Tara Chand Vs Himachal Road Transport Corporation and Another

“i) That the impugned order dated 15.05.2023 (Annexure P-6) may kindly be quashed and set-aside being factually wrong, arbitrary, illegal and violative of the judgment dated 26.04.2022( Annexure P-4) passed by the Hon’ble Court in CWP (T) No. 7283 of 2020 titled as Tara Chand Vs. HRTC and another with all consequential benefits, by issuing writ of certiorari and justice be done;

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ii) That a writ in the nature of mandamus may kindly be issued, directing the respondents to restore the pay of the petitioner as already fixed vide Annexure P-2 dated 09.03.2016 after allowing the benefit of 32 years’ service w.e.f. 24.04.2015 because the impugned order dated 25.04.2019 passed by the respondent No.2 reducing the pay of the petitioner stands set-aside & quashed by the Hon’ble Court vide Annexure P-4 dated 26.04.2022 with a further direction to revise the pension, death-cumretirement gratuity and leave encashment & release due & admissible arrears to the petitioner forthwith along with interest @ 9% per annum and justice be done.”

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1 Whether reporters of the local papers may be allowed to see the judgment?

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The facts, as emerge from the pleadings, are that the petitioner was appointed as Conductor with the respondentCorporation on regular basis on 24.04.1983 and was promoted to the post of Sub-Inspector w.e.f. 29.12.2015 and later to the post of Inspector w.e.f. 30.11.2018. After his promotion, his pay was re-fixed and the petitioner has now been retired from service on attaining the age of superannuation on 30.04.2019.

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The petitioner vide office order dated 09.03.2016, was allowed the benefit of increment under Assured Career Progression Scheme after 32 years service (old) w.e.f. 24.04.2015 taking into consideration the option exercised by him to opt the benefit of 8,16,24 and 32 years service. As per office order dated 09.03.2016 (Annexure P-2), his pay was fixed at Rs. 17,390/-+ 2400/- Grade Pay = Rs. 19,790/- w.e.f. 24.04.2015. Thereafter, vide office order dated 25.04.2019 (Annexure P-3), the respondent-Corporation had withdrawn the pay fixation done earlier with respect to the petitioner, whereby he was granted the benefit of increment under ACPS (old) after 32 years service and his pay was re-fixed at Rs. 16,810/- + 2400/- = Rs. 19,210/-, which admittedly was less than the pay earlier fixed w.e.f. 24.04.2015, which was Rs. 17,390/- + 2400/- = Rs. 19,790/-.

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The petitioner feeling aggrieved by the said order, whereby his pay was re-fixed, vide office order dated 25.04.2019, had approached this Court by way of CWPOA No. 7283 of 2020, titled, Tara Chand Vs. HRTC and another . This Court vide judgment dated 26.4.2022 had allowed the said petition and the order of recovery dated 25.04.2019 was quashed and set aside. The relevant para of the judgment reads as under:

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“2. This Court on 24.03.2022 vide detailed order, laid down the following parameters where recovery by the employer would be permissible/impermissible from the employee. Paragraph 35 whereof reads as under:-

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“35. In view of the aforesaid discussion, as held by Hon’ble Supreme Court in Rafiq Masih’s case (supra), it is not possible to postulate all situations of hardship, where payments have mistakenly been made by the employer, yet in the following situations, recovery by the employer would be impermissible in law:-

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(i) Recovery from employees belonging to Class-III and ClassIV service (or Group ‘C’ and Group ‘D’ service).

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

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(iii) Recovery from 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 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 be far outweigh the equitable balance of the employer’s right to recover.

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(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class- I/Group-A and Class-II/Group-B, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer’s right to recover.

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(vii) Recovery from the employees belonging to Class- III and Class-IV even on the basis of undertaking is impermissible.

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(viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible guidelines or rigid formula and to give any exhaustive list of myriad kinds of cases.

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Therefore, each of such cases would be required to be decided on its own merit.”

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The case of the petitioner is squarely covered under Clause (i) and (ii). Accordingly, the instant petition is allowed and order of recovery dated 25.04.2019 is quashed and set aside.

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The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs.

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However, we make it clear that in case the recovery or a part thereof is or has been effected by the employer, then, the employer shall be bound to refund the same to the employee.”

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The grievance of the petitioner in the present petition is

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that once this Court had already quashed the order dated 25.04.2019, the respondent-Corporation could not have passed the impugned order dated 15.05.2023 (Annexure P-6). As per this communication, it has been stated that the petitioner has been paid the recovery amount of Rs. 61,368/-, however, since the petitioner was given 04 benefits as per the Government instructions dated 26.02.2013, which provides that ‘for the purpose of benefits granted under 4-9-14 and 8-16-24-32 ACP Scheme, the HP Civil Service Rules 2012 (Re-revision) be treated as financial enhancement and in case of those categories of employees to which the HP Civil Service Rules 2012 are applicable and whose pay band or grade pay has increased, the qualifying period

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of granting benefit under the ACP Scheme shall commence from the date of application of the earlier Rule. Once this Court had already quashed the order dated 25.04.2019, the respondents were bound to pay the benefits as granted earlier to him and other employees.

