LPA No. 1258 of 2011 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 1258 of 2011 (O&M) Date of Decision: August11, 2011 Ashok Kumar …Appellant Versus State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. H.N. Khanduja, Advocate for the appellant Mr. Aman Chaudhary, Addl. A.G., Haryana for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against judgment dated 16.05.2011, rendered by the learned Single Judge holding that order dated 04.04.2006 (P-7) passed by the Principal, Government Senior Secondary School, Agondh (Karnal), did not suffer from any legal infirmity to the extent of re-fixation of pay of the appellant. However, the learned Single Judge has set aside the recovery which was sought to be made on account of re-fixation. In that regard, the learned Single Judge has placed reliance on a Full Bench judgment of this Court LPA No. 1258 of 2011 (O&M) -2- rendered in the case of Budh Ram & others v. State of Haryana & others 2009 (3) PLR 511. The appellant claims that on account of antedating his date of appointment, the earlier fixation by adding the notional period could not be withdrawn and, therefore, the re-fixation itself was unsustainable in the eyes of law. 2. In order to put the controversy in its correct perspective it would be necessary to notice few facts. In response to an advertisement issued in the year 1990 by respondent No.2, for appointment to the post of Lecturers the appellant applied and was selected. His name figured in the order of merit at serial No. 25 but no appointment letter could be given to him in the year 1993 on account of illegal approach adopted by the respondents. 3. It is pertinent to mention that this Court in CWP No. 6248 of 1994 issued directions on 09.11.1996 to respondent No.2 to publish a number of vacancies available from 05.03.1993 to 04.03.1994. the respondent was also directed to publish the number of appointments made during that period including the number of candidates who were kept in the waiting list. In the list so published in the newspaper the name of the writ petitioner-appellant figured and it was reflected that he was appointed as Lecturer in Sanskrit whereas he had not been appointed. It led to filing of a representation by him on 02.07.1997, which referred to LPA No. 1258 of 2011 (O&M) -3- the aforesaid publication based on the directions issued by this Court. The grievance made by the appellant was that despite the fact that his name has been shown in the list of appointed candidates as Lecturer in Sanskrit, he had not been given the appointment. As a consequence, the respondent issued appointment letter dated 22.09.1997 (P- 1) to the appellant. The extracts of the appointment letter relevant to the controversy are set out as under: “Whereas in pursuance to the directions dated 09.11.1996 passed in Civil Writ Petition No. 6248 of 1994 and in other connected matter by the Hon'ble High Court, a public notice was issued on 1/2-7-97 in the Dainik Tribune (Hindi Version) by the Director Secondary Education, Haryana indicating therein total number of vacancies which had become available during the period of one year i.e. 5.3.93 to 4.3.94 appointment made during the said period of one year alongwith the names of the candidates who were offered appointments and also waiting list. Whereas in response to the said public notice you have made a representation dated 02.07.97 for giving appointment against the post of lecturer in general category. LPA No. 1258 of 2011 (O&M) -4- After going through the relevant record the case it has been observed that you have been offered adhoc appointment against reserved category post vide order No..........................dated........................But you failed to join duty due to non receipt of the appointment letter or any other reason. In pursuance of the above decision of the Hon'ble High Court you are hereby again offered appointment against reserved category post as Sanskrit Lecturer on purely adhoc basis in the Haryana Education Services Non-Gazetted Class-III (School Cadre) Men Branch with immediate effect from the date of issue of this order in the institution indicated against his name in the grade of Rs. 2000-60-2300-75-2900-EB-100- 3500 plus usual allowances as sanctioned by the Haryana Government from time to time on the following terms and conditions annexed: Sr. No. Merit No. Name & Address Place of Posting Remarks 1 25 Ashok Kumar S/o Din Dayal VPO Kunjpura (Karnal) GSSS Gangat heri Popra (Karnal) A/v Terms & Conditions LPA No. 1258 of 2011 (O&M) -5- 1. xx xx xx xx 2. xx