Punjab-Haryana High Court
Smt. Shashi Bala Sachdeva vs State Of Haryana And Others on 28 February, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
C.M. No. 2453 of 2014 and
CWP No. 19870 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
110+208.
C.M. No. 2453 of 2014 and
CWP No. 19870 of 2011
Date of Decision : February 28, 2014
Smt. Shashi Bala Sachdeva
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Amar Vivek, Advocate,
for the applicant/petitioner.
Mr. Sunil Nehra, Sr. DAG, Haryana,
for the respondents.
AUGUSTINE GEORGE MASIH, J. (ORAL)
C.M. No. 2453 of 2014
Prayer in this application is for permission to place on record the replication by way of an affidavit of the petitioner.
Prayer granted. Replication is taken on record. Application stands disposed of.
CWP No. 19870 of 2011 Petitioner has approached this Court with a prayer for quashing the order dated 03.10.2011 (Annexure P-7), vide which the Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 2 2nd ACP Higher Scale granted to the petitioner w.e.f. 01.03.1995 vide office order dated 03.04.1997 has been withdrawn being not in consonance with the Haryana Civil Services (Assured Career Progression) Rules, 1998 (hereinafter referred to as '1998 Rules') as the said benefit was granted to her by counting ad-hoc service rendered by her as a Clerk from 11.02.1975 till her regularization on 01.01.1980.
It is the contention of the counsel for the petitioner that the petitioner initially was appointed on 11.02.1975 on ad-hoc basis as a Clerk in the respondent-department. She continued as such till her services were regularized on 01.01.1980. She was granted the benefit of the 2nd ACP Scale vide order dated 03.04.1997 w.e.f. 01.03.1995. While granting the said benefit, neither the petitioner had misrepresented nor misled the respondents and, therefore, the said benefit having been granted on their own by the respondents cannot now be withdrawn vide the impugned order after a period of more than 14 years. He further contends that prior to the passing of the impugned order, no show cause notice was given or any opportunity of hearing was afforded thus violating the principles of natural justice. He contends that the similarly placed Clerks as the petitioner, namely, S/Shri Rajinder Mohan Wadhwa, Dalbir Singh, Surinder Pal Singh, Lok Nath, Jagat Singh, Ghanshyam Dass, Raghbir Ram and Smt. Santosh Ganghi, who were also granted the benefit of ad-hoc service for the purpose of grant of higher grade under the 1998 Rules, are still availing the said benefit while the Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 3 petitioner has been discriminated against and has been denied the said benefit. His further contention is that the petitioner was to retire on 30.06.2012 and, therefore, being at the verge of retirement, no recovery could have been effected from the petitioner. In support of this contention, he has placed reliance upon the judgments of the Supreme Court in the cases of Sahib Ram vs. State of Haryana, 1995 Supp (1) SCC 18 and Syed Abdul Qadir vs. State of Bihar, (2009) 3 SCC 475. He submits that since at the stage of issuing notice by this Court on 21.10.2011, operation of the impugned order dated 03.10.2011 (Annexure P-7) was stayed, now no recovery can be effected from the petitioner. He also contends that the petitioner having retired, the higher scale granted cannot be withdrawn and there can only be cut in pension as per provisions contained in Rule 2.2 (b) of the Punjab Civil Service Rules. Prayer has thus, been made for setting aside the impugned order and allowing the writ petition.
On the other hand, counsel for the respondents has placed reliance upon the judgment of the Supreme Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, 2012 (8) SCC 417, to contend that any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. He thus, contends that the impugned order having been passed prior to the retirement of the petitioner, the exceptions, as carved out in this case, which has been passed on considering the various judgments Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 4 of the Supreme Court including Sahib Ram and Syed Abdul Qadir's cases (supra), on which the petitioner has placed reliance, no benefit can be granted to the petitioner. His further contention is that the Hon'ble Supreme Court in the latest judgment in Civil Appeal Nos. 5411-5430 of 2009 titled as State of Haryana and others vs. Sita Ram and others, reported as 2014 (1) SCT 515, has categorically held that ad-hoc service as well as work-charge service cannot be counted for the purpose of grant of higher ACP Scales under the 1998 Rules.
