IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.216 of 2004 in Civil Writ Petition No. 5118 of 1995 Date of decision : 10th September, 2008 State of Punjab and others … Petitioners Versus Sh. V.P. Dubey, IAS (Retd.) … Respondent CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. Salil Sagar, Additional Advocate General, Punjab for the petitioners. Mr. R.D. Gupta, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Vide separate order, legal representatives of deceased respondent, as mentioned in para 2 of the application have been permitted to be brought on record, subject to just exceptions. Present Letters Patent Appeal has been preferred by State of Punjab with the prayer that the impugned judgment passed by a Single Bench of this court dated 08.01.2004 be set aside, wherein while placing reliance upon a judgments of Hon'ble Apex Court rendered in Sahib Ram v. State of Haryana, 1994 (1) SLR 753 and Shyam Verma and other v. Union of India and others, 1994 (1) SLR 827, recovery by the State of Punjab was held to be bad on the ground that there was no misrepresentation on the part of respondent-employee rather the higher LPA No. 216 of 2004 in CWP No.5118 of 1995 pay scale was allowed to the respondent-employee by the appellants by misinterpreting the instructions. Briefly stated, Sh.V.P. Dubey, IAS (Retd.) had preferred Civil Writ Petition No. 5118 of 1995 in this Court. It was stated in the writ petition that Sh.V.P. Dubey respondent to the appeal had served the Punjab Government for 31 1/2 years and retired as IAS officer on 31st October, 1990. He was drawing total salary of Rs.8720/-, i.e., basic pay of Rs.6300/- plus dearness allowance Rs.1920/- plus special pay Rs.500/-. It was further submitted that pay of Sh.V.P. Dubey was revised from Rs.6300/- to Rs.6500/- w.e.f. 01.01.1990 and his pension was fixed in accordance with last pay drawn on the basis of revised pay. At the time of retirement, his pension was sanctioned at the rate of Rs.3341/- per month. After his retirement on 01.12.1990, Sh.V.P. Dubey was appointed as member of the Punjab Public Service Commission (hereinafter referred to as, ‘Commission’) and retired as such on 12.10.1994. As member of the Commission, pay of Sh.V.P. Dubey was fixed at the rate of Rs.6300/- as basic pay along with dearness allowance in addition to the pension, which he was drawing before his appointment as member of the Commission. Petitioner, in fact retired as member of the Commission on 12.10.1994. Re- fixation of his pay has been reproduced in the impugned judgment and the same reads as under: “PUNJAB PUBLIC SERVICE COMMISSION, PATIALA OFFICE ORDER This is in continuation of this office order No.1 B.F.104/90CAG/20048-52 dated 20.12.1990. The pay of Dr.V.P. Dubey, IAS (Retd.), Member, Punjab Public Service Commission, Patiala is hereby refixed under Regulations No. 5(i) of the Punjab Public Service Commission (Condition of Services) Regulations 1958 in the pay scale of 5900-200-6700 as under: 2 LPA No. 216 of 2004 in CWP No.5118 of 1995 Sr. No. Dated Refixation of pay 1. 1.12.1990 as 6300 PM Deductions: (i) Pension Rs.3341-250 3091.00 (Benefit of first 250/-) (ii) P.E.G. 797.00 ---------------- Total 3888.00 ---------------- Net payable = 6300 – 3888 = Rs.2412/- PM He is also entitled to get such other allowances as may be admissible from time to time to Govt. Servants getting similar pay. 2. 1.12.1991 Rs.6500/- PM (by annual increment) Deductions: (i) Pension Rs.3341-250 3091.00 (benefit of first 250/-) (ii) P.E.G. 797.00 ---------------- Total 3888.00 ---------------- Net payable = 6500 – 3888 = Rs.2612/- PM He is also entitled to get such other allowances as may be admissible from time to time to Govt. Servants getting similar pay. 3. 1.12.1992 to 1.3.1991 Rs.6700/- PM (by annual increment) Deductions: (i) Pension Rs.3341-250 3091.00 (benefit of first 250/-) (ii) P.E.G. 797.00 ---------------- Total 3888.00 ---------------- Net payable = 6700 – 3888 = Rs.2812/- PM 3 LPA No. 216 of 2004 in CWP No.5118 of 1995 He is also entitled to get such other allowances as may be admissible from time to time to Govt. Servants getting similar pay. 4. 2.3.1993 to 30.11.1993 Rs.6700/- PM (by annual increment) Deductions: (i) Pension Rs.3341-500-2814/- (Benefit of first 500/- according to Punjab Govt. Notification No.GSR 19/ Contd./ Amd/ (22)/93 dated 26.2.1993). Net payable = 6700 – 2841 = Rs.3859/- PM He is also entitled to get such other allowances as may be admissible from time to time to Govt. Servants getting similar pay. 5. 