HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No.68 of 2008 Shri Hari Ram Joshi S/o late Suresha Nand Joshi … Appellant Versus State & others … Respondents Dated:- 15th December, 2009 Coram: Hon. J. S. Khehar, C.J. Hon. Tarun Argarwala, J. Hon’ble J. S. Khehar, C.J. (Oral) Mr. Subhash Upadhyaya, Advocate for the appellant. Mrs. Beena Pandey, Standing Counsel for the State of U.P. Mr. H. M. Raturi, Standing Counsel for the State of Uttarakhand. The appellant was inducted in the service of the P.W.D. as a Mechanic on work charge basis w.e.f. 01.10.1968. The status of the appellant was altered from “work charge basis” to “temporary basis” w.e.f. 17.01.1972. Pay-scale of the post of Mechanic was revised w.e.f. 01.01.1986. Based thereon, by an order dated 08.11.1993 the appellant was placed in the revised pay-scale of Rs.950-1500. The appellant retired on attaining the age of superannuation on 30.04.1996. At that juncture, he was drawing pay in the revised pay-scale of Rs.950- 1500 accordingly his retrial benefits were drawn on the basis of salary drawn in the aforesaid pay-scale. The State Government realized that it was wrongfully paying salary to the appellant in the revised pay-scale of Rs.950-1500. The State Government was of the view that the appellant should have been paid salary in the pay-scale of Rs.825-1200 (in place of Rs.950-1500). It is, therefore, that the State Government issued an order dated 16.03.1998 placing the appellant in the revised pay- scale of Rs.825-1200 w.e.f. 01.01.1986. Based on the aforesaid determination of the State Government a recovery of Rs.12,499/- was ordered to be made from the appellant. Accordingly, while placing him in the revised pay-scale of Rs.825-1200/- w.e.f. 01.01.1986 the State Government also ordered a recovery of Rs.12,499/- from the appellant. In so far as the issue of recovery of Rs.12,499/- ordered from the appellant is concerned, it is the vehement contention of the learned counsel for the appellant, that the revised pay scale granted to the appellant vide order dated 08.11.1993 was not on the basis of any misrepresentation made by him. It is submitted by the learned counsel for the appellant that vide order dated 08.11.1993 the State Government has placed the appellant in the revised pay scale of Rs.950-1500 w.e.f. 01.01.1986 unilaterally. Since no fault could be attributed to the appellant in so far as the fixation of his salary in the 2 pay-scale of Rs.950-1500, it is submitted that it is wholly unfair and unjust for the State Government to effect any recovery from the amount paid to him. It is, therefore, that the appellant has assailed the action of the respondents in recovering a sum of Rs.12,499/- from him, based on the wrongful fixation in the pay-scale of Rs.950-1500. In so far as the instant submission is concerned, learned counsel for the appellant has placed reliance on a decision rendered by the Supreme Court in Sahib Ram Vs. The State of Haryana & others, J.T. 1995 (1) S.C. 24. In this behalf pointed attention of this Court has been invited to the conclusion drawn by the Supreme Court in paragraph 5 of the aforesaid judgment. Paragraph 5 relied upon by the learned counsel for the appellant is being extracted hereunder:- “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstance the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any mis- representation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The Principle of equal pay for equal work would not apply to the scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” Learned counsel for the respondents does not dispute the factual position asserted at the hands of the learned counsel for the appellant. It is not disputed that the revised salary released to the appellant (in the pay-scale of Rs.950-1500/-) w.e.f. 01.01.1986 vide order dated 08.11.1993 was at the hands of the State Government, and that, it was not on account of any mis-representation made by the appellant. Accordingly, we are satisfied that the contention advanced by the learned counsel for the appellant (so as to assail the action of the respondents in effecting the recovery of Rs.12,499/- from him) is fully justified. The instant contention of the learned counsel for the appellant is accordingly accepted. The order dated 16.03.1998, to the effect, that it directs the appellant to refund a sum of Rs.12,499/- to the respondents on account of excess wrongfully paid to him is hereby set-aside. Based on the fact that the appellant has been placed in the pay- scale of Rs.825-1200, it is asserted, that the pay-scale of Rs.825- 1200 has been assigned only for Class IV employees. Accordingly, it is submitted that if the pay-scale of Rs.825-1200 had to be granted to the appellant he should have been allowed to continue till the age of 60 years, which is the age of superannuation of Class-IV 3 employees. It is pointed out, that since the appellant was paid salary in the pay scale of Rs.950-1500 he was treated as a Class III employee, and accordingly, was retired on attaining the age of 58 years. It is the submission of the learned counsel for the appellant that after giving the pay-scales of Rs.825-1200 to the appellant, the appellant should have been allowed to continue till the age of 60 years – the age of retirement of a Class-IV employee. And that, since he has crossed the age of 60 years he should be paid salary for the period of two years to which he would have otherwise been entitled to. While dealing with the aforesaid contention, it is not possible for us to lose sight of the fact that the appellant factually retired at the age of superannuation on 30.04.1996. The writ petition in hand was filed by the appellant in the year 1998 by which time he had already crossed the age of superannuation. Even though, it would be correct for the appellant to assert that since the impugned order was passed only on 16.03.1998 he could not have assailed it earlier. All the same, one cannot ignore the fact that the appellant had already crossed the age of superannuation fixed for the Class-IV employees. When he approached this Court. By the order passed today, we have allowed the appellant to retain the salary paid to him in the pay scale of Rs.950-1500 till the age of his superannuation i.e. till 30.04.1996. Thus viewed, the appellant has retained all benefits, which could have been due to him as a Class-III employee, upto the age of his retirement. The same have remained intact even after passing of our order today. Thus viewed, we are satisfied that it would not be in the fitness of matters now to allow the appellant to continue further in service of 2 years notionally upto 30.04.1998 or to alternatively pay him salary for a period of two years. We accordingly rejected the instant submission of the learned counsel for the appellant. The last contention of the learned counsel for the appellant was that the action of the respondents to re-determine his pensionery benefits on the basis of wages drawn in the pay-scale of Rs.825- 1200 is not sustainable in law. Having retired on attaining the age of superannuation w.e.f. 30.04.1996 when he was drawing salary in the pay-scale of Rs.950-1500 the appellant was entitled to be paid pension on the basis of salary actually drawn by him at the time of his superannuation. We have considered the last contention of the learned counsel for the appellant, as has been noticed in the foregoing paragraph. It is not possible to accept the same. The appellant has not assailed the action of the respondents in fixing his salary in the pay scale of Rs.825-1200 w.e.f. 01.01.1986, that being so, his rightful entitlement to the wages could have only been in the pay-scale of Rs.825-1200. Accordingly, his pensionery entitlement was also liable to be determined in the said scale alone i.e. in the pay-scale of Rs.825-1200, and not in the pay-scale of Rs.950-1500 which was released to him wrongfully. For the reasons recorded hereinabove, in the order dated 16.03.1998, the direction to refund the excess amount of Rs.12,499/- 4 is hereby quashed. So far as the other contentions raised by learned counsel for the appellant are concerned, we find no merit therein. The instant appeal is accordingly disposed in the aforesaid terms. (Tarun Agarwala, J.) (J. S. Khehar, C.J.) Dated 15.12.2009 LSR / Bhaskar