Himachal Pradesh High Court
Braham Dass vs The State Of Himachal Pradesh & Another on 6 August, 2024
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.1237 of 2020 alongwith CWPOA Nos.1234, 1341, 1344 & 3739 of 2020 .
Reserved on: 31.07.2024
Pronounced on: 06.08.2024
CWPOA No.1237 of 2020
Braham Dass ......Petitioner
Versus
The State of Himachal Pradesh & Another ...Respondents
___________________________________________________________________________ CWPOA No.1234 of 2020 Ramesh Pathania r ......Petitioner Versus The State of Himachal Pradesh & Another ...Respondents ______________________________________________________________________________ CWPOA No.1341 of 2020 Lajya Thakur ......Petitioner Versus The State of Himachal Pradesh & Another ...Respondents ___________________________________________________________________________ CWPOA No.1344 of 2020 Om Parkash Gautam ......Petitioner Versus The State of Himachal Pradesh & Another ...Respondents _________________________________________________________ CWPOA No.3739 of 2020 Shashi Awasthi ......Petitioner Versus The State of Himachal Pradesh & Others ...Respondents _________________________________________________________ ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 2 Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
.
Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?
For the petitioner(s) : Mr. Ganesh Barowalia, Advocate, in all the petitions.
For the respondents : Mr. Sidharth Jalta, Deputy Advocate General, in all the petitions.
M.S. Ramachandra Rao, Chief Justice.
Since common questions of law and facts arise in these Writ petitions, they are being disposed of by this common order.
Background facts
2. The petitioners in CWPOA nos.1234 of 2020 & 1237 of 2020 had been appointed as Constables in the Police Department under the control of respondents no.1 & 2 in the Home Department of the State of Himachal Pradesh.
3. The petitioners in CWPOA nos.1341 of 2020, 1344 of 2020 & 3739 of 2020 were appointed as Clerks under the control of respondents no.1 & 2 in the Home Department of the State of Himachal Pradesh.
4. The petitioner in CWPOA no.1234 of 2020 retired on 30.06.2010 as Superintendent Grade-I; the petitioner in CWPOA no.1237 of 2020 retired on 30.04.2010 as Superintendent Grade-I; the petitioner in ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 3 CWPOA no.1341 of 2020 retired as Superintendent Grade-I on 31.05.2012; the petitioner in CWPOA no.1344 of 2020 retired on 30.09.2012 as Superintendent Grade-I; and the petitioner in CWPOA .
no.3739 of 2020 retired as Superintendent Grade-I on 31.12.2016.
5. Petitioners in CWPOA no.1234 of 2020, CWPOA no.1237 of 2020, CWPOA no.1341 of 2020 were all given the 8 years Annual Career Progression ( for short 'ACP') benefit on 30.6.1995 and the Petitioners in CWPOA no.3734 of 2020 and CWPOA no.1344 of 2020 had been given the said benefit on 30.6.1996.
6. The Petitioners in CWPOA no.3734 of 2020 and CWPOA no.1344 of 2020 had also been given the 16 years ACP benefit w.e.f.30.6.2004.
7. At that time of such grant of ACP benefits all of them were Senior Assistants.
The impugned order dt.17.1.2014
8. On 17.01.2014, an office order was passed by the Director General of Police, State of Himachal Pradesh, referring to certain Government letters issued in the year 2013, recommendation of a Departmental Review Committee held on 08.11.2013 and withdrawing the benefits of 8 year and 16 year Assured Career Progression Scheme ( for short 'ACP') granted to all the petitioners .
9. Thus, except in the case of the petitioner in CWPOA no.3739 of 2020 who retired on 31.12.2016, the impugned order dt.17.1.2014 ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 4 withdrawing the ACPs given had been passed long after the retirements of the petitioners in the other Writ petitions; almost 18-19 years from the date of grant of 8 years ACP and 9 1/2 years from date of grant of 16 .
years ACP benefit without any prior notice and without making any allegation that they had somehow made a misrepresentation to the Home Department of the State Government to secure the said benefit.
10. Thereafter orders were passed individually re-fixing the pay of each of the petitioners and steps were also initiated to recover the alleged amount of over payment from each of the petitioners.