1.12.1993 Rs.6700/- PM Deductions: (i) Pension Rs.3341-500-2814/- (benefit of first 500/-) Net payable = 6700 – 2841 = Rs.3859/- PM He is also entitled to get such other allowances as may be admissible from time to time to Govt. Servants getting similar pay.” Written statement was filed to the writ petition by the appellants. Government of Punjab issued a letter (Annexure R-1) in reply to the written statement filed to the writ petition that petitioner was not entitled to Rs.500/- awarded as a special pay while Sh. V.P. Dubey was employed as an IAS officer. Reliance has been placed upon Rule 2.55 of the Punjab Civil Service Rules, Part-I, Vol.-I to say that the special pay is not included in the substantive pay. Therefore, after the re-employment of a retired person, substantive pay drawn by him immediately before his retirement is to be taken into consideration while fixing his pay and the same does not 4 LPA No. 216 of 2004 in CWP No.5118 of 1995 include special pay. It was stated therein that after retirement, the special pay drawn earlier by an employee, while in service, cannot be granted to him on his re-employment. The question whether Sh.V.P. Dubey, who after his retirement from IAS, has practiced as an Advocate, on appointment as member of Punjab Public Service Commission can said to be re-employed or not, need not detain us simply because recovery of Rs.1,60,088/- was sought to be made after Sh.V.P. Dubey had retired. We are of the considered view that the employee had neither made misrepresentation nor had played fraud to obtain benefit. In the impugned judgment, learned Single Judge had rightly held as under: “Accordingly, recovery of Rs.1,60,088/- was sought from the petitioner. The counsel for the petitioner contended that his main grievance is that he was not instrumental in getting his pay fixed and no fraud was played by him and once the pay had been fixed and if some excess payment had been made by some mistake on the part of the department of the Government, then the Government is competent to reduce the pay but it can not recover the amount which had already been paid. In support of this contention, he placed reliance on the authorities of Hon'ble Apex Court in Sahib Ram Versus The State of Haryana and others, 1994 (1) SLR 753 and Shyam Verma and other Vs. Union of India and others 1994 (1) SLR 827. It is held in the said authorities that if higher pay scale had been allowed to the employee by mis-interpreting the instructions and further if the same is not on account of any mis-representation made by the employee and later on it is found that the employee was not entitled to benefit of higher pay scale, then the amount paid till date could not be recovered from the employee. The same view has been taken by a Division Bench of this Court in Tej Singh Retired Superintendent Vs. State of Punjab and others, (2003-1) The Punjab Law Reporter 492. Thus, it is held that the order, Annexure P-5, is wholly illegal violative and against the principles of natural justice. Consequently, this petition is 5 LPA No. 216 of 2004 in CWP No.5118 of 1995 allowed and the order dated 25.1.1995. Annexure P-5 is set aside. However, the respondents are at liberty to refix the pay of the petitioner but cannot recover the amount paid in excess for the past period. The petitioner, if entitled may be allowed other benefits, as per rules.” A separate application has been filed for impleading the legal heirs of Sh.V.P. Dubey on the ground that he had expired on 9th June, 2008 during the pendency of the present appeal. We concur with the reasoning given by a Single Judge of this Court. We further find that view of the Single Judge is fortified by a recent judgment rendered by Hon'ble Apex Court in Purshottam Lal Das v. State of Bihar, 2006 (4) SCT 537, wherein it was ordered that no recovery be made from the amounts already paid to the employee. In the present case, the employee had not only retired but he has no more in this world. Taking theses facts into consideration along with the fact that there was no misrepresentation and fraud on the part of the employee and it was due to wrong interpretation, emoluments were given to Sh.V.P. Dubey, which were not due, we find that the recovery of the amount is not justifiable and the reasons stated it the impugned judgment of Single Judge are just and appropriate in the facts and circumstances of the case. Hence, present appeal is dismissed. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE September 10, 2008. rps 6