IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.13247 of 2024 Date of Decision: 26.08.2025 _______________________________________________________ Balak Ram …….Petitioner Versus State of Himachal Pradesh & Ors. … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Pushpinder, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General. _______________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition, petitioner has prayed for the following main reliefs:- “(i) That in view of the submissions made in the writ petition, the writ petition may kindly be allowed and the respondent department may kindly be directed to grant the benefit of one additional increment on account of promotion to the post of Regular Mate. (ii) That the respondent department may kindly be directed to fix the pay of the petitioner after considering one promotional increment. (iii) That the respondent No. 5 may kindly be directed to calculate the pension of the petitioner strictly as per Rule 49(2) of the CCS Pension Rules i.e. 50% of the Late Basic Pay. 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Pushpinder, learned counsel representing the petitioner, is that though petitioner was promoted to the post of Mate on 26.11.2011, but at that time he was not granted promotional increment, as a result thereof, his basic pay was not enhanced. 3. Precisely, the facts of the case, as emerge from the record, are that petitioner was regularized as Beldar w.e.f 01.01.1998 and thereafter, he was promoted to the post of Mate on 26.11.2011. Though petitioner claimed that promotional increment at the time of his promotion as Mate was not granted to him, but careful perusal of Annexure R-1 (annexed with the reply filed by the respondents No. 1 to 4) reveals that increment on promotion of the petitioner as Mate was granted to him by the Department on 18.01.2017, but subsequently when respondent No. 3 forwarded the pension case of the petitioner to respondent No. 5 along with relevant documents, vide communication dated on 03.04.2024 (Annexure R-2), pension of the petitioner was fixed at Rs.21,100/- by respondent No. 5, vide letter dated 26.07.2024 (Annexure R-3). In compliance to observations made by respondent No. 5 in letter dated 26.07.2024, pay of the petitioner was refixed by respondent No. 3, vide office order dated 06.09.2024 (Annexure R-4). Since pursuant to observations made by 3 respondent No. 5, pay of the petitioner came to be revised and a sum of Rs.1,23,389/- was ordered to be recovered from his retirement gratuity, vide office order dated 16.09.2024 (Annexure R-5), petitioner has approached this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove. 4. Having heard learned counsel for the parties and perused material available on record, this Court finds that entire dispute revolves around grant of promotional increment, if any, to the petitioner at the time of his promotion to the post of Mate from the post of Beldar. Petitioner was promoted as Mate, vide order dated 26.11.2011. It is quite apparent from the reply filed by the respondents No. 1 to 4 that pursuant to his promotion to the post of Mate, petitioner was granted increment on promotion, vide order dated 18.01.2017 (Annexure R-1), as a result thereof, his basic pay was enhanced. Petitioner herein superannuated on 31.05.2024. After his superannuation, case of the petitioner was forwarded to the office of Accountant General for issuance of Pension Payment Order. Office of Accountant General, after having perused entire service record of the petitioner, raised queries on two occasions with regard to payment of promotional increment at the time of his promotion from the post of Beldar to Mate. 4 5. Office of Accountant General observed that petitioner at the time of promotion could have been granted two increments: one promotional increment and another annual increment, but since he had already received three ACP’s, he could not get third increment, which came to be granted to him after fourteen years. On the basis of aforesaid observation made by office of Accountant General, pay of the petitioner again came to be refixed, vide order dated 06.09.2024. Since pension of the petitioner was fixed at Rs.21,100/- by respondent No. 5, vide letter dated 26.07.2024 and excess payment was pointed out to have been made to the petitioner on account of grant of extra increment, respondent-department ordered recovery of Rs.1,23,389/- from the sanctioned amount of retirement gratuity granted to the petitioner, vide letter dated 16.09.2024. This Court with a view to have more clarification specifically called upon learned Additional Advocate General to have instructions. 6. Pursuant to order dated 29.07.2025, learned Additional Advocate General placed on record communication dated 12.08.2025, issued under the signatures of Executive Engineer, Bilaspur Division No.