The interim orders passed in favor of petitioners
11. When the matter was pending before the erstwhile H.P. Administrative Tribunal in the form of OAs, interim stay of the operation of the order dt. 17.01.2014 and the consequential orders had been granted on 21.11.2016, 02.12.2016 & 23.05.2016 in favour of all the petitioners.
Contentions of petitioners
12. Petitioners contend that (a) the order dt.17.1.2014 withdrawing the ACP benefit granted to them when they were Senior Assistants, and the consequent orders (b) reducing the Basic pay given to them as Superintendent Gr.I, (c) reducing the pension and (d) directing recovery were all without prior notice, without personal hearing and without any enquiry; and they are illegal and in violation of principles of natural ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 5 justice. They also contend that an executive order like the order dt.17.01.2014 cannot be passed retrospectively from a back date.
13. They also factually disputed the correctness of the decision .
dt.17.01.2014. They contended that by the impugned order dt.17.01.2014, the pay scale at Rs.10,025/- of the petitioners was reduced below that of their junior - Jai Singh who was getting Rs.10,300/-.
Replies of respondents
14. In the replies filed by the respondents in all these Writ petitions, their actions are sought to be justified.
15. They contended that as per instructions dt.6.4.1990 of the State Government, an employee was eligible for grant of proficiency step up if he has not gained any enhancement in the basic pay except by way of annual increment and revision of pay scale. The period of 8 and 18 years was to be reckoned from the date of grant of step up of pay.
16. It is stated that petitioners were granted step up against Jai Singh on 30.6.1987, subsequently against Smt. Promila Gupta w.e.f. 20.03.1993 vide order dt.15.10.1997 and lastly against Smt. Saroj on 1.1.1994 vide order dt.4.6.2010. It is contended that they were not entitled to grant of proficiency increment w.e.f.14.9.1990/30.11.1992 as they had been given step up in 1987 against Jai Singh. It is stated that ACP was erroneously granted to petitioners w.e.f. 30.06.1995/30.6.1996.
::: Downloaded on - 06/08/2024 20:32:52 :::CIS 617. It is stated that one Shashi Kumar, Superintendent Grade-I had submitted a representation on 03.05.2009 requesting for stepping up of his pay to make it equal to the pay of his junior employee Smt. .
Bhuvneshwari Devi, Superintendent Grade-II; that on 09.09.2010 his representation was turned down and the Government directed the matter to be re-examined in the light of certain instructions issued by the Finance Department on 05.10.2010; the matter was then re-examined and again taken up with the Government on 29.12.2010 and the Government through a letter on 15.02.2012 made certain observations;
the matter was again examined by the Government's Finance Department and instructions were issued on 22.02.2013 & 05.08.2013, which led to the constitution of a Departmental Review Committee.
18. It is stated that the said Committee examined the cases of all the petitioners and discovered that the benefit of grant of one increment after putting in 8 years of service was erroneously granted to these persons, as they had availed the benefit of step-up against their junior Ms. Saroj and, therefore, the benefit was not only withdrawn but recovery notices were also issued.
19. It is stated that all the petitioners had represented against the action of withdrawing the ACPs, but they were all rejected.
20. It is also stated that since their representations were considered, the Department had given sufficient opportunity to them, and that the ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 7 action of the State was just, legal & fair and did not warrant any interference by this Court in exercise of its power under Article 226 of the Constitution of India.
.
21. It is contended that the step up and ACPs were granted to petitioners who were then Senior Assistants w.e.f.30.6.1995 and 30.6.1996 dehors the instructions of the Government and so they were withdrawn, but they have been granted benefit of ACPs w.e.f.1.1.2002 after gaining step up against their Junior Smt.Saroj Devi, Sr.Assistant w.e.f.1.1.1994.
Consideration by the Court
22. We have noted the submissions of the parties.
23. The Additional Advocate General drew the attention of this Court to the following extract in the instructions of 6.4.1990 filed as Annexure A-14 which states as under and relied upon it:
" Further the existing provision of para-7(c) of this Departmental letter dt.14.6.1989 as amended further vide letter of even number dt.18th August,1989 is also amplified as under:
" The period of service rendered against an ex-cadre post will be taken into account for reckoning the period of 8 or 18 years for the grant of proficiency increments.
