HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2093/2008 Date of Decision: June 23, 2009. D. S. Chauhan ……. Petitioner. Versus H.P.S.E.B & Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the petitioner : Mr. Dilip Sharma, Advocate. For the respondents : Mr. Shashi Shirshoo, Advocate Sanjay Karol, J. (Oral) In the present petition, the petitioner has prayed for the following relief:- “(i) that the order dated 25.4.1992 at Annexure A-7 and other orders/actions based of the said order may be quashed and set aside; (ii) that the applicant may be held entitled to full pension i.e. Rs.2275/- P.M. instead of Rs.2160/- P.M. sanctioned in his favour vide order dated 1.5.1992 at Annexure A-8. (iii) that the applicant may be held entitled to full amount of gratuity Rs.76725/- instead of Rs.7260/- sanctioned in his favour vide order dated 1.5.1992 at Annexure A-8. (iv) that the applicant may be held entitled to an amount of Rs.94983/- as commuted value of 1/3rd portion of pension instead of Rs.90375/- granted to him vide order dated 1.5.1992 at Annexure A-9. (v) that an amount of Rs.45709/- shown as recoverable from the retirement gratuity of the applicant vide letter dated 26.5.1992 at Annexure A-12 may be quashed and set aside and the respondents may be directed to refund the said amount to the applicant which has been recovered from his retirement gratuity. 2 (vi) that the applicant may be held entitled to all consequential benefits due and payable to the applicant on account of restoration of his full pay on the date of retirement and the respondents may be directed to release arrears to the applicant on account of DCRG, commuted value of pension and restoration of full pension etc. (vii) that the applicant may be held entitled to interest on market rate on the delayed payment. (viii) any other relief deemed proper may also be granted to the applicant. (ix) that the applicant may also be held entitled to costs of the application. “ The petitioner was promoted as Head Clerk on 20.7.1964 when his pay was fixed at Rs.220/-, in the pay-scale of Rs.150-300. He was further promoted as Assistant in the pay-scale of Rs.225-500, when his pay was fixed at Rs.380/-. Apparently, in the year 1971 during the audit verification, the office of the Auditor General raised an objection with regard to the fixation of his pay at Rs.220/- as on 20.7.1964. As per audit objection, the same ought to have been Rs.170/-. Consequently, the petitioner’s pay was re-fixed in accordance with the objections raised by the Accountant General (Audit). Later on in the year 1976, a Committee was constituted by the respondent-Board for reviewing the pay fixation and stepping-up, based on the objections raised during the year 1970-71. The Committee found that the fixation of the petitioner’s pay, at Rs.220/- was on the higher side and thus recommended the same at Rs.190/- as on 20.7.1964. Notwithstanding the audit objections, the recommendations were accepted and the petitioner’s pay w.e.f. 20.7.1964 was fixed at Rs.190/-. This is evident from the order dated 9.1.1979 (Annexure A-1) annexed alongwith the petition. The recommendations of the Committee were uniformly and 3 consistently applied and followed by the respondent is also evident from the various orders passed in favour of the petitioner. In terms of order dated 12.2.1981 (Annexure A-2), the petitioner’s pay was protected as it had resulted into reduction of his pay vis-à-vis his junior official Shri R.L. Kashyap, Head Clerk. Vide order dated 12.2.1981 (Annexure A-3), the benefits of two advance increments, in accordance with FR 27, were also accorded to the petitioner. That the recommendation of the Committee was accepted and uniformly applied is also evident from the order dated 21.11.1984 (Annexure A-4), whereby the respondent ordered for stepping up of the pay with respect to one Shri Mohammad Yaqub so as to bring him at par with the petitioner. It is an admitted fact that the petitioner retired on 29.2.1992 and even as per the last pay slip (Annexure A-5), he continued to get the benefits as accorded to him, based on the recommendations of the Committee. However, it was only after his retirement that the respondent vide order dated 25.4.1992 (Annexure A-7), reduced the basic pay of the petitioner, as applicable on 20.7.1964, from Rs.190/- to Rs.170/-. Consequently, as a corollary of the same, the retiremental benefits were seriously effected which is evident from the orders dated 1.5.1992 (Annexure A-8 & Annexure A-9). Further, as a consequence of order (Annexure A-7), recovery for a sum of Rs.45,709/- in terms of order dated 26.5.1992 (Annexure A-12), is now sought to be effected from the petitioner. The petition has been opposed only on the ground that the recovery was effected pursuant to the objection taken by the audit party in the year 1992. In the petition, the petitioner has averred as under:- 4 (4) That during 1976 a committee was constituted by the respondent Board for reviewing the pay fixation cases and for settling Audit Objections raised during 1970/71. (5) That the Audit Objection for the pay fixation of the applicant raised during 1970-71 was that as on 20.7.64 on his promotion as Head Clerk, the pay of the applicant should have been fixed at Rs.170/- instead of Rs.220/-. The said pay verification had resulted in drop of emoluments of the applicant. The committee found that the pay fixation of the applicant at Rs.220/- was on higher side. Even by protecting his existing emoluments and then applying the provisions of FR 22(C), according to the committee, the pay of the applicant worked out to Rs.190/- as on 20.7.64. In view of this position the committee recommended that the pay of the applicant be fixed at Rs.190/- as on 20.7.64 and the audit objection qua the pay fixation of the applicant was accordingly settled. That report was accepted during 1977. Consequently vide order dated 9.1.79 (Annexure A-1), the pay of the applicant was fixed at Rs.190/- w.e.f. 20.7.64. This order was issued with the concurrence of the Accounts Wing.” In the reply, the respondents have not refuted the said averments. The position, as stated by the petitioner, with regard to his pay fixation stood settled when the Committee had recommended fixation of his pay to be fixed at Rs.190/-, as on 20.7.1964. The petitioner has been availing such benefits since then, till the date of his retirement. Importantly, from 1979 upto 1992, no objection was either raised by the audit party nor was the petitioner ever informed of the same. The issue of 5 fixation of his pay stood settled by the Committee. The action taken by the respondent based on the audit objection itself was initially rectified by them with the passing of the first order dated 9.1.1979 (Annexure A-1). The action taken by the respondents is absolutely arbitrary, whimsical and capricious. There has been total non-application of mind. The respondents have not placed on record the exact nature of the objection taken by the audit party. Be that as it may be, simply because the audit party has taken an objection that by itself would not be a ground for depriving the petitioner of his benefits in accordance with law. Further, the petitioner was never issued any show-cause-notice before taking the impugned actions. For the aforesaid reasons, the impugned orders dated 25.4.1992 & 26.5.1992 are quashed. As a consequence thereof, the respondents are directed to take all consequential actions, in accordance with law, including releasing arrears due and payable to the petitioner, within a period of four months from today, failing which, thereafter he shall be entitled to interest @ 6% per annum. ( Sanjay Karol ), Judge. June 23, 2009. (rana)