CWP No.16728 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 5.1.2011 Bishamber Dass ...Petitioner VERSUS State of Punjab etc. …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.RS Chauhan, Advocate for the petitioner Ms.Charu Tuli, Sr.DAG, Punjab Permod Kohli, J. (Oral) Keeping in view the controversy involved and with the consent of learned counsel for the parties, this petition is disposed of at motion stage itself, without insisting for reply. The petitioner joined the Education Department in the State of Punjab as JBT Teacher on 22.1.1973 on ad hoc basis. Later his services were regularized w.e.f. 1.4.1977. During the service, the petitioner acquired higher qualifications (B.Ed., M.Com and Parbhakar). On the basis of the higher qualifications, the petitioner was granted three additional annual increments w.e.f. 23.12.1976 and his pay scale was re-fixed by giving him the benefit of the increments. The petitioner retired on attaining the age of superannuation as Lecturer on 30.4.2009. It seems that after his retirement, CWP No.16728 of 2009 (O&M) 2 the respondents did not release all the pensionary/retiral benefits, though provisional pension at the rate of 75% was sanctioned and other post retiral benefits were granted, except Death-cum-Retirement Gratuity and the final pension. It is under these circumstances, the petitioner has filed this petition seeking a direction for release of Death-cum-Retirement Gratuity and for sanction of the full pension. In the reply filed, the respondents have justified withholding of the Death-cum-Retirement Gratuity on the ground that the petitioner was wrongly allowed the additional increments w.e.f. 23.12.1976 instead of w.e.f. 1.1.1978. It is further stated that an amount of Rs.3,57,718/- is found recoverable from the petitioner on account of re-fixation of his pay by withdrawing the additional increments wrongly allowed to the petitioner pursuant to the objections raised by the Accountant General Office. It is further the case of the respondents that under the government instructions of 1976 and 1978, only C&V teachers were entitled to the benefit of three additional increments, who were actually working on the said post and since the petitioner was working as JBT teacher, he was not entitled to the benefit. Be that as it may. The fact remains that the petitioner was granted the benefits of three additional increments. It is only after his retirement that the recovery is sought to be effected from the petitioner. There is no allegation of any fraud or misrepresentation attributable to the petitioner. In so far as the question of recovery is concerned, the controversy involved is squarely covered by by the Full Bench judgment of this Court in CWP No.2799 of 2008 alongwith other connected matters (Budh Ram and others vs. State of Haryana and others) decided on 22.5.2009 wherein following observations have been made:- CWP No.16728 of 2009 (O&M) 3 “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, inequitable 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…… 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, the respondents are not entitled to effect any recovery from the petitioners. With regard to the question of re-fixation, a Coordinate Bench of this Court vide its order dated 2.3.2010 passed in CWP No.16323 of 2008 has already constituted a Committee for re-consideration of such cases of re- fixation. In view of the above, this petition is partly allowed. Recovery against the petitioner is hereby quashed. Respondents are directed to release the CWP No.16728 of 2009 (O&M) 4 Death-cum-Retirement Gratuity and also the full pension on the basis of the re-fixed salary within a period of three months. In view of the mandate of the aforesaid judgment, the question of re-fixation of petitioner's pension at the time of his retirement and consequential pensionary benefits shall be examined by the aforesaid Committee within a period of four months from the date a certified copy of this order is received by it. In the event the decision of the Committee is in favour of the petitioner, the petitioner shall be entitled to the revised pensionary and other post retiral benefits. . (PERMOD KOHLI) JUDGE 5.1. 2011 MFK CWP No.10585 of 2010 5