Partly allowed

Ziledar Singh v. State of Haryana & Ors.

Punjab & Haryana HC3 Nov 2012CWP/18369/1994

Case brief

AI extract

What is this about?

Petitioner challenged recovery of excess pay and denial of pay fixation. Court held non-competent authority order revoked by department. Denied dual benefit claim. Directed state to pay withheld dearness allowance stopped since retirement without recovery of past excess.

What did the court decide?

Directive to Department not to recover Rs. 19,981/- and to pay arrears of dearness allowance stopped since retirement within one month.

Ziledar Singh Vs State of Haryana… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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CWP No. 18369 of 1994

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CWP No. 18369 of 1994

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Date of decision: 03.11.2012

Dr. Ziledar Singh

........ Petitioner

Versus

State of Haryana and others

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........ Respondents

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CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH

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1. Whether Reporters of the Local Papers may be allowed to see the judgment?

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2. To be referred to the Reporters or not?

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3. Whether the judgment should be reported in the Digest?

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PRESENT: Mr. Anil Malhotra, Advocate for the petitioner.

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Mr. KC Bhatia, Additional Advocate General, Haryana.

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R.P. NAGRATH, J.

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The petitioner was appointed as Deputy Director, Agriculture, in HAS Class-I service of State of Haryana on the recommendation of Public Service Commission, in the pay scale of 400-1250. His appointment letter is dated 29.7.1980 (Annexure P-1) conveyed vide endorsement dated 31.7.1980. Prior to his appointment the petitioner was working as Assistant Scientist in Haryana Agriculture University (HAU) in the pay scale of 700-1600. His total emoluments were 1481/- with basic pay of 1020/- in the grade of ` 700-1600. The

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CWP No. 18369 of 1994 -2-

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petitioner made representation for his pay protection and respondent No. 1 is stated to have fixed his pay at ` 1020/- per month w.e.f. 31.7.1980 vide Annexure P-2 dated 7.12.1983.

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The petitioner still not satisfied, made another representation dated 13.2.1984 (Annexure P-3) and ultimately, the order dated 27.2.1984 (Annexure P-4) was passed by respondent No. 2, fixing his pay at ` 1300+38, with reference to the pay drawn by him in HAU, Hisar under para 3 of the Revised Pay Scale Rules 1980 and Rule 4.4(b)(iii) of Civil Service Rules Volume-I Part-I.

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The pay of the petitioner was reduced from 1338/- to 1020/- on the basis of an audit objection dated 19.7.1985, pointing out that the formal approval of respondent No. 3 to the pay fixation was not obtained. The petitioner, however, continued to receive his pay at the scale which was fixed vide order dated 27.2.1984 (Annexure P-4). Ultimately, order dated 7.1.1992 (Annexure P-7) was passed ordering the recovery of 19,881.33P towards the excess payment made to the petitioner for the period from 15.10.1980 to 31.10.1984 and his pay was fixed at 1020/- per month instead of already fixed at ` 1300+38. The petitioner instituted CWP No.1281 of 1992 and LPA No. 975 of 1992, filed by the respondents against the order passed in the aforesaid civil writ petition was decided on 30.9.1992 (Annexure P-10). It was ordered as under:

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“After hearing the learned counsel for the parties, we modify the impugned order of the learned Single Judge to the effect that it would be open to the State of

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CWP No. 18369 of 1994

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Haryana to issue a Show Cause Notice to Dr. Ziledar Singh, Deputy Director Agriculture, respondent, with regard to the proposed reduction in his pay and pass appropriate orders after affording him due opportunity of hearing. We also set aside the order of learned Single Judge requiring the Government to consider the desirability of recovering the costs of the petition from the person or persons concerned for passing the impugned order without show cause notice being issued to the respondent.”

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Ultimately, order dated 4.11.1994 (Annexure P-13) was passed observing that the matter was referred to the Finance Department for their advice and the cases of Sh. Lal Chand Godara and Dr. Ziledar Singh-petitioner were sent to the Finance Department. The Finance Department did not agree to the request of the petitioner. It was found that the pay of the petitioner was not correctly fixed which, therefore, was required to be corrected in pursuance of the audit objection. The petitioner was also served with a notice and after seeking his reply and hearing him in person, the Government decided to recover the excess amount from his salary.

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This action of the respondents has been attacked in this writ petition by invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India that the previous order Anneuxre P-4 fixing his pay at ` 1300+38 was never revoked. Further that the fixation of pay by the respondents is discriminatory and in violation of Article 14

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of the Constitution of India. This leg of argument of the petitioner's counsel is based upon an order Annexure P-8, passed on 24.2.1984, in the case of Sh. Lal Chand Godara, District Extension Specialist (Agro), who was also working with the Agriculture, Department fixing his pay at 1060+2.60 P in the revised pay scale of 800-1600, w.e.f. 5.5.1983.

