Dismissed

Csk Hp Krishi Vishvavidyalaya v. Shyam Verma

Himachal Pradesh HC5 Aug 2022LPA/458/2011

Case brief

AI extract

What is this about?

The High Court dismissed the university's appeal against the quashing of an order that barred recovery of excess pay from retired teachers. The court relied on Supreme Court precedent to hold that recovery from retired employees is impermissible when it has been over five years since the excess payments were made.

What did the court decide?

Impugned order dated 18.8.2010 setting aside recovery proceedings was affirmed; university appeal dismissed.

Csk Hp Krishi Vishvavidyalaya Vs… — Pension and Retirement Benefits | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 5^th DAY OF AUGUST, 2022

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BEFORE

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HON’BLE MS. JUSTICE SABINA

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HON’BLE MR. JUSTICE SATYEN VAIDYA LETTERS PATENT APPEAL No.458 of 2011

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Between:-

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1. CHAUDHARY SARWAN KUMAR, H.P. KRISHI VISHVAVIDYALAYA, PALAMPUR THROUGH

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ITS REGISTRAR.

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2. BOARD OF MANAGEMENT CSK H.P. KRISHI VISHVAVIDYALAYA, PALAMPUR THROUGH ITS CHAIRMAN (VICE-CHANCELLOR, CSKHPKV, PALAMPUR), TEHSIL PALAMPUR, DISTRICT KANGRA. ..….APPELLANTS

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(BY MR. NARESH K. SHARMA, ADVOCATE)

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AND

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1. SHYAM VERMA, SON OF LATE SHRI NIL MANI, RESIDENT OF RAGHUNATHPUR, KULLU, TEHSIL & DISTRICT KULLU, HIMACHAL PRADESH.

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2. K.S. RANA, SON OF LATE SHRI PARMANAND, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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3. J.C. GUPTA, SON OF LATE SHRI BAKSHI RAM, RESIDENT OF BAJAURA, TEHSIL AND DISTRICT KULLU, HIMACHAL PRADESH.

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4. PROMILA KANWAR, WIFE OF SHRI S.S. KANWAR, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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5. DHANBIR SINGH, SON OF SHRI KESAR SINGH, RESIDENT OF DHAULAKUAN, DISTRICT SIRMOUR, HIMACHAL PRADESH.

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6. PAWAN KUMAR MEHTA, SON OF LATE SHRI GIAN CHAND MEHTA, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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7. KARAM SINGH THAKUR, SON OF SHRI MUNSHI

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RAM THAKUR, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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8. NAVNEER KUMAR GUPTA, SON OF LATE SHRI GOVERDHAN LAL GUPTA, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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9. SURINDER BHAN, SON OF LATE SHRI SOM NATH BHAN, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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10. V.K. SURI, SINCE DIED, THROUGH HIS LEGAL REPRESENTATIVES:

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10(A) PUNITA SURI, WIFE OF LATE SHRI V.K. SURI, 10(B) VINEET SURI, SON OF LATE SHRI V.K. SURI, 10(C) VINAY SURI, SON OF LATE SHRI V.K. SURI, ALL RESIDENTS OF 128, SECTOR 8 PANCHKULA, HARYANA.

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11. DINESH BADIAYALA, SON OF LATE SHRI D. BADIAYALA, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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12. ARUN KUMAR, SON OF LATE SHRI R.P. GAUTAM, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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13. JATINDER KISHTWARIA, W/O DR. R.S. KISHTWARIA, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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14. DILA RAM THAKUR, SON OF SHJRI SHER SINGH, RESIDENT OF BAJAURA, TEHSIL AND DISTRICT KULLU, HIMCHAL PRADESH.

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15. S.C. NEGI, SON OF LATE HON. CAPT. UDHAM SINGH, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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16. DOLE RAM THAKUR, SON OF SH. NOKHU RAM, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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17. M.S. KANWAR, SON OF SHRI SHAMSHER SINGH, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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18. K.S. CHANDEL, SON OF SHRI S.S. CHANDEL, RESIDENT OF PALAMPUR, TEHSIL

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PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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19. B.M. SHARMA, SON OF LATE SHRI JAMNA DASS, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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20. T.R. NANDAL, SON OF SHRI S.S. NANDAL, RESIDENT OF DHAULAKUAN, DISTRICT SIRMOUR, HIMACHAL PRADESH.

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21. S.K. CHAUHAN, SON OF LATE SHRI JAISU RAM CHAUHAN, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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22. K.P. SINGH, SON OF SHRI MAHIPAL SINGH, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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23. JAMIAT SINGH CHAUHAN, SON OF LATE SHRI CHANDA SINGH, RESIDENT OF PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH.

