IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 8398 of 2008 Decided on : 01.04.2011 Bimla Devi and others …Petitioners. Versus State of H.P. & Others. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mr. Adarsh Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General with Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, Judge (Oral) The learned counsel for the petitioners has confined the case of the petitioners for the relief of ` 12901/- wrongly deducted from the DCRG of the original petitioner, who died on 1.2.2008 during the pendency of the petition. 2. The brief facts of the case are that the pay of the petitioner was fixed at ` 8100/- on 1.1.1997 and ` 8375/- on 1.1.1998. The petitioner was allowed the benefit of additional pay of ` 50/- w.e.f. 1.11.1994 even though the petitioner was entitled to w.e.f. 1.1.1993 as per the Finance Department letter dated 17.2.1993. 3. The further case of the petitioner is that the pension papers of the petitioner were sent to the Accountant General, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Himachal Pradesh. The Senior Deputy Accountant General, Himachal Pradesh, took the objection regarding grant of additional pay to the petitioner and has also taken the objection regarding the fixation of basic pay of the petitioner in the revised pay scale and granting of increment from the normal date. Thereupon the respondents made illegal recovery of ` 12901/- from the DCRG of the petitioner. The respondents recovered ` 9210/- on account of excess amount of increment drawn by the petitioner and ` 3691/- on account of additional pay granted to the petitioner. 4. It has been submitted by the learned counsel for the petitioner that the petitioner neither misrepresented nor played fraud for obtaining pecuniary benefit of ` 12901/-. The respondents of their own gave benefit of ` 12901/- to the petitioner which he has accepted. The respondents without issuing any notice to the petitioner have wrongly, illegally deducted an amount of ` 12901/- from the DCRG of the petitioner. The learned counsel for the petitioner has relied Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475. 5. The learned Additional Advocate General has submitted that the petitioner was wrongly given benefit of ` 12901/- and when it came to the notice of the Department that the petitioner has taken wrong benefit of ` 12901/- to which he was not entitled , the amount of ` 12901/- was deducted from the DCRG of the petitioner. It has been submitted that the Department has every right to rectify the mistake at any stage. 3 6. It is not the case of the respondents that any notice was given to the petitioner before affecting recovery of ` 12901/- nor it is the case of the respondents that petitioner misrepresented or played fraud for obtaining benefit of ` 12901/-. It has been submitted on behalf of the petitioner that the petitioner had no knowledge that he was not entitled to the benefit of ` 12901/- and, therefore, he had drawn that amount when it was offered to him. Now, it is not possible for petitioners to return the amount. The original petitioner had spent the amount of ` 12901/-, who has since expired. 7. In Syed Abdul Qadir (supra) where the excess amount which was paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. On those facts, the Supreme Court has held no recovery of the amount that has been paid in excess to the appellant teachers should be made. In the present case also, the amount of ` 12901/- was paid by the Department to the petitioner without their being any mis-representation or fraud on the part of the petitioner. He had also no knowledge that he was not entitled to monetary benefit of ` 12901/-. 8. No other point was urged. 9. The result of the above discussion, the petition is allowed to the extent that the respondents are not entitled to recover 4 ` 12901/- from the DCRG of the petitioner. The respondent No.3 is directed to refund the amount of ` 12901/- to the heirs of original petitioner within a period of two months from the date of supply of copy of this judgment by any petitioner to respondent No.3, failing which the petitioners shall also be entitled to interest at the rate of 9% on the amount of ` 12901/- . The petition stands disposed of on above terms. ( Kuldip Singh ), April 1, 2011. Judge. (GR)