IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 23rd DAY DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 6142 of 2019
Between:-
KISHORI LAL, S/O SHRI PRABH
DAYAL, R/O VPO BALOH, TEHSIL
JHANDUTTA, DISTRICT BILASPUR,
H.P.
r ..........PETITIONER
(BY MR. AJAY THAKUR, ADVOCATE VICE
MR. AVNEESH BHARDWAJ, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
SECRETARY IRRIGATION AND
PUBLIC HEALTH DEPARTMENT
SHIMLA (H.P.)
2. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
SECRETARY FINANCE
DEPARTMENT SHIMLA (H.P.)
3. ACCOUNTANT GENERAL
(ACCOUNTS AND ENTITLEMENT)
TO THE GOVERNMENTOF
HIMACHAL PRADESH SHIMLA
(H.P.).
4. EXECUTIVE ENGINEER
IRRIGATION AND PUBLIC
HEALTH DEPARTMENT, DIVISION
GHUMARWIN, DISTRICT
BILASPUR (H.P.)
5. ASSISTANT ENGINEER
IRRIGATION AND PUBLIC
HEALTH DEPARTMENT, SUB
DIVISION KALOL, TEHSIL
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2
JHANDUTTA, DISTRICT
BILASPUR, (H.P.)
6. TREASURY OFFICER
GHUMARWIN, DISTRICT
.
BILASPUR, (H.P.)
........RESPONDENTS
(MR. ADARSH SHARMA, SUMESH RAJ, AND
SANJEEV SOOD, ADDITIONAL ADVOCATE
GENERAL WITH MR. KAMAL KANT CHANDEL,
DEPUTY ADVOCATE GENERAL FOR R-1 and R-
2 AND R-4 to R-6.
MR. V.B. VERMA, CGC FOR R-4.)
___________________________________________________________
Whether approved for reporting: Yes
This petition coming on for orders this day, the Court
passed the following:-
ORDER
By way of this petition, the petitioner has prayed for the following substantive reliefs:-
"i) That appropriate order or direction may very kindly be issued to respondents for not recovering any amount of enhanced salary given to applicant after giving him benefit of "Assured Career Progression Scheme) i.e. 4-9-14. Applicant has served respondents as Pump Operator. There are no promotional posts/avenues from the post of Pump Operator on which the applicant served till his superannuation. After retirement of applicant ::: Downloaded on - 31/01/2022 23:29:03 :::CIS 3 respondents are claiming return of this amount saying that wrong overpayment has been given to .
him.
ii) That appropriate order or direction may very kindly be issued to respondents to revise and enhance pay of applicant and then again refix his due and admissible pension amount as they were required to do if benefit of "Assured Career Progression Scheme" i.e. 4-9-14 already given to him was not withdrawn by them. Annexures A-2, A-3 and A-4 may very kindly be quashed and set aside with direction to them to maintain status quo ante as if benefit of "Assured Career Progression Scheme" i.e. 4-9-14 was not withdrawn by them qua applicant.
iii) That respondents may very kindly be directed to adhere to and follow law laid bdown by Hon'ble Supreme Court of India in case titled as State of Punjab and others etc. versus Rafiq Masih (White Washer) etc. reported in judgment having citation 2015(4) SCC 334; AIR2015SC 696:2015 (SCW)
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2. Brief facts necessary for the adjudication of this petition are that after the petitioner stood superannuated from the .
post of Pump Operator in the month of March, 2015. Vide Annexure A-2, i.e. communication dated 23.09.2015, the pay of the petitioner was re-fixed by the respondent-department and it was further mentioned in this order that on account of said fixation of pay, if any overpayment/arrear was found recoverable from the petitioner, then, the same would be liable to be refunded by way of a lump sum payment. Thereafter, according to the petitioner, as a result of issuance of Annexure A-2, his arrears of leave encashment have not been released and paid to him.
3. The stand of the respondent-department is that the petitioner was wrongly allowed the benefit of 4 years, 9 years and 14 years under the "Assured Career Progression Scheme" contrary to the instructions of the Finance Department dated 09.08.2012 as the scheme was not applicable to the petitioner. It is further the stand of the respondents that the petitioner falls under the category of Junior Technician, who was granted three tier pay structures, therefore, in this regard, a clarification was issued by the Finance Department dated 29.05.2014 and the same led to issuance of order, vide which, there are recoveries have to be effected from the petitioner, and it is in this background that his leave encashment was not released to him.
::: Downloaded on - 31/01/2022 23:29:03 :::CIS 54. I have heard learned Counsel for the parties and have gone through the pleadings as well as documents appended .
therewith.
5. It is not in dispute that Annexure A-2 stood issued by the respondent-Department after the superannuation of the petitioner. It is further not in dispute that till the time the petitioner was in service, at no stage, he was ever apprised by the department that his pay stood erroneously fixed, and his pay, therefore, was required to be re-fixed and on account of such re-
fixation of pay, recoveries are liable to be effected from him. The Hon'ble Supreme Court of India in State of Punjab and Others versus Rafiq Masih (White Washer) and others, (2015) 4 Supreme Court Cases 334, has been pleased to hold that in the matter of recoveries by any employer from the employee in few situations, the recoveries would be impermissible in law. One such condition culled out by the Hon'ble Supreme Court in para-18 of the judgment relates to recoveries from the retired employees or the employees who are to due to retire within one year of the order of recovery. This condition culled out by Hon'ble Supreme Court in para-18 of its judgment is without any riders. Hence, as in the present case, the impugned order, on the strength of which, now recoveries are being proposed to be effected, stood issued by the department after the retirement of the petitioner, therefore, the ::: Downloaded on - 31/01/2022 23:29:03 :::CIS 6 same in view of law laid down by Hon'ble Supreme Court of India referred to above is not sustainable in the eyes of law.
.
6. Accordingly, this petition succeeds and impugned order (Annexure A-2), dated 23.09.2015, is ordered to be quashed and set aside with further direction to the respondent to release the leave encashment of the petitioner, as expeditiously as possible. It is clarified that in case leave encashment is released by the respondent-department in favour of the petitioner within a period of 30 days from today, then, the same shall not entail any interest, however, in case the amount of leave encashment is not released in favour of the petitioner within 30 days, then, the same shall entail interest as per Rules.
The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any. Interim order, if any stands vacated.
(Ajay Mohan Goel) Judge December 23, 2021 (narender ::: Downloaded on - 31/01/2022 23:29:03 :::CIS