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24. JITENDERA PAL, SON OF SHRI KEWAL KRISHAN, RESIDENT OF BINDRABAN, PALAMPUR, TEHSIL PALAMPUR, DISTRICT KANGRA, HIMACHAL PRADESH. …...RESPONDENTS (BY MR. RAJNISH MANIKTALA, SENIOR ADVOCATE WITH MR. NARESH VERMA, ADVOCATE, FOR R-10(A) TO 10(C) ) RESERVED ON : 02.08.2022 PRONOUNCED ON : _____2022

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This Letters Patent Appeal coming on for hearing this day,

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Hon’ble Ms. Justice Sabina, delivered the following:

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J U D G M E N T

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Appellant-University has come up in an appeal against the judgment dated 18.6.2011, passed by learned Single Judge, in CWP

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No.5184 of 2010, whereby writ petition filed by the respondents, was

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allowed and impugned office order dated 18.8.2010, was set aside.

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Respondents had filed the writ petition seeking following relief(s):-

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“i) This Hon’ble Court may kindly be pleased to quash the impugned notification dated 11.8.2010 Annexure P-6 and office order dated 18.8.2010 Annexure P 9 by way of issuance of writ of Certiorari.

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ii) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to implement notification dated 11.8.2010 and office order dated 18.8.2010.

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iii) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to withdraw the promotion orders which have been issued in favour of the petitioners from time to time pursuant to their opting for the PPS Scheme vide notification dated 17.1.2002.

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iv) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to withdraw the scales granted to the petitioners pursuant to their having for the PPS Scheme vide notification dated 17.1.2002 and also not effect any recoveries from them on the basis of notification dated 11.8.2010.

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v) This Hon’ble Court may kindly be pleased to direct the respondent University by way of issuance of writ of mandamus not to redraw the seniority of the Professors/Equivalent as per the decision contained in notification dated 11.8.2010.”

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3. Facts in the present case are not much in dispute. Respondents

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were appointed in different specializations in the teaching faculties of the appellant-University from the year, 1981 to 1987. Respondents were promoted to the posts of Associate Professor/equivalent under the Career Advancement Scheme (CAS) in the pay scale of Rs.37005700. Respondents were asked to opt for Personal Promotion Scheme (PPS), if they so desired vide notification dated 17.1.2002 which provided for accelerated promotions to the posts of Associate Professor/equivalent, though on lesser pay scale. The respondents opted for the said Scheme and were promoted to the posts of Associate Professor/equivalent from the retrospective date in the pay scale of Rs.3000-5000. All the respondents had also done Doctorate of Philosophy (Ph.D.) in their concerned specialty. Appellant-University issued notification dated 18.12.2000 and approved the revised Career Advancement Scheme (CAS) for the Teachers, w.e.f. 1.1.1996 by substituting the existing Personal Promotion Scheme (PPS).

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Clause 6.4 (ii) of the said Scheme before its amendment by the appellant-University, on 27.11.2001, reads as under:-

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“ii. Completed 8 years service as Associate Professor (directly recruited as well as promoted) provided that the requirement of 8 years service will be relaxed if the total service as Asstt. Prof./Asstt. Prof.

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Senior Scale/Asstt. Prof. Selection Grade/Assoc. Prof. is not less than 17 years. Provided further that at least 5 years of service should have been rendered as Assoc. Prof. Equivalent in HPKV.”

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By way of amendment carried out and approved on 29.9.2001, the said Clause, provided that an Associate Professor/equivalent, who had completed 8 years of service, as such, was eligible for promotion to the post of Professor in the concerned specialty.

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Clause 6.4 of the notification dated 18.12.2000 (Annexure P-2) reads as under:-

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“6.4 Eligibility for career advancement of Associate Professor/equivalent (directly recruited as well as promoted) as Professor/equivalent. An Associate Professor/equivalent (directly recruited as well as promoted) shall be eligible for promotion as Professor/equivalent in the scale of Rs.16400/450-20900-500-22400, if he/she has:

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(i) Obtained a Ph.D. degree

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(ii) Completed 8 years service as Associate Professor (directly recruited as well as promoted) provided that the requirement of 8 years service will be relaxed if the total service as Asstt. Prof./Asstt. Prof. Senior Scale/Asstt. Prof. Selection Grade/Assoc. Prof. is not less than 17 years. Provided further that at least 5 years of service should have been rendered as Assoc. Prof. Equivalent in HPKV.

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(iii) Made some mark in the area of scholarship /research/extension as evidenced by selfassessment, report of referees, quality of publications, contributions to the educational renovation, design of new course and curricula, etc.

