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Himachal Pradesh High Court · body

2008 DIGILAW 142 (HP)

Ranbir Singh v. State of H. P.

2008-04-07

B.S.CHAUHAN

body2008
ORDER (B.S. Chauhan, Member (A)) - The applicant initially joined as JBT teacher with effect from 15.10.1966. He remained as untrained teacher since his date of initial appointment i.e. 15.10.1966 and underwent the training later on and became trained JBT teacher on 19.9.1996. 2.Brief and relevant facts of the case of the applicants are as under :- Vide Annexure P-3 and P-4 the respondents have re-fixed the pay of the applicant without giving him the opportunity of hearing which is to the disadvantage of the applicant and the same has brought down the pay of the applicant w.e.f. 1.1.1996. This action of the respondents is harsh and violative of principle of natural justice. No recovery can be effected as no proper and legal show cause notice was served before passing the impugned order. Therefore, the applicant has prayed for quashing the impugned order Annexure P-3 and P-4. 3.The respondents in their reply to this original application have averred that the present original application is not maintainable, because the applicant prior to the original application had filed an original application No. 2442/2002 in which the applicant had prayed that the order Annexure P-2 vide which the applicant was directed by respondent No. 4, Block Primary Education Officer, Surla to deposit an amount of Rs. 52,580/- received by the applicant on account of his placement as Head Teacher by giving the benefit of FR 22-C, because after the revision of the pay scale received w.e.f. 1.1.1996 no separate pay scale has been granted to the Head Teachers by the State Government. It is further stated by the respondents that in compliance to the direction of this Tribunal a show cause notice was given to the applicant vide Annexure P-3 and after the expiry of time granted by respondent No. 3 to the applicant for his view regarding the recovery fixed the pay of the applicant vide Annexure P-4 and the excess amount after re-fixation of pay as made vide Annexure P-4 has to be recovered from the applicant. It is further stated that by the respondent, that respondent No. 3 i.e. Dy. Director of Primary Education Shimla has rightly issued Annexure P3 and P-4 because the benefit of FR 22(C) was wrongly given to the applicant on his posting as Head Teacher as no revised pay scale has been granted to the Head Teachers. It is further stated that by the respondent, that respondent No. 3 i.e. Dy. Director of Primary Education Shimla has rightly issued Annexure P3 and P-4 because the benefit of FR 22(C) was wrongly given to the applicant on his posting as Head Teacher as no revised pay scale has been granted to the Head Teachers. The respondents have further contended that the notice issued to the applicant after disposal of original application No. 2442/2002 is correct and proper and there is no ambiguity in the same. The applicant is estopped to allege that the show cause notice is not a proper notice in the eyes of law. 4.I have heard the learned Counsel for the applicant Mr. A.K. Gupta and learned Addl. Advocate General and have gone through their pleadings carefully. 5.The case of the applicant is that there is no basis for re-fixing the pay of the applicant as he was promoted as Head Teacher as per policy of the Government and as per rules and regulations and his pay was accordingly fixed and thereby respondents cannot recover any amount from the applicant because while fixing/stepping up the pay of the applicant there was no fraud or misrepresentation by the applicant. The further case of the applicant is that the show cause notice was also not legal as it does not reflect the re-fixation of pay. On the contrary the respondents have taken the plea that after the revision of pay scale the post of Head Teacher was not available and no separate pay scale was allowed by the Government to this category as such the recovery of the excess amount has to be made. The respondents have also argued that a show cause notice was given to the applicant which was in proper form and recovery has been ordered in accordance with established procedure. The respondents have also argued that a show cause notice was given to the applicant which was in proper form and recovery has been ordered in accordance with established procedure. 6.The learned Counsel for the applicant in support of his arguments has placed reliance on case law titled as Shyam Babu Verma and others v. Union of India, reported in 1994(2) SCC 521 in which it has been held in para 11 : “We direct that no steps should be taken to recover or to adjust any excess amount aid to the petitioners due to the fault of the respondents the petitioners being in no way responsible for the same.” 7.Reliance has been placed on the decision of Hon’ble Apex Court in AIR 1994(2) SC 2480 Bhagwan Shukla v. Union of India and others and 1995(2) SCT 421 titled as State of Orissa v. Adwait Charan Mohanty and 1994(2) SCC 521 titled as Shyam Babu v. Union of India and 1995 Suppl.(1) SCC 18 titled as Sahib Ram v. State of Haryana and OA 2982/02 decided on 30.3.2005 and Mohinder Singh v.State of H.P., reported in 2006(1) LHLJ 349 : 2006(1) Cur.L.J. (H.P.) 152. 8.Admittedly, there was no misrepresentation or fraud on the part of the applicant in getting the excess payment. It will not only be unfair but also unjust, if what has been paid to the applicant about two decades ago is taken back from him after his retirement. In view of the above factual position and the well settled legal position in above cited case law i.e. 1994(2) SCC 521, I am of the considered view that the present original application deserves to be allowed and the same is allowed. The impugned order Annexure P-3 and P-4 qua the applicant are quashed and set aside. The respondents are restrained from making any recovery from the applicant of any amount paid to him. The respondents will also not be justified now in re-fixing the salary of the applicant, who stands retired from service. The respondents are further directs to release all retiral/pensionary benefits to the applicant alongwith interest at the same rate which is payable on GPF deposits within a period of 2 months from passing of this order. With these observations the original application stand disposed of with no order as to costs. M.R.B. ———————