C.W.P. No.15340 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15340 of 2006 DATE OF DECISION: OCTOBER 22, 2009 Surbinder Singh .....PETITIONER Versus Haryana Vidyut Prasaran Nigam Limited, Panchkula and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Babbar Bhan, Advocate, for the petitioner. Mr.Sanjay S. Chauhan, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner has filed the instant petition for quashing the order dated 8.9.2006 passed by respondent No.2, whereby a recovery of Rs.1,37,378/- has been ordered to be effected from the salary of the petitioner being excess amount paid to him on account of annual increments from 18.2.1988 to 8.6.2006. In the present case, the petitioner was working as Peon on 1.1.1984. Subsequently, vide order dated 18.2.1987, he was promoted as Lower Division Clerk. In the said order, a condition was incorporated that the petitioner was required to qualify the type test in Hindi/English at the speed of 25/30 w.p.m. after four months of his joining the post of Lower C.W.P. No.15340 of 2006 -2- Division Clerk. In the said letter, there was no condition that if the petitioner could not clear the said type test, he will not be entitled for any increment. However, it is the case of the respondents that the respondent- Board vide its decision dated 5.2.1986 adopted the instructions of the State Government issued vide Memo dated 28.8.1984 which provide that the Class-IV employees on their promotion as Clerks, were to become eligible for increments only on passing of the type test in accordance with the conditions of their appointment/Service Rules, and they will also not be eligible to get selection grade without passing type test. It is further the case of the respondents that since the petitioner did not qualify the type test after four months of joining his duty as Lower Division Clerk, he was not entitled to draw annual increments beyond 18.2.1988. But the petitioner continued to draw increments up to 8.6.2006 without qualifying the type test, therefore, recovery was rightly ordered. The stand of the petitioner is that after his promotion as Lower Division Clerk, no type test was held and he was never asked to appear in any type test till 2006. It is the case of the petitioner that the type test was to be conducted by the respondent-Nigam and any date fixed for the test was to be intimated to the petitioner, but no such intimation was ever sent to him for appearing in the type test. It is further the case of the petitioner that he did not make any representation or requested to the respondents to give the annual increments to him. It is the respondents who themselves have added the annual increments to the salary of the petitioner and released the pay to him without any misrepresentation or fraud played by the petitioner. Only in the year 2005, a notice for recovering the excess amount of Rs.1,37,378/- on account of annual increments granted, was issued to the petitioner C.W.P. No.15340 of 2006 -3- without providing an opportunity of hearing to him. Then the petitioner filed CWP No.15755 of 2005 challenging the said order. The said writ petition was disposed of by this Court with the direction to pass a fresh order after providing an opportunity of hearing to the petitioner. Consequently, the impugned order dated 8.9.2006 was passed. In the written statement filed by the respondents, while relying upon Rule 1.2.3 of the promotion policy dated 19.10.1990 (Annexure R1), it has been stated that a Class-IV employee, who has been promoted as Clerk, shall have to qualify the typing test within one year of his promotion. In case the promotee fails to qualify the type test within the prescribed period, he/she shall not be allowed any annual increment till the passing of said test. In view of the said Rule, it is pleaded that the petitioner was wrongly granted the annual increments from 18.2.1988 to 8.6.2006 and consequently excess payment has rightly been ordered to be recovered from him. After hearing the counsel for the parties and going through the record of the case, I am of the opinion that this petition deserves to be allowed. From the record of the case, it appears that on 18.2.1987 when the petitioner was promoted as Lower Division Clerk, though a condition was imposed to qualify the type test at a requisite speed after a period of four months of his joining the post, but no condition/stipulation was made in the promotion order that if the petitioner fails to qualify the said type test within the prescribed time, he will not be entitled for annual increment. Even in the impugned order as well as during the course of arguments, no rule has been shown which provides that if a Class-IV promotee to the post of Lower Division Clerk did not qualify the type test within the stipulated time, no annual increment will be granted to him till he qualifies the type test. The C.W.P. No.15340 of 2006 -4- promotion policy annexed with the written statement, came into force subsequently. However, in the impugned order, it has been mentioned that the respondent-Board adopted the Circular of the State Government dated 28.8.1984, but that Circular only provides that a Class IV employee on promotion as Clerk will become entitled for annual increments only on passing of the type test in accordance with the conditions of their appointment/Service Rules. As already observed, there was no condition in the appointment/promotion order that the petitioner will become eligible for annual increments after passing the type test. Therefore, there was no justification to order the impugned recovery. Secondly, even if as per the promotion order, the petitioner was to qualify the type test at a requisite speed after four months of his joining on the post, the Department was required to conduct the type test or asked the petitioner to appear in such type test on a particular date. It is admitted position that till the year 2006, no type test was held and the petitioner was never asked to appear in any such type test. In the impugned order as well as during the course of hearing, a stand has been taken that it was the duty of the employee to intimate the authorities about his readiness and willingness to give the type test. When the counsel was asked to produce any such instructions, he stated that no such instructions are available. In these circumstances, in my opinion, the petitioner was not responsible for not clearing the type test within the stipulated period. It is for the respondents to fix the date of type test and then to intimate to the petitioner about the date, but no such type test was conducted nor any date was intimated to the petitioner. It is admitted position that in the month of June, 2006, the required type test was held which has been cleared by the petitioner. In my C.W.P. No.15340 of 2006 -5- opinion, the petitioner was not at fault for not clearing the type test before 2006 as no type test was held from the date of his promotion till the year 2006. Therefore, in my opinion, the respondents are not justified to recover the impugned amount from the petitioner on the ground that he was wrongly given the annual increments as he had not cleared the type test within one year from the date of his promotion. Thirdly, after promotion of the petitioner as Lower Division Clerk, the benefit of annual increment was given to him without there being any misrepresentation made by him to the respondents or any fraud played by him. There was no condition in the promotion order that in case the petitioner did not qualify the type test within the stipulated period, he will not be entitled for annual increment. It appears that at that time there was no such Service Rules. The promotion policy (Annexure R1) was framed in the year 1990. Therefore, it appears that the respondents themselves had granted the annual increments to the petitioner under the impression that there was no such condition that he will not be eligible for annual increments. In such situation, where the monetary benefits have been granted to an employee under a mistaken interpretation or application of a Rule or Regulation, then the amount so granted cannot be recovered from him, particularly when such employee was not responsible for any fraud or misrepresentation. This principle has been laid down by the Supreme Court in Sahib Ram v. State of Haryana, 1994(5) SLR 753 and the Full Bench of this Court in Budh Ram and others v. State of Haryana and others, (CWP No.2799 of 2008), decided on 22.5.2009. In view of this proposition of law, the impugned amount of recovery from the petitioner is not justified. C.W.P. No.15340 of 2006 -6- In view of the above, the petition is allowed and the impugned order of recovery dated 8.9.2006 (Annexure P1) is hereby quashed. October 22, 2009 (SATISH KUMAR MITTAL) vkg JUDGE