xx xx xx 3. xx xx xx xx 4. xx xx xx xx 5. xx xx xx xx 6. This order of appointment is without prejudice to the claim for seniority of these persons who have been placed higher to the above mentioned candidate in the merit list." (emphasis added) 4. The appellant belongs to the reserved category and the letter of appointment also makes it clear that he was appointed against reserved category post of Sanskrit Lecturer in the service known as Haryana Education Services Non-Gazetted Class-III (School Cadre) Men Branch. On account of the fact that the name of the appellant figured at Serial No. 25 in the common merit list, the appellant was given antedated appointment vide order dated 12.09.2000 (P-2) which clearly shows the aforesaid facts and reads as under: “The following candidates of General Category among the joint merit list who were appointed as Lecturer on adhoc basis vide this office Order No. 6/20-93E-IV(4) dated 22.9.97 against reserved quota post till the availability of reserved category candidates LPA No. 1258 of 2011 (O&M) -6- or their own quota posts are hereby deemed to have been appointed w.e.f. 4.2.94 on provisional basis as lecturer against their name keeping in view the availability of posts of General Category as on 1.3.94 in the Haryana Education Service (Non Gazetted Class-III School Cadre ) Men/ Women Branch as the case may be) in the grade of Rs. 2000- 3500 plus usual allowances as sanctioned by the Haryana Government from time to time,...........................” 5. On the basis of the antedated appointment given to the appellant w.e.f. 04.02.1994, his pay was re-fixed by granting him the benefit of increments vide order dated 23.03.2001 (P-3). 6. The auditors vide their letter dated 11.03.2005 raised an objection that once appointment of the appellant was made w.e.f. 10.10.1997 then how it could be antedated and the benefit of service from 04.02.1994 could be given to him (P-4). A copy of the letter was served on the appellant, who sent a reply to respondent No.4. In the reply, the appellant made it clear that the benefit of fixation of pay was given on notional basis from 04.02.1994 to 10.10.1997. However, the arrears were paid from 10.10.1997 to 28.02.2001. No arrears in respect of the period of antedated LPA No. 1258 of 2011 (O&M) -7- appointment from 04.02.1994 to 09.10.1997 was paid. He also sent a legal notice through his counsel on 28.02.2006 (P-6), which categorically pointed out that the persons lower in order of merit than the appellant were getting more pay than that of the appellant. It was further pointed out that auditors did not take into account the letter dated 12.09.2000, issued by respondent No.2 which has given antedated appointment to the appellant because he was held entitled to a general category post on the basis of his merit, which had become available from 04.02.1994. According to the legal notice, the audit party had only asked the reason from respondent No.4 for giving increments to the appellant for notional period from 04.02.1994 to 10.10.1997. However, respondent No.2 resorted to recovery and withdrawal of increments arbitrarily instead of replying to the letter of the auditors and citing order dated 12.09.2000 justifying the retrospective date of appointment given to him on notional basis. 7. Despite the aforesaid factual position, respondent No.4 passed an order on 04.04.2006 (P-7) holding that the benefit of pay from 04.02.1994 given to the appellant is in fact irregular. Accordingly, the appellant filed writ petition and the learned Single Judge while upholding the re-fixation has virtually nullified the retrospective date of appointment, the order has been partially set aside quashing the recovery LPA No. 1258 of 2011 (O&M) -8- of overpayment by holding as under: “7. In view of the above, this petition is allowed in terms of Budh Ram & Others vs. State of Haryana & Others (Civil Writ Petition No.2799 of 2008) reported as 2009(3) PLR 511. Accordingly, it is directed that respondents would have no right to effect recovery from the petitioner. In the meantime, in the interregnum period if any recovery has been effected, the amount shall be refunded to the petitioner within four months of receipt of a certified copy of this order. The action of the respondents in regard refixation of pay, however, is maintained.” 