C.W.P. No.908 of 1988 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.908 of 1988 Date of Decision. 20.12.2011 Ashok Kumar Gupta, Accounts Assistant, Haryana Warehousing Corporation, District Office, Kurukshetra .....Petitioner Versus State Warehousing Corporation, SCO No.8, Sector 17-E, Chandigarh through its Managing Director .....Respondent Present: Mr. Deepak Sonak, Advocate for the petitioner. Mr. Ashwani Talwar, Advocate for respondent No.1. Mr. O.P. Sharma, Advocate for respondent No.2. 2. C.W.P. No.1024 of 1988 K.S. Narban, Accountant, District Office, Haryana Warehousing Corporation Kurukshetra and others .....Petitioners Versus State Warehousing Corporation, SCO No.8, Sector 17-E, Chandigarh through its Managing Director .....Respondent Present: Mr. R.K. Malik, Senior Advocate with Mr. Manoj Kumar Sangwan, Advocate for the petitioners. Mr. Ashwani Talwar, Advocate for respondent No.1. Mr. O.P. Sharma, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- C.W.P. No.908 of 1988 -2- K. KANNAN J. 1. Both the writ petitions are connected and the prayer in C.W.P. No.908 of 1988 is for quashing the proceedings through the office order of the Managing Director of the Haryana Warehousing Corporation refixing the pay w.e.f. 30.04.1980 as per the Government Instructions and Rules and calling upon him to refund the amount paid to the petitioner in excess. In C.W.P. No.1024 of 1988, the writ petition is at the instance of 17 employees of the Warehousing Corporation, who like the petitioners in another case challenged the revision of scales brought through the order issued by the 1st respondent on 01.01.1988 to be effective from the dates of the joining of the service and challenging the recoveries sought. 2. One portion of the relief relating to the recoveries sought through the impugned orders could be disposed of immediately by making reference to a Full Bench decision of this Court in Budh Ram and others Vs. State of Haryana and others 2009(3) PLR 511 that any payments made in excess, which was not the result of any fraud or misrepresentation by an employee could not be ordered to be refunded. I would, therefore, find, assuming that the scales were wrongly given to the petitioners and there is no scope for demanding a refund in the manner sought for. 3. The only question would, therefore, be the tenability of the contention that the scales had been wrongly applied to them and that it would require to be refixed. The petitioner in C.W.P. No.908 of 1988 had been appointed as an Account Clerk with the Corporation in the pay scale of Rs.110-250 on 28.01.1976 and later placed on a scale of Rs.225- C.W.P. No.908 of 1988 -3- 500 on 29.04.1980 and regularized in that post on 20.05.1981. The power to fix the appropriate scales of the Warehousing Corporation is rooted to the regulation of the year 1981 that allows for applicability of the scales provided to Government servants in respect of matters in which there was no specific provision made in the regulation. When the Haryana Civil Service (Revised Scales of Pay) Rules, 1980 had been promulgated on 29.02.1980, which were made applicable from a retrospective date from 01.04.1979, they were made applicable to all employees appointed before the date when the Rules were promulgated namely from 29.02.1980. Rule 3-A of the State Rules of 1980 specifically provided that the employees appointed against post after 01.04.1979 but before 29.02.1980, the benefit would be given from the date when the employees joined the post, while in respect of employees, who are already in service before 01.04.1979, the benefit will be operative from 01.04.1979 only. 4. It is contended by the petitioner that after the Rules were promulgated by an order issued on 01.06.1981, the State Government had decided that in case of employees, who had been appointed on or after 29.02.1980 but before 21.07.1980, their emoluments in the pre- revised pay at 320 points price index were to be protected. This was to remove the prejudice caused to the employees who were appointed on or after 29.02.1980 due to the operation of the State Rules of 1980, which were applicable only to persons appointed before 29.02.1980. In a decision taken by the respondent-Corporation at a meeting of the Board of Directors on 30.03.1981, the scales of pay for the employees of Corporation in terms of the amended Rules of the Haryana State C.W.P. No.908 of 1988 -4- Government Employees were taken up for consideration and held that the said Rules would be applicable to their employees. The pay revisions were effected on the basis of such decision and they were also given the benefit to all employees of the Corporation, who were in service as on 06.11.1981, that is the date when the Government had accorded sanction approving of the Board decision to apply the State Rules. However, in terms of the State Rules and the manner of their application to the persons, who were appointed on or before 01.04.1981, they were given the benefit from 01.04.1981, whereas those employees who were appointed after April, 1981 but before 06.11.1981 were given the benefit from the date of joining the post. The petitioner in C.W.P. No.908 of 1988 had joined on 29.04.1980 that is before 06.11.1981 and therefore, he was qualified for this pay revision. This decision was again modified to extend the revised pay scales to be effective not merely from 01.04.1981 but from 01.04.1979 itself in the manner that was done for the State employees for such of those persons, who were in employment before 01.04.1979. This modification as approved by the Board of the Corporation had also been approved by the State on 30.09.1983. 