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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for the issuance of a writ in the nature of Certiorari quashing the impugned action of the respondents in imposing recovery of Rs.10,20,525/- which is illegal, unlawful against the natural justice. Further, for issuance of a writ in the nature of mandamus directing the respondents to release the leave encashment and Leave Travel Concession (LTC) to the petitioner on account of the retirement of the petitioner, along with interest at the rate of 24% per annum.
Brief sequence of events in chronological order is as follows: – 16.11.1985: Petitioner was enrolled in the Army. 30.11.2002:Petitioner was discharged from the Army as Havaldar. 06.10.2010: Petitioner was appointed as Clerk in Sainik & Ardh Sainik Welfare Department, Haryana.
31.05.2024: Petitioner had retired as Clerk after attaining the age of Superannuation. (Annexure P-1). 11.12.2024: On 11.12.2024, impugned show cause notice (Annexure P-2) was served upon the petitioner to explain as to why the excess payment amounting to Rs 10,20,525/- may not be recovered from the retrial benefits of the petitioner. The petitioner was directed to file reply within 15 days. 30.12.2024: The petitioner had duly filed reply dated 30.12.2024 (Annexure P-3) to the said show cause notice. 11.1.2025: As no action was taken in the matter,Petitioner had then served legal notice dated 11.01.2025 (Annexure P-55) on the respondents calling upon them to drop the recovery proceedings and to release leave encashment and LTC etc., due to the petitioner. 1.4.2025: As still no action was taken thereupon, petitioner had filed the present writ petition on 01.04.2025.
It is inter alia submitted by learned counsel for the petitioner that a similar controversy has been decided by this Court vide order dated 10.04.2026 passed in CWP- 30149 of 2024 titled as “Om Prakash Vs State of Haryana and Others”, wherein it has been held that if there is no fraud or misrepresentation on part of the petitioner, then recovery cannot be affected. In this regard, ld. counsel also relies upon judgement dated 16.04.2024 (Annexure P-6) rendered by a Coordinate Bench in CWP-27459-2017, titled as “Naib Singh Vs. State of Punjab and Others.”. It is contended that in the present case also there is no concealment of any fact and no fraud on part of the petitioner with the department. As such, there was no occasion for the respondents to issue the impugned show cause notice for recovery upon the petitioner.
It is further contended that even otherwise recovery cannot be affected from a retired employee because there was no misrepresentation by the petitioner. AAs such excess amount which has been paid to the petitioner cannot be recovered.
It is accordingly prayed that the present petition be allowed and the impugned action of the respondents imposing recovery of Rs.10,20,525/- be quashed; and a writ of mandamus be issued directing the respondents to release the leave encashment and LTC to the petitioner on account of retirement of the petitioner along with interest at the date of 24% per annum.
Per contra, learned State Counsel has vehemently opposed submissions advanced on behalf of the petitioner and has referred to the submissions made in the written statement ddated 25.03.2026 filed on behalf of respondents to submit that petitioner has deliberately concealed facts and has misrepresented. As such, the impugned action iss legal and justified.He accordingly prays for dismissal of the present Writ Petition.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counse and perused the case file in detail. I find no merit in the submissions advanced on behalf of the petitioner.
Perusal of the written statement dated 25.03.2026 filed by the respondents shows that respondents have categorically stated as follows: -
“4.That being the dealing clerk, the petitioner deliberately initiated a proposal for his own pay fixation on the basis of improper interpretation of re-employment benefits. He prepared Order No. ZSB/6/Est dated 28.02.2018 himself and obtained the signature of the Drawing and Disbursing Officer (DDO) by misguiding her into believing that due approval existed, although no such approval was ever taken.
5.That the said order dated 28.02.2018 was not even entered in the DAK Register, which clearly shows that the petitioner intentionally suppressed the issuance of the order to prevent its scrutiny at higher levels. The entire pay fixation process was engineered by the petitioner through concealment and manipulation.
6.That the petitioner has attempted to justify his wrongful act by citing letters issued by different departments such as letter dated 01.07.1992 (Annexure R-2), letters dated 27.08.1998 (Annexure R-3), 16.02.1999 (Annexure R-4) and 08.12.2006 (Annexure R-5). However, none of these letters originate from the Finance Department nor do they authorise addition of increments of military service or military pension for the purpose of civil pay fixation.
7.That the latest instructions issued by the Human Resources Department vide letter dated 24.02.2023 (Annexure R-6) clearly state that for re-employed ex-combatant clerks, only one policy may be adopted, either the Finance Department policy or the HR Department policy, and not both simultaneously. However, the petitioner misused both sets of instructions simultaneously to enhance his pay unlawfully.
