Ajay Tewari, J. - (1.) This appeal has been filed against the concurrent judgments of the learned Courts below dismissing the suit of the appellant.
(2.) Shorn of all unnecessary details the main dispute in this case is whether the special increment granted to the appellant for non-participation in the strike could be ignored when his pay had to be refixed on promotion. The appellant was a Senior Assistant in the office of Senior Architect, South Patiala, Punjab. On 21.11.1977 he was promoted against the leave vacancy post as Superintendent and his pay was fixed in the unrevised scale. Thereafter, he was given one special increment for non-participation in the strike as a result of which his pay was increased to Rs.span 420/- . Thereafter, the appellant was reverted due to the joining of the regular incumbent on 15.03.1978 and his pay was again reduced to that of Senior Assistant. The benefit of special increment was withdrawn. Two months later on 17.05.1978 the appellant was again promoted to the post of Superintendent, this time substantively. On this occasion again his pay was refixed after giving him the benefit of that special increment. He continued to get that benefit till he retired. However, after 10 years the pay of the appellant was refixed after withdrawing the benefit of that special increment and recovery was made. This action was challenged in the instant suit.
(3.) When this appeal was filed no question of law was proposed. Today learned counsel appearing for the appellant has proposed the following question of law:- "Whether an increment which was granted for non-participation in the strike could be ignored while fixing the pay in a promotional post - Both the Courts below had denied the claim of the appellant by placing reliance on Rule 4.4(b)2 of the Punjab Civil Services Rules Vol.I Part I. This rule lays down as follows:- "(2) is appointed substantively to a tenure post on a time scale identical with that of another tenure post which he has previously held substantively or in which he has officiated, then the initial pay shall not be less than the pay, other than special pay, personal pay or emoluments classed as pay by the competent authority under rule 2.44(b)(iii), which he drew on the last such occasion, and he shall count for increments the period during which he drew that pay on such last and any previous occasions for increment in the stage of the time scale equivalent in that pay. If, however, the pay last drawn by the Government employee in a temporary post has been inflated by the grant of pre-mature increment the pay which would have draw but for the grant of these increments shall unless otherwise ordered by the authority competent to create the new post, be taken for the purposes of this proviso to be the pay which he last drew in the temporary post." As per the Courts below the increment for non-participation in the strike was a premature increment and therefore it could not have included in fixing his pay. In my considered opinion, this is a fallacious argument. The said rule uses the word 'premature increment'. However, what was granted to the appellant was a special increment for nonparticipation in the strike. Resultantly, that increment could not have been excluded for the purpose of fixing his pay when he was substantively promoted as Superintendent on 17.05.1978.;