IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.2655 of 2010 and connected matters. Decided on: 16th April, 2012. 1. CWP No.2655 of 2010 Roop Lal Prashar son of late Shri Puran Chand, resident of Prashar Niwas, Majyat Totu, Shimla, H.P. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 2. CWP No.2717 of 2009 Harnam Singh son of late Shri Ram Singh R/o VPO Sunet, Tehsil Fatehpur, District Kangra, H.P. Presently working as Supdt. Grade-II in the office of SDSCO, Ghumarwin, District Bilaspur, H.P. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 3. CWP No.2879 of 2011. Shri Subhash Chand Dohroo son of late Shri Makhan Lal resident of Village Ghuggar Lower Dohroo Mohalla, Tehsil Palampur, District Kangra, Himachal Pradesh. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 2 4. CWP No.2880 of 2011. Shri Sumer Singh Thakur son of late Shri Chandhari Ram resident of Village Kothuwan (Sandhole), District Mandi, Himachal Pradesh. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 5. CWP No.2883 of 2011. Kumari Krishna Chauhan daughter of late Shri Sukh Ram resident of Village Marawal (Kalu-Di-Hati), P.O. Marawal, Tehsil, Palampur, District Kangra, Himachal Pradesh. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 6. CWP No.2884 of 2011. Shri Bhupinder Singh son of late Shri Jagir Singh resident of 1356/6 Mohalla Amarpur near PWD Colony, Nahan, District Sirmaur, Himachal Pradesh. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 7. CWP No.2891 of 2011. Shri Pawan Kumar Sharma son of Shri Mool Ran resident of Village & P.O. Kaswan Poonar, Tehsil Palampur, District Kangra, Himachal Pradesh. .......Petitioner. 3 Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 8. CWP No.2895 of 2011. Shri Nanak Chand son of late Shri Daya Ram resident of Village Mokroo, P.O. Sandhole, District Mandi, Himachal Pradesh. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. ……..Respondents. 9. CWP No.2656 of 2010. Shri Nek Chand Sharma son of Shri M.R.Sharma, resident of Sharma Niwas, below B.C.S., Phase III, New Shimla. .......Petitioner. Versus 1. The State of Himachal Pradesh through the Principal Secretary (Agriculture) to the Government of Himachal Pradesh, Shimla-2. 2. Director of Agriculture, Himachal Pradesh, Shimla. …..Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting? Yes/No. For the petitioners : Mr. Lokender Paul Thakur, Advocate. For the Respondents: Mr. R.K. Bawa, Advocate General, with Mr. J.K. Verma, DAG. ------------------------------------------------------------------------------------------- 4 Justice Kurian Joseph, CJ. (Oral) The petitioners are aggrieved, since their pension has been re-fixed, with a direction to recover the excess amount already paid while they were in service. The simple issue pertains to the date, on which the petitioners were entitled to the Proficiency Step Up. It is not in dispute that the Proficiency Step Up, on completion of 8 years and 18 years, is given to avoid stagnation, in a particular scale. In other words, Annexure P-1, as clarified in Annexure P-2 policy, clearly shows that in case there is a change in the time scale within the stipulated time of 8 years and 18 years, an employee will not be entitled to Proficiency Step Up. In the case of the petitioners, on their initial entry in the post of clerks, before completion of 8 years, they were promoted as senior clerks with a change in the time scale. Only if an employee continues in the same time scale, for a continuous period of 8 years and 18 years thereafter taken together, he would be entitled to Proficiency Step Up. Inadvertently, in the case of the petitioners, their date of initial entry in service, without noticing their promotion as Senior Clerks in between, has been taken for counting 8 years. No doubt, that mistake was not noticed while they were in service, though several audits had taken place. However, at the time of fixation of 5 pension, it was noticed and steps were taken to re-fix the pay and the consequential pension. 2. Placing reliance on the decision of the Apex Court in Syed Abdul Qadir and Others v. State of Bihar and Others, reported in (2009) 3 SCC 475, it is contended that the petitioners have not made any representation, much less misrepresentation for grant of Proficiency Step Up and the pay originally fixed, cannot be re-fixed, in any case after retirement. It is also submitted that in any case, there is no justification for recovery of the excess payment already made after retirement. 3. Whether the petitioners would be entitled to unjust enrichment, is the moot question. They may not have played any fraud or they may not have made any misrepresentation in the fixation of pay. However, in case any mistake has been committed bonafide or otherwise by the officials dealing with the file, it will be highly unreasonable to hold that the mistake cannot be corrected, even if it is noticed later. That alone has been done in this case. The Apex Court in Syed Abdul Qadir’s case also was not against re-fixation, the relief was limited to recovery only. And on recovery also it was clarified that the relief is not of right but flows only out of equity. To quote para 58, “The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising 6 judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank Vs. Manjeet Singh [2006] 8 SCC 647; and Bihar State Electricity Board Vs. Bijay Bahadur [2000] 10 SCC 99.” 4. Proficiency Step Up, for which the petitioners were not entitled, has been wrongly granted to them and the moment it was found out, steps were taken to correct the same. The petitioners were given an opportunity and their representations were considered and they have been informed that only a mistake has been rectified in re-fixing the pay and the consequential pension. 4. As far as the people who have retired from service are concerned, it would be harsh and unreasonable to make recovery from the pension. Situation would have been different had steps been taken while they were in service and mistake detected within a reasonable time, in which case, without much hardship recovery could have been made, either in affordable instalments or from the pensionary benefits. But recovery shall not be made in the case of pensioners, who count only on the pension for their 7 livelihood. Therefore, while the State is justified in re-fixing the pay and the pension by correcting the mistakes, there shall not be any recovery of the amounts of pension, already paid to them while they were in service. We make it clear that it will be open to the State, if so advised, to take steps to recover the same from any erring official, who might have made the wrong fixation intentionally. 5. All the writ petitions are disposed of, so also the pending applications, if any. (Justice Kurian Joseph), Chief Justice. April 16, 2012 (Justice Dharam Chand Chaudhary) (pc/ps) Judge.