8. Feeling aggrieved by the concluding sentence of the order upholding the re-fixation of pay, the instant appeal has been filed asserting that once the respondent has found the appellant entitled to be appointed on a general category post w.e.f. 04.02.1994 then there was no room for audit objection to prevail because the selection pertains to year 1993 and the name of the appellant figured in the order of merit at Serial No. 25. A post of Lecturer in the subject of Sanskrit (School Cadre), belonging to general category according to his merit was found available from 04.02.1994 LPA No. 1258 of 2011 (O&M) -9- and accordingly his date of appointment was antedated. 9. We have heard learned counsel for the parties and have perused the original record. It is undisputed as a fact that the appellant was a candidate against an advertisement issued in the year 1990 and he was not given appointment despite the fact that his name figured in the merit list. On account of comprehensive directions issued in CWP No. 6248 of 1994 on 09.11.1996 by this Court, a public notice was published on 02.07.1997 in the Hindi Daily 'Dainik Tribune' by respondent No.2 indicating the total number of vacancies which had become available during the period of one year commencing from 05.03.1993 to 04.02.1994. It also reflected the appointments made during such period of one year along with the names of the candidates who were offered appointments. The public notice also disclosed the names of the candidates in the waiting list. The name of the appellant figured in the list of candidates who were offered appointments although no letter of appointment was ever sent to him. The blank columns left in the appointment order dated 22.09.1997 (P-1) would clearly spell out that the name of the appellant was in the merit list and his name figured in the list of candidates who were offered appointments. On facts no appointment letter was ever issued, which would have otherwise found mention in all its details in the blanks left by respondent No.2 in the LPA No. 1258 of 2011 (O&M) -10- appointment letter dated 22.09.1997 (see the blanks left by respondent No.2 in the letter reproduced supra). In order to rectify the injustice caused to the appellant, it was later on discovered that he was entitled to be given appointment against the general category post because his name in the order of merit figured at Serial No. 25. A vacancy belonging to the general category was available w.e.f. 04.02.1994 and accordingly, his date of appointment was antedated. 10. The long-standing injustice was undone but it was again introduced by the respondents in order to avoid answer to the query raised by the auditors. The auditors in their objection dated 11.03.2005 (P-4) has merely asked the respondents to explain as to how the appellant was given notional benefit of increments and then re-fixation of his pay. The respondents instead of meeting the objection in the manner aforesaid resorted to procedure of withdrawal of the benefits, which have been rightly given to the appellant. It is well settled that if a person has been deprived of his lawful appointment then actual arrears of pay on the principle of 'no work no pay' are not released but notional benefit of re-fixation is given so that his pay may not be lower than those who were lower in order of merit. If notional benefits are not given then it would result into anomaly and violation of Articles 14 and 16(1) of the Constitution. It is for those reasons we find that the learned LPA No. 1258 of 2011 (O&M) -11- Single Judge has committed an error in law by not dealing with the legality of the order of re-fixation of pay. Therefore, we are of the view that the order of re-fixation of pay passed by the respondents (P-2 and 3) did not suffer from any legal infirmity warranting any objection by the Auditors or its consequential withdrawal by the respondents. 10. As a sequel to the above discussion, this petition succeeds. The judgment of the learned Single Judge upholding the re-fixation of pay is set aside. The order dated 04.04.2006 (P-7) passed by respondent No. 4 is hereby quashed. The objection raised by the Auditors vide letter dated 11.03.2004(P-4) is also set aside. The order of re-fixation passed by the respondents on 23.03.2001 is restored along with the order of antedated appointment dated 12.09.2000 (P-2). As a consequence, the appellant shall continue withdrawing his pay in accordance with the order of re-fixation dated 23.03.2001 (P-3). The recovery, if any, made from the appellant shall be paid back to him. These directions be given effect by the respondents within a period of two months from the date of a receipt of certified copy of this order. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE August 11, 2011 Atul