CWP No.15890 of 2008 :1: In the Punjab and Haryana High Court, Chandigarh. Date of decision: 28.07.2009
Krishan Gopal ... Petitioner Versus
State of Punjab and another ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: Mr.SK Arora, Advocate, for the petitioner. Mr.PC Goyal, Addl. AG, Punjab, for the respondents. --
PERMOD KOHLI, J. (Oral)
I have heard the learned counsel for the parties at length. The petitioner was appointed as Clerk on 01.12.1978 on ad hoc basis. His services were regularised on 01.10.1980. The Punjab Government notified Punjab Civil Services (Revised Pay) Rules, 1988 which came into force from 01.01.1986. Under the revised pay rules, an opportunity was given to the government employees to opt for the new pay scales or the existing pay scales. It is further provided in the rules that unless the option is exercised the revised pay scales shall apply. The petitioner opted for the revised pay scales with effect from 01.01.1986. At the time of exercising the option, he was drawing basic pay of Rs.495/- in the unrevised pay scale of Rs.400-600 on 01.07.1986. The pay scale of Rs.400-600 was further revised to Rs.950-1800/- with effect from 01.01.1986 and the petitioner opted for the revised pay scale from 01.07.1986 as his pay was fixed at Rs.1150/- with effect from 01.07.1986. CWP No.15890 of 2008 :2: In the meantime, the petitioner was also granted one additional increment of proficiency step up on completion of eight years of service under the Assured Career Progression Scheme. While granting this benefit, ad hoc period of service rendered by the petitioner prior to 1980 was also counted. Thereafter, the petitioner was promoted as Senior Clerk vide order dated 27.02.1991 and he was placed in the pay scale of Rs.1200-2100/- with effect from 01.01.1986. His pay was accordingly stepped up with effect from 01.01.1986. It appears that on the basis of some internal audit, the pay of the petitioner was revised with effect from 01.07.1986 against the post of Senior Clerk and the benefit of higher pay scale with effect from 01.01.1986 to 01.07.1986 was withdrawn. Aggrieved of the same, the petitioner filed representation dated 02.01.2007/4.1.2007 in respect to the order dated 29.11.2006 (Annexure P-2). The petitioner also made another representation dated 15.03.2007 (Annexure P-5) seeking permission to exercise afresh option in view of Rule 6 (1) of the Punjab Civil Services (Revised Pay) Rules and also completed other formalities to enable him to exercise option. The application/representation dated 02.01.2007 of the petitioner came to be rejected vide order dated 22.05.2007 (Annexure P-6) with regard to the grant of pay scale with effect from 01.01.1986 in the pay scale of Senior Clerk. However, the request of the petitioner for exercising fresh option has not been decided. The respondents passed another order No.280 dated 07.11.2007 (Annexure P-7), whereby a sum of Rs.25340/- was with-held from the DCRG being excess paid to the petitioner on account of wrong fixation of pay at the time of grant of benefit of proficiency step up. It is stated that while granting benefit of the proficiency step up ad hoc period of service rendered by the petitioner prior CWP No.15890 of 2008 :3: to 1980 was wrongly counted. The petitioner has accordingly filed this petition seeking to challenge the order dated 29.11.2006 (Annexure P-2) whereby the pay of the petitioner has been refixed; the order dated 22.05.2007 (Annexure P-6) rejecting his representation for grant of benefit of the pay scale of Senior Clerk with effect from 01.01.1986 and order dated 07.11.2007 (Annexure P-7) of recovery of Rs.25340/- from DCRG on account of wrong fixation of pay of proficiency step up. In-so-far as the issue regarding exercise of option under changed circumstances is concerned, admittedly, when the petitioner exercised the option for revised pay scale with effect from 01.07.1986, he was not designated as Senior Clerk nor placed in the higher pay scale, though he was entitled to such designation and scale of Senior Clerk. Vide order dated 27.02.1991, the petitioner was designated as Senior Clerk and conferred the benefit of pay scale of Rs.1200-2100/- of the Senior Clerk, retrospectively, with effect from 01.01.1986 which was, admittedly, higher than the pay scale opted by the petitioner. Later on the petitioner requested for change of option to opt for the revised pay scale with effect from 01.01.1986 because of the changed circumstances. The respondents have opposed the contention of the petitioner for change of option. In the reply, the only ground taken is that the option once exercised cannot be changed subsequently. However, the respondents have not considered this aspect of the matter that when the petitioner had initially exercised the option, he was not aware of the fact that he will be granted the benefit of Senior Clerk's scale with effect from 01.01.1986 which happened only in the year 1991. Thus, the petitioner submits that he has a right to change the option under changed circumstances. This issue CWP No.15890 of 2008 :4: has been considered by a Division Bench of this Court in the case of Nand Lal Sharma Vs. State of Punjab, 1996 (2) S.C.T., 257, wherein the following observations have been made:-
