IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 10926 of 2008 Decided on: 11.8.2011. __________________________________________________________ Hari Charan … Petitioner. Versus State of H.P. & others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Rakesh Dogra, Advocate. For the respondents : Mr. P.K. Sharma, Addl. AG with Mr. Anil Jaswal, Dy.AG. ___________________________________________________________ V.K. Sharma, Judge. (Oral). The petition has been filed with the following prayers vide para 7 (i) to (iii):- (i). That the respondents may kindly be directed to pay the revised pay scale of Rs. 5480-8925 to the applicant w.e.f. 25.11.1997 alongwith interest @ 18% p.a. from the due date till the actual payment. (ii). That the respondents may be restrained from withdrawing the revised pay scale of Rs. 5480- 8925 which is being paid to the applicant w.e.f. 25.11.1997. (iii). That the Annexure A-2 dated 14.10.2003 may be held illegal and be quashed and set aside.” 2. In reply, the following stand has been taken on behalf of respondents No. 1 to 4, vide para 3:- “3. That the applicant has no cause of action to file the present original application, hence the same is not maintainable. Be it submitted that respondent department on the directions of the Finance Department issued vide letter dated 14.10.2003 has 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 rightly withdrawn letter dated 23.5.2003 whereby benefit of revised pay scale was granted to the contract appointees. It is pertinent to mention here that letter dated 23.5.2003 was issued without obtaining concurrence of the Finance Department which infact is mandatory under the relevant provision of Rules of Business of Govt. of H.P. 1971. The applicant is entitled to the pay scale (pre-revised) as per the stipulations of the agreement executed with the employer and services of the applicant are regulated by the stipulations of the contract agreement which determines the liabilities and duties of the parties, hence no one can travel beyond the limits of the contract agreement. Therefore, action of the respondent State is legal and justified as an erroneous order do not have any legal sanctity in the eyes of law and an error can be rectified any time/stage which needs not be repeated. In view of this position the present original application is liable to be dismissed.” 3. The learned counsel for the petitioner submits at the very out set that the case of the petitioner is covered under judgment dated 2.12.2009 rendered by a learned Single Judge of this Court in CWP (T) No. 10806/2008, Inder Singh versus State of Himachal Pradesh and others, text whereof is as under:- “The pay of the petitioner was revised/enhanced vide order dated 23.5.2003 (Annexure A-1). However, the same was withdrawn vide Annexure A-2 dated 14.10.2003. Admittedly, the petitioner has not been heard before the issuance of Annexure A-2. He has been visited with civil and evil consequences. His pay has been reduced. The petitioner has neither misled nor played any fraud upon the respondents at the time of granting him revised/enhanced pay. A conscious decision had been taken by the respondent-State to grant revised/enhanced pay to its employees. 3 Moreover, the learned counsel submits that on the basis of impugned order, recoveries are likely to be effected from the salaries of the petitioner. Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 56. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the 4 Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake." 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors.,vs. State of Bihar, [2006] 11 SCC 492; Punjab National 5 Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. Undoubtedly, the excess amount that has been paid to the appellants - 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. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. 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. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants- teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in 6 the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” Consequently, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, order dated 14.10.2003 (Annexure A-2) is quashed and set aside. The respondents are restrained from making any recoveries from the petitioner. However, liberty is reserved to the respondents to proceed with the matter in accordance with law. The petition stands disposed of. No costs.” 4. In view of the above, if on facts, the case of the petitioner is covered under the judgment referred to hereinabove in CWP (T) No. 10806 of 2008, Inder Singh versus State of Himachal Pradesh and others, and the same has been implemented and attained finality and the petitioner is similarly situate, he shall also be treated similarly without discrimination and benefit of the said judgment along with consequential benefits, if any, shall be extended to him within three months from the date of production of copy of this judgment. 5. The petition stands disposed of, so also pending application(s), if any. (V.K. Sharma) August 11, 2011. Judge. (cr)