C.W.P No.7317 of 2001 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : May 20, 2009 1. C.W.P No.7317 of 2001 S.K.Khosla and others vs State of Haryana and others, 2. C.W.P No.11334 of 2002 M.G.Thakral vs State of Haryana and others, 3. C.W.P No.3440 of 2003 Subhash Arora vs State of Haryana and others, 4. C.W.P No.15477 of 2004 Om Parkash Siwach vs State of Haryana and others, 5. C.W.P No.8110 of 2005 Gulab Singh vs State of Haryana and others. 6. C.W.P No.20441 of 2006 Anil Mehta and others vs State of Haryana and others. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Pawan Kumar, Sr. Advocate with Mr.Sapan Shorey, Advocate for the petitioners in CWP Nos.7317 of 2001, 3440 of 2003, 8110 of 2005 and 20441 of 2006. Mr.Sandeep.K.Sharma, Advocate for the petitioner(s) in CWP No.15477 of 2004. Mr. Harish Rathee, Sr. DAG Haryana for the respondents. *** C.W.P No.7317 of 2001 ::2:: 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This order shall dispose of CWP Nos.7317 of 2001, 11334 of 2002, 3440 of 2003, 15477 of 2004, 8110 of 2005 and 20441 of 2006 as common questions of law and fact are involved therein. For the sake of convenience, facts are being extracted from CWP No.7317 of 2001. By a notification dated 2.6.1989, the pay scales of the petitioners ( Engineers/retired Engineers in the Irrigation Department, Haryana) were revised to Rs.4100-5300 (after 12 years of regular service). Subsequently, by another notification dated 16.5.1990, the pay scale of Rs.4100-5300 was sought to be limited to 20% of the cadre posts. On challenge in CWP No.8172 of 1990, this Court stayed the operation of the said notification on an undertaking of the petitioners therein that the same would be an interim order subject to final decision with a stipulation that in case the decision goes against the petitioners they would be liable to refund the entire amount. Subsequently, by order dated 9.10.1998, the pay scale of Rs.4100-5300 was withdrawn and was made applicable to 20% of the cadre posts. The said order was challenged by way of CWP No.16997 of 1998, and by order dated 31.8.1999, this Court quashed the order dated 9.10.1998 and directed the respondents therein to treat all the Engineers alike. In appeal, the Hon'ble Supreme Court set aside the order of this Court dated 31.8.1999 by holding as follows :- “Special leave granted. This is an appeal by the State of Haryana against C.W.P No.7317 of 2001 ::3:: the judgment of the High Court of Punjab and Haryana dated 23.9.99 in CWP No.18043/98. The parity in pay was granted to the doctors/respondents category along with Executive Branch, by an order dated 2.6.89 and Selection Grade posts were also sanctioned at par with the Executive Branch. The order unfortunately did not mention that the Selection Grade posts were restricted to 20% of the posts. This mistake was however rectified by an order dated 16.5.90 of the Government with retrospective effect 1.5.89. The High Court has now held that Selection Grade is to be granted without restriction to 20% of the posts in the particular cadre. It is well known that in every department selection Grade is restricted to certain percentage of the posts such as 20% in the present case. So merely because the percentage was not mentioned in the earlier order dated 2.6.89, the High Court could not have awarded Selection Grade to every member in the cadre. The High Court should be seen that the mistake in the order dated 2.6.89 was rectified. We, therefore, allow the appeal and set aside the order of the High Court and direct the Selection Grade scale of Rs.4100-5300 will be restricted to 20% of the posts in the cadre as provided in the clarification dated 16.5.90. The appeal is allowed accordingly. There shall be no order as to costs.” C.W.P No.7317 of 2001 ::4:: Thereafter, the respondents issued instructions dated 25.1.2001 directing, inter-alia, initiation of recovery for the excess amounts paid. It is these instructions which have been challenged by way of the present writ petitions. As regards entitlement to the claim of pay scale of Rs.4100- 5300, the same is concluded by the decision of the Hon'ble Supreme Court. It may also be noticed that a similar matter bearing CWP No.8815 of 2002, Dr. Rajvir Singh and others vs The State of Haryana and others was dismissed by a Division Bench of this Court by judgment dated 5.8.2004. However, as regards the question of recovery, it has been argued that there are clearly two categories of the petitioners in all these cases. One category comprises of those petitioners who are covered by the interim order passed in CWP No.8172 of 1990 (H.R.Dhanjal vs State of Haryana) and other writ petitions. These petitioners accepted the pay scale with open eyes, and had also given undertakings that they would be liable to refund the amounts. The second category of the petitioners is those who did not file any writ petition and were granted the benefit of the pay scale of Rs.4100-5300 by the government on its own volition, in view of the stay order passed by this Court. At this stage, it would be profitable to notice that the above mentioned CWP No.8172 of 1990 was disposed of with the following directions :- “ (1) The writ petition so far as it challenges the selection grade of Rs.4100-5300 after 12 years of regular satisfactory service and limited to 20 per cent of the cadre posts, is without any merit and order dated C.W.P No.7317 of 2001 ::5:: 16.5.1990 to that extent is held valid. (2) Amount, if actually paid to the petitioners on account of order dated 2.6.1989, but before issuance of order dated 16.5.1990, shall not be recovered. (3) The Government shall take a decision within three months from the date of receipt of the order in regard to waiving off the amount qua the petitioners who have since died. (4) The pension received by the petitioners who have since retired and the family pension received by the legal representatives of the deceased-petitioners shall be refixed in accordance with order dated 16.5.1990. (5) Any dues recoverable from the petitioners, who may have retired or are serving, on account of order dated 16.5.1990 shall be recovered in easy instalments to be fixed by the Government.” It is also necessary to mention that against the decision of the learned Single Judge in H.R.Dhanjal's case (supra), LPA No.2856 of 2001 was also dismissed on 10.12.2001. It is the contention of learned counsel for the petitioners that as regards the second set of the petitioners, their cases would be covered by the latest decision in Syed Abdul Qadir & others vs State of Bihar and others, 2009(1) SCT 611, wherein the Hon'ble Supreme Court held as follows :- “27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not C.W.P No.7317 of 2001 ::6:: paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.” In my opinion, this is not a case where there are two such distinctive categories. In the situation, where such protracted litigation was already in progress with regard to the eligibility of the petitioners to draw pay scale of Rs.4100-5300, it cannot be held that the petitioners did not have knowledge that payments received were in excess or atleast that it was a matter of controversy. It may be noticed that a similar argument was repelled by a Division Bench of this Court in Dr. Rajvir Singh and others' case (supra). In my opinion, the case of the petitioners is covered by the direction given by this Court in H.R.Dhanjal's case (supra). Consequently, C.W.P No.7317 of 2001 ::7:: this writ petition is disposed of in the same terms as CWP No.8172 of 1990, H.R.Dhanjal vs State of Haryana. ( AJAY TEWARI ) May 20, 2009. JUDGE `kk'