"Learned counsel for the petitioners have argued that the petitioners had exercised their option in a particular state of things when they had not been given the benefit of selection grade and, therefore, after the grant of selection grade, the petitioners should be granted an opportunity to revise their option. Learned counsel submitted that if the petitioners had been given selection grade prior to coming into force of the 1988 Rules and they had exercised option under those Rules, it may not
have been possible for them to revise their option but as the selection grade has been granted to the petitioners in the years 199-93, they have a
legitimate claim to be permitted to revise their option. Learned Assistant Advocate General
argued that option once exercised by an employee under the revised Rules is final and cannot be re- opened."
In view of the dictum of the aforesaid judgment, the petitioner is entitled to change the option and the respondents are directed to permit the petitioner to change the option in respect of the revised pay scale with CWP No.15890 of 2008 :5: effect from 01.01.1986.
As regards the order dated 01.11.2007 (Annexure P-7) is concerned, a sum of Rs.25340/- is sought to be recovered from the petitioner on account of the wrong fixation of emoluments when the benefit of proficiency step up was granted to the petitioner in the year 1986 by counting ad hoc period of service towards eight years of qualifying service for such benefit.
It is not in dispute that for grant of proficiency step up, ad hoc service is not to be counted. Thus, the petitioner was wrongly granted the benefit of proficiency step up by counting ad hoc service. Thus, the respondents are well within their rights to refix the pay of the petitioner accordingly. It is also not in dispute that when the benefit of proficiency step up was granted to the petitioner by counting ad hoc service, there was no misrepresentation on his part. Even from the reply, it appears that no misrepresentation or fraud was attributed to the petitioner for grant of such benefit. This issue is no more res integra having been considered by a Full Bench of this Court in the case of Budh Ram and others Vs. State of Haryana and others, decided on 22.05.2009, wherein the following observations have been made:-
" It is in the light of the above pronouncement, no longer open to the authorities granting the benefits, no matter erroneously, to contend that even when the employee concerned was not at fault and was
not in any way responsible for the mistake
committed by the authorities, they are entitled to CWP No.15890 of 2008 :6: recover the benefit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because if the employee is not responsible for the erroneous grant of benefit to him/her, it would induce in him the belief that the same was indeed due and payable. Acting on that
belief the employee would, as any other person
placed in his position arrange his affairs accordingly which he may not have done if he had known that the benefit being granted to is likely to be withdrawn at any subsequent point of time on
what may be then said to be the correct
interpretation and application of rules. Having induced that belief in the employee and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inequitable and harsh for the Government to direct recovery of the excess
amount simply because on a true and correct
interpretation of the rules, such a benefit was not due. ....................We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous CWP No.15890 of 2008 :7: interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be
stopped for the future, but the amount already paid to the employees cannot be recovered from them." In view of the above, the respondents though entitled to refix the salary of the petitioner, but on withdrawal of the benefit of proficiency step up for the period of ad hoc service, no recovery can be effected from him.
For the reasons recorded above, this petition is disposed of with the following directions:
i) That no recovery shall be effected from DCRG of the petitioner on account of wrong fixation of the salary, though the respondents are entitled to refix the salary by withdrawing the partial benefit granted to the petitioner for proficiency step up on account of counting of ad hoc period of service.
ii) The respondents will permit the petitioner to exercise option of the revised pay scale with effect from 01.01.1986 and after grant of such option, consequential benefits, if any, available shall be released. iii) The recovered amount of Rs.25340/- from the DCRG of the petitioner shall be refunded to him. All payable benefits be released within four months.
28.07.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES