HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Writ Petition No. 34 (SS) of 2007 K.N. Pandey and 33 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (2) Writ Petition No. 36 (SS) of 2007 Devi Dutt Joshi and 9 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (3) Writ Petition No. 50 (SS) of 2007 Leela Dhar Joshi and 18 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (4) Writ Petition No. 51 (SS) of 2007 Jagat Singh Bisht and 48 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (5) Writ Petition No. 52 (SS) of 2007 Daulat Singh and 19 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (6) Writ Petition No. 53 (SS) of 2007 Prithavi Singh and 22 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (7) Writ Petition No. 54 (SS) of 2007 Balwant Singh Kandari and 33 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (8) Writ Petition No. 55 (SS) of 2007 Govind Singh Rawat and 24 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents 2 WITH (9) Writ Petition No. 56 (SS) of 2007 Sundar Singh and 28 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents WITH (10) Writ Petition No. 470 (SS) of 2007 Charan Singh and 9 others. ...Petitioners. Vs. State of Uttarakhand and two others. …Respondents Mr. Shailendra Singh Chauhan, Advocate for the petitioners. Mr. H.M. Raturi, Standing Counsel for the State/respondent no.1, Mr. D.S. Patni, Advocate for respondent nos. 2 & 3. Dated: October 30, 2009 Hon’ble V.K. Bist, J. Since all these writ petitions arise out of common impugned order and the writ petitioners are the employees of the same department, the contents are common, therefore, all these writ petitions have been consolidated and are being decided by a common judgment. Writ petition No. 34(SS) 2007 shall be the leading case. 2. The facts, interalia, are that the petitioners are the Class IV employees in Uttarakhand Pey Jal Nigam. It is averred in the writ petition that their counter-part working in U.P. Jal Nigam are getting the benefit of time pay scale as mentioned in the Govt. Order dated 02.12.2000. Benefit of G.O. dated 02.12.2000 was suspended vide Office Memorandum of the U.P. Jal Nigam Headquarter dated 04.02.2002 but was again revived vide Office Memorandum dated 06.01.2003. Since, Uttarakhand Pey Jal Nigam was constituted on 07.11.2002, on which date the aforesaid benefit of the 3 G.O. was in suspension, the State Government issued Govt. Order No. –92829/ukS-2-is0-/ 2003 dated 26.06.2003 in which it was provided that in case Uttarakhand Pey Jal Nigam gives promotional pay scale/time scale to its employees, the State Govt. has no objection to the same provided that such benefits are given by the Nigam by its own resources. Thereafter, the Managing Director, Uttarakhand Pey Jal Nigam vide Office Memorandum dated 23.10.2003 granted time scale to the Class IV employees in which it was provided that the Class IV employees of Uttarakhand Pey Jal Nigam, on their completion of 8 years continuous satisfactory service on the posts on 01.01.1996 or thereafter, will be entitled for one additional increment and after completion of 14 years continuous service on 01.01.1996 or thereafter they will be entitled for 1st promotional pay scale of Routine Grade Clerk. According to this G.O. on completion of 19 years continuous service on 01.01.1999 or thereafter, one additional increment and on completion of 24 years continuous service on 01.03.2000 or thereafter, the 2nd promotional pay scale of 4000-6000 will be admissible. The Board of Director, Uttarakhand Pey Jal Nigam it its meeting dated 07.02.2004 approved the aforesaid time scale for Class IV employees. 3. It appears that the Finance Secretary, Govt. of Uttarakhand vide letter dated 19.07.2004 informed the various department that time scale granted to the Class IV employees is applicable merely to the employees getting pay scale of Rs. 2550-3200 and time scale granted in different departments is erroneous and not acceptable and such amount paid to the employees should be recovered. It is averred in the petition that the Managing 4 Director, Uttarakhand Pey Jal Nigam vide Office Memorandum dated 25.10.2006 provided that the benefit of G.O. dated 23.10.2003 would be applicable to only such employees who have completed 10 years of continuous service on or before 31.12.1995 and are getting selection grade of Rs. 2780-3620/ Rs. 2750-4400/-. Thereafter, on 28.10.2006 the Managing Director, Uttarakhand Pey Jal Nigam wrote to the Additional Secretary, Pey Jal, Uttarakhand Government requesting him to give instructions in the matter. The Addl. Secretary, Pey Jal Uttarakhand Govt. vide letter No. 1161/xxix (1)/06- (11vf/k)/2003 dated 06.12.2006 asked the Managing Director, Uttarakhand Pey Jal Nigam to recover the excess amount paid to the employees from their salaries. Consequently, the Uttarakhand Pey Jal Nigam vide order dated 26.12.2006 cancelled the Office Memorandum dated 23.10.2003 and excess payment made was directed to be recovered. On coming to know about this fact, the President, Class IV employees Union of Pey Jal Nigam submitted a representation before the Managing Director, Uttarakhand Pey Jal Nigam on 30.12.2006 requesting him to cancel the order of recovery and requested him to provide the benefit of time scale to the employees. Aggrieved by the order dated 06.12.2006 passed by the respondent no.1 and the consequential order dated 26.12.2006 passed by the respondent no.2 these writ petitions have been filed before this Court. 