Pawan Kumar Singla & Ors. vs State Of Punjab & Ors.

Sandeep Moudgil, J.

(1). By this order, I shall dispose of CWP Nos.3161, 1989, 4927, 5315, 8104, 16992 of 2020 and CWP No.19226 of 2023 as common issues are involved. For facts, CWP-3161-2020 is treated as the lead case.

(2). The jurisdiction of this Court has been invoked under Articles 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari quashing the order dated 16.12.2019 (Annexure P6) passed by Deputy Secretary, Finance and orders dated 16.01.2020 (Annexure P7) passed by respondent No.2 and seeks a direction to the respondents to grant them pay scales higher than the post of Assistant Mechanical Engineers from the date of anomaly i.e. 01.01.1996 including arrears.

(3). The petitioners, who had served as General Managers in the Transport Department, are aggrieved of orders dated 16.12.2019 and 16.01.2020 whereby their pay has been re-fixed and recovery of the amount already paid to them has been ordered. The principal grievance is that the respondents have failed to give effect to the judgment dated 29.03.2016 passed by this Court in CWP No.13262 of 2012 Narinder Pal Singh and others v. State of Punjab and others, along with connected matters.

(4). The facts of the case are that the Assistant Mechanical Engineers (AMEs), being the feeder cadre for the post of General Manager, were initially carrying a lower pay scale. Consequent upon the judgment in CWP No.10823 of 2003, the AMEs were granted revised scales, which resulted in an anomaly whereby the feeder post came to draw a higher financial progression than the promotional post of General Manager. This Court, on 29.03.2016, noticed the anomaly and directed the respondents to consider granting to the petitioners a pay scale one step higher than that of AMEs from the date the anomaly had arisen. In the interregnum, the petitioners were directed to be extended the benefit of the AME scale.

(5). Learned counsel for the petitioners submits that AME, though a feeder post, was initially carrying a lower scale than General Manager, however, pursuant to the revision granted to AMEs in consequence of the judgment in CWP No.10823 of 2003, the AMEs came to enjoy higher financial progression than the petitioners holding the promotional post of General Manager. He submits that in CWP No.13262 of 2012 and connected matters, including the one filed by the petitioners i.e. CWP No.5371 of 2013, this Court vide judgment dated 29.03.2016, noticed the anomaly and directed the respondents to consider granting a pay scale one step higher than that of AME, while, in the meantime, directing stepping up of the petitioners' pay. It is contended that the respondents, instead of removing the anomaly in terms of the said judgment, have merely prescribed a higher entry scale for General Managers while continuing to leave them financially below AMEs at subsequent stages. It is further submitted that the denial of Dynamic ACP and the consequential recovery are unsustainable, particularly as the earlier payments were made pursuant to official fixation and without any misrepresentation by the petitioners.

(6). Per contra, learned State counsel submits that the judgment dated 29.03.2016 stands duly complied with. According to the respondents, the earlier AME-equated fixation was only an interim arrangement and, pursuant to consideration by the Finance Department, regular scales were approved vide order dated 16.12.2019, under which the entry scale of General Manager is higher than that of AME. Reliance is placed upon Note 10(i) of Rule 4.4 of the Punjab Civil Services Rules to contend that the relative status of two posts has to be determined with reference to their entry scales and that subsequent higher scales or grade pay granted under ACP or otherwise cannot be taken into account. It is therefore submitted that no further benefit is due to the petitioners and that the amount paid under the interim fixation is recoverable as public money.

(7). Heard learned counsel for the parties.

(8). The submission, however, does not address the substance of the directions issued by this Court on 29.03.2016. The direction was issued to remedy the anomaly which had arisen on account of the feeder post acquiring a higher financial progression than the promotional post. Merely prescribing a higher entry scale, while leaving the petitioners financially below the AMEs at the subsequent stages of service progression, does not effectively remove the anomaly noticed by this Court. The respondents cannot defeat the substantive direction by relying upon the distinction between the entry scale and the subsequent financial benefits when the very grievance before the Court was the anomalous financial progression between the two posts.

(9). The power of the State to determine pay scales as a matter of policy is undoubtedly recognised. However, once this Court had directed reconsideration for removal of the specific anomaly, the decision taken pursuant thereto was required to be a meaningful implementation of that direction and could not perpetuate the very disparity which was directed to be examined. The impugned orders, therefore, cannot be sustained to the extent they fail to appropriately give effect to the judgment dated 29.03.2016.

(10). There is an additional infirmity in the direction for recovery. The earlier fixation and payment were made by the respondents themselves pursuant to an official order and in the course of implementing the judgment of this Court. There is neither an allegation nor any finding of fraud, misrepresentation or concealment on the part of the petitioners. The petitioners have also retired from service. The law governing recovery of excess payments, as reiterated by the Supreme Court in State of Punjab v. Rafiq Masih (White Washer), (2015) 4 SCC 334, recognises that recovery from retired employees, particularly where the excess payment was not occasioned by their misrepresentation, is impermissible where it would be inequitable or harsh. The subsequent decisions of the Supreme Court continue to apply the principle that the legality of recovery must be assessed by balancing the employer's right against the hardship caused to an innocent employee.

(11). Consequently, the impugned orders dated 16.12.2019 and 16.01.2020 are quashed to the extent they deny the petitioners the benefit flowing from the judgment dated 29.03.2016 and direct recovery of amounts already paid to them.

(12). The respondents are directed to undertake a fresh exercise for fixation of the pay of the petitioners in a manner which effectively removes the anomaly noticed by this Court in its judgment dated 29.03.2016 and grants the petitioners the benefit of the appropriate scale one step higher than the AME scale, in accordance with the said judgment. Consequential arrears and revision of pensionary benefits shall be disbursed to the petitioners and the amount already paid to the petitioners pursuant to the earlier fixation shall not be recovered.

(13). The entire exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

(14). The writ petition stands allowed in the above terms.

(15). Pending applications stand disposed of accordingly.