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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Rakesh Kumar – Petitioner
Versus
State of H.P. and Others – Respondents
CWPOA No. 3883 of 2020
Decided On : 19-12-2022
Employment and Service matter - Appointed as Part Time Water Carrier - Promotion - Pay scale - Petitioner was initially appointed as Part Time Water Carrier in year - He was converted into whole time contingent worker - Services of petitioner were regularized w.e.f. Class-IV - During his service as Class-IV, petitioner improved his qualification and passed 10+2 examination, conducted by H.P. Board of School Educatio-petitioner was promoted to post of Clerk vide office order dated in pay scale of Rs. 5910-20200+1900 Grade Pay - Promotion order of petitioner was subject to following condition - Petitioner qualified the typing test and became entitled to the annual increment w.e.f. as per terms and conditions of his promotion order, as noticed above - Petitioner was promoted as Junior Assistant by way of placement vide office order dated and his pay was fixed in Pay Band - Whether recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh equitable balance of employer's right to recover - There is also no material to show that how many chances were availed by petitioner to qualify test and thirdly, respondent in order to take benefit of Clause-4 of terms and conditions of promotion order could have come out clearly about aforesaid facts as non-adherence to terms of aforesaid Clause-4 of terms and conditions entailed reversion to Class-IV. (Para 18)
Finding of Court :
Firstly, there was no mention of probation period in promotion order, hence reference to passing of typing test within the probation period was vague, secondly, respondents have not come out clearly with the facts that when did initial probation period of petitioner came to an end and for how long it was extended - There is also no material to show that how many chances were availed by petitioner to qualify test and thirdly, respondent in order to take benefit of Clause-4 of terms and conditions of promotion order could have come out clearly about the aforesaid facts as non-adherence to terms of aforesaid Clause-4 of terms and conditions entailed reversion to Class-IV - Petitioner was promoted - He qualified the typing test - Instead of such delay on part of petitioner in qualifying typing test, he was further promoted to the post of Junior Assistant - Having granted all service benefits to petitioner, it is not understandable as to for what reason impugned office order dated 27.11.2017 was issued - Said order clearly is without any basis - Moreover, an order having civil and evil consequences against petitioner was issued without affording petitioner an opportunity of being heard - Even representation made by petitioner remained unanswered.
Result : Petition allowed
JUDGMENT :
SATYEN VAIDYA, J.
1. By way of instant petition, petitioner has prayed for the following substantive reliefs:
(ii) That the pay of the applicant be fixed at Rs. 15,160 as on 15.9.2016 instead of Rs. 14,320.
(iii) That the respondents may further be directed to grant pay band i.e. 10300+34500+3200 Grade Pay w.e.f. 15.9.2013.
(iv) That the respondents may be further directed to grant the applicant actual consequential financial benefits on annual increments from date of promotion i.e. 15.9.2011 in place of notional benefits.
(v) That the order of recovery issued by respondent No. 3 be quashed and set aside”
2. Brief facts necessary for adjudication of the case arethat the petitioner was initially appointed as Part Time Water Carrier in the year 1996. He was converted into whole time contingent worker in June, 2000. The services of the petitioner were regularized w.e.f. 31.10.2000 as Class-IV. During his service as Class-IV, petitioner improved his qualification and passed 10+2 examination, conducted by H.P. Board of School Education.
3. On the recommendations of DPC, petitioner was promoted to the post of Clerk vide office order dated 15.9.2011 in the pay scale of Rs. 5910-20200+1900 Grade Pay. The promotion order of the petitioner was subject to following condition:
4. The pay of the petitioner was fixed in the Pay Band of Rs. 5910-20200+1900 Grade Pay vide office order dated 17.1.2012.
5. The State Government vide notification dated 27.9.2012 amended the H.P. Civil Services (Category/Post wise Revised Pay) Rules, 2012 by adding certain categories/posts in the schedule appended to the rules and the category of Clerks was also included therein for entitlement of Pay Band of Rs. 10300-34800 + Grade Pay of Rs. 3200. Such Pay Band and Grade Pay, however, was made available only to those incumbents, who had completed two years of regular service. Petitioner completed two years of regular service as Clerk on 15.9.2013 and thus became entitled to Pay Band of Rs. 10300-34800 + Grade Pay of Rs. 3200 w.e.f. 15.9.2013. Vide communication dated 4.7.2014, the Deputy Director of Higher Education, Una verified such entitlement of petitioner and communicated the same to the Principal, Government College, Una, District Una, H.P. where the petitioner was posted.
6. Petitioner qualified the typing test on 30.4.2014 and became entitled to the annual increment w.e.f. 30.4.2015 as per terms and conditions of his promotion order, as noticed above. The petitioner was promoted as Junior Assistant by way of placement vide office order dated 18.8.2017 and his pay was fixed in the Pay Band of Rs. 11560-15160 + Rs. 3600 as Grade Pay.
7. Respondent No. 2 vide office order dated 27.11.2017 re-fixed the pay of petitioner in the Pay Band of Rs. 5910-20200 + Grade pay of Rs. 1900 right from the date he was promoted as Clerk. In pursuance to said office order, the pay of petitioner as Junior Assistant as of 1.9.2017 was fixed at Rs. 14320 (10720 + Grade Pay of Rs. 3600). The over payment, if any, found to have been made to the petitioner was also ordered to be recovered.
8. Petitioner made a representation against the aforesaid re-fixation of his pay but without any response. Aggrieved against the aforesaid action of respondents, petitione
Couty of the considered view that the impugned order dated 27.11.2017 is wrong, illegal and arbitrary, as it does not have the backing of any rule or applicable service condition behind it.
Except for withholding of annual increments till lapse of one year after qualification of typing test by petitioner, respondents had no right to reduce or re-fix his pay, as has been done by way of i....
Junior's pay under revised rules with 15% enhancement cannot exceed senior's; refixation at par upheld if due to incorrect option, but excess recovery quashed if departmental error.
Higher pay scale entitlement for promoted clerks arises after two years regular service from promotion date, not linked to typing test passage unless explicitly stated in promotion order.
The court established that the increments earned during a penalty period must be restored upon its expiry when the penalty order specifies no postponement of future increments.
The court established that the petitioners were entitled to the higher pay scale as per the Government Resolutions and that the recovery initiated by the respondents was unjust, illegal, and arbitrar....
The court ruled against arbitrary recovery of excess salary, emphasizing protections for employees and the necessity for compliance with procedural justice.
Retirement - Re-fixation of pay - No justification in re-fixing pay of petitioner after his retirement and to recover excess amount allegedly paid to him from 1.1.2008 onwards from his terminal benef....
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