Himachal Pradesh High Court
Trilock Chand Dhiman vs State Of Himachal Pradesh & Ors on 4 July, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4035 of 2024 Date of Decision: 04.07.2025 .
_______________________________________________________ Trilock Chand Dhiman .......Petitioner Versus State of Himachal Pradesh & Ors.
... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Ms. Shivangi Sharma, Advocate vice Mr. Vikas Rajput, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for the respondents-State.
Mr. Tara Chand Chauhan, Advocate, for respondent No. 5.
____________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition, petitioner has prayed for the following main reliefs:-
"(i) That Annexure P-4, vide which recovery of Rs. 1,62,290/-
has order to be made from petitioner may kindly be quashed and set aside.
(ii) That respondent may kindly be direct to refund the amount of Rs. 1,62,290/-, recovered by respondents from his gratuity along with 9% interest.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/07/2025 21:15:23 :::CIS 22. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by learned counsel .
representing the petitioner is that though no amount, if any, could be recovered from the amount payable to the petitioner as DCRG, but unauthorizedly respondents deducted a sum of Rs. 1,62,290/- from the afore amount on the ground that same was wrongly paid to the petitioner at the time of proficiency step-up.
3. Precisely, the facts of the case, as emerge from the record, are that in year 1984, petitioner was appointed as Junior Engineer in I&PH Department. In year 2001, Career Progression Scheme was introduced for Junior Engineers, vide which benefits of higher scale after 8-16-24 years of service were to be granted.
4. Pursuant to representation made by the petitioner, he was granted benefits of Carrier Progression Scheme on completion of 8 and 16 years of service and thereafter, he was also granted benefit of Assured Carrier Progression Scheme (in short "ACPS") after completion of 24 years of service, but same was withdrawn, vide office order dated 20.09.2004, on the ground that the petitioner being Junior Engineer was covered under Career Progression Scheme and no relief, if any, could have been granted to him under ACPS. Some other similarly situated persons, being aggrieved by office order dated 20.09.2004, approached this Court by way of CWP No. 11589 of 2008 ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 3 titled as Gian Chand & others Vs. The State of H.P. & others (Annexure P-8), wherein this Court has held as under:-
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"5. In view of the above, it is apparent that Junior Engineers were entitled for benefit of Career Progression Scheme, Annexure A-3, at two stages, i.e., on completion of 8 and 16 years of service by way of grant of higher pay scales. Since there were only two stages visualized under Career Progression Scheme, Annexure A-3, it appears that a specific stipulation in the form of para 11 thereof, which stands already extracted hereinabove, was incorporated to govern grant of proficiency step up(s)/ACPS already notified vide Assured Career Progression Scheme, Annexure A-1. This aspect of the matter appears to have been overlooked by the respondents while issuing letter, Annexure A-6, and Office Order, Annexure A-8.
6. In view of the above, the petition is allowed and the impugned letter Annexure A-6 and Office Order, Annexure A-8, are quashed with a direction to the respondents/competent authority to reconsider the entire matter in the light of the aforesaid stipulation contained in para 11 of Career Progression Scheme dated 4th August. 2001, Annexure A-3, with regard to grant of proficiency step up in favour of the petitioners on completion of 24 years of service within three months from the date of production of copy of this judgment by the petitioners/their duly authorized representative."
5. Petitioner retired on 31.01.2017 from the services of Assistant Engineer and in the month of February, 2017 gratuity amount of Rs. 10,00,000/- came to be sanctioned in his favour (Annexure P-3). However, in the month of April, 2017, respondents, vide office order dated 07.04.2017, recovered sum of Rs. 1,62,290/-
from the gratuity on the ground that the petitioner was wrongly ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 4 granted 24 years' step-up under CAS, which issue otherwise stood decided in Gian Chand (supra). It is not in dispute that though .
respondents-State had filed LPA against the judgment passed by Coordinate Bench of this Court in Gian Chand (supra), but same was dismissed. Though judgment passed by Division Bench in LPA, thereby affirming the judgment passed in Gian Chand has been laid challenge in the Hon'ble Apex Court, but same is still pending adjudication.
6. Precise claim of the petitioner is that since his case is squarely covered with the judgment passed by Coordinate Bench of this Court in Gian Chand, which was further upheld by Division Bench and has not been stayed by Hon'ble Apex Court, coupled with the fact that no recovery, if any, could be effected from him in terms of judgment passed by Hon'ble Apex Court in case titled State of Punjab and others Vs. Rafiq Masih, (2015) 4 SCC 334 (2), wherein it has been categorically held that in case amount, sought to be recovered, was not received by the Government Employee on account of mis-representation or fraud, same cannot be recovered after his retirement.
