IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 2747 of 2008 Date of Decision : June 23, 2010 Ramesh Dogra Petitioner Versus Himachal Road Transport Corporation and another Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Yudhbir Singh, Advocate, vice Mr. K. D. Shreedhar, Advocate, for the petitioner. For the respondents : Mr. Adarsh Sharma, Advocate, for the respondents. Sanjay Karol, J. (Oral) According to the learned counsel for the parties the matter in issue is squarely covered by a decision rendered by this Court in CWP(T) No. 4181 of 2008, decided on 23rd March, 2009. Photo copy of the same is taken on record. 2. The petitioner was employed with the respondent-Corporation on 2.10.1974. With the passage of time his pay scale was revised. He was awarded Senior scale of Rs.1200 – 2100. The same was done in terms of order dated 12.6.1991, made applicable with effect from 1.1.1986. On such revision of his pay scale the arrears were also released to him. Whether reports of Local Papers may be allowed to see the judgment? 2 3. Suddenly, on 9.3.1993 the respondent withdrew the said scale. Aggrieved by the same, the petitioner alongwith others approached this Court and vide order 5.4.1994 in CWP No.1572 of 1993, titled as Ramesh Dogra and others vs. H.R.T.C., a Division Bench of this Court quashed the order of withdrawal of the pay scale dated 9.3.1993 on the ground that the petitioners had not been afforded a fair and reasonable opportunity of hearing and hence the order of withdrawal being in violation of principles of natural justice was held to be illegal. 4. Pursuant to the orders passed by this Court, the respondent issued another order dated 30.6.1994, reviving the order dated 12.6.1991 and in effect, again fixing the senior scale. However, vide memorandum dated 25.7.1994, petitioner was asked to show cause as to why the pay scale be not revised and down-graded as there were adverse entries existing in his personal record which disentitled him for higher pay scale. Recovery of the amount already paid was also sought to be effected. 5. Petitioner replied to the same on 23.11.1994 by taking a plea that grant of senior scale was not subject to any other condition and the same could not be treated at par with promotion and in the absence of holding of any DPC meeting to determine the eligibility and entitlement, senior scale could not be disallowed. However the respondents vide subsequent order revised and down graded the pay scale and pursuant thereto, in terms of memo dated 12.1.1995 3 (Annexure A-6) sought to recover the amount from its employees including the petitioner. 6. The petitioner has prayed for the following reliefs:- (i) That the memos dated January 12, 1995 (Annexures A-6 and A-7) may be quashed and set aside. (ii) That the respondent-Corporation may be directed to continue giving to the applicant the senior scale to the applicant with effect from January 01, 1986, along with arrears of salary for the period the said scale was not given. The respondents may also be directed not to make any recovery from the salary of the applicant. 7. The pay-scale of the petitioner is fixed in accordance with the governmental instructions dated 23.9.1991. The employees who had rendered five years of service and had no adverse entries in their ACRs are only eligible for being considered for senior scale. In the present case petitioner has not disputed that adverse entries were in existence and even certain penalties had been imposed against him by the department. 8. The governmental instructions have not been assailed and petitioner is governed and bound by the same. 9. In this view of the matter, the petitioner’s contention that he is entitled to senior scale is untenable in law. 10. The question however is as to whether the respondent can recover the amount which already stands paid to the petitioner. It is admitted case of the parties that the amount was disbursed to the 4 petitioner not on his asking but on the basis of the interpretation of the governmental instructions and consideration of the material by the respondents themselves. The arrears have been received by the petitioner in 1995 which is now sought to be recovered. The petitioners were allowed to enjoy the benefits of senior scale of pay without any objection. In any case no notice with reference to unsatisfactory performance of work or other similar consideration was ever issued to the petitioner. The benefit was accorded to the petitioner without any mistake on his part. 11. The Apex Court in Shyam Babu Verma & others vs. Union of India and others (1994) 2 SCC 521, Purshotam Lal Das & others vs. State of Bihar and others, (2006) 11 SCC 492 and Sahib Ram vs. State of Haryana, (1995) Supp. (1) SCC 18, has directed that the payment erroneously made shall not be recovered from the employee. The present case is covered by the ratio of law laid down therein. The amount is also not large. 12. For the aforesaid reasons, the respondents are directed not to effect any recovery pursuant to the decision taken by the respondents withdrawing senior scale. 13. Petition stands disposed of accordingly. (Sanjay Karol), Judge. June 23, 2010 (PK)