8.That the Haryana Civil Services (Pay) Rules, 2016 (Annexure R-7), which came into force in the year 2016, categorically provide in Rule 53(i) that at the time of re-employment of military pensioners below the rank of Commissioned Officers, their military pension is to be ignored and their pay is to be fixed only at the entry level of the civil post. These statutory rules override all instructions issued prior to 2016. However, the petitioner deliberately violated these rules while fixing his own pay. As per Haryana Civil Services (Pension), Rules 2016, Chapter-III, Rule-11 (Annexure R-8) authorize the Government to recover the excess amount drawn during the service period of the employee.
9.That Sh. Satyapal, Clerk had joined the District Sainik and Ardh Sainik Welfare Office as Clerk on 06 October 2010. He was due for grant of 1st ACP on 01 November 2018. But, he and dealing Clerk being his batch mate had not initiated their case for award of 1st ACP
because they were in fear that if case is forwarded to Headquarter for grant of 1 ACP their wrong fixation of pay would come to notice of higher authorities and their pay would be reduced even after granting 1st ACP As per instructions laid down by Government of Haryana, Human Resources Department (Human Resources-III Branch) No. 12/08/2022-2HR-III dated 24 February 2023 clearly mentioned that if pay of Ex-Combatant Clerk retired / released from service in the Armed Forces fixed on re-employment with benefits of increment equal to the service he had rendered in Army, then his pension including the commuted portion of pension and excluding first Rs. 15/- will be deducted from his Basic Pay fixed after availing the benefits of increments Sh. Satyapal, Clerk had neither followed the instructions of letters mentioned in his order No. ZSB/6/Est dated 28 February 2018 nor the instruction followed given in Haryana Civil Services (Pay) Rules 2016. Chapter VI, Rule 53 sub--rule (i) and manipulated his pay structure to draw inflated salary.”
A perusal of the above shows that it has been categorically stated by the respondents that inin contravention of the Rules, petitioner had himself initiated proposal for fixing his own pay without approval, vide order dated 28.02.2018 (Annexure R-1); the said order dated 28.02.2018 was not even entered in the DAK Register; that none of the letters relied upon by the petitioner as mentioned in para 6 of the reply above, were ever issued by the Finance Department; that petitioner has misused and derived benefit of both the Finance Department policy and the HR Department policy to cause undue benefit to himself; that the pay fixation of the petitioner is in contravention of the Rules etc.
Respondents have also categorically stated that petitioner is not entitled to LTC etc, as petitioner has already drawn excess amount of Rs10,20,525/- by fixing pay wrongfully. As such, his LTC and leave encashment have been withhelld till recovery of excess payment is drawn from him.
No replication has been filed by the petitioner controverting the above said facts as stated by the respondents in their written statement. Accordingly, in the above facts,petitioner can derive no benefit from the relied-upon judgment in case of Om Prakash supra. Firstly, the said judgment is distinguishable on facts and law inasmuch as in the said case there was no allegation of misrepresentation or fraud or concealment on part of the petitioner therein namely Om Prakash. Whereas, in the present case, there is specific allegation against the petitioner that he had initiated his own pay fixation by misguiding the DDO concerned. Thus, it cannot be said that the excess payment arose on account of any error in pay fixation by the department itself.Moreover, ld. Counsel has not pointed out anything to the effect that the petitioner has denied that he has received payment in excess of what is due to him as per the Rules.
Even otherwise,even assuming in favour of the petitioner for the sake of argument,the same would constitute no ground for repeating the same mistake in the case of the petitioner. Two wrongs do not make a right. There is no concept of negative parity. I am supported in my view by judgment of Hon’ble Supreme Court in State of Bihar V. Kameshwar Prasad Singh, (SC): Law Finder Doc Id# 6532 wherein it is held that: -
“D. Constitution of India, Articles 14 and 16 Discrimination Equality -Wrong orders contrary to law The concept of equality envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority or Court is shown to have committed an illegality or irregularity in favour of an individual or group of individuals, others cannot claim similar benefits Two wrongs can never make a right.”
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24.The concept of equality as envisaged under Article 14 (Article 14?) of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals others cannot claim the same illegality or irregularity on ground of denial thereof to them.
Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh and others v. NDMC and others, 1996(2) SCC 459: 1996(1) R.R.R. 563 held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:
"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again, in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others, 1997(1) SCC 35: 1997(1) RCR (Civil) 379 this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
In State of Haryana and others v. Ram Kumar Mann, 1997(3) SCC 321: 1997(3) SCT 135 (SC) this Court observed:
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is
reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.”
Consequentially, in view of the above noted, factual and legal position, no infirmity can be found in the impugned notice.
Accordingly, the present Writ Petition stands dismissed.
Pending application(s) if any also stand(s) disposed of.