-1- S.B. Civil Writ Petition No.2351/1997. Shri Suraj Mal Nama Vs. State & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.2351 of 1997. Shri Suraj Mal Nama son of late Shri Ram Deen Ji Nama VERSUS The State of Rajasthan and Others Date of Judgment :::: May 4th, 2010 Hon'ble Mr. Justice Mohammad Rafiq Mr. P.S. Tomar, on behalf of Mr. R.A. Katta, Counsel for the Petitioner Mr. S.D. Khaspuria, Addl.Govt. Counsel for the Respondents *** By the Court : Heard learned counsel for the parties. This writ petition has been filed by the legal heir/husband of deceased Smt. Gayatri Devi, the petitioner, herein, who retired from the Government Education Department way back on 31st July, 1994. She soon after her retirement expired on 17th May, 1996. Dispute is as to from which date the period of 9, 18 and 27 years for the grant of selection scale to her be counted. Circular of the Government dated 25.01.1992 is the relevant execution instructions, which is called in question for interpretation. -2- S.B. Civil Writ Petition No.2351/1997. Shri Suraj Mal Nama Vs. State & Ors. Learned counsel for the petitioner has argued that late wife of the petitioner was earlier granted third selection scale on completion of 27 years of her service with effect from 25.01.1992 itself because on that day she had already completed 27 years. The benefit of that selection scale was actually paid to her, but Development Officer, Panchayat Samiti, Tonk unilaterally and without any opportunity of hearing by order dated 19.01.1996 reversed that order and made recovery of a sum of Rs.11,624/- from the retiral dues of the petitioner's wife. Learned counsel submitted that such recovery was affected pursuant to the Government order dated 27.07.1995, which itself was subsequently withdrawn by the subsequent order of the Finance Department on 29.03.2003, therefore, recovery was absolutely illegal and the petitioner was entitled to retain the benefit of third selection scale from the date of her initial appointment, even if she completed the training at a later point of time. Learned Government counsel opposing the writ petition submitted that as per the recent judgment of the Hon'ble Supreme Court in the case of State of Rajasthan and Others Vs. Jagdish Narain Chaturvedi, reported in (2009) 12 S.C.C. 49, benefit of selection scale was payable -3- S.B. Civil Writ Petition No.2351/1997. Shri Suraj Mal Nama Vs. State & Ors. only from the date of regular appointment. In the case of the petitioner that period was wrongly counted from the date, even when she has not made regular and she had not completed requisite training. No opportunity of hearing was required to be given to the petitioner because the respondents were only seeking to correct their mistake. Upon hearing the learned counsel for the parties and perusing the material on record, I find that even though the issue as to from which date the benefit of selection scale should be granted and as to from which date period of 9, 18 and 27 years should be counted has been set at rest by the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan & Others Vs. Jagdish Narain Chaturvedi (supra). But nothing has been shown by the respondents that whether or not the benefit, which the petitioners' wife received was on account of any misrepresentation or fraud on her part. The respondents having paid such benefits to her could not have unilaterally recovered the same from retiral dues. However, the contention of the petitioner that may not now be accepted in view of the authoritative -4- S.B. Civil Writ Petition No.2351/1997. Shri Suraj Mal Nama Vs. State & Ors. pronouncement of the Hon'ble Supreme Court what held that the period of 9, 18 and 27 years, as the case may be, shall be counted only from the date of regular appointment. In the light of above, this writ petition is partly allowed. The order dated 08.02.1996 recovering a sum of Rs.11,624/- from the retiral dues of the petitioner is declared to be illegal. The respondents are directed to refund the said amount to the petitioner's wife with interest @ 6% per annum. Compliance of this judgment shall be made within a period of three months from the date of receipt of certified copy of this order. The respondents, however, would be at liberty to prospective correctly the mistake, which might reflect in the family pension payable to the petitioner, but this order would not entitle them to make recovery of any amount, which may have been paid to the petitioner or for that matter, to his wife by way of retiral dues. The writ petition is partly allowed accordingly. (Mohammad Rafiq), J. Ashok/