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(iv) Earned consistently good performance appraisal reports.

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(v) Participated in at least two refresher courses/summer institutes each of 3-4 weeks duration OR

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Engaged in other appropriate continuing education programmes of comparable quality as may be specified/approved by the UGC/ICAR after placement in the senior scale.”

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The said rule was amended vide notification dated 18.12.2001 (Annexure P-3) and the same reads as under:-

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“ Item No.:2 To place before the Board of Management the matter regarding amendment in Career Advancement Scheme on the analogy of UHF, Solan and on the basis of guidelines received from the ICAR.

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The Board of Management approved the amendments as proposed ( as per annexure) in the existing CAS Rules. However, the Board of Management desired that the language should be the same as used by the ICAR while adopting/amending/ ICAR rules/instructions in the University, in future.”

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Thereafter, notification dated 18.12.2001 (Annexure P-4) was issued, whereby some more amendments were carried out in the existing rules of Career Advancement Scheme (CAS) of Teachers.

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Annexure P-5 is another notification dated 17.1.2002 and the

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same reads as under:-

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“ NOTIFICATION

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In pursuance of decision of the Board of Management taken vide item No.33 of its 73^rd meeting held on 29.12.2001, the teachers (Asstt. Professors/equivalent) who were appointed on or before 1.2.1988, are given an opportunity to exercise their fresh options under the Personal Promotion Scheme as on 1.2.1988 in supersession of options exercised by them earlier, on the prescribed proforma, (copy enclosed) within a period of 45 days from the date of issue of this notification. The promotions under Personal Promotion Scheme shall be governed strictly under the guidelines issued by the ICAR from time to time. It is further made clear that the scheme has finally been abolished by the ICAR w.e.f. 3.3.1999, after they will be governed under Career Advancement Scheme. No relaxation/extension for preferring options shall be allowed beyond the stipulated period and the option once exercised would be final. As a consequence of change of option and grant of promotion under the Personal Promotion Scheme, the benefit reaped by such teachers on account of the grant of senior scale, selection grade and promotion

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under the Career Advancement Scheme shall be recovered/adjusted accordingly.

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All the Heads of Departments/Incharges of the research stations/Krishi Vigyan Kendras will ensure that the above instructions are brought to the notice of all teachers/scientists working under their control including those who are on study leave/long leave and foreign service etc.”

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After issuance of the said notification, respondents stood promoted as Assistant Professors/equivalent by the University as per Career Advancement Scheme (CAS) in the pay scale of Rs.3700-5700. 11. Thereafter, University vide notification dated 11.8.2010 (Annexure P-6), carried out amendments and provided the following pay scale for Assistant Professor/equivalent:-

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“Completed 8 years service as Associate Professor/equivalent (directly recruited as well as promoted) in the pay scale of Rs.3700-5700/1200018300.”

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Thereafter, the appellant-University, issued letter (Annexure P-7) (to the writ petition) dated 19.4.2001 and the said letter reads as under:-

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“ Reference is invited to the scheme for Career Advancement of Scientists under ICAR and teachers of the SAUs and CAU circulated vide letter number 2110/99-Per.IV dated 19^th July, 2000. Para 4.0/2.6 of the Career Advancement Scheme of ICAR

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Scientists/teachers of SAUs respectively provided as follows:-

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If the number of years required in a feeder cadres are less than those stipulated in this notification, thus entailing hardship to those who have completed more than the total number of years in their entire service for eligibility in the cadre, such candidates may be placed in the next higher cadre after adjusting the total number of years.

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Many ICAR Instts. And SAUs have been seeking clarification on the applicability of the above point. The matter has been examined in the Council of and it has been observed that UGC vide its letter number F.23/2000(PS) dated 8^th June, 2000 and letter number F.31/94 (PS-6) dated 5^th October, 2000 has clarified that a Lecturer who is in Sr. Scale with a total of 9 years service (with Ph.D)/10 years service (with M.Phill.)/11 years service will become eligible for Lecturer (Sel. Grade)/Reader(Promotion) without requiring the stipulated 5 years service as Lecturer (Sr. Scale) and 8 years service as Reader in the scale of 3700-5700 (revised Rs.12000-18300) (with Ph.D.) must remain the minimum eligibility for consideration of promotion from Reader to the post of Professor under CAS.