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The respondents have filed reply to the petition and averred that the petitioner was inadvertently granted the benefit of increment under ACP Scheme after completion of 32 years of service w.e.f. 24.04.2015. As per the direction passed by this Court, the petitioner has been paid the recovery amount, vide cheque No. 817074, dated 05.09.2022. The petitioner had already drawn the benefit of Sr. Scale from 01.01.1996 and Grade Pay of Rs. 2400/from 01.01.2006 onward, besides getting benefit of 03 proficiency i.e. 01.05.1991 (8 years), 24.09.1999 (16 years) and 24.07.2007 (24 years) and Sr. Scale of Rs. 1200-3100 in pre-revised pay scale w.e.f. 01.01.1996. It is further averred that as per the judgment passed by this Court in CWP No. 768 of 2021, titled, Bhawani Shankar Vs. HRTC and another, wherein it was held that once the petitioner had opted to continue under old ACP Scheme and had already availed 03 enhancements/financial benefits on completion on 8, 16 and 24 years of service, he is not entitled to 4^th benefit on completion of 32 years of service. In the case of the petitioner he had drawn the benefit of Sr. Scale from 01.01.1996 and GP of Rs. 2400/- from 01.01.2006 and

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thus wrongly granted the benefit of increment after completion of 32 years service.

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I have heard the learned counsel for the parties and also perused the record carefully.

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It is not in dispute that the petitioner against the order dated 25.04.2019 (Annexure P-3) had earlier filed the writ petition before this Court, which was disposed of on 26.04.2022. While disposing of the writ, this Court had only allowed the petition to the extent that no recovery shall be made from the petitioner and there was no discussion with respect to the grant of benefit after completion of 32 years of service under ACP Scheme. This Court had directed the respondent-Corporation to refund the amount and the respondentCorporation has refunded the amount, as is evident from communication dated 15.05.2023 (Annexure P-6).

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The petitioner was aware that as per the office order dated 25.04.2019, which was admittedly passed before his retirement, his pay was re-fixed in the pay scale of Rs. 16,810/-+2400=19,210/when 32 years ACP Scheme earlier granted to him was withdrawn. The petitioner did not assail the said decision particularly regarding reduction of his pay and was getting the pension on the basis of the said office order. This Court had only quashed the recovery to be effected from him. Even as per communication dated 15.05.2023

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(Annexure P-6), the petitioner had not come to this Court immediately thereafter and instituted the petition only on 11.04.2025.

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Once this Court had only quashed the order to the extent of making recovery and there is no discussion with respect to the benefits granted to the petitioner after completion of 32 years of service having been withdrawn, the petitioner cannot be allowed to contend that once the said order has been quashed, he is entitled to be granted the benefit of increment after completion of 32 years of service. Had this Court considered the said issue and quashed the order to that extent too, the respondent-Corporation could not have raised a plea, but once the Court while allowing the petition only referred the clauses 1 and 2 of the parameters laid down in the judgment dated 24.03.2022, the argument put-forth by learned counsel for the petitioner cannot be accepted. A Co-ordinate Bench of this Court in CWP No. 768 of 2021 titled Bhawani Shankar Vs. HRTC and another, decided on 14.05.2025, has already dealt with similar issue with respect to the grant of benefit of increment after completion of 32 years of service and the relevant part of the judgment reads as under:-

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“2(iv). The New ACP Scheme was further clarified by the respondents on 07.07.2014. Relevant to context is para 5 which reads as under:-

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“5. Moreover, the overriding objective of an assured career progression scheme is to ensure at least three financial upgradations/enhancements/promotions to a regular employee in

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his entire service career. Therefore, in partial modification of earlier orders on ACP schemes it is directed that, once an employee has already got three enhancements/financial upgradations 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/her entire service; thereafter, he will not be entitled for placement in next higher grade pay in the ACPS scheme introduced vide FD's instructions dated 9th August, 2012. However, it is clarified that after availing three enhancements/up-gradation/promotion, an employee will be eligible to take the benefit of normal promotions available in his service career.”

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Clarification dated 07.07.2014 states that once an employee has already got three enhancements/financial upgradations, i.e. grant of progression under the New or Old ACP Schemes, or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission, he will not be entitled for placement in next higher grade pay in the ACP Scheme. This is in view of the avowed object of the ACP Scheme to ensure three financial upgradations/enhancements to an employee in his entire service career. The above position was reiterated by the State in office communication/circular dated 09.09.2014 as under:-

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“In continuation of this Department’s letter of even number dated: 7 July, 2014, on the subject cited above, I am directed to say that the objective of the Assured Career Progression Scheme issued by the State Government is to ensure three financial upgradations/enhancements to a regular employee In his entire service career. The Finance Department's instructions ibid only supplemented the position already given in Assured Career Progressions instructions dated: 15.12.1998 & 09.08.2012, as far as the three upgradations in the entire service career are concerned.

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It is further clarified that Finance Department's instructions dated: 07.07.2014 were made applicable with immediate effect with the objective that all the cases pending on that day or arising after that has to be examined, in the light of instructions ibid.”

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In the instant case, admittedly the petitioner who had opted to continue under the Old ACP Scheme, had already availed three enhancements/financial benefits on completion of 8, 16 & 24 years of service. It is not in dispute that petitioner had drawn benefit of Senior Scale from 01.01.1996 and grade pay of Rs.2400/- from 01.01.2006 onwards besides getting benefit of three proficiencies on completion of 8, 16 & 24 years of service, respectively, as also the Senior Scale. Therefore, he was not entitled to fourth benefit on completion of 32 years of service.

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In view of the above, the benefit as claimed by the petitioner cannot be granted to him. The petition fails and is accordingly dismissed. Pending miscellaneous application(s), if any, to also stand disposed of.”

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In the present case, the petitioner has been granted the benefit of three enhancements/financial benefits on completion of 8,16 & 24 years of service and as such his case is squarely covered by the judgment rendered by the Co-ordinate Bench referred above, and as such, the present petition being devoid of any merit deserves to be dismissed.

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