RSA No.1759 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1759 of 2010 (O&M) Date of decision 20.7.2011. State of Haryana and others ...... Appellants. versus Rani alias Rani Devi ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Rajiv Kawatra, Senior Deputy Advocate General, Haryana for the appellants. Mr. Pritam Saini, Advocate for the respondent. K.C.PURI . J. Challenge in the present regular second appeal is the judgment and decree dated 30.11.2009 passed by Shri Ashok Bhardwaj, learned Additional District Judge, Gurgaon vide which the appeal preferred by defendant/appellant against the judgment and decree dated 22.4.2009 passed by Shri Pawan Kumar, Civil Judge (Junior Division), Gurgaon was dismissed, however, the cross-objection preferred by the plaintiff were accepted. 2. Briefly stated the case of the plaintiff Rani alias Rani Devi is RSA No.1759 of 2010 2 that she joined the services of defendants as Auxiliary Nurse Midwife (in short - ANM ) w.e.f. 5.7.1982 on adhoc basis but without interruption. Subsequently, her services were regularized w.e.f. 1.11.1986. Haryana Government introduced a scheme for grant of special increment w.e.f. 1.1.1991 vide instruction dated 14.5.1991 after completion of ten years of service. Later on said instructions were withdrawn and another scheme for grant of additional increment on completion of 8 years and 18 years of service w.e.f. 1.7.1992 was introduced vide letter dated 18.7.1992. On introduction of the scheme, the plaintiff should have been granted special increment after completion of eight years of service with effect from 5.7.1992 vide instructions dated 7.8.1992. Thereafter, the Haryana Government had withdrawn the scheme of additional increment and introduced a policy of grant of higher standard pay scale w.e.f. 1.1.1994 vide notification dated 7.1.1998. Plaintiff was allowed ACP w.e.f. 1.11.1996 whereas she should have been granted the same w.e.f. 1.1.1996 in continuation of grant of higher standard pay scale as well as increment which has not been given to her. Further while fixing the salary, one additional increment in the pay scale of Rs.5000/- has to be granted which was accordingly granted and the salary of the plaintiff was fixed at Rs.5150/-. The defendants issued notice dated 24.5.2006 to the plaintiff for effecting recovery, which is illegal and unlawful. Therefore, the plaintiff came up with the suit claiming a decree for declaration to the effect that issue of show cause notice dated 24.5.2006 revising salary in the pay scale of Rs.4000-6000 is totally illegal and unlawful and in fact the salary already fixed in the pay scale of Rs.5000-7850/- at the initial pay of Rs.5150/-. She RSA No.1759 of 2010 3 further sought restraint order against the defendants from revising salary already fixed. 3. On put to notice, defendants filed joint written statement raising preliminary objections regarding notice under Section 80 CPC, qua estoppel ; cause of action ; proper valuation of suit for purposes of court fee etc. 4. On merits, it is submitted that the plaintiff has already been granted the benefit of additional increment after completion of 8/18 years of service w.e.f. 1.7.1992 vide order dated 21.3.1997. The Haryana Government vide letter dated 8.2.1994 decided to grant time bound higher standard pay scale to Haryana Government employees to group C and D in replacement of earlier scheme additional increment after 8/18 years of service contained in letter dated 7.8.1992 w.e.f. 1.1.1994. Therefore, she was not entitled to higher standard scale on 1.1.1994 as it was to be granted after ten years of regular satisfactory service. Further, the pay scale of Haryana Government employees was revised from 1.1.1996 vide notification dated 7.1.1998. The plaintiff had also opted for the revised pay scale vide undertaking dated 27.11.1997. She was granted Ist ACP scale of Rs.5000-7850 inadvertently vide letter dated 7.12.1998. The matter was reconsidered and she was granted ACP scale w.e.f. 1.4.2000. Further, on review it was found that her service record was not satisfactory and accordingly first ACP was granted to her w.e.f. 1.4.2000 vide detailed order dated 16.6.2005. She has already filed a Civil Suit which is pending adjudication. Since the plaintiff was drawing higher pay scale than to her entitlement, notice for recovery was issued to her. The plaintiff has not filed any representation to the said notice rather has filed the present suit. RSA No.1759 of 2010 4 Further, she had given undertaking on 27.1.1998 that in case any excess payment is found to be made as a result of incorrect fixation of pay, she would refund the same. 5. Replication was filed, controverting the averments of written statement and reasserting those of plaint. 6. From the pleadings of the parties, following issues were framed :- 1. Whether the show cause notice dated 24.5.2006 revising salary in the pay scale of Rs.4000-6000 of plaintiff is totally illegal and unlawful ?OPP 2. Whether the said salary already fixed in the pay scale of Rs.5000-7850 as initial pay of Rs.5150/- as fixed by Shri R.K.Jain, Accounts Officer is legal ?OPP 3. Whether the defendants be restrained from revising the salary already fixed in favour of the plaintiff ?OPP 4. Whether the suit is not maintainable for want of mandatory notice under section 80 CPC ?OPD 5. Whether the plaintiff has no cause of action and locus standi to file the present suit ?OPD 6. Whether the suit is bad for misjoinder and nonjoinder of necessary parties being improperly valued ?OPD 7. Relief. 7. The parties have led their respective evidence. The trial Court after hearing the learned counsel for the parties decided issue No.1 partly in favour of the plaintiff and issue Nos.2 and 3 against her. Issue Nos.4 to 6 were not pressed during the course of arguments. Therefore, the learned trial Court partly decreed the suit of the plaintiff to the extent that recovery of amount cannot be made. However, suit regarding claim for not withdrawing the concession of ACP was declined vide judgment dated RSA No.1759 of 2010 5 22.4.2009 passed by Civil Judge (Junior Division) Gurgoan. 8. Feeling dis-satisfied with the judgment and decree dated 22.4.2009 defendants preferred appeal for dismissing the suit of the plaintiff altogether whereas the cross-objection preferred by the plaintiff were allowed. 9. Still feeling dis-satisfied with the aforesaid judgments and decrees passed by the Courts below, the State of Haryana preferred the instant regular second appeal. 10. While issuing notice of motion, this Court observed as under :- “Present : Mr. Sunil Nehra, Sr.DAG, Haryana for the appellants. ****** Though the State would not have any grievance so far as the direction of the court that the recovery could not be effected from the respondent-plaintiff is concerned as he had not made any misrepresentation when the ACP was granted to him, but the State would certainly be aggrieved against the direction where it is held by the first Appellate Court that the average reports taken into consideration to deny ACP were required to be communicated and having not done so has held the order to be bad. Notice of motion for 29.6.2010.” 11. So, in view of the order passed at the motion stage dated 6.5.2010, the defendant/appellant cannot argue regarding the recovery of amount which has already been paid to the plaintiff. Otherwise, the full RSA No.1759 of 2010 6 Bench of this Court in authority Budh Ram and others vs. State of Haryana and others 2009 (3) PLR 511, it has been held that the amount paid to the employee bonafidely and not on the basis of fraud committed by the employee normally should not be recovered from him/her. 12 However, the second part of judgment passed by the learned Additional District Judge, vide which the cross-objection of the plaintiff have been accepted is concerned, the counsel for the plaintiff was fair enough to concede that in view of the ACRs, the date of increment would be from the date when his ACRs were found good to the extent of 70% as per rules. 13. So in view of the admitted proposition of law, the appeal stands partly accepted to the extent vide which the cross-objection has been accepted. However, the judgment of the trial Court stands upheld. 14. In view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs. 15. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 20 , 2011 sv