Punjab-Haryana High Court
Rajender Kumar vs State Of Haryana And Others on 7 March, 2025
Neutral Citation No:=2025:PHHC:032808
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
213
CWP-22718-2022 (O&M)
Date of decision: 07.03.2025
Rajender Kumar ...Petitioner
VERSUS
The State of Haryana and others ...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. Tejpal Singh Dhull, Advocate for the petitioner(s).
Mr. Tapan Kumar, DAG Haryana.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. Challenging the impugned order dated 09.06.2022 whereby the
respondents have revised the salary of the petitioner at the minimum pay-
scale w.e.f. 01.11.2017 and have directed recovery of the excess amount
paid, the instant petition has been filed.
2. The undisputed facts which emerge from a perusal of the
present writ petition are that the petitioner was appointed as a Canal Patwari,
on contract basis on DC rates, against the regular sanctioned posts on
07.02.2008 and he was being paid salary at DC rates for the said post.
The petitioner continued to work on the said post for more than 14 years and
on expiry of every contract duration of 06 months, the contract was renewed.
Since the respondents regularly used to issue advertisements for engaging
people as Canal Patwari on contract basis, the petitioner approached this
Court to protect his interest and to avoid being replaced by another
1 of 7
Neutral Citation No:=2025:PHHC:032808
213 CWP-22718-2022 (O&M)
contractual employee. This Court, vide its order dated 28.02.2014, passed in
a bunch of writ petitions including CWP-9074-2013, disposed of the writ
petitions with liberty to the petitioner(s) to approach this Court in case the
respondent-State proceeded to appoint any Canal Patwari on contract basis
on the posts where the petitioner(s) therein were appointed and had
continued till their termination. He submits that in view of the aforesaid
order passed by this Court, the petitioner continued to discharge his duties
against the contractual post with no complaint of any nature whatsoever and
no regular appointment was made.
3. It is further submitted that he approached the respondents with
a prayer that having worked for such a long period, he may be given
minimum regular pay-scale along with the Dearness Allowance (D.A.) and
the grade pay meant for the post. The said request was never acceded to,
hence, the petitioner approached this Court by filing CWP-15800-2019,
which was disposed of vide order dated 31.05.2019 issuing a direction to the
respondents to decide his representation. Vide impugned order dated
09.06.2022, the respondents directed that pay of the petitioner be fixed at the
minimum of the pay-scale without the D.A. retrospectively w.e.f.
01.11.2017. He submits that as a result of re-fixation of the pay, the salary
worked out was Rs. 19900/- which was much lower compared to the salary
that was already being released to the petitioner under the D.C. Rates. The
respondents accordingly initiated effecting of recovery of allegedly excess
salary from the petitioner w.e.f. 01.11.2017 by retrospective enforcement of
2 of 7
Neutral Citation No:=2025:PHHC:032808
213 CWP-22718-2022 (O&M)
the order re-fixing the pay of the petitioner vide office order No.5104/1-AE
dated 09.06.2022.
4. It is submitted by the learned counsel for the petitioner that the
terms & conditions of the engagement could not have been retrospectively
modified to the petitioner's prejudice. Moreover, the fixation of pay at the
minimum of pay scale without the D.A. is already in conflict with the
judgment of Hon'ble Supreme Court and the D.A. inherently being a part of
the minimum salary to be paid. It is submitted that the said grievance was
challenged in a separate writ petition i.e. CWP-20487-2021, which was
decided and the claim of the petitioner(s) to the extent of Dearness
Allowance was declined. Against the said order, LPA No.256 of 2023 was
filed wherein the order passed by the Single Bench was modified and the
respondents were directed to re-consider the claim of the petitioner for D.A.
as well. Thereafter, the said matter is still pending consideration with the
respondent-authorities.
5. It is submitted that notwithstanding any of the later
developments, in any case, since the order of pay fixation was passed on
09.06.2022, it could not have been used as a means of inflicting punishment
on the petitioner for seeking the minimum pay-scale. Besides, the petitioner
worked against said post on the terms & conditions as were made available
to him until such time that the respondents carry out such modification. The
decision of pay fixation could at best be held applicable prospectively and
not retrospectively w.e.f. 01.11.2017 and that too for future engagements
3 of 7
Neutral Citation No:=2025:PHHC:032808
213 CWP-22718-2022 (O&M)
and could not be used to the prejudice of the petitioner. The payable salary
thus becomes protected. Hence, the recovery could not be effected.
