Point of Law: Recovery of excess payment in factual scenario of case would be iniquitous and harsh upon the petitioner, who stood superannuated from service about nine months prior to issuance of impugned order.

ORDER :

1. Benefit of Assured Career Progression Scheme 9.8.2012 made available to the petitioner from the year 2012 vide order dated 30.7.2014 was withdrawn on 6.10.2017 and recovery of excess payment was ordered. The order dated 6.10.2017 has been impugned herein.

2. Case of the petitioner is that he was promoted as Principal on 19.04.2008. On completion of four years of service, his case fell due for grant of benefit under the Assured Career Progression Scheme (In short ACPS) w.e.f. 19.04.2012. Due to fault at the level of the respondents-department, ACP was not granted to the petitioner immediately on completion of four years of service. The same, however, was allowed to him and severalothers vide office order dated 30.07.2014. The pay of the petitioner and the other officers mentioned in this office order was fixed on notional basis up-to 08.08.2012 and on actual basis w.e.f. 09.08.2012. On 6.10.2017, respondents issued an office order (Annexure A/2) withdrawing the ACP benefit earlier allowed to the petitioner & also ordered to recover the excess payment made to him. In the aforesaid circumstances, the petitioner has preferred the present petition, seeking quashing of the order dated 6.10.2017 (Annexure A-2).

3. Contentions

3.1. The arguments advanced by learned Senior Counsel for the petitioner are that the impugned order was issued in violation of principles of natural justice. Benefit of ACPS was allowed not only to the petitioner, but several other officials, whose names figured in the impugned order. The benefit could not have been withdrawn only from the petitioner in an arbitrary manner. It was also contended that the impugned order was passed statedly on the strength of circular dated 7.7.2014, which came into force with immediate effect i.e. on 07.07.2014. Hence, the benefit of ACPS, which stood conferred upon the petitioner in terms of office order dated 30.07.2014 granting ACP on notional basis up-to 08.8.2012 and on actual basis w.e.f. 09.08.2012 could not have been withdrawn on the strength of the circular/instructions dated 07.07.2014. Reliance in this regard was also placed upon instructions dated 09.09.2014, which clarified that instructions dated 7.7.2014 were made applicable with immediate effect with the objective that all the cases pending on that day or arising after that have to be examined in light of instructions ibid.

The respondents short-stand in the reply is that the ACPS introduced under notification dated 09.08.2012 was explained by the Government of Himachal Pradesh Finance (Pay Revision) Department letter dated 7.7.2014 and 9.9.2014, whereby it was held out that an employee, who has already received three enhancement/financial up-gradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission in fourteen years or more of his entire service, will not be entitled for placement in next higher grade in the ACPS introduced on 9.8.2012. In compliance to the interlocutory orders passed in the matter, the respondents have further submitted that the following benefits had already been extended to the petitioner prior to issuance of office order dated 30.07.2014:-

“(I) 1st ACP benefit after 8 years of regular service paid on 21.04.1997. (1st benefit).

(II) 1st proficiency step up after 16 years of regular service on 21.4.2002 (2nd benefit).

(II) On promotion as Principal dated 19.4.2008. (3rd benefit).

The case of the respondents is that the petitioner had already been granted three financial up-gradations in all. Thus, he was not entitled to the 4th financial up-gradation on completion of four years of service as Principal. The financial benefit granted to the petitioner vide office order dated 30.07.2014 was contrary to the ACPS dated 09.08.2012. Hence, it was correctly withdrawn vide impugned order passed on 6.10.2017.

4. Observations

On hearing learned counsel for the par