4. The respondent nos. 2 & 3 filed their counter affidavit in which, refuting the averments made in the writ petition, the respondents have stated that vide Govt. Order dated 12.03.2001, the State of Uttarakhand gave approval of time scale as stipulated in Govt. Order dated 5 2.12.2000 to be payable to the State Govt. Employees. Thereafter, vide Govt. Order dated 16.10.2003 the G.Os. dated 12.03.2001 and 22.10.2001 were amended to the extent that the Class IV employees working in the scale of 2550-3200 would be given time scale of Rs. 2610-3735 after completion of 14 years of service and the scale of Rs. 2750-4400 after completion of 24 years of service. The Pey Jal Nigam inadvertently followed Govt. Order dated 12.03.2001 and passed Office Memorandum dated 23.10.2001. Further by the G.O. dated 19.07.2004 it was clarified that pay scale given in excess may be recovered by fixing responsibility. It is also submitted in the counter affidavit that since the pay scale given to Class IV employees was more than as provided in G.O. dated 16.10.2003, therefore, in accordance to G.O. dated 06.12.2006, the excess payment was sought to be recovered. Consequently, the Pey Jal Nigam vide order dated 26.12.2006 cancelled the Officer Memorandum dated 23.10.2003 and excess payment made was directed to be recovered. It is further stated in the counter affidavit that the Uttarakhand Pey Jal Nigam ought to have followed the subsequent Govt. Order dated 16.10.2003 by which Govt. order dated 12.03.2001 stood amended. 5. Learned counsel for the petitioners Shri S.S. Chauhan submitted that Uttarakhand Pey Jal Nigam was constituted on 07.11.2002. Prior to constitution of Uttarakhand Pey Jal Nigam the petitioners were the employees of U.P. Jal Nigam. Keeping this fact in mind, time scale was granted to the Class IV employees of Uttarakhand Pey Jal Nigam by following the G.O. dated 02.12.2000. He argued that since the Class IV employees of U.P. Jal Nigam are getting benefit of time pay scale as 6 provided in the G.O. dated 02.12.2000, the petitioners are also entitled for the same. He also argued that before passing the order of recovery no opportunity of hearing was provided to the petitioners and, as such, the impugned orders by which excess payment was directed to be recovered from the salary of the petitioner is illegal and liable to be quashed. He further submitted that it is not the case of the respondents that petitioners have obtained the benefit of time scale by committing fraud or by misrepresenting the things, but the same was granted by the Corporation on its own and in view of this fact, the order of recovery is absolutely illegal. 6. On the other hand, refuting the contents made in the writ petition, Mr. D.S. Patni, learned counsel for the Corporation has contended that Uttarakhand Pey Jal Nigam inadvertently followed the Govt. Order dated 12.03.2001 and passed Office Memorandum dated 23.10.2003. He further submitted that Office Memorandum dated 23.10.2003 was although issued in bonafide belief but after realizing the mistake, order dated 26.12.2006 was issued. He argued that the petitioners cannot be permitted to take advantage of the bonafide mistake in passing of Office Memorandum dated 23.10.2003. It is argued by Shri Patni that since the pay scale given to Class IV employees was more than as provided in G.O. dated 16.10.2003, therefore, in accordance to G.O. dated 06.12.2006 the excess payment was sought to be recovered. Consequently, the Pey Jal Nigam vide order dated 26.12.2006 rightly cancelled the Office Memorandum dated 23.10.2003 and excess payment made was immediately directed to be recovered. 7 7. The petitioners were representing before the authorities for grant of time scale to them. Their demand was considered and vide Office Memorandum dated 23.10.2003 the petitioners were given time scale. The respondents came up with the plea that Office- Memorandum was issued inadvertently without realising the fact that petitioners could not be granted such benefit and petitioners cannot be permitted to take advantage of the bonafide mistake committed in passing of Office- Memorandum dated 23.10.2003. 8. The main question arises whether the petitioners would be liable to refund the amount which was paid to them as enhanced time scale pay? 9. After hearing learned counsel for the parties and after considering the entire material available on record, this court is of the opinion that such recovery could not be made from the petitioners due to following reasons:- (i) Govt. Order dated 26.06.2003 was issued by the State Government in which it was clearly provided that in case Uttarakhand Pey Jal Nigam gives promotional pay scale/ time scale to its employees, the State Govt. has no objection to the same provided that such benefits are given by the Nigam by its own resources. (ii) Petitioners were granted time pay scale by the Managing director by exercising his discretion. (iii) There is nothing on record showing the fact that petitioners ever misled or committed any fraud upon the authorities in pursuance of which time scale was granted to them. (iv) Before passing impugned order no opportunity of hearing was provided to the petitioners. 10. Another question for consideration is whether respondents can be directed to give time scale to the 8 petitioners as provided in Office Memorandum dated 23.10.2003? 11. Grant of time scale depends on various factors. One of the factors is financial condition of the employer. An employer cannot be compelled to grant time scale or special pay scale to its employees. Therefore, respondents cannot be directed to give time scale to the petitioners as provided in office memorandum dated 23.10.2003. But, it can also not be denied that employer is duty bound to consider the demand of his employees for grant of time scale where promotional avenues are not adequate. The case of the petitioners appears to be genuine as their counter-part in U.P. Jal Nigam, alongwith whom the petitioners were appointed many years ago, are getting time scale. The only difference is that after creation of State of Uttarakhand, the petitioners have become employees of another corporation. 12. In view of aforesaid discussion, all the writ petitions are partly allowed. Office Memorandum dated 06.12.2006 and 26.12.2006, so far they relate to recovery of salary, are quashed. The respondents are directed to consider the claim of the petitioners for grant of time pay scale to them and take decision within six months. 13. No order as to costs. 14. Let certified copy of the judgment be placed in all the connected writ petitions. (V.K. Bist, J.) 30.10.2009: NCM: