[Negative Parity] Wrong Order Passed In Favour Of Some Does Not Confer 'Legal Right' On Others To Claim Same Relief: Himachal Pradesh High Court

The petitioner had sought benefit of Assured Career Progression Scheme after exhaustion of three financial up-gradations stipulated therein, on the ground that the same benefit was granted to several other officials.

Justice Jyotsna Rewal Dua observed, "A wrong order passed in favour of some does not confer any legal right on the petitioner to claim the same relief."

The Petitioner was promoted as Principal in 2008. On completion of four years of service, his case fell due for grant of benefit under ACPS w.e.f. April 2012. Though ACPS was not granted to the petitioner immediately, the same was however allowed to him and several in 2014. The pay of the petitioner and the other officers mentioned in this office order was fixed on notional basis up-to August 2012 and on actual basis thereafter.

The benefit was however withdrawn in October 2017 and the petitioner was ordered to return the excess payment made to him.

The Petitioner argued that the benefit of ACPS was allowed not only to the petitioner, but several other officials, whose names figured in the impugned order. The benefit could not have been withdrawn only from the petitioner in an arbitrary manner. It was also contended that the impugned order was passed statedly on the strength of a circular dated 7.7.2014, which came into force with immediate effect.

Reliance in this regard was also placed upon instructions dated 09.09.2014, which clarified that instructions dated 7.7.2014 were made applicable with immediate effect with the objective that all the cases pending on that day or arising after that have to be examined in light of instructions.

The Respondent-authorities stated that an employee, who has already received three enhancement under the new or old ACPS or promotion or any other financial enhancement in 14 years or more of his entire service, will not be entitled for placement in next higher grade in the ACPS. Since Petitioner had already been granted 3 financial up-gradations in all, thus, he was not entitled to the 4th financial up-gradation.

Court after hearing arguments and perusing the impugned scheme was of the view that since the petitioner was wrongly given benefit of ACP Scheme, the same was correctly withdrawn.

On the issue whether the respondents could have ordered recovery of over payment from the petitioner, the Court noted that it was not the case of the respondents that the petitioner had misled or concealed any relevant fact from the respondents. The benefit of ACP was granted by the respondents on their own. Thus, the recovery order was set aside.

"The over payment was made to the petitioner in excess of 5 years. Even otherwise recovery of the excess payment in factual scenario of the case would be iniquitous and harsh upon the petitioner, who stood superannuated from service about nine months prior to the issuance of impugned order."

Case Title: DR. RAVI KUMAR VAID v. STATE OF H.P. AND ORS.

Citation: 2022 LiveLaw (HP) 22 

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