IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. (T) No. 2926 & 2927/2008 Date of decision: 1. 8. 2011 CWP(T) No. 2926/2008. Jagdish Singh …..Petitioner Versus State of H.P. and others ……Respondents & CWP(T) No. 2927/2008. Jagdish Singh …..Petitioner Versus State of H.P. and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the petitioner: Mr. Neel Kamal Sood, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (oral). An Original Application No. 1397 of 2005 was filed by the petitioner under Section 19 of the H.P. State Administrative Tribunal Act, 1985 before the Erstwhile Tribunal, seeking following reliefs: “(i) Annexure A8 and A9 annexed with the Original Application may kindly be set aside and quashed. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - (ii) Directing the respondents to grant all pensionary benefits and other benefits to the applicant”. 2. Another Original Application bearing No. 1586/2005 was filed by the petitioner seeking the following reliefs:- “(i) To issue directions to the respondents for fixation of pension and pensionary benefits like gratuity, leave encashment, commutation of pension etc. on the basis of pay scale of `5480- 8925 which he was getting prior to the issue of Annexures A8 and A9. (ii) Directing the respondents to grant all other consequential benefits and other benefits to the applicant in view of prayer (i) above”. 3. After abolition of the Erstwhile Tribunal, both these Original Applications were transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, and registered as CWP (T) Nos. 2926/2008 and 2927/2008 respectively. 4. The factual matrix giving rise to these petitions can be stated thus. The petitioner herein, after his retirement from the Army service, joined respondent department as Operation Theatre Assistant (OTA) against the Ex-servicemen quota. His initial appointment on 18.4.1994 was in Civil Hospital Jubbal. It is contended that - 3 - the petitioner was selected in general category on the basis of his merit, yet he gave his option for his inclusion in Ex-servicemen category. The petitioner was granted pay scale of ` 5480-8925 w.e.f. 1.1.1996 as per Annexure A4. But a corrigendum was issued on 31.12.1998 placing him in the pay scale `1200-2130; ` 1365-2410 (un-revised) and ` 3330-6200 (revised). The contention of the petitioner is that he was rightly fixed in the pay scale of 5480-8925 but w.e.f. 1.1.1996 he never misrepresented and misled the respondent department for granting the aforesaid pay scale. However, his pay was suddenly changed and re- fixed vide Annexure A6 in February, 2004 on the lower side, substantially lowering his scale and respondent Department issued the office order Annexure A8 dated 15.3.2005 revising his pay which entail the recovery as per Annexure A9 without any show-cause notice or hearing to him. 5. The petitioner retired from service on 31.3.2005 on reaching the age of superannuation and it was certified that nothing was due against him but he was not released the pension and retiral benefits. 6. Respondents contended that the Senior Accounts Officer, Accountant General, H.P. vide his letter dated 31.1.2005 (Annexure A4) and office order dated 15.3.2005 (Annexure A8) reveals that inadvertently there - 4 - was wrong fixation of the pay by the C.M.O. Shimla vide his office order dated 7.5.1999 whereas the existing pay scale was `1200-2130 which was revised to 3330-6200 by the Government on account of revision of pay scale of category of Operation Theatre Assistants) (OTAs) and the pay scale allowed further to the equivalent of ` 4020-6200 as a measure personal to the petitioner. All other similarly situated persons after making correction vide order dated 15.3.2005 to the office order of wrong fixation dated 7.5.1999 recovery of over payment of `1,93,625/- was worked out and the order was passed by the C.M.O. Shimla to recover the same from the petitioner. 7. According to Shri A.K. Bansal, learned Additional Advocate General, the provisional pension along with other retiral benefits stand already released to the petitioner on 16.2.1999 but the mistake which has been committed by the respondent department was required to be corrected. 8. Admittedly no show-cause notice was served upon the petitioner before issuing aforesaid office order withholding his pensionary benefits on the basis of Annexure A8 virtually he was condemned unheard. 9. The respondent department did not point out the above error which was earlier detected within a shortest possible time and on the top of it, at the time of - 5 - his retirement, when the office order of his retirement was issued, it was certified by the respondent department that nothing was due from the petitioner. There is no misrepresentation or fraud on the part of the petitioner and the excess payment appears to have been made by applying wrong principal and wrong interpretation of the revised pay scales. Since the petitioner has retired on 31.3.2005, therefore, in exercise of equity jurisdiction by this court so as to avoid hardship to the petitioner, who is not at fault, the alleged recovery pursuant to Annexures A8 and A9 is hereby quashed and set aside in view of the decision rendered by the Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others (2009) 3 SCC 475. 10. Therefore, for the aforesaid reasons, both the petitions are allowed, consequently, the respondents are directed to take the last pay drawn by the petitioner for the purpose of releasing the pensionary benefits and other consequential benefits within a period of four months from today. 11. Both the petitions stand disposed of in the above terms, so also the pending application(s), if any. August 1, 2011 (Surinder Singh, J (cm)