IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5280 of 1987 (O&M) Date of decision:23.11.2011 Ashok Kumar and others ...Petitioners versus State of Haryana, and another ....Respondents II Civil Writ Petition No.18444 of 2004 (O&M) Suresh Kumar ...Petitioner versus State of Haryana, and another ....Respondents III Civil Writ Petition No.18471 of 2004 (O&M) Rakesh Kumar ...Petitioner versus State of Haryana, and another ....Respondents IV Civil Writ Petition No.2212 of 2005 (O&M) Partap Singh ...Petitioner versus State of Haryana, and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Civil Writ Petition No.5280 of 1987 (O&M) - 2 - Present: Mr. Maharaj Kumar, Advocate, for the petitioners. Mr. O.P. Sharma, Additional Advocate General, Haryana. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. All these writ petitions are connected and they concern the issue of regularization sought by the petitioners in the service of the respondent. It appears that in CWP No.5280 of 1987, an order had been passed allowing the petitioner's claim on the basis of statement alleged to have been made on behalf of the State that the services would be regularized. After the order was passed allowing it, the State has filed an appeal in LPA No.762 of 2002 contending that there was no such concession given and the regularization could not have been made in the manner directed by this Court. In the meanwhile, several other persons, who had not previously joined in the writ petition filed other writ petitions seeking for regularization on the same terms on which the same class of employees had been regularized. The Division Bench had directed the implementation of the single Judge's order before undertaking a consideration of whether the so-called concession would be the basis for granting regularization in the manner done by the single Judge. The LPA was subsequently allowed on 06.12.2006 and remitted to the Court Civil Writ Petition No.5280 of 1987 (O&M) - 3 - for fresh consideration in the light of the respective contentions of the parties on merits. The Division Bench had observed that the learned single Judge ought not to have relied on the order passed already in CWP No.2199 of 1998 while deciding the case in CWP No.5280 of 1987. The Bench had directed that the order was being set aside and the case was directed to be disposed of after hearing the parties. The matter is before this Court under such circumstances. 2. The notification passed on 11.05.1984 providing that the persons in class-III posts who had held a minimum period of 2 or 5 years as on 31.03.1993 on adhoc or daily basis would all be regularized if they fulfilled certain conditions. It is not now denied that all the petitioners have since been regularized in terms of the notification. The only point that arises for consideration is the effect of higher emoluments made pursuant to the order of this Court directing regularization of the services of the petitioners which was subsequently set aside by the Division Bench and remitted to this Court. The learned counsel for the petitioners would contend that the payments that had been made were on the directions of this Court and they had not committed any fraud or misrepresentation to avail to themselves of the additional benefits. Therefore, any payments made in excess over what they were entitled to by virtue of the regularization directed to be done by this Court which was later set aside cannot be reopened and the parties cannot be made to Civil Writ Petition No.5280 of 1987 (O&M) - 4 - refund the amount. This, according to the learned counsel, would fall within the parameters set down by a Full Bench of this Court in Budh Ram and others Versus State of Haryana and others-2009 (3) PLR 511. 3. The learned counsel for the State would however contend that the issue is not of any mistake committed by the establishment also and the persons, who had come by benefit through an order which is subsequently set aside shall be liable in restitution to refund the amount which they had already received. I would see this to be a situation which is not governed by the law laid down by Budh Ram. Any benefit that the petitioner had obtained through a direction of this Court which was subsequently set aside cannot avail to the person to contend that notwithstanding the order being set aside by the higher forum, the party shall be allowed for retention of the benefits. If the Bench had directed the consideration of the case on merits and it had not given any directions for retention of benefits already secured by the parties, then it cannot prevent a Court from examining a normal effect of an order being set aside. If the parties had pressed for an argument that the regularization must be taken as effective even from the date when they were absorbed in adhoc service, and if such a contention had also been accepted, then the question of ordering refund would not have been arisen. If the parties were satisfied, on the other hand, with securing a regularization in terms of the policy and would Civil Writ Petition No.5280 of 1987 (O&M) - 5 - argue only on the issue of their retention of the benefit, then I am afraid the inevitable consequence would be the normal rule of restitution would apply and the workmen are bound to return the excess which they have received. 4. It ought to be a painful reality for persons, who have come by a benefit and who have also consumed the benefits to be asked to refund. The petitioners shall not be required to refund the amount at one go, but the same shall be spread over a period of time so that the refund does not exceed more than 10% of the salary for every month. The State itself shall frame a proper schedule for securing the refund. If any employee has already retired and if there is any credit still available, then the same shall be recovered from such payments outstanding to be paid to the employee. If, on the other hand, there are no available credits for the employee and he has also retired, there shall be no deduction out of the pension for that would amount to providing for impermissible deduction which the law prohibits. To such class of persons the right of obtaining refund shall abate. 5. All the writ petitions are disposed of as above. (K. KANNAN) JUDGE 23.11.2011 sanjeev