IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 2762 of 2009 DATE OF DECISION : DECEMBER 15, 2009 SUSHMA DEVI & ORS. ....... PETITIONER(S) VERSUS THE STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. RS Manhas, Advocate, for the petitioner(s). Mr. BS Chahal, DAG, Punjab. AJAI LAMBA, J. (Oral) This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari quashing orders dated 17.3.2005 and 7.4.2006 (Annexures P-6 and P-7, respectively. The petitioners further pray that, consequently, the respondents be directed to refix their pay. At the outset, learned counsel for the petitioners contends that the petitioners confine the claim in challenge to recovery only. Civil Writ Petition No. 2762 of 2009 2 It has been contended on behalf of the petitioners that advertisement dated 19.8.1992 was issued for recruitment to 2,461 posts of teachers in various subjects in the State of Punjab. The petitioners applied, were considered and were appointed. It, however, transpires that the petitioners were appointed beyond the number of advertised posts. While 2,461 posts were advertised, the State of Punjab appointed 7,737 teachers with effect from February, 1994 onwards. The appointments made in pursuance to advertisement dated 19.8.1992 were challenged in this Court by way of filing CWP 5985 of 1994 (Yashwinder Singh Rana and another v. State of Punjab and others). The appointments, beyond the number of posts advertised, were held to be illegal. In the meantime, about 30000 vacancies of teachers became available. The State Government terminated the services of the persons appointed beyond the number of posts advertised, however, reappointed them on adhoc basis, against available vacancies. The petitioners fell in that category. A Contempt of Court Petition bearing No.409 of 1996 came to be filed and it was projected that the respondent-State was trying to bye-pass the judgment rendered by this Court in Yashwinder Singh Rana's case (supra). On behalf of the State, an undertaking was given that no weightage for adhoc service rendered by such persons would be given. On 12.1.1996, 10,000 posts of teachers and on 18.10.1996, 12,200 posts of teachers, were advertised. The petitioners were selected and appointed in pursuance of the selection. Civil Writ Petition No. 2762 of 2009 3 COCP 1063 of 1997 was filed alleging violation of the order passed in Yashwinder Singh Rana's case (supra). The respondent-State terminated the services of adhoc teachers, who were in service on 13.11.1997. Accordingly, contempt petition was disposed of as having become infructuous, vide order dated 17.11.1997. It has been pointed out that there was no gap in service of the petitioners. Only notional gap in the adhoc service was there as the appointment was on 89 days basis. Be that as it may, consequent upon regular appointment of the petitioners, the pay was fixed while taking into account the service rendered by the petitioners on adhoc basis prior to their second selection and appointment. Salaries were being paid accordingly. An audit objection came to be raised in regard to fixation of pay of some of the teachers (not the petitioners) for taking into account the service rendered by them prior to their regular selection and appointment. It is in this context of the matter that the impugned orders have been issued for recovery and refixation of pay. Order Annexure P-6 is a memo issued from the office of Director of Public Instructions (S.E.), Punjab, which states that the benefit of service rendered on 89 days basis cannot be given. Order Annexure P- 7 has been passed directing refixation of pay of the officials for excess salary paid while counting adhoc service to be regular service. Learned counsel for the petitioners has pointed out that an identical issue was raised in CWP 15885 of 2008 (Rajan Kumar and others v. The State of Punjab and others) decided on 25.8.2009. Civil Writ Petition No. 2762 of 2009 4 Learned counsel for the petitioners contends that the petitioners had no role to play in actuating fixation of pay and giving benefit of service rendered on adhoc basis, treating it to be regular service. In the absence of fraud and misrepresentation, recovery cannot be effected by the respondents. Learned counsel for the petitioners states that the petitioners accept the refixed pay. Learned counsel for the respondent-State contends that, indeed, there is no material to indicate that the petitioners had played any fraud or had misrepresented facts so as to actuate initial fixation of pay. It is the conceded position that the issue is covered by the Full Bench judgment of this Court rendered in CWP 2799 of 2008 (Budh Ram and others v. State of Haryana and others) decided on 22.5.2009, as also the judgment of this Court rendered in Yashwinder Singh Rana's case (supra). In view of the above, the petition is allowed in limited terms. It is held that the respondents would not be entitled to effect any recovery from the petitioners. Consequently, it is directed that the amount recovered from the petitioners in the interregnum period would be refunded to the petitioners within a period of four months of receipt of certified copy of the order. December 15, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?