IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4352/2008 (OA No. 990/97) Decided on: 20.4.2009 Longu Ram Vashishtha ..…Petitioner Versus H.P.S.E.B. & Ors. …Respondents Coram The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting ?1No. For the petitioner : Mr. Parneet Gupta, Advocate. For respondents : Mrs. Anjula Khajuria, Advocate. Sanjay Karol, J. The petitioner has prayed for the following reliefs:- “(i) that the following orders of refixation of pay of the applicant with retrospective effect be quashed; a) order No. HPSEB (SECTT) 1-21/96-97-64282- 86 dated 3.6.1996 (Annexure P-IV); b) order No. HPSEB:CE(MM)/E-6/97-24697-701 dated 18.3.1997 (Annexure P-VI); c) order No. HPSEB(SECTT)/1-21/97-2367-71 dated 22.4.1997 (Annexure P-VII); (ii) that the pay of the applicant initially fixed vide order dated 19.1.1987 (Annexure P-II) and order dated 20.3.1991 (P-III) be declared to be in order and upheld; (iii) that even if the refixation of pay as now done retrospectively is ultimately held to be in order, even then no amount should be 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 recovered from the applicant which would become otherwise recoverable on account of the said refixation; (iv) that the applicant be allowed the cost of application.” The petitioner was initially appointed as Clerk on 7.12.1967 but lateron selected and appointed as Steno-typist with the State of Himachal Pradesh on 27th of January 1971. His services were transferred to the Himachal Pradesh State Electricity Board where he was confirmed as Clerk w.e.f. 13th of July 1973. With the passage of time, he was promoted and his pay scale was revised. Petitioner’s pay scale, as a consequence of the gradation of the post of Senior Scale Stenographer to the rank of Personal Assistant was revised at Rs. 800-1400 plus 40/- as special pay. The same was done keeping in view the provision of FR-22(a) (i). The order revising his pay scale dated 19th of January 1987, Annexure P-II, evidences this fact. The petitioner continued to enjoy the said scale and the benefits accorded to him till the year 1996 when in terms of order dated 3rd of June 1996, Annexure P-IV, his pay was refixed with retrospective effect i.e. 5.6.1985 and 1.12.1985. The petitioner was held not to be entitled to Rs. 40/- as special pay drawn by him. Even the petitioner’s representation was rejected by the respondents. From the reply, it is evident that keeping in view the instructions issued under FR 22-C the petitioner was not entitled to the fixation of the upgraded pay scale. The instructions clearly and unambiguously state:- “If the special pay has been drawn in the lower post continuously for a minimum period of three years 3 on the date of promotion, the pay in the higher post will be fixed, under the normal rules, treating the special pay as part of basic pay. In other cases, the pay in the time scale of the higher post will be fixed under the normal rules, with reference to the basic pay drawn in the lower post (excluding the special pay)…..” The pay was fixed by the Field units of the respondents-Board erroneously and accordingly the pay was refixed when the mistake was discovered. From the record, it is evident that the petitioner is not entitled to the pay scale as fixed in terms of Annexure P-II. Hence, the petitioner’s prayer-(i) and (ii) cannot be allowed. But the fact of the matter is that the petitioner’s refixation of pay was ordered retrospectively, in the year 1996 w.e.f. Ist of December 1985 as under:- Date from which Pay earlier fixed Pay now fixed effective. Rs. Rs.______ 1.12.1985 Rs.1000+Rs.100 S.P. Rs. 970+Rs.100 S.P. (800-1400+Rs.100) (800-1400+Rs.100) (Ann.P-III) (Ann.P-IV) 1.1.1986 Rs.2200+Rs.100 SP+ Rs.2150+100 SP+50PP Rs.50PP (2100-3700+100SP) (Ann.III) (Ann.P-IV) 1.1.1987 Rs.2250+100SP+50PP Rs.2200+100SP+50PP 1.1.1988 Rs.2350+100SP+50PP Rs.2250+100SP+50PP 1.1.1989 Rs.2400+100SP+50PP Rs.2350+100SP+50PP 1.1.1990 Rs.2460+100SP+50PP Rs.2400+100SP+50PP 1.1.1991 Rs.2580+100SP+50PP Rs.2460+100SP+50PP. 4 As a result of the refixation of the pay not only his pay has been reduced but an amount of Rs. 19000/- paid in excess is sought to be recovered. The effect of passing of impugned order entails civil consequences. He was neither heard nor any notice/opportunity of hearing, representation was afforded to him prior to the aforesaid revision. Importantly, in the reply it is so stated that the benefits of FR 22-C, based on the old pay pattern, were accorded to the petitioner in consultation with the authorities of the State. The petitioner undoubtedly cannot be faulted for the erroneous fixation of the pay scale and release of the same. Since 1985 he has continued to enjoy the benefits conferred upon him. It is not in dispute that the mistake was discovered subsequently and that too after a period of almost a decade. The petitioner had continuously received the said benefit. It is not that he was ever associated with the revision of the pay scales to gain monetary benefits and advantages. The error in interpreting and applying the Rules was that of the State and not the petitioner. The total amount involved is Rs. 19000/-. The petitioner has discharged his duties to the satisfaction of all. The matter was filed in the year 1997 and by way of interim order on 13th of May 1997 it was so directed that the recovery shall not be effected from the petitioner. In the facts and circumstances of the case, in my considered view, since the amount was received by the petitioner without any fault on his part, it would be only just, fair and 5 proper that the same be not recovered from him. While taking this view, I am supported by the ratio of law laid down by the Apex Court in Shyam Banu Verma & Ors. V. Union of India & Ors. {1994(2) SCC 521}, Purshotam Lal Das & Ors. V. State of Bihar & ors {2006 (11) SCC 492} & Sahib Ram v. State of Haryana {1995 Supp 1 SCC 18}. For the aforesaid reasons, the petition is disposed of with the direction that the State shall not recover the dues already paid to the petitioner amounting to Rs. 19000/- as indicted in the petition. The petition is accordingly disposed of. (Sanjay Karol), Judge. April 20, 2009 (vs)