IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 6644 of 2008 Date of Decision : September 3, 2010 Dr. Rajinder Kumar Negi and others Petitioners Versus State of Himachal Pradesh Respondent Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioners : Ms. Sulochana Kaundal, Advocate, vice Mr. O. P. Thakur, Advocate, for the petitioners. For the respondent : Mr. Rajesh Mandhotra, Deputy Advocate General for the respondent/State. Sanjay Karol, J. (Oral) 1. This petition is being decided keeping in view the peculiar facts and circumstances of the case. 2. In this petition the petitioners have prayed for the following reliefs:- “1. Order dated 02.12.99 (A-4 supra) be kindly struck down and the Govt. be held not entitled to effect the recover of any incentive amount so released to the applicants under the Special Non-Practising Allowance Scheme floated on 21.09.95 (A-1 supra). Whether reports of Local Papers may be allowed to see the judgment? 2 2. Office Memorandum dated 17.03.97 (A-3) be kindly struck down, the applicants be held entitled to receive and the Govt. be correspondingly held liable to pay the requisite financial balance benefit of the scheme (A-1 supra) by way of legitimate compensation for the illegal breach thereof in the midst of three years term after having induced the applicants to act to their disadvantage with the legitimate expectation of the full benefits of the scheme. 3. The Govt. should also be held liable to pay penal interest @ 18% p.a. on the balance incentive amount to the applicants on their next instalments which would have fallen due to them immediately on the completion of second and third year of active service, from the date of accrual to the date of actual payment. 4. The Govt. should be burdened with the cost of this O.A. 5. Any other or further relief deemed just and proper in given premise be kindly granted to the applicants qua the Govt.” (Emphasis supplied). 3. Ms. Sulochana Kaundal, learned counsel under instructions from her clients restricts her claim qua relief No. 1 only. 4. There is no dispute that the Government of Himachal Pradesh accorded certain incentives to Doctors of Health and Ayurveda Departments of the State. This is evident from the Office Memorandum dated 21.9.1995 (Annexure A-1). Such of those persons who were posted in areas mentioned in Annexures A-I & A- II and B-I & B-II being hard/difficult/tribal areas were entitled to certain monetary benefits known as “Special Non-Practising 3 Allowance” ranging from Rs. 75,000/- to Rs. 1,00,000/-. The Doctors however were entitled to the same subject to their completing three years of service in these areas which in the case of the petitioners is to be w.e.f. 15.9.1995. 5. There is no dispute that petitioners No. 1 to 4 worked in the areas notified in the Office Memorandum (Annexure A-1) w.e.f. 30.5.1993 to 14.7.1997, 19.7.1994 to 25.7.1997, 2.7.1993 to 21.7.1997 and 16.5.1988 to 27.8.1997, respectively. 6. The State Government in terms of Office Memorandum dated 17.3.1997 (Annexure A-3) withdrew the scheme. The said office memorandum is reproduced as under:- “OFFICE MEMORANDUM Whereas the Government of Himachal Pradesh had notified “Special Non-Practicing Allowance” scheme vide this Department’s Office Memorandum of even number dated the 21st September, 1995 to give financial incentives to the doctors of Health and Family Welfare and the Ayurveda Department who volunteer their services to the far flung and remote areas of the State. But it has been experienced that this scheme has failed to evoke positive response from the doctors and the scheme has not been a total success. Therefore, the Governor, Himachal Pradesh, is pleased to withdraw the above scheme “Special Non-Practising Allowance”, with immediate effect in public interest. By Order, J.P. Negi, Commissioner-cum-Secretary (Health)- to the Government of Himachal Pradesh” 4 7. It is evident that while withdrawing the scheme the Government did not take any decision with regard to the amounts which already stood disbursed in terms of scheme (Annexure A-1). However subsequently the Government initiated action of recovering the amounts already disbursed in terms of the said scheme to the petitioners. This was protested by the petitioners. But the recovery was sought to be affected from the petitioners in terms of order dated 2.12.1999 (Annexure A-4) which also reads as under:- “To The Sr. Medical Officer, Refferal Hospital Rampur Bushar Distt. Shimla-(HP) Dated:-2.12.99. Subject:- Issue of revised LPC due to audit objection. I am to inform you that the Accountant General audit has raised an audit objection regarding over payment of special Non-Practising Allowance in favour of Dr. Rajender Kumar, Medical Officer for the period 15.9.95 to 14.9.96 for Rs. 25,000/- for non completion of normal tenure of three years services in hard/very hard area. A photo copy of audit para No. 6 is also enclosed herewith for your ready reference and further necessary action. Since the officer is working under your kind control, hence you are requested to effect the recovery from him immediately as per amount of recovery shown in enclosed revised LPC and deposit the same into Govt. Treasury under relevant head of account and send the recovery challan to this office so that we may be able to get the para settled from the audit. Please treat it as “most Urgent” Sd/- Encls: 1. Photo copy of para. Chief Medical Officer, 2. Revised LPC Kinnaur Distt. at R/Peo.” 5 8. Petitioners were constrained to file the instant petition and on 1.5.2000 the following order was passed:- “Notice. Learned Addl. Advocate General waives service of notice on behalf of respondents/State. Reply within six weeks. List thereafter. However, till further orders, the recoveries as detailed in Annexure – A4, be not effected from the applicants. Copy dasti.” This order is in continuation. 9. The fact that petitioners had worked in tribal areas falling under the scheme after 21.9.1995 is not in dispute. It is also not in dispute that any of the terms and conditions of the office memorandum dated 21.9.1995 ever stood violated by the petitioners. Petitioners even though posted in these areas prior to the issuance of office memorandum dated 21.9.1995 were entitled for the benefits under the same. The scheme does not create any distinction between the employees already posted or likely to be posted after its issuance. The scheme was withdrawn unilaterally by the Government. There was no fault of the petitioners. The order of withdrawal also does not stipulate that money already disbursed is to be recovered from the employees. It was a policy decision taken by the Government by taking into account all attending circumstances. Consequently any subsequent action on the part of the respondent in recovery the amount is uncalled for and untenable in law. 6 10. Recovery was sought to be affected more so on the basis of the audit objections raised by the audit parties. 11. For all the aforesaid reasons the impugned letter dated 2.12.1999 (Annexure A-4) qua the petitioners is quashed. No recovery could be affected from the petitioners as such no further orders are required to be passed. 12. Petition stands disposed of accordingly. (Sanjay Karol), Judge. September 3, 2010 (PK)