IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 14396 of 2008. Judgment reserved on : 11.04.2011. Date of decision: 26.04.2011. _______________________________________________________ Dr. B.B. Bhardwaj. ….. Petitioner. Versus The State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. R.L.Kaith, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General with Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, Judge. The petitioner has prayed mainly the following reliefs:- i) To quash and set-aside the impugned Memo: at Annexure ‘PA’ dated 18.5.2006 and direct the respondents to maintain status quo i.e. pay him ` 10,025/- (basic pay) w.e.f 22.1.1996 and not to reduce the same in any manner, as reflected therein i.e. Annexure ‘PA’; ii) To direct the respondents not to make recovery from the salary of the applicant w.e.f. 1.1.1996 onwards; 2. The brief facts of the case are that the pay of the petitioner was rightly fixed vide government notification dated 19.09.1998 at ` 10,025/- with effect from 22.01.1996. The respondent No. 3 without issuing show cause notice reduced the pay Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 of the petitioner from ` 10,025/- to ` 8,650/- with effect from 01.01.1996 vide Office Order dated 08.08.2001. The petitioner un- interruptedly enjoyed till 08.08.2001 the benefit of pay fixed on 22.01.1996. 3. The Office Order dated 08.08.2001 was assailed before the Tribunal vide OA (M) No. 385 of 2001, which was decided on 12.11.2002. The order dated 12.11.2002 has attained finality. 4. The respondent No. 3 issued another memo dated 18.07.2005 as to why pay of the petitioner should not be re-fixed at ` 8,650/- with effect from 22.1.1996. The memo dated 18.07.2005 was replied by petitioner on 04.08.2005 and in August, 2005. The respondent No. 3 in violation of order dated 12.11.2002 of the Tribunal rejected the reply dated 25.08.2005 vide memo dated 18.05.2006 Annexure PA. It has been alleged that memo dated 18.05.2006 is wrong, illegal and arbitrary. 5. The petition has been contested by the respondents 1 to 3 by filing reply. It has been stated that the Tribunal while disposing of OA (M) No. 385 of 2001 observed that it has been fairly and squarely admitted by learned Additional Advocate General, before reduction of pay scale, no show cause notice was given to the petitioner to defend his case. The Tribunal has not debarred the respondents from effecting recoveries except following due process that after serving the show-cause notice and seeking the reply of the petitioner. This has now been complied with vide memo dated 18.07.2005. The petitioner under the garb of the order of the Tribunal cannot take wrong benefit. The recovery of amount is legal and just. It has also been stated that petitioner had completed four years on 22.01.1996, 3 he was allowed pay scale of ` 10,025-15,100/- with effect from 01.01.1997 as per notification dated 01.09.1998. The Finance Department vide letter dated 06.10.1998 issued clarification in continuation of notification dated 01.09.1998 that some departments have started fixing pay of officers granting four tier pay scale on the basis of the Finance Department notification dated 01.09.1998 without waiting detailed guidelines/clarifications from the Government. The Finance Department advised that till detailed guidelines are issued on the subject, further cases of pay fixation involving placement in the higher pay scale may ( sic not) be finalized and the cases already decided will also be subject to review in accordance with the guidelines/clarifications, as may be issued. 6. The case of the petitioner was finalized prior to the issuance of the guidelines/clarifications by the Finance Department, hence, was subject to review subsequently on the basis of guidelines/clarifications issued on 23.06.2000. The petitioner was given pay scale with effect from 22.01.1996 which was not admissible in view of the instructions/guidelines on the subject matter. In these circumstances, vide Office Order dated 08.07.2001 the pay of the petitioner was re-fixed. But, at the time of recovery of over-payment from the petitioner, no show cause notice was given by the respondent No.3 to the petitioner. Therefore, OA (M) No. 385/2001 was disposed of. Now the show-cause notice has been given to the petitioner and the reply submitted by the petitioner to the same was examined in detail and found un-satisfactory. Therefore, the action of the respondents is legal and justified. 4 7. I have heard learned counsel for the parties. It is the case of the petitioner that his pay was rightly fixed at `10,025/- with effect from 22.01.1996 vide Office Order Annexure PB in pursuance of government notification dated 01.09.1998 read with Director Health Service letter dated 07.09.1998 with effect from 22.01.1996. The pay of the petitioner was wrongly reduced from ` 10,025/- to ` 8,650/- vide Office Order dated 08.08.2001 Annexure PC, which was challenged before the Tribunal in OA (M) No. 385 of 2001 which was allowed on 12.11.2002. The order dated 12.11.2002 has attained finality and, therefore, the case of the petitioner for re-fixation of pay could not be re-opened. 8. The Tribunal vide order dated 12.11.2002 has not decided the dispute on merits, but quashed the order of re-fixation of the pay of petitioner on the ground of violation of principle of natural justice. There is nothing in the order dated 12.11.2002 that the respondents were debarred from re-fixing the pay of the petitioner after following the principle of natural justice. The Tribunal had not decided the matter on merits. Therefore, order dated 12.11.2002 cannot be read that the respondents were debarred from re-fixing the pay of the petitioner after following the principle of natural justice. 9. The memo dated 18.05.2006 Annexure PA has been issued after considering the reply dated 25.08.2005 of the petitioner. The petitioner has challenged the memo dated 18.05.2006 on the ground that once Tribunal had set-aside the re-fixation of pay of the petitioner by the respondents, the pay of the petitioner could not be again re-fixed by the respondents vide memo dated 18.05.2006. At 5 the time of hearing on behalf of the petitioner, no other point was raised to challenge the memo dated 18.05.2006. 10. The government has right to rectify the mistake in financial matters when it comes to the notice of the government that a benefit has been given wrongly to which the employee is not legally entitled. There was no bar for re-fixing the pay of the petitioner. In these circumstances, no fault can be found in the re-fixation of pay of the petitioner vide memo dated 18.05.2006. 11. It has been submitted on behalf of the petitioner that petitioner was not an instrumental in wrong fixation of his pay, nor any plea of misrepresentation or fraud on the part of the petitioner for fixing his pay has been raised by the respondents. The pay of the petitioner was fixed by respondents 1 to 3 on their own. The Supreme Court in Syed Abdul Qadir and Others versus State of Bihar and Others (2009) 3 SCC 475, has held as follows:- “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge 6 of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” 12. In view of legal position, it is clear that respondents 1 to 3 were well within their right to re-fix the pay of the petitioner, but in absence of defence of fraud and misrepresentation or the plea that petitioner had the knowledge of wrong fixation, the respondents 1 to 3 are not entitled to recover the amount already paid to the petitioner prior to 18.05.2006. The re-fixation of pay of the petitioner vide memo dated 18.05.2006 Annexure PA is legal. The petitioner cannot take benefit of interim order dated 22.06.2006 passed by the Tribunal after the decision of the petition on merits. 13. In view of above, the petition is partly allowed. The pay of the petitioner vide memo dated 18.05.2006 Annexure PA is upheld. However, respondents are directed not to recover any amount already paid to the petitioner prior to re-fixation of his pay vide memo dated 18.05.2006 Annexure PA. Interim order dated 22.06.2006 stands vacated. April 26, 2011 (Kuldip Singh), (krt) Judge.