( 2026:HHC:25693 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWPOA No.987 of 2019 Decided on: 29.06.2026 Mohan Lal ...Petitioner Versus State of H.P. and others ...Respondents Coram Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?1 _______________________________________________ For the petitioner: Mr. Sandeep K. Pandey, Advocate. For the respondents: Mr. Sumit Sharma, Deputy Advocate General for respondents No.1 to 3-State. Respondents No.4 to 7 already ex-parte. Mr. Hamender Singh Chandel, Advocate for respondent No.8. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present petition has prayed for the following substantive reliefs:- “(i) That the impugned final seniority list dated 20.12.2010 (P- 5) and impugned recovery & re-fixation order dated 14.03.2012 (P-7) may kindly be quashed and set aside. (ii) That the respondents be directed to up-hold the seniority position of the petitioner as assigned to him vide final seniority dated 1.7.2002 for all intends and purpose.” 1 Whether the reporters of Local Papers may be allowed to see the judgment? ( 2026:HHC:25693 ) 2 2. The facts as emerge from the pleadings are that the petitioner was appointed as Beldar with the respondent-State on 06.06.1981 and worked till 31.03.1985. Thereafter, he worked as Supervisor w.e.f. 01.04.1985 to December, 1995. His services were regularized as Work Inspector, vide office order dated 05.06.1997 (Annexure P-1) w.e.f. 01.01.1995. Thereafter, the respondents had issued tentative seniority list of Work Inspectors on 21.12.2001 and the petitioner was not fixed at an appropriate position, but later on, after accepting the representation, the final seniority list of Work Inspectors was circulated on 01.07.2002. In the final seniority list, the name of the petitioner was reflected at Serial No.3 and names of private respondents were shown below him. The private respondents were satisfied with their seniority position and did not object to the same at any point of time. The petitioner on the basis of seniority position was given senior scale w.e.f. 01.01.1996 in the ratio of 20%:30% and 50% and accordingly, he was given senior scale of Rs.4020-6200/- in the ratio of 30% and the private respondents were given the scale of Rs.3120-5160/- in the ratio of 50%. The petitioner was getting the senior scale on the basis of his seniority as Work Inspector Grade-II without any objection and thereafter in the year 2010, respondent No.4 filed CWP No.3505 of ( 2026:HHC:25693 ) 3 2010, seeking direction to the respondents to re-fix his pay, claiming himself senior. During the pendency of the writ petition, respondent- State again issued a tentative seniority list of Work Inspectors abruptly after about 9 years and the name of the petitioner was shown at Serial No.7 and the private respondents were shown senior to him. The petitioner after coming to know about the illegal change made in the seniority list made a representation to respondent No.3 on 14.12.2010 (Annexure P-4). The respondent- State without considering the representation of the petitioner issued the final seniority list of Work Inspectors on 20.12.2010 and in this seniority list, the petitioner was again shown at Serial No.7 and the private respondents were shown above him. Respondent No.4 was placed at serial No.2. 3. The writ petition filed by respondent No.4 bearing CWP No.3505 of 2010, titled, Ram Krishan vs. State of Himachal Pradesh and others was disposed of on 24.10.2011 after noticing that the final seniority list has been drawn in December, 2010 and thus gave direction to the respondents to take consequential steps to give effect to the final seniority list, within a period of three months. In sequel to the directions, the respondents convened the DPC and on the recommendations of the DPC, pay of the Work Inspectors now designated as Technician Grade-I, II & III in the pay ( 2026:HHC:25693 ) 4 scale mentioned against each was re-fixed in the ratio of 20%, 30% and 50%. Since the pay of the petitioner was re-fixed, the recovery of over payment on account of re-fixation of pay was ordered against him. It has been averred that the pay of the petitioner was re-fixed in the lower senior scale of Rs.3120-5160/- as against Rs.4020-6200/-, which was earlier given to him and prayed that no recovery from him be made in pursuance of the office order dated 14.03.2012 (Annexure P-7) passed by the respondent-State. 4. The petitioner has challenged the action of the respondent-State, whereby it had altered the seniority position of the category of the Work Inspectors in the year 2010, even though the same already been settled way back in the year 2002. Such action is illegal and arbitrary. It has further been averred that the final seniority list of the Work Inspectors was already issued by the respondents-State vide order dated 01.07.2002 and the private respondents were satisfied with the same and did not object to the same. The petitioner being senior was given the senior scale of Rs.4020-6200/- w.e.f. 01.01.1996 and the arrears on account of grant of senior scale in the ratio of 30% basis w.e.f. 01.01.1996 were released, which cannot be recovered after a lapse of 16 years. The services of the petitioner and the private respondents as Work Inspectors were regularized w.e.f. 01.01.1995 without taking into ( 2026:HHC:25693 ) 5 account their initial date of engagement on the lower post and the petitioner was assigned seniority over the private respondents, since he was elder in age as per the instructions of the State Government. It has been averred that before issuing the impugned order of re- fixation and consequential recovery, no opportunity of being heard has been given to the petitioner. 