IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 659 of 2009 DATE OF DECISION : SEPTEMBER 2, 2009 AMARJIT ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. RS Manhas, Advocate, for the petitioner(s). Ms. Charu Tuli, Senior DAG, Punjab. AJAI LAMBA, J. (Oral) This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari quashing order dated 3.12.2008 (Annexure P-2), vide which the pay of the petitioner has been reduced by way of withdrawal of benefit of adhoc service. The prayer further is for quashing letter dated 19.12.2008 (Annexure P-3) under which recovery has been ordered on refixation of pay. A perusal of the order (Annexure P-2) indicates that the benefit of adhoc service given to the petitioner vide letter dated 1.3.1995 was Civil Writ Petition No. 659 of 2009 2 withdrawn with effect from 11.4.1988. The pay of the petitioner has accordingly been fixed. A perusal of para-8 of the letter (Annexure P-3) indicates that the petitioner was given proficiency step-up after 8 years of counting his service with effect from 22.10.1982. It has been stated that the service rendered on adhoc basis could not have been counted and, therefore, the pay of the petitioner was required to be refixed. Resultantly, recovery has been ordered. Learned counsel for the petitioner states that the petitioner confines the claim only in challenge to recovery. So far as refixation of pay is concerned, the prayer made in the petition is not pressed. In regard to recovery, learned counsel for the petitioner contends that the petitioner did not play any fraud and did not misrepresent the facts. In these regards, learned counsel for the petitioner relies on Full Bench judgment of this Court rendered in CWP 2799 of 2008 (Budh Ram and others v. State of Haryana and others) decided on 22.5.2009. Learned counsel for the respondent-State has not been able to distinguish the judgment in Budh Ram's case (supra). Learned counsel for the respondent-State has further not been able to draw the attention of the Court towards any material or evidence to indicate that the petitioner had played any fraud or had misrepresented the facts, on account of which the pay was erroneously fixed. In Budh Ram's case (supra), the following second question was framed, for consideration:- Civil Writ Petition No. 659 of 2009 3 “ii) Cases in which the benefits sought to be recovered were granted on the basis of a bonafide mistake committed by the authority granting the same while applying or interpreting a provision contained in the service rule, regulation or any other memo or circular authorizing such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned;” The question has been answered in the following terms:- “It is in the light of the above pronouncement, no longer open to the authorities granting the benefits, no matter erroneously, to contend that even when the employee concerned was not at fault and was not in any way responsible for the mistake committed by the authorities, they are entitled to recover the benefit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because if the employee is not responsible for the erroneous grant of benefit to him/her, it would induce in him the belief that the same was indeed due and payable. Acting on that belief the employee would, as any other person placed in his position arrange his affairs accordingly which he may not have done if he had known that the benefit being granted to him is likely to be withdrawn at any subsequent point of time on what may be then said to be the correct interpretation and application of rules. Having induced that belief in the employee and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inquitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct interpretation of the rules, such a benefit was not due. It does not require much imagination to say that Civil Writ Petition No. 659 of 2009 4 additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them.” In view of the above, this petition is allowed in the limited terms to the effect that the respondents would have no right to effect recovery of the amount, already released in favour of the petitioner. If any recovery has already been effected, the recovered amount shall be refunded to the petitioner, within 4 months of receipt of certified copy of this order. September 2, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?