6. Counsel for the State on the other hand defends the action of
the respondents and submits that in compliance to the order dated
31.05.2019 passed by the High Court in CWP-15800-2019, Engineer-in-
Chief, Irrigation & Water Resources Department, Haryana examined the
claim of the petitioner and finding the same justified, passed the speaking
order on 16.10.2019. Accordingly, the pay of the petitioner and other
similarly placed employees working under outsourcing policy (Part-II) was
fixed as Rs.19900/- w.e.f. 01.11.2017 but the said order was not
implemented by the then Executive Engineer and the Deputy
Superintendent due to which the petitioner continued to draw the higher
salary on DC rate, which was revised from time to time, before re-fixation of
the pay of the petitioner. When the said fact came to the knowledge of the
authorities, strict action was taken against the Executive Engineer and he
was charge-sheeted. The pay of the petitioner was re-fixed to the initial pay
scale of Rs.19,900/- w.e.f. 01.11.2017. Excess salary paid to the petitioner
was calculated to the tune of Rs.2,62,546/- and the respondents being the
competent authority has accordingly ordered recovery. It is thus submitted
that there is no illegality in the action of the respondent-authorities and that
the recovery order has been passed as per law and according to the Rules.
7. When a specific query was put to the State counsel that the
reply filed by the respondent-State only refers to the issuance of a charge-
4 of 7
Neutral Citation No:=2025:PHHC:032808
213 CWP-22718-2022 (O&M)
sheet, however, the final outcome of the charge-sheet has not been apprised
to this Court, he pleads ignorance. He contends that no one is present from
the respondent-Department to assist him. I find that the said plea cannot be
accepted by this Court as it is a standard response by the State Government
which causes undue delay in the adjudication of proceedings. The
instructions are never updated even till the last moment and it is pleaded that
the counsel is not being briefed by the department. This Court has no reason
to believe that the State counsel would not be telling the truth, but at the
same time, the Court proceedings are not at the mercy or pleasure of the
department. There is no justification for the department in not updating the
State counsel of the later developments or not deputing any responsible
person conversant with the facts of the case to brief him on or before the
date when the case is listed for arguments. Additionally such an aspect is
informed only after the Court has already invested its considerable time in
hearing the entire case. It is expected of the department to pay special heed
to the pending litigation and to depute officials to assist the counsel
representing them on the date(s) when a matter is listed so that every
updated information can be furnished. A case is not required to be
adjourned every time when a factual aspect is sought to be verified from the
State counsel. A litigant cannot be made to suffer for a long period for the
convenience of the State or its departments. Hence, this Court has no option
but to presume that the charge-sheet did not yield any final outcome against
the officer. Even though it is stated in the written statement that a charge-
5 of 7
Neutral Citation No:=2025:PHHC:032808
213 CWP-22718-2022 (O&M)
sheet was served upon the Executive Engineer and the Deputy
Superintendent, however, even the said charge-sheet has not been appended
alongwith the reply wherefrom it could be ascertained as to what was the
memo of charge served upon the employees and as to whether the same
pertained to recovery of any loss, if so occasioned, to State exchequer or not.
8. Further, the respondents have although made a reference to the
communication sent by the Engineer-in-Chief on 16.10.2019, however, there
is no denial of the fact that the said communication was never addressed to
the petitioner and that it is at best an intra-departmental communication.
Hence, insofar as the petitioner is concerned, the communication of the
office order was made to him only on 09.06.2022 and that he was never
made aware of any order having been passed prior thereto.
9. All the above facts apart, undisputedly, there is no concealment
of any fact whatsoever on the part of the petitioner and his claim for D.A. is
already pending with the respondent-authorities and he belongs to Group
'C'. The said order of recovery has been passed notwithstanding the
judgment of the Hon'ble Supreme Court in the matter of State of Punjab
and others v. Rafiq Masih (White Washer) and others, reported as (2015)
4 SCC 334, wherein it was held by the Hon'ble Supreme Court that
recovery from Group- 'C' and Group- 'D' employees would not ordinarily
be effected once the said payment has been made without their being any
concealment or fraud on their part.
10. In the present case, the benefit of the salary at D.C. rates was
6 of 7
Neutral Citation No:=2025:PHHC:032808
213 CWP-22718-2022 (O&M)
then paid as per the applicable terms & conditions of employment. The
decision that is being claimed as taken by the Engineer-in-Chief in 2019 was
not implemented by the Executive Engineer, who was the appointing and
punishment authority for no fault or attribution to the petitioner.
11. Considering it from the aforesaid perspective and in light of the
judgment of the Hon'ble Supreme Court in the matter of Rafiq Masih
(White Washer) and others (supra), the present writ petition is allowed.
The impugned order dated 09.06.2022 directing recovery of salary w.e.f.
01.11.2017 is accordingly set aside.
(VINOD S. BHARDWAJ)
07.03.2025 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
7 of 7
