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2020 DIGILAW 711 (HP)

Smt Onkaar Devi v. State of Himachal Pradesh

2020-10-09

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - The controversy involved in this petition is in a very narrow compass. The petitioner was initially engaged as JBT on ad-hoc basis in the year, 1981. Thereafter, her services were regularized as such in the year, 1997. She was promoted as Drawing Master on regular basis in the year, 1998. The petitioner approached this Court alongwith other similarly situate persons, by way of CWP No.8016 of 2011, titled as Jaram Singh and others Versus State of Himachal Pradesh and others, praying for the relief that benefit of adhoc service followed by regular service, be granted for the purpose of pay fixation and increment. The aforesaid petition was disposed of by this Court, vide judgment dated 24th October, 2011, alongwith connected matters, in the following terms: - "The petitioners claim the benefit of ad hoc service followed by regular service for the purpose of pay fixation and increments. According to the petitioners, the issue is covered in their favour by the judgment of this Court rendered in LPA No.36 of 2010, Sita Ram Versus State. 2. Therefore, the writ petitions are disposed of directing the respondent concerned to examine the matter, after verifying the facts, in the light of the judgment referred to above and the eligible benefits on account of the fixation of pay shall be disbursed within a period of three months from the date of the production of a copy of this judgment along with a copy of the writ petition and the copy of the judgment referred to above by the petitioner concerned. 4. The writ petitions are disposed of, so also the pending applications, if any." 2. It appears that thereafter, benefit with regard to ad-hoc service rendered by the petitioner followed by regular service was given to her, after fixing the pay and increment. The petitioner retired on 31st March, 2015, on attaining the age of superannuation. 3. The grievance of the petitioner is with regard to communication dated 18.06.2015, Annexure A-4, vide which, a notice was issued to the petitioner, calling upon her to deposit an amount of Rs.1,35,576/- on the pretext that the same is outstanding for recovery from her due to overpayment made to her with effect from 01.05.1986 to 11.09.2008. 4. 3. The grievance of the petitioner is with regard to communication dated 18.06.2015, Annexure A-4, vide which, a notice was issued to the petitioner, calling upon her to deposit an amount of Rs.1,35,576/- on the pretext that the same is outstanding for recovery from her due to overpayment made to her with effect from 01.05.1986 to 11.09.2008. 4. Learned counsel for the petitioner has argued that the impugned notice is not sustainable in the eyes of law as there was no overpayment of any kind made to the petitioner, as has been shown in communication dated 18.06.2015, Annexure A-4, for the period 01.05.1986 to 11.09.2008. According to him, the implementation of judgment earlier filed by the petitioner was done by the State, by granting due and admissible arrears to the petitioner and in the garb of impugned notice, the respondent-Department, now, cannot be permitted to claim any amount from the petitioner on the purported ground of overpayment. He has further submitted that even otherwise, the petitioner superannuated on 31st March, 2015, and the impugned notice stood served upon the petitioner after her superannuation, on 18.06.2015, and therefore, the same is also liable to be quashed and set aside in view of the law laid down by the Hon'ble Supreme Court in State of Punjab and others Versus Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 . 5. Learned Additional Advocate General, on the contrary, has argued that there is no infirmity in the impugned notice having been issued by the respondentDepartment, because it is a clear-cut case of overpayment, which stood made to the petitioner while complying with the earlier judgment passed by this Court, when the arrears were released to the petitioner as same were not restricted to three years as from the date of filing of the petition. 6. I have heard learned counsel for the parties and gone through the pleadings as well documents appended therewith. 7. In my considered view, the impugned notice, Annexure A-4, which has been issued by the respondentDepartment, calling upon the petitioner to deposit an amount of Rs.1,35,576/- on the ground that the same was overpayment wrongly made to the petitioner for the period 01.05.1986 to 11.09.2008, is not sustainable in the eyes of law. 7. In my considered view, the impugned notice, Annexure A-4, which has been issued by the respondentDepartment, calling upon the petitioner to deposit an amount of Rs.1,35,576/- on the ground that the same was overpayment wrongly made to the petitioner for the period 01.05.1986 to 11.09.2008, is not sustainable in the eyes of law. This, I say so for the reason that as it is not in dispute that after the pronouncement of judgment in the earlier writ petition filed by the petitioner, benefit of ad-hoc service was given to the petitioner for the purpose of pay fixation and increment, then now, the State cannot be permitted to call upon the petitioner to deposit back, a part of said payment on the pretext that the petitioner was not entitled to complete arrears as the same were to be restricted to three years before the date of filing of writ petition. In number of cases, this stand is being taken by the respondent-State in denying arrears to the employees without there being any restriction put in by the Court, while granting the relief to the employees, which is completely wrong. 8. Even otherwise, in view of the law laid down by the Hon'ble Supreme Court of India in State of Punjab and others Versus Rafiq Masih (White Washer) and others, the impugned notice is not sustainable in the eyes of law. In the judgment (supra), the Hon'ble Supreme Court has been pleased to hold in para-18 that certain recoveries are impermissible in law, including recovery from retired employees or employees who are due to retire within one year of the order of recovery. Here is a case, where recovery is being sought to be made from an employee, after she had superannuated from service, which is in complete derogation of the judgment pronounced by the Hon'be Supreme Court. That being the case, impugned notice dated 18.06.2015, Annexure A-4, is quashed and set aside and the petition is allowed to this extent. Pending miscellaneous application(s), if any, also stand disposed of.