IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 2920 of 2008 (OA(D) No.954 of 1995 Judgment reserved on: 26.11.2009 Decided of decision: 22.2.2010 Raj Kumari . ….. Petitioners. Vs. State of H.P.& Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Ranjan Sharma, Advocate. For the Respondents : Mr. Anshul Bansal, Addl. A.G. with Mr. R.P. Singh, Assistant A.G. Kuldip Singh, Judge. This petition has been directed against the respondents to give benefit of one increment w.e.f 1.9.1976 to petitioner for undergoing sterilization operation in view of the policy, quashing of Annexure A-8 dated 15.3.1988 withholding medial allowance w.e.f. April, 1988, quashing of recovery on account of payment of medical allowance w.e.f. 8.10.1969 to 15.3.1988 at the rate of Rs.10/- per month on the basis of Annexure A-8, refund of Rs.899/- and Rs.850/- to petitioner alongwith interest at the rate of 18% per annum. 2. The case of the petitioner is that she was appointed as Trained Graduate Teacher on 8.10.1969 and her initial appointment was at Govt. Middle School, Paisa, Dehra. She had undergone Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… sterilization operation on 24.8.1976. As per office memorandum dated 8.12.1981, Annexure A-2 the employees who had undergone sterilization operation after 2 or 3 children are entitled to one increment in the form of personal pay w.e.f. the month following the date of sterilization. The benefit of one increment was allowed to all the employees irrespective of any specific period, when an employee had undergone such operation. The communication dated 1.9.1984 Annexure A-3 issued by respondent No.2 provides that an employee is entitled to one special increment under the family welfare programme in case the said employee had got himself/herself operated between 19.7.1976 and 19.5.1977. The petitioner had undergone sterilization operation on 24.8.1976, therefore, she is entitled to the benefit of communication dated 1.9.1984 and she is entitled to one special increment on account of sterilization operation. 3. The petitioner had submitted repeated representations to the respondents for grant of one special increment w.e.f. 1.9.1976. The petitioner even served a notice dated 20.10.1993 Annexure A-4. The respondent No.2 thereafter issued directions vide Annexure A-5 to respondent No.5 for releasing the benefit to petitioner within 15 days. 4. The petitioner had proceeded on leave from 19.3.1986 to 31.3.1986. The respondent No.4 had deducted a sum of Rs. 899/- from the salary of the petitioner on the ground of leave without pay after expiry of one year from the date of availing said leave. The petitioner represented her case to respondent No.2. The respondent No.5 issued an order on 2.9.1993 Annexure A-6 requesting …3… respondent No.3 to issue refund voucher in favour of the petitioner of Rs.899/- on account of illegal deduction, but despite that Rs.899/- were not paid to the petitioner. 5. The petitioner since her initial appointment was availing medial allowance/medical reimbursement as per the policy of the Govt. at the rate of Rs.10/-fixed. The respondent No.4 stopped the reimbursement allowance to the petitioner vide communication dated 15.3.1988 Annexure A-8. The respondents have recovered an amount of Rs.850/- approximately at the rate of Rs.10/- per month w.e.f. her initial appointment, which the petitioner was getting on account of medical reimbursement allowance, on the ground that husband of the petitioner is an officer in the UCO bank and is also receiving the said allowance. It has been contended by the petitioner that husband of the petitioner is not a State Government servant; he claims the said facility only for himself and not for entire family. 6. The petition has been contested by respondents by filing reply. The preliminary objection of delay and laches has been taken. On merits, it has been submitted that the petitioner had undergone tubectomy operation on 24.8.1976 after three living children. In view of instructions dated 19.7.1976 Annexure RA, employees of the Govt. of Himachal Pradesh in the category of eligible couples undergo sterilization after the birth of two or less children are entitled to an advance increment in their respective scales of pay, therefore, the petitioner is not entitled to one advance increment. The instructions were revised. The instructions Annexure A/2 and Annexure A-3 are not applicable to petitioner. …4… 7. The petitioner in March, 1986 was on the strength of Govt. Senior Secondary School, Kothar ( Ranital) District Kangra and not on the strength of Govt. High School, Rajiana. She availed leave without pay and allowances (E.O.L) w.e.f. 19.3.1986 to 31.3.1986 and from 5.5.1986 to 22.5.1986. The petitioner was inadvertently paid full month salary; later on amount paid in excess was recovered from the petitioner. The petitioner thereafter managed to get the title of leave already sanctioned changed to that of earned leave which could not have been done, therefore, petitioner is not entitled to refund of Rs.899/- . 8. The husband of the petitioner is an officer in the UCO bank and is also availing facility of medical reimbursement or fixed medical allowance. The petitioner and her husband were availing the facilities of medical allowance. When this came to the notice of respondents, instructions were issued to stop the fixed medical allowance and to recover the amount from petitioner which was over paid. Therefore, the petitioner is not entitled to refund of Rs.850/- on account of recovery of over payment of medical allowance. 9. I have heard learned counsel for the parties. The grievance of the petitioner are; (i) against not granting one increment for sterilization (ii) refund of Rs.899/- on account of recovery as a result of extra ordinary leave (iii) refund of Rs.850/- on account of medical reimbursement (iv) interest. 