7. Pursuant to notices issued in the instant proceedings, respondents No. 1 to 4 have filed reply, wherein facts as have been noticed hereinabove are not disputed. It has been averred in the reply ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 5 that though sanction order to draw gratuity after adjustment of excess payment was issued by the competent authority on 17.04.2017 i.e. six .
years prior to the filing of the petition, but there is no explanation rendered on record qua delay in approaching the Court in the instant proceedings, hence petition, being barred by delay and latches, deserves to be rejected. It has been further averred in the reply that on 04.08.2001, Government of Himachal Pradesh introduced "ACPS"
specifically for Junior Engineers w.e.f 04.08.2001, wherein after completion of eight years in a post in the same "Cadre", Junior Engineers are to be granted next higher scale of Rs. 6400-10640/-
with same designation in comparison of pay scale of Rs. 5800-9200/-
and after a service of 16 years in a post, in the same "Cadre", Junior Engineer in the scale of Rs. 64000-10640/- in the State, if he still continues in the same post, shall be granted next higher scale of Rs.
7220-11320/- with Class-II (Gazetted) status and granted designation of Additional Assistant Engineer, they cease to avail ACPS. It has been further averred in the reply that Government, vide clarification dated 27.07.2004, clearly stipulated that no benefit after 24 and 32 years of service was applicable to Junior Engineer/Additional Assistant Engineer and as such, vide notification dated 20.09.2004, benefits, if any, granted after completion of 24 years of service were withdrawn. As per notification dated 15.12.1998, petitioner herein, ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 6 after completion of 24 years of service, was granted third proficiency step-up after he gave an option dated 04.09.2009 under the pay .
revision notification dated 26.08.2009 of Government of Himachal Pradesh. Subsequently, matter regarding grant of benefit of ACPS, 1998 after completion of 24 years of service to Junior Engineer/Additional Assistant Engineer was referred to the Finance Department, which observed as under:-
"The case has been examined by F.D. it is clarified that the separate "Assured Career Progression" scheme has been introduced for Junior Engineers vide F.Ds letter No. Fin.(PR)B(7)-
51/98 J, dated 04.08.2001 under which no benefit is admissible on completion of 24 years and 32 years of service."
8. Vide afore letter, Government further directed the Engineer-in-Chief that if this benefit has already been given to those Junior Engineers/Addl. Assistant Engineer's after completion of 24 and 32 years of service, the same may be recovered from the concerned officials. In the afore background, sum of Rs. 1,62,290/-
came to be recovered from the petitioner.
9. However, subsequently pursuant to decision rendered by Coordinate Bench of this Court in Gian Chand (supra), amount recovered earlier was again given to the petitioner with specific condition that in case subsequently it is found that excess amount has been paid, same shall be recovered. Petitioner superannuated on ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 7 31.01.2017 as Assistant Engineer and in the month of February, 2017, gratuity amount of Rs. 10,00,000/- was sanctioned in his favour, .
but while releasing the same on 17.04.2017, sum of Rs. 1,62,290/-
was recovered on the ground that 24 years step-up under CAS was wrongly granted and such amount given in that regard is recovered. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for the reliefs as have been reproduced hereinabove.
10. Having heard learned counsel for the parties and perused material available on record, this Court finds that respondent-State itself introduced Assured Career Progression Scheme, 2001, vide notification dated 04.08.2001, specifically for Junior Engineers effective w.e.f. 04.08.2001, wherein after completion of eight years in a post in the same Cadre, Junior Engineers are to be granted next higher scale of Rs. 6400-10640/- with same designation in comparison of pay scale of Rs. 5800-9200/- and after service of 16 years in a post in the same "Cadre", Junior Engineer in the scale of Rs. 6400-10640/- in the State, if he still continues in the same post, he shall be granted next higher scale of Rs. 7220-11320/- with Class-
II (Gazetted) status and granted designation of Additional Assistant Engineer, he will cease to avail ACPS.
::: Downloaded on - 10/07/2025 21:15:23 :::CIS 811. In the case of the petitioner, after grant of benefit after 24 years of service, Government, vide clarification dated 27.07.2007, .
apprised department concerned that no benefit, after 24 and 32 years of service, is applicable to Junior Engineer/Additional Assistant Engineer and as such, any benefit of ACP, after completion of 24 years of service, granted to the Junior Engineer be withdrawn.
Though at first instance, pursuant to notification dated 20.09.2004, benefit granted to the petitioner on his completion of 24 years of service under ACP was withdrawn, but subsequently pursuant to judgment passed by this Court in Gian Chand (supra), afore benefit was restored.