5. The grievance of the petitioners was that without any further notice, the Managing Director had taken a decision refixing the pay at a different reading of the State Rules that the benefit was to be restricted only to persons appointed before 29.02.1980 instead of 01.04.1981. The statement in defence by the Corporation is that in the manner of fixation of revised pay scales under the State Rules of 1980, the Corporation was required to conform to the interpretation given to the C.W.P. No.908 of 1988 -5- Rules of the State by the State Government itself. The appointed date as mentioned in the Rules was 01.04.1979 and when the Corporation was taking up the issue of application of the State Rules of 1980, it could have applied the benefit only in the same manner as the State Rules provided. The Rule 6 of the State Rules of 1980 provided that the fixation of pay in the revised scales could be admissible to employees appointed on or after 29.02.1980 and in case of employees, who were appointed after 29.02.1980 but before 21.07.1980, the emoluments in the pre-revised pay scales at 320 points price index alone was required to be protected. The wrong interpretation, which the Corporation admits as having been made was to allow for persons to opt for revised scales w.e.f. 30.04.1980 under Rule 4 of the State Rules of 1980 as clarified by the letter of the State Government on 10.07.1980. The Government employee whose pay scale had been revised under the Rules might elect to continue to draw pay in the existing scale until the date on which he earned the next or subsequent increment in the existing scale or until he vacated the post or ceased to draw his pay in that time scale of pay whichever was earlier. If he vacated the post or he ceased to draw his pay in that time scale prior to the date of his option, the benefit of continuing the existing scale would be admissible to him only till he vacated the post or ceased to draw pay in that time scale. An example to this was given by the letter dated 10.07.1980 to explain that an employee could opt to continue in the old scale upto 01.11.1980 and in the meanwhile if he had been promoted to higher post say on 01.04.1980, the benefit of continuing in the pre-revised scale shall be admissible only upto 31.03.1980. The same would have C.W.P. No.908 of 1988 -6- been also the situation if the employee vacated the post on 01.04.1980. 6. In C.W.P. No.908 of 1988, the petitioner was working as a Clerk on the date of the notification i.e. 29.02.1980 and promoted as an Accounts Assistant on 29.04.1980. Since he had vacated the post of the Clerk on 29.04.1980, he could not give his option from 30.04.1980 as Accounts Assistant in view of the provision of Rule 4. The petitioner could have only gone on drawing the pay in the existing scale only upto 29.04.1980 i.e. a date when he vacated the post and thereafter his pay was to be fixed as Accounts Assistant and in the normal Rules contained under the Civil Service Rules. Alternatively, the petitioner could have taken the benefit of the Instructions dated 01.06.1981 and got his pay fixed at a stage to protect his pay at 320 points price index. The petitioner was not entitled to get the benefit of Rule 6 of 1980 Rules against the post of an Assistant as it was not admissible to him since he had been appointed to the post after 29.02.1980. 7. I would uphold the contention of the State Corporation from the perspective of how in the manner of adoption of the State Rules, it could not have provided for benefits to classes of persons, which were not contemplated even in the State Rules. If the 1980 Rules provided that the benefit of pay fixation was to be given only to persons appointed before 29.02.1980, they could not have extended the benefit to other class of persons. What had actually happened in practice was that employees appointed even before 06.11.1981 and after 29.02.1980 were also given the benefit. The Board of Directors, who had decided to adopt 1980 Rules by invoking their own regulations could not have granted the benefit under Rule 6 of the 1980 Rules. Rule 6 itself could C.W.P. No.908 of 1988 -7- not have been modified to allow for an application for larger class of persons by the only fact that the adoption of the said Rule had been made subsequently by the Board. If there was a mistake, it was liable to be corrected and therefore, the revised scale of which had been wrongly given was liable for correction. There is no error in the refixation as ordered and it shall be maintained. The only modification is what has been already allowed in the first part of the judgment in restricting the respondents from giving effect to the recoveries. 8. Both the writ petitions are dismissed in so far as they relate to the refixation of pay but allowed in part to the extent that recoveries for the pay already granted on the basis of revised scales shall not be recovered. (K. KANNAN) JUDGE December 20, 2011 Pankaj*