10. The learned counsel for the petitioner for releasing of one increment to petitioner on account of sterilization operation has relied Roshan Lal Mehta and another vs. Hon’ble High Court of …5… H.P. and another 2004 (2) Sim.L.C.35. The petitioner had undergone sterilization operation on 24.8.1976 as per Annexure A-1. This fact has not been denied by respondents, who are relying on letter No.17-45/75-H&PP dated 19.7.1976 Annexure RA for denying one increment to petitioner for sterilization. It is the case of the respondents that petitioner had undergone sterilization operation on 24.8.1976 after three children. The instructions dated 19.7.1976 provides that such of the employees of the Government of Himachal Pradesh in the category of eligible couples as undergo sterilization after the birth of 2 or less children may be granted special increment in the form of personal pay. The incentives dated 19.7.1976 and dated 8.12.1981 were noticed by a learned Single Judge in Roshan Lal Mehta and held that the respondents are not justified by denying the benefit of the special increment to the petitioners like other persons who had undergone family operation prior to issuance of instructions noticed in the judgment. The petitioner has undergone sterilization operation on 24.8.1976, therefore, the petitioner is entitled to one advance increment and the action of respondents denying one advance increment to the petitioner is wrong, illegal, arbitrary and not sustainable. 11. The next grievance of the petitioner is that respondents have wrongly recovered Rs.899/- and she is entitled to refund of that amount alongwith interest. The stand of the respondents is that petitioner had availed leave without pay and allowances (E.O.L) for the period 19.3.1986 to 31.3.1986 and 5.5.1986 to 22.5.1986 which was sanctioned in her favour by the Principal. The Principal had no …6… authority to change the nature of the leave. The respondents for that purpose have relied Govt. of India decision under F.R. 67 to the effect that an authority empowered to grant leave has no power to interfere with the option admissible to a Govt. servant. The petitioner was inadvertently paid salary for the period of extra ordinary leave to which she was not entitled and the same amount was recovered. In these circumstances the petitioner is not entitled to refund of Rs.899/- recovered on account of excess payment made to the petitioner. The amount was inadvertently paid and recovery was made under the rules, therefore, no notice was required to be issued to the petitioner. The respondents have right to rectify the mistake. The petitioner has not controverted this contention of the respondents by some legal plea. In these circumstances, the petitioner is not entitled to refund of Rs.899/- alongwith interest. 12. The petitioner has claimed Rs.850/- on account of alleged wrong recovery of medical reimbursement. The case of the petitioner is that since her initial appointment she had been getting medical reimbursement but vide Annexure A-8 dated 15.3.1988 the medical reimbursement of the petitioner has been stopped and recovery of the medical reimbursement which was already paid to her was ordered. In fact an amount of Rs.850/- has been recovered on account of medical reimbursement. The petitioner has claimed refund of Rs.850/- alongwith interest. The respondents have taken the plea that husband of the petitioner is serving an officer in the UCO bank and is availing the facility of medical reimbursement. Therefore, petitioner is not entitled to medical reimbursement. The learned …7… counsel for the petitioner has relied Govt. of India decision in a situation when husband and wife both are in Govt. service to the following effect:- “When both are Government servants:- In case where both husband and wife are Central Government servants, they, as well as eligible dependants, may be allowed to avail of the medical concessions according to his/her status. For this purpose, they should furnish to their respective authorities a joint declaration as to who will prefer the claim for reimbursement of medical expenses incurred on the medical attendance and treatment in respect of wife/husband and children. The above declaration should be submitted in duplicate and a copy of each shall be recorded in the personal file of each of them in their respective offices. This declaration shall remain in force till such time as it is revised on the express request in writing by both the husband and the wife e.g., in the event of promotion, transfer, resignation etc. of either of the two. In the absence of such a joint declaration, the medical concessions shall be availed of by the wife and the children according to the status of husband.” 13. The case of the petitioner does not fall in the decision relied by learned counsel for the petitioner. It has not been contended on behalf of the petitioner that petitioner and her husband have given joint declaration. In absence of joint declaration medical concession shall be availed by wife and the children according to the status of the husband. Therefore, the aforesaid decision is of no help to the petitioner for medical reimbursement. 14. The learned counsel for the petitioner has ultimately relied decision of the Govt. of India based upon decision dated 28.6.1999 of the Central Administrative Tribunal, Chandigarh Bench in O.A. No.763/CH of 1998 which provides that Central Government employees will not lay claim for medical claims/facilities admissible to …8… their spouses, if such spouse(s) is/are in receipt of some/fixed medical allowance. In other words, the children of the Central Government employees will also be eligible for reimbursement of medical expenditure except the spouse who is in receipt of medical allowance. The aforesaid decision applies to children and not spouses; therefore, the petitioner is not entitled to take benefit of aforesaid decision of the Govt of India. 15. No other point was urged. 16. The result of the above discussion, the petition is partly allowed. The petitioner is held entitled to one advance increment on account of her sterilization operation dated 24.8.1976. The respondents are directed to give one advance increment to petitioner in the light of above observations, calculate the arrears and pay the same to the petitioner within four months, failing which the petitioner shall also be entitled to interest at the rate of 9% per annum on such arrears till payment. The other claims of the petitioner are rejected. February 22, 2010 (Kuldip Singh), (sks) Judge.