Ram Krishan vs State of H.P. and Others

Surinder Singh, J.—By means of this petition, Petitioner has sought the mainly the following relief(s):

(i) The impugned letter Annexure P-23 and P-26 may kindly be quashed and Respondents may be restrained from recovering from the Petitioner the differential amount of pay of higher post on which the Petitioner actually worked during the period w.e.f. 15.11.1986 to 29.08.2005 under orders of the authorities/ Court.

(ii) Respondents may kindly be directed to release all retiral benefits including gratuity and commuted value of portion of pension of the Petitioner revising on the basis of revised pay scales alongwith interest @ 12%.

(iii) The Respondents may kindly be directed to release 20% third installment of pay arrear at par with other employee, and

(iv) The Respondents may kindly be directed to sanction final pension instead of provisional pension in favour of the Petitioner.

As a matter of fact, the Petitioner was a Junior Assistant in the Respondent-department and promoted on 23.7.1986 as Junior Editor against the OBC post, subject to the production of a fresh OBC certificate, as the certificate already furnished by him was undated.

On 21st August, 1986, Petitioner produced a fresh certificate, which was obtained from the SDM, Amb and submitted to the Director of the Respondent-department on 21.10.1986. The Respondents questioned the genuineness of the said certificate, as such issued a show cause notice on 1.5.1992. Petitioner submitted its reply, but when he was being reverted, he filed an Original Application No. 782 of 1992 on 2.7.1992 in the Erstwhile Administrative Tribunal. Learned Tribunal disposed of the matter with a direction to the Respondents, to decide the appeal filed by the Petitioner within three months and till then, the reversion order was stayed.

Later appeal filed by the Petitioner was dismissed upholding his reversion. Petitioner felt aggrieved by the impugned order of dismissing his appeal, as such filed another Original Application No. 1377 of 1992, challenging the order of the Appellate Authority. Finding a prima-facie case, learned Tribunal vide its order dated 12.11.1992 though stayed the reversion order, but vide order dated 7.7.2005, the aforesaid Original Application was also dismissed. Thus, the reversion order dated 27.6.1992 remained operative till 29.8.2005.

The above orders of the learned Tribunal were challenged by filing a writ petition in the High Court and in the meantime, two persons junior to the Petitioner were promoted as Junior Editors by the Respondents on 24.9.2005. The Petitioner also made a representation for his promotion on 28th December, 2005 based upon the seniority position. But at the instance of the Secretary concerned, he withdrew the writ petition aforesaid from the High Court on 21.11.2006. Thereafter, vide order dated 7.12.2006, the Petitioner was promoted on notional basis w.e.f. 24.9.2005 on regular basis from the date of joining. On his promotion, he joined the Directorate on 30.6.2006 and he stood retired on getting the age of superannuation.

After the retirement of the Petitioner, the Respondent-Director issued a letter dated 24.11.2009 (Annexure P-23) to the Petitioner regarding fixation of his pay as a Clerk and regarding recovery of over-payment on account of erroneous promotion to the post of Junior Editor, without specifying the period. The Petitioner thus made a representation in detail, against the said recovery. Thereafter the Petitioner received another notice dated 5.2.2011 (Annexure P-26), regarding over-payment of Rs. 4,06,048/- made to him on the basis of erroneous promotion of the Petitioner. It also did not specify the date and particulars of the period, hence the challenge has been made by the Petitioner to both these Annexures P-23 and P-26 aforesaid in this petition, being wrong and illegal.

The Respondents resisted and contested the claim of the Petitioner, precisely on the ground that the Petitioner was promoted to the post of Junior Editor on 23.7.1986 against a vacancy reserved for backward class, subject to his furnishing the fresh certificate of backward classes and later, on verification, it was found that he did not belong to the backward class as his income being more than Rs. 7,500/- per month. Finding this discrepancy, the Petitioner was reverted back to the post of Clerk, but on account of the stay obtained from the Administrative Tribunal, he remained on the said post as aforesaid till his appeal was dismissed by the Secretary of the Respondent, so it is that period, for which recovery is sought to be made.

As a matter of fact, when the Petitioner approaches the competent Court bona-fidely to protect himself from prejudice likely to be caused by any administrative order and prima-facie succeeds in getting order of stay from a competent Judicial Authority and remained on the post pursuant to the orders of the Court without any protest from the Respondents, in my opinion it is not legally justified that the recovery should be made for the period he actually worked on that post without his fault, that too, much after his superannuation. As such, Annexures P-23 and P-26, are hereby quashed and set-aside. Respondents are accordingly directed to release all the retiral benefits including the gratuity and commuted value of the portion of pension to the Petitioner, within a period of four months, from the receipt of the copy of this judgment and the Respondents shall also sanction the final pension of the Petitioner on the basis of the last pay drawn.

CMP No. 3928 of 2011.

In view of the disposal of the main writ petition, this application has become infructuous.