20 years on, HC quashes promotional pay scale withdrawal

Describing fairness as “the soul of the rule of law”, the Punjab and Haryana High Court has made it clear that it cannot be denied even to “the humblest citizen”.

The assertion came as Justice Sandeep Moudgil in a two-decade old case held that a promotee SDE could not be denied higher time-bound promotional scales granted to him in 1990, and that the state’s attempt to unilaterally withdraw the same was “illegal, arbitrary and constitutionally impermissible”. “The state is expected to act as a model employer, not as a cold legal combatant,” the court observed.

Justice Moudgil held that the state was duty-bound to treat the petitioner on a par with direct recruits performing the same duties, once the petitioner entered the cadre of SDEs. Allowing the petition filed in 2005, the Bench set aside the December 2004 order fixing his pay in the lower scale and directing recovery. The court ordered refund within eight weeks and categorically held that the petitioner’s rights, “once crystallised, must be protected”.

“There is no allegation, much less proof of fraud, concealment or deception by the petitioner. Absence of such vitiating factors, the withdrawal of accrued financial benefits is plainly unconstitutional, offends Articles 14 and 16, and violates the settled doctrine that equitable rights once perfected cannot be arbitrarily reversed,” the Bench asserted.

At the outset, Justice Moudgil observed the central issue was whether the petitioner, who entered service as a section officer in 1977 and was subsequently promoted as SDE on ad hoc basis from May 1990, could be denied higher time-bound promotional/higher pay scales on the ground that such scales were allegedly meant only for direct recruit SDEs.

Justice Moudgil asserted that the admitted position was that the petitioner was granted the higher scales strictly in terms of the government's own policy dated May 16, 1989, and on completion of the requisite period of regular service. There was no allegation of fraud, misrepresentation or concealment by the petitioner. The only basis cited for withdrawal was an administrative circular dated December 3, 2004.

He deconstructed the state’s argument that higher scales were meant only for direct recruits, observing that such a classification within one cadre was legally untenable. “The respondents attempt to differentiate between direct recruit and promotee SDEs for the purpose of granting the higher scales is arbitrary, unsupported by statute and directly contrary to the judgment of this court.”

Referring to the state’s decision to withdraw long-extended financial benefits and impose recovery, the court said the action offended every conceivable legal safeguard. “The action of the respondents in unilaterally withdrawing the higher scale after almost a decade, without notice or hearing, offends the principles of natural justice and the doctrine of legitimate expectation and the direction for recovery of the alleged excess payment is impermissible in view of the settled law…”