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Keeping in view the above clarification issued by UGC it is clarified that a Scientist (Sr. Scale)/Lecturer (Sr.Scale)/Asstt. Professor (Sr. Scale) with 5 years of service in the senior scale or with a total of 9 years service (with Ph.D.)/10 years service (with M.Phil.)/11 years service would be eligible for promotion to the

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post of Sr. Scientists/Scientists (Sel. Grade)/Reader (Promotion)/Associate Professors (promotion)/Lecturer (Sel.Grade). But for promotion to the post of Principal Scientists/Professor (promotion) 8 years service as Senior Scientists/Reader/Associate Professor with Ph.D. in the revised pay scale of Rs.12000-18300 must remain the minimum eligibility.

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It is requested that the cases of promotion under the revised Career Advancement Scheme may be considered on the basis of the above clarification and other conditions stipulated in the scheme.

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A necessary action is being taken to incorporate the above mentioned clarification in the Career Advancement Scheme.”

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Thus, the University issued notification dated 18.12.2001, prescribing pay scale for Associate Professors/equivalent, despite issuance of letter dated 19.4.2001.

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The question involved in the present case is as to whether the University was bound by all the directions/circulars/ clarifications issued by the Indian Council of Agricultural Research (ICAR) in respect of pay scales and service conditions of its Teachers and could have issued notifications dated 18.12.2001 and 17.1.2000 in variance to the directions of Indian Council of Agricultural Research (ICAR) while professing to abide by the same.

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It was only when audit objection was taken it transpired that the notification dated 18.12.2001 had been issued by the University for

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undue enrichment and their undue promotion as Professors. The University by issuing the notification dated 11.8.2010, sought to withdraw the benefits given to the petitioners vide impugned notification dated 18.12.2001.

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Learned counsel for the appellant-University has submitted that learned Single Judge had erred in allowing the writ petition filed by the respondents. In fact, the University on realizing its mistake had rightly issued the impugned notification. The University was bound by the directions/circulars/clarifications issued by the Indian Council of Agricultural Research (ICAR) in respect of pay scale and service conditions of its Teachers.

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Learned counsel for the respondents, on the other hand, has opposed the appeal and has submitted that by now all the respondents have retired. Some of the respondents had retired before the issuance of impugned notification, whereas, the other respondents had retired between the year, 2010 to 2019. At the time of issuance of impugned notification, respondents had already put in 6 to 11 years service as Professors and had been paid salaries in the pay scale of Professors. The respondents had been required to work against the post of Professors and had been paid accordingly. After retirement, the respondents do not have any other source of income and are fully dependent upon their retiral benefits. They have to look after their families. Respondents had not made any mis-representation at the time of submitting options by them under the relevant notification

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hence, the order of recovery was harsh and arbitrary and was wholly iniquitous.

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In support of his arguments, learned counsel for the respondents has placed reliance upon the decision of the Hon’ble Supreme Court, in

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State of Punjab and others vs. Rafiq Masih (White Washer) and

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others , (2015) 4 SCC 334, wherein it was held as under:-

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“18. It is not possible to postulate all situations of hardship which would govern employees on issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:-

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have

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rightfully been required to work against an inferior post.

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(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.”

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Learned counsel has further submitted that the view taken by the Hon’ble Supreme Court in Rafiq Masih ’s case (supra) has been reiterated by the Hon’ble Supreme Court in Thomas Daniel vs. State of Kerala & others , 2022 LiveLaw (SC) 438.

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Thus, in the present case, the situation that emerges, at this stage, is that all the respondents have since retired and had drawn the benefits of higher pay scale for about 6 to 11 years after performing the duties against the higher post. Thus, in view of the law laid down by the Hon’ble Supreme Court in Rafiq Masih’s case (supra), the recoveries could not be effected from the salaries of the respondents as the payments in question had been made to them in excess of 5 years before the orders of recovery were issued and the respondents had duly performed their duties as Professors and had been paid accordingly, even though, they could have been required to work against an inferior post.

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In this view of the matter, the recoveries sought to be effected

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from the respondents, vide impugned order dated 18.8.2010, were

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liable to be set aside. In the facts and circumstances of the case, the question as to whether the notification dated 18.12.2001 was illegal or not, and whether the fresh notification dated 11.8.2010 was legally issued, is rendered merely academic and can be taken up for discussion in an appropriate case. Hence, in the facts and circumstances of the case, learned Single Judge had rightly quashed the office order dated 18.8.2010, whereby recovery proceedings were

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sought to be initiated against the respondents.

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The appeal stands disposed of accordingly.

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Pending miscellaneous application(s), if any, also stands

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disposed of.

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( Sabina ) Judge

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( Satyen Vaidya) Judge

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August 05, 2022 (ks)

Csk Hp Krishi Vishvavidyalaya v. Shyam Verma

Case brief

What is this about?

What did the court decide?

Csk Hp Krishi Vishvavidyalaya v. Shyam Verma

Case brief

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