As regards the contention of the counsel for the petitioner that the similarly placed employees have been granted the said benefit and are still getting the same, counsel for the respondents contends that S/Shri Rajinder Mohan Wadhwa, Ghanshyam Dass, and Raghbir Ram, who were granted the said benefit as they had already retired from service, the department was unable to withdraw the said benefit although they were not entitled to the same.
As regards Smt. Santosh Gandhi, counsel contends that notice for withdrawal of the said benefit has been given to her vide office Memo dated 25.06.2012. As regards the grant of benefit of ACP Scale given to S/Shri Dalbir Singh, Surinder Pal Singh, Lok Nath and Jagat Singh vide order dated 20.06.2013 (Annexure P-4), it has been stated that the said benefit was given in compliance with the civil court judgment and decree dated 19.04.2003 which is contrary to the judgment of the Supreme Court in Sita Ram's case (supra). He, therefore, contends that the petitioner is not entitled to Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 5 the said benefit as claimed by her in the present writ petition. He further submits that the petitioner having been granted the benefit, which is not in consonance with the Statutory Rules, was not entitled to retain the benefit granted to her and thus, the impugned order being in accordance with law does not call for any interference by this Court.
I have considered the submissions made by the counsel for the parties and with their assistance, have gone through the records of the case.
In the light of the authoritative judgment of the Supreme Court in the case of Sita Ram (supra), where it has been held that except for the regular service, no other service can be taken into consideration for the purpose of counting the length of service for the grant of ACP Scales, the claim made by the petitioner in the present writ petition cannot be accepted and the impugned order thus, being in consonance with the Statutory Rules as also the law laid down by the Supreme Court is upheld.
The contention of the counsel for the petitioner that the petitioner has been discriminated against viz-a-viz the similarly placed employees, referred to above, the said position has been clarified by the respondents by stating that three of the said employees have retired from service and, therefore, no action was taken, qua one, a show cause notice for withdrawal of the benefit has already been issued and with regard to other four, it has been stated that they have been given the said benefit in compliance with the civil Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 6 court decree. The contention thus, of the counsel for the petitioner that the petitioner has been discriminated against cannot be accepted.
The assertion of the counsel for the petitioner that since the petitioner was about to retire from service, no recovery could be effected from the petitioner in the light of the judgment of the Supreme Court in Syed Abdul Qadir's case (supra) which would not help the petitioner espouse the case being sought to be projected in the light of the subsequent judgment of the Supreme Court in Chandi Prasad Uniyal (supra) where apart from taking into consideration various judgments passed by the Supreme Court including Sahib Ram's case (supra) as also Syed Abdul Qadir's case (supra), on which reliance has been placed by the counsel for the petitioner, the Hon'ble Supreme Court has held as follows in paras 14 to 18:-
"14. We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 7 of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 8 an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.
18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly installments starting from October 2012. The appeal stands dismissed with no order as to costs. IA Nos.2 and 3 are disposed of."
In view of the above, the submissions of the counsel for the petitioner cannot be accepted as the claim of the petitioner would not fall within the parameters laid down to be the exceptions, as have been carved out by the Supreme Court, nor is this a case of extreme hardship for the petitioner is not a lowly paid worker. Prerna datta 2014.03.19 12:37 I attest to the accuracy and integrity of this document High Court, Chandigarh C.M. No. 2453 of 2014 and CWP No. 19870 of 2011 9 The submission of the counsel for the petitioner that since the impugned order had been stayed by this Court while issuing notice of motion on 21.10.2011 and the petitioner, during the pendency of the writ petition, having retired, the impugned order would loose its sting and cannot be given effect to including the recovery from the petitioner, cannot be accepted as the principle of les-pendence would apply and it would relate back to the date of initial passing of the impugned order unless otherwise held by the Court of competent jurisdiction.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH )
February 28, 2014 JUDGE
pj
Prerna datta
2014.03.19 12:37
I attest to the accuracy and
integrity of this document
High Court, Chandigarh