IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3944 of 2008 Date of decision: 5th July, 2010 Paramjit Singh … Petitioner Versus State of Haryana and another … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.K. Malik, Senior Advocate with Mr. Surya Pratap Singh, Advocate for the petitioner. None for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The petitioner was appointed as a Clerk in the office of Director General of Police, Haryana on compassionate grounds vide appointment letter (Annexure P-1) dated 17th February, 1987. Before the prayer of the petitioner is considered, it will be necessary to notice the contents of the appointment letter, as Mr.R.K. Malik, Senior Advocate appearing for the petitioner, has laid much emphasis on the same. The relevant portion of the appointment letter reads as under: “No.11866/SA-3(.) APPOINTMENT (.) On receipt of Govt.’s approval vide their Memo No.14/24/86-6 HG-I dated 12.11.86 Shri Paramjit Singh s/o late SI Shiv Singh was appointed as temporary Clerk in relaxation of his educational qualifications and not through S.S.S. Board, Haryana and was posted to the office of DIG/CID, Haryana Chandigarh vide Memo No.2637/SA-3 dated 30.3.87 where he assumed charge of his duties on the forenoon of 15.4.1987(.)” Civil Writ Petition No.3944 of 2008 The first Assured Career Progression increment granted to the petitioner was withdrawn on the ground that he had not qualified the type-test prescribed as per the Rules for induction of a Clerk into the cadre. In the present writ petition, a writ in the nature of certiorari has been sought to quash the order (Annexure P-5) dated 10th March, 2008, whereby the order dated 1st May, 1997 was withdrawn and the recovery was ordered to be effected from the petitioner on the ground that he had not passed the type test. Brief facts of the case are required to be noticed. The petitioner, on compassionate grounds, was appointed as a Clerk in the office of Director General of Police, Haryana, after his qualification was relaxed. The appointment of the petitioner was temporary. The Haryana Police Clerical (State Service Class-III) Rules, 1977 (hereinafter referred to as, ‘the Rules’) prescribe that a Clerk has to pass the prescribed test in typing to be conducted by the appointing authority within a period of one year of his appointment. The Rules further say that grant of annual increment shall be regulated in accordance with the instructions issued by the Government. The Government indeed issued the instructions and vide Annexure P-4 stated that after the recruitment it is compulsory to pass the type test within one year. The orders for fixing annual increment will be issued as per the standing order dated 27th August, 1975. It is an admitted fact that the petitioner had not passed the type test, therefore, the first Assured Career Progression increment granted to the petitioner with effect from 1st May, 1997 was sought to be withdrawn vide the impugned order (Annexure P-5) passed on 10th March, 2008. 2 Civil Writ Petition No.3944 of 2008 To assail the impugned order, Mr.Malik has advanced following two arguments: (a) It is submitted that under the Haryana Civil Services (Assured Career Progression) Rules, 1998, the eligibility of an incumbent is to be taken into consideration towards the promotional post and therefore, as to whether he possesses the requisite qualification or not, is not to be taken into consideration. (b) Once vide the appointment letter, educational qualification of the petitioner was relaxed, the department cannot insist for typing test. At the outset, these arguments are to be rejected, as they suffer from inherent fallacy. The petitioner, at the time of his appointment, carried a handicap, which he had to cure within one year. Grant of further increment was dependent upon passing of the typing test. The Govt. instructions to this effect are very clear and the standing order makes them mandatory. Until the petitioner possesses the requisite qualification as a Clerk, he cannot be considered for higher post. Therefore, the department has rightly withdrawn the first Assured Career Progression increment granted to the petitioner. At this stage, Mr. Malik has raised an alternative argument and has submitted that in case the department is entitled to withdraw the benefit of Assured Career Progression increment granted in favour of the petitioner, no recovery of amount already paid, can be effected from the petitioner. To fortify this submission, learned counsel has relied upon a Full Bench judgment of this Court rendered in ‘Budh Ram and others v. State of Haryana and others’ 2009 (4) SLR 298, in which it has been 3 Civil Writ Petition No.3944 of 2008 stated that where there is no misrepresentation or malafide on the part of the employee and due to some erroneous interpretation, any amount has been paid to an employee, the same cannot be withdrawn. In the present case, the petitioner has not committed any fraud, misrepresentation or deception to obtain the benefit of Assured Career Progression increment. In view of the ratio of law laid down in Budh Ram’s case (supra), recovery cannot be effected from the petitioner. Accordingly, the order (Annexure P-5), so far it affects the recovery of the amount paid, is hereby quashed. With the observations made above, present writ petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE July 5, 2010 rps 4