12. If the judgment passed by this Court in Gian Chand's case is perused in its entirety, relevant paras whereof have already been extracted hereinabove, it clearly reveals that since there were only two stages visualized under Career Progression Scheme, coupled with the fact that specific stipulation in the form of para 11 thereof was incorporated to govern grant of proficiency step up(s)/ACPS already notified vide ACPS, Coordinate Bench of this Court quashed letter dated 27.07.2004 and office order dated 20.09.2004 and directed the respondents/competent authority to reconsider the entire matter in the light of the stipulation contained in para 11 of Career Progression Scheme dated 04.08.2001, with regard ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 9 to grant of proficiency step-up in favour of the petitioner on completion of 24 years of service.
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13. If para 11 of Career Progression Scheme is perused in its entirety, it clearly suggests that besides benefit under Career Progression Scheme, employee concerned shall be granted proficiency step-up already notified vide Assured Career Progression Scheme. If it is so, there was no occasion otherwise for the respondents to recover the aforesaid amount, especially on the grounds as have been noticed hereinabove.
14. It is not in dispute that judgment passed by Coordinate Bench of this Court in Gian Chand has not been interfered with till date. Though SLP having been filed by the respondent-State is pending adjudication, but since no stay has been granted against the judgment passed in Gian Chand, benefits, if any, flowing to the petitioner from afore judgment cannot be denied on the ground of pendency of SLP.
15. Leaving everything aside, it is quite apparent from the facts as have been taken note hereinabove that sum of Rs.
1,62,290/-, recovered from death-cum-retirement gratuity of the petitioner, was never received by the petitioner on account of mis-
representation or fraud, rather respondents themselves, in terms of Career Progression Scheme, 2001, specifically introduced for Junior ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 10 Engineers w.e.f 04.08.2001, proceeded to grant benefit after completion of 24 years of service that too after decision rendered by .
Coordinate Bench of this Court in Gian Chand (supra). Since there is no fault, if any, of the petitioner, rather entire confusion occurred on account of mis-interpretation of provisions contained in the Assured Career Progression Scheme, 2001, coupled with the fact that Coordinate Bench of this Court in Gian Chand (supra) has already clarified that there were only two stages visualized under Career Progression Scheme and there is a specific stipulation in the form of para 11, which appears to have been incorporated to govern grant of proficiency step up(s)/ACPS already notified vide Assured Career Progression Scheme, recovery of the amount from the petitioner that too from amount payable under DCRG is wholly impermissible.
Hon'ble Apex Court in State of Punjab Vs. Rafiq Masih has already held that any recovery from a retired employee or an employee, who is due to retire, is impermissible.
16. While placing reliance upon the aforesaid judgment passed Division Bench of this Court in case titled as S.S Chaudhary Vs. State of Himachal Pradesh, CWPOA No. 3145 of 2019, decided on 24.03.2022, certain guidelines have been laid down with regard to recovery, if any, from the employees after their retirement. Relevant paras of the afore judgment are being reproduced as under:-
::: Downloaded on - 10/07/2025 21:15:23 :::CIS 11"35. In view of the aforesaid discussion, as held by Hon'ble Supreme Court in Rafiq Masih's case (supra), it is not possible to postulate all situations of hardship, where .
payments have mistakenly been made by the employer, yet in the following situations, recovery by the employer would be impermissible in law:-
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to ClassI/Group-A and Class-II/Group-B, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer's right to recover.
(vii) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible.
(viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 12 precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would be required to be decided on its own .
merit."
17. Learned Counsel for the petitioner, while relying upon the judgment passed by the Hon'ble Apex Court in Civil appeal No. 7115 of 2010 titled as Thomas Daniel v. State of Kerala, submitted that although the Kerala High Court had directed recovery of the excess amount from the Death-cum-Retirement Gratuity (DCRG) of the appellant, the Apex Court, after considering various precedents, overruled this view and held that recovery from the appellant is impermissible in the absence of any misrepresentation or fault on the part of the employee. Drawing the same analogy, this Court is of the considered view that the sum of Rs. 1,62,290/- cannot be recovered from the gratuity amount of the petitioner, particularly in view of the fact that the petitioner has already retired from service.
18. Consequently, in view of the above, this Court finds merit in the present petition and accordingly, the same is allowed. Annexure P-4, vide which recovery of ₹1,62,290/- was ordered to be made from the petitioner, is hereby quashed and set aside. Respondents are directed to refund the amount of Rs. 1,62,290/- recovered from the ::: Downloaded on - 10/07/2025 21:15:23 :::CIS 13 petitioner's gratuity along with interest @ 6% per annum from the due date. All pending applications also stand disposed of.
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P (Sandeep Sharma), Judge July 04, 2025 (Sunil) r to ::: Downloaded on - 10/07/2025 21:15:23 :::CIS