Sher Singh vs The State of Haryana and Another

Ranjit Singh, J.—The dispute in the present Regular Second Appeal relates to re-fixation of the pay scale of the appellant and the resultant recoveries being effected from him.

The appellant, who was appointed as Sub Inspector, on adhoc basis in the Department was relieved on 11.9.1998. Later, however, on the basis of instructions issued by the Chief Secretary, Government of Haryana, he was absorbed as a Clerk like others in Haryana State Minor Irrigation Tubewell Corporation (for short, "H.S.M.I.T.C."). He was adjusted in the same scale as he was drawing in the Food and Supplies Department. Later, the appellant was sent on deputation and subsequently absorbed permanently and started drawing the basic pay of Rs. 1750/- in the scale of Rs. 1400-2600 after the grant of benefit of first and second higher secondary pay scale.

The pay scale of the employees were revised on the basis of the recommendation made by 5th Pay Commission w.e.f. 1.1.1996. The scale of Rs. 1400-2600 was revised to Rs. 5000-7850/-. The grievance of the appellant is that directions were issued to recover the amount of Rs. 1,76,020/- alongwith a show cause notice as to why his pay be not re-fixed in the revised scale of Rs. 3050-4950/-. He accordingly challenge this order by filing a civil suit.

In the written statement filed, it is stated that the appellant was absorbed in Urban Estate Department from H.S.M.I.T.C., where the scales were not revised on the basis of 5th Pay Commission recommendation. Rather, their scales were fixed on the basis of functional pay scale of Clerk, which was Rs. 950-1500. It is stated that the pay of the appellant was fixed in higher scale in the scale of Rs. 1400-2600/- meant for Clerks having 20 years or more service. He was freshly appointed in the Urban Estate Department. Though his pay was protected and on the basis of instructions, the benefit of pay protection was withdrawn after issuing show cause notice and, thus, the recovery was being effected. It is also stated that the pay of similarly situated officials at Gurgaon and Faridabad had also been re-fixed and, thus, the claim made by the appellant is contested.

Though the learned Counsel for the appellant made strenuous effort to justify that his pay was being wrongly fixed and, thus, the action to withdraw the excess payment was not proper. The appellant concededly was absorbed in the Urban State Department when he was worked with H.S.M.I.T.C. The pay scales in H.S.M.I.T.C. were not revised whereas the appellant was drawing standard scales meant for Clerks having 20 years or more service. His appointment in the Urban Estate Department was treated as fresh and only his pay was protected. Subsequently, instructions were issued to say that the appellant was not entitled to pay protection and accordingly his pay was reduced.

There may be some justification in directing deduction of pay on the basis that the functional pay of Clerk was in a particular scale but it can not be said that appellant had, in any manner, misrepresented or played fraud while his earlier pay was fixed, which was revised. It appears that the appellant had not challenged the direction whereby his pay was re-fixed but had filed the suit for fixing his pay on the basis of existing pay scale and not to effect recoveries. In view of the law laid down by the Full Bench of this Court in Budh Ram and Ors. v. State of Haryana and Ors. 2009 (3) SCT 333, the recoveries as sought to be effected, can not be done as there was no allegation of fraud or misrepresentation on the part of the appellant. However, the respondents are justified in correcting the error, if any, and the appellant has not been able to show that the correction being carried out suffers from any infirmity calling for any interference.

The order to effect recovery as such can not be sustained and accordingly the same is set-aside. The Regular Second Appeal otherwise shall stand dismissed. The amended decree sheet be accordingly prepared by the Registry of this Court.