Dayal vs Rafiq Masih (White
2021 Latest Caselaw 5864 HP

         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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         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

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)

501.

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.

4. 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

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