order Date :- 8.5.2012 o.k.