5. The respondent-State filed reply to the petition and did not dispute that the petitioner was initially engaged as Beldar w.e.f. 06.06.1981 and worked as such till 31.03.1985. Thereafter, he worked as Supervisor w.e.f. 01.04.1985 to December, 1995. However, it has been averred that vide Govt. letter No.PER (AP)-C-B (2)-2/97-Vol-IV (Ap-III dated 6th May, 2000 Clause (IV) provides that in case of a daily waged contingent paid worker, who has worked for less than the prescribed years on a higher pay scale, the work shall be considered for regularization by counting the service both in the lower scale and higher scale. However, such workers shall be regularized against the lower post, as completion of the prescribed number of years of service as the higher post is an essential pre-requisite for regularization against the higher post. It has also been averred that the seniority of the Work Inspectors at circle level was fixed by respondent No.3 in accordance with the general principle i.e. higher in age was placed senior and accordingly ( 2026:HHC:25693 ) 6 the pay-scale were in the ratio of 20:30:50, but later on, the Government decided to maintain the seniority, keeping in view the date of initial engagement on daily wage basis. This, however, was not done inadvertently by respondent No.3, who was specifically asked to re-draw the seniority list in accordance with Government instructions that he was engaged on daily wage basis earlier would be placed senior to others. Respondent No.3 reconstituted the committee vide letter dated 29.11.2010 and re-drew the provisional seniority list vide letter dated 03.12.2010 and circulated the same among all concerned, including the petitioner. The petitioner has noted the provisional seniority list and submitted no objection regarding his seniority. The final seniority list of Work Inspectors, as it stood on 01.01.1996, has been circulated by respondent No.3 vide letter dated 20.12.2010. It has been averred that this issue has been settled by this Court in Ram Krishan’s case (supra), wherein the seniority determined on the basis of seniority on daily wage basis has been upheld. It has further been averred that the seniority has been rectified on the order of higher office and as per newly re- drawn seniority list, respondent No.4 was found entitled for the scales in the ratio of 20:30:50 w.e.f. 01.01.1996 and accordingly he was given the scale of Rs.4020-6200/- in the ratio of 30% and juniors were given scale of Rs.3120-5160/-. ( 2026:HHC:25693 ) 7 6. I have heard the learned counsel for the parties and also perused the record carefully. 7. The respondents while filing reply to the petition have not disputed the fact that after regularizing the services of the petitioner as Work Inspector as per office order dated 05.06.1997 w.e.f. 01.01.1995, he being elder in age than the private respondents, was ranked senior to them. The respondents have not disputed the fact that the tentative seniority list of Work Inspectors was issued on 21.12.2001 and the petitioner was fixed at an appropriate position. Thereafter, as per seniority list of Work Inspectors as on 30.11.2001 circulated vide letter dated 01.07.2002 (Annexure P-2), the petitioner was assigned position above the private respondents. The petitioner was shown above the private respondents, his position has been altered only on the plea that the issue has been settled by this Court in Ram Krishan’s case (supra). The judgment dated 24.10.2011, if perused, it has been noticed that the final seniority has been drawn in December, 2010. Once the same has been drawn, the same is required to be given effect. Since the petitioner was party to the said petition and did not apprise the Court regarding the fact that he was aggrieved by the seniority list drawn in December, 2010, he cannot lay challenge to the seniority list dated 20.12.2010, but the respondent-State cannot ( 2026:HHC:25693 ) 8 make recovery from him for the reason that the petitioner was paid the amount as per seniority position, which was assigned to him by the respondent-State being senior to the private respondents. He was granted pay-scale of Rs.4020-6200/- in the ratio of 30%, since he was entitled to it based on his position in the seniority list. The respondent-State while filing reply to the petition with respect to the recovery has not stated anything and thus the amount of recovery as ordered vide office order dated 14.03.2012 (Annexure P-7), cannot be recovered from him. 8. Learned counsel representing the petitioner has vehemently argued that the settled seniority, which was finalized on 01.07.2002, could not have been altered after more than 9 years. However, the said contention cannot be accepted for the reason that the respondents had circulated the tentative seniority list, wherein the name of the petitioner was shown below the private respondents and when the matter was listed before the Court on 24.10.2011, he did not object to the final seniority list, which was already drawn in December, 2010, meaning thereby he was satisfied with the seniority list of Work Inspectors and due to this reason, he did not prefer objections against the seniority list. Had the petitioner brought this fact to the notice of this Court in the writ petition, he could have definitely raked up the issue that the same ( 2026:HHC:25693 ) 9 cannot be altered after such a long period. Once he did not object to the same and permitted the Court to pass an order directing the respondent-State to take consequential steps to give effect to the final seniority list drawn in December, 2010 the relief claimed qua quashing the final seniority list, is rejected. 9. So far as claim with respect to recovery part is concerned, it is now settled that if there is no misrepresentation on the part of the employee while receiving the amount, the same cannot be recovered from him, who is Class-III and Class-IV. In the present case, the petitioner is Class-III employee, thus he cannot be forced to pay the over payment received by him on account of fixation of pay, which was done by the respondents, especially when he was senior to the private respondents. In this regard, a reference can be made to the judgment of the Hon’ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, wherein, it has been held that the recovery from an employee, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued, the same cannot be made from the employee belonging to Class-III and Class-IV. 10. In the present case, the petitioner was granted the pay- scale of Rs.4020-6200/- w.e.f. 01.01.1996 in the ratio of 20%, 30% ( 2026:HHC:25693 ) 10 and 50% and thus the amount cannot be recovered, even if paid in excess after issuing of office order dated 14.03.2012 and thus the order is bad in law and is quashed. 11. Consequently, the present petition is allowed and the order dated 14.03.2012 is quashed to the extent of ordering to make recovery of over payment on account of fixation of pay in the ratio of 20%, 30% and 50% in the pay-scale of Rs.4020-6200/- from the petitioner in lump-sum. No orders as to cost. Pending applications, if any, also stand disposed of. (Jiya Lal Bhardwaj ) 29th June, 2026 Judge (naveen)