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The respondents filed reply to contest the claim of the petitioner.

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The petitioner and the State counsel have been heard and I have given my thoughtful consideration to the rival contentions raised by them.

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It was vehemently contended that once the order (Annexure P-4) was passed, the petitioner was entitled to the grant of scale in accordance with that order unless the same was specifically revoked and there is no such order revoking the order Annexure P-4. This contention is mis-conceived because this is not something like awarding punishment against an employee for some mis-conduct. This is infact the observance to the Rules of fixation of pay and if the Rules permit the petitioner to the grant of scale which he claims he is entitled to otherwise the same is liable to be rejected.

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On a query put by this Court, the petitioner's counsel fairly conceded that the order of fixation of pay has to be passed by the Administrative Department who is the Finance Commissioner and Secretary to Government of Haryana, Agriculture Department, Chandigarh, but the order Annexure P-4 for which the petitioner tries to take advantage, was passed by Director of Agriculture, Haryana who was

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not the competent authority. On representation made by the petitioner, his pay was fixed at ` 1020/- per month vide order Annexure P-2 dated 7.12.1983 passed by the Department by giving him benefit of previous service. Respondent No. 1 further passed an order dated 4.11.1994 (Annexure P-13) reiterating the stand that the petitioner's request for revival of his pay as per order Annexure P-4 was not accepted and recovery of excess amount was ordered. This by itself amount to revocation of the order (Annexure P-4)

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The petitioner's counsel, however, relies upon Rule 4.4(b) (iii) of the Civil Service Rules Volume-I Part-I and para 3 of the Revised Pay Scale Rules 1980. A bare perusal of this Rule would make the contention of petitioner's counsel untenable. Reliance has also been placed to Rule 2.44 of para 3 of Haryana Civil Service Revised Pay Scale Rules, 1980 which only protects the 'dearness pay' for all purposes drawn in the previous Department. (Emphasis supplied)

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On asking of the Court, counsel for the petitioner has handed over the last pay drawn certificate of the petitioner which shows that he was drawing 1020/- as basic pay and 385/- as Additional Dearness Allowance. He wants to add the same to his basic pay which the Rules do not permit because thereafter, the petitioner would claim the dearness allowance on the total sum of 1020/- and 385/- and that amounts to dual benefit.

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The petitioner's counsel then falls back to the argument based on the discriminatory treatment, as compared to the case of Sh. Lal Chand Godara, which cannot be sustained because another document

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which was handed over is the copy of representation made by Sh. Lal Chand Godara to the Department on the basis of which his pay was fixed. The appointment letter of the petitioner is dated 31.7.1980 (Annexure P-1) whereas that of Sh. Lal Chand Godara as per averment contained in the written statement is March, 1983. It seems that by that time certain amount of dearness allowance was made as dearness pay by the State Government, as is clear from the representation made by Sh. Lal Chand Godara. Sh. Lal Chand Godara, stated that his basic pay was 780/-; Dearness Pay 282.60P; Additional Dearness Allowances as 363.90P. The amount of Dearness pay of 282.60P was ultimately added while fixing the pay of Sh. Lal Chand Godara to protect his pay at ( 780+280) + 2.60 pp = 1060+2.60 pp in the revised pay scale of 800-1600 w.e.f. 5.5.1983, the date he joined as District Extension Officer (Agro) in HAS Class-I service but in the case of petitioner it is apparent that amount of 385/- was only being given as additional dearness allowance and not as dearness pay. From the above-stated facts, the Department rightly fixed the pay of the petitioner on the basis of last pay drawn by him vide order Annexure P-2 and finally vide order Annexure P-13. 13. The petitioner's counsel referred to the judgment of this Court passed in BL Gulati Vs. State of Haryana and another 1991 (6) SLR 778, which was only pertaining to protection of special pay which the employee was getting in the earlier service and was protected. This judgment thus cannot come to the rescue of the petitioner.

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With regard to recovery of excess payment made the petitioner has since retired on attaining the age of superannuation on

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31.5.2003. The excess payment was made long back on the basis of fixation of his pay by respondent No. 2 and, therefore, it is directed that amount of 19,981/- be not recovered from him. While partly allowing the petitioner's claim, it is directed that the amount of 19,981/- be not recovered from the petitioner and payment of this amount stopped by the Department be paid to him within a period of three months from the date of receipt of certified copy of this order, failing which the petitioner would be entitled to recover the interest at the rate of 8% per annum from the expiry of the said period. Rest of claim of the petitioner is dismissed.

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Disposed of accordingly.

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November 03, 2012 ( R.P. NAGRATH ) rishu JUDGE

Ziledar Singh v. State of Haryana & Ors.

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Ziledar Singh v. State of Haryana & Ors.

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