-II, HPPWD, Bilaspur, which reads as under: “ Himachal Pradesh Public Works Department No PW/NBT/103/EA-II/Court Case/2025-5393-96 Dated:12.08.2025 To The Ld. Advocate General, Himachal Pradesh Shimla-2 5 Subject:- CWP No.13247/2024-titled as Balak Ram V/s State of H.P. & others. Sir, In this regard, it is submitted that the subject cited case has directed respondents to impart the instructions with regard to the above titled matter before the next date of hearing i.e. 26-08-2025. In this regard, it is submitted that petitioner was regularized as Beldar w.e.f. 01-01-1998. Thereafter, he was promoted to the post c Mate on 26-11-2011. That the alleged increment on promotion of the petitioner Mate stands granted to him by the department on 18.01.2017 and the petition stood retire on attaining the age of superannuation on 31.05.2024. The pension the petitioner was fixed as Rs. 21,100/- by the Respondent No. 5 vide his office letter dated 26.07.2024. The detail of benefits already granted to the petitioner is as under:- Sr. No. Dated Benefits already granted to the petitioner 1 01.01.2006 Increment granted after 8 years regular service 2 27.08.2009 Increment granted after 9 yeas regular service 3 26.12.2011 Promoted as Mate and promotional benefits is also granted to the petitioner on 01.01.2012 4 26.12.2016 Increment granted after 14 years regular service [ It is, therefore, requested that the Hon’ble court may please be apprised accordingly on the next date of hearing. This is for your information please. Yours faithfully, Executive Engineer, Bilaspur Division No.-II, HPPWD, Bilaspur, 6 7. Careful perusal of aforesaid communication clearly reveals that first increment was granted to the petitioner after eight years of regular service on 01.01.2006 and second increment was granted to him after nine years of regular service on 27.08.2009. On 26.12.2011, petitioner was granted promotional increment on account of his promotion to the post of Mate, vide order dated 01.01.2012. On 26.12.2016, another increment came to be granted to the petitioner after 14 yeas of regular service. Since petitioner had already received three ACPs, he was not entitled to any increment after 14 years of regular service. Moreover, this Court finds that office order dated 18.01.2017 (Annexure R-1) clearly reveals that at the time of promotion of the petitioner to the post of Mate, vide letter dated 01.01.2012, he was granted two increments: one annual increment and another promotional increment, as such, Mr. Pushpinder, learned counsel for the petitioner, is not right in contending that petitioner was not given promotional increment at the time of his promotion to the post of Mate, rather as has been observed hereinabove, vide order dated 01.01.2012, petitioner was granted two increments. 8. Though this Courts finds no illegality in refixing the pay of the petitioner, but there appears to be merit in the contention of learned counsel for the petitioner that after retirement of the petitioner, no recovery could have been ordered to be effected from him on 7 account of excess amount, if any, received by him. It is quite apparent from the pleadings adduced on record, especially reply filed by the respondents No. 1 to 4 that there was no misrepresentation, if any, on the part of the petitioner, rather respondents themselves erroneously proceeded to grant increment after 14 years of regular service, which otherwise could not have been granted for the reason that prior to extension of aforesaid benefit, petitioner had already received three ACPs. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case titled State of Punjab and others Vs. Rafiq Masih, (2015) 4 SCC 334 (2), wherein it has been categorically held that in case amount, sought to be recovered, was not received by the Government Employee on account of mis-representation or fraud, same cannot be recovered after his retirement. Most importantly, no recovery can be effected from Class-III and Class-IV employees. Relevant paras of aforesaid judgment read as under:- “"18. It is not possible to postulate all situations of hardship which would govern employees on the 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: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. 8 (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. (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. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employer. 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." (emphasis supplied) 9. Consequently, in view of the above, though this Court sees no reason to interfere with the order passed by the respondents in refixing the pay of the petitioner, but order dated 16.09.2024 (Annexure R-5), whereby excess payment paid to the petitioner for a sum of of Rs. 1,23,389/- was recovered from the sanctioned retirement gratuity of the petitioner is hereby quashed and set aside. Pending applications, if any, also stand disposed of. p (Sandeep Sharma), Judge August 26, 2025 (Sunil)