In the ex-cadre post if the appointment is in the same pay scale only then the benefit of proficiency step up will be admissible. However , if the appointment has been made against a higher post involving financial gains in the basic pay, the benefit of proficiency increment will not be admissible."::: Downloaded on - 06/08/2024 20:32:52 :::CIS 8
24. The passage relied upon by the respondents deals with question whether service in an ex cadre post will be counted or not for grant of .
proficiency increments.
25. But in O.P.Singla v. Union of India1 it has been held:
"19. Normally, an ex-cadre post means a post outside the cadre of posts comprised in a Service. Therefore, all posts in the Service, whether perma- nent or temporary, are generally regarded as Cadre Posts."
r to
26. Thus when the petitioners were not holding any ex cadre posts at any time before or after their appointment as Senior Assistants, and they have always held cadre posts in service, they cannot to treated as holders of ex cadre posts, and these instructions dt.6.4.1990 cannot be applied to them.
27. Also nowhere in the replies filed, the respondents have chosen to answer the plea of the petitioners that by the impugned action, their pay would be reduced below that of their junior Jai Singh.
28. Moreover admittedly there was no prior notice to any of the petitioners before the order dt.17.1.2014 was passed.
29. Thus the impugned order dt.17.1.2014 and all other consequential orders cannot be sustained.1
(1984) 4 SCC 450 para 19 ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 9
30. It is also apparent from the replies filed by the respondents that the discovery of the wrong payment of the ACP on completion of 8 years of service or 16 years of service, as the case may be to the .
petitioners came to light only after investigation pursuant to the representation given by Sh. Satish Kumar, Superintendent Grade-I, on 03.05.2009.
31. As far as the 8 years ACP given to the petitioners on 30.06.1995 & 30.06.1996 is concerned, this had occurred approximately 13-14 years prior to the said representation of Sh. Satish Kumar, which had ultimately led to the impugned action.
32. The learned Deputy Advocate General for the respondents, does not dispute that Senior Assistant post is a Class-III post and also that none of the petitioners were in any way responsible for the mistake on the part of the respondents in granting of the said benefit in 1995, 1996 (8 years ACP) and on 30.06.2004 (16 years ACP), also as regards the petitioner in CWPOA no.1344 of 2020 & CWPOA no.3739 of 2020.
33. Counsel for the petitioners contended that having regard to the law laid-down by the Supreme Court of India in State of Punjab & Others vs. Rafiq Masih (White Washer) & Others2, withdrawal of the benefit as well as recovery would be impermissible in law since the petitioners were nowhere responsible for the alleged mistake on the part of the 2 (2015) 4 SCC 334 ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 10 respondents in granting the said benefit particularly when they were holding Class III posts and it would be inequitable to allow recovery af-
ter they had all retired long back .
.
34. It was held in Rafiq Masih ( 1 supra) as under:
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(a)Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(b)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(c) 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.
(d)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.
In any other case, where the Court arrives at the conclusion, that re-
covery if made from the employee, would be iniquitous or harsh or ar-
::: Downloaded on - 06/08/2024 20:32:52 :::CIS 11bitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
35. This Court in LPA no.169 of 2023, decided on 17.11.2023, titled .
State of Himachal Pradesh & Others vs. Ashok Kumar, had applied the principle laid down in the said decision and held that recovery ought not to be made from retired employees or employees who are due to retire within one year of the order of recovery, and that no recovery at all should be made from the employees belonging to Class-III and Class-IV service as it would be iniquitous and harsh.
36. Having regard to the law laid down in Rafiq Masih (supra-1), we are of the opinion that not only shall recovery be not made from the petitioners of the benefit wrongfully granted to them, but also there is no question of withdrawal of the said benefit or re-fixation of pay/pension, as it is not the case of the respondents that the petitioners were in anyway responsible for the grant of the said benefit to them way back.
37. Therefore, we are of the opinion that even recovery of the amounts paid to the petitioners for such wrongful grant of ACP, cannot be done at this stage.
38. Accordingly all the CWPOAs are allowed and all the orders impugned therein are set aside. If any amount has been recovered from any of the petitioners in the CWPOAs, the same shall be refunded with ::: Downloaded on - 06/08/2024 20:32:52 :::CIS 12 interest at 6% p.a from the date of such recovery till date of payment.
No costs.
39. Pending miscellaneous application(s), if any, shall also stand .
disposed of.
(M.S. Ramachandra Rao)
Chief Justice
(Satyen Vaidya)
August 06, 2024 Judge
(Yashwant)
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