SBCWP No.5445/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. S.B. CIVIL WRIT PETITION NO.5445/2007. Man Prakash Sharma Vs. State of Rajasthan & Ors. Date of order : December 7, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ajay Kumar Tanenia for Shri Sandeep Saxena for the petitioner. Shri S.D. Khaspuria, Additional Government Counsel for the respondents. ****** BY THE COURT:- This writ petition has been filed by petitioner Man Prakash Sharma with the prayer that the order dated 20/6/2007 (Annexure-8) by which his selection scale was revised and his pay was reduced be quashed and set-aside. Although, on the date of retirement on 30/7/2007, all the selections scales on completion of 9, 18 and 27 years of services have been granted to the petitioner but before one month of his retirement on 30/7/2007, re-fixation was made on 20/6/2007 revising pay scales to be given to the petitioner w.e.f. 30/12/1974 instead of his initial date of appointment i.e. 12/11/1970 and accordingly date of selection scales were also changed and a direction was issued for making recovery of the excess amount paid to the petitioner. Petitioner has SBCWP No.5445/07. 2 further prayed for direction to the respondents to pay him entire retiral benefits including leave encashment together with @18% p.a. Shri Ajay Kumar Tanenia, learned counsel for the petitioner has argued that opportunity of hearing was not given to the petitioner before passing the aforesaid order and retiral / pensionary benefits have also not been given to the petitioner. It is contended that no notice prior to passing of the order dated 20/6/2007 (Ann.8) and making such recovery was served upon the petitioner inasmuch as, petitioner did not make any misrepresentation, nor did he play any fraud on the respondents by receiving such benefits. Similarly situated person Shri Shyam Bihari Sharma, who was also appointed on the post of Malaria Technical in the year 1969 and was further appointed on the post of LDC has been given the benefit of selection scale from the date of his initial date of appointment but the same benefit has been denied in the case of the petitioner counting his period of regular service w.e.f. 30/12/1974 instead of his initial date of appointment i.e. 12/11/1970 when he was initially appointed on the post of Malaria Technical. Government itself has now come out with a Circular dated 20/8/2010, despite the reversal of the Larger Bench decision of this Court by the Supreme Court in SBCWP No.5445/07. 3 State of Rajasthan & Ors. vs. Jagdish Narain Chaturvedi-(2009) 12 SCC 49, the case of those government servants who stood retired prior to 29/6/2009, their cases may not be reopened and benefits which may have been paid are allowed to be retained. It is therefore prayed that the writ petition be allowed and the withheld amount be ordered to be refunded and that the pension and retiral benefits of the petitioner should be directed to be revised on the basis of selection scale originally received by the petitioner counting the period of his ad hoc service. Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that the ad hoc service cannot be counted for the purpose of selection scale in terms of the judgment of Supreme Court in Jagdish Narain Chaturvedi supra. However, learned Additional Government Counsel could not dispute that the Government has itself relaxed the condition by providing that cases of such employees, who stood retired before 29/6/2009 on the strength of which general order in compliance of the judgment of Supreme Court issued by the Finance Department of the State would not be reopened. In other words, the Government did not intend to refix the salary of such government servants, who had received the SBCWP No.5445/07. 4 benefit of selection scale form the date of their initial appointment on ad hoc / temporary basis and such benefits are allowed to be retained by them provided their date of retirement happened to be prior to 29/6/2009. In the present case, the date of retirement of the petitioner is 30/7/2007 and therefore the cases of those, who retired prior to 29/6/2009 shall have to be dealt with uniformally even by the Government. Moreover, it is settled law that whatever benefits a government servant has received even if erroneously, but so long as such mistakes are not attributable to any fraud or misrepresentation on the part of the government servant, recovery thereof cannot be made. However, the employer prospectively rectified the mistake. In the present case, such rectification has not been allowed to take place in compliance of the government order dated 29/6/2009. In the result, this writ petition is allowed. Impugned-order dated 20/6/2007 (Annexure-8) is set-aside. The respondents are directed to refund to the petitioner the recovered amount, if any, from him and they are further directed to revise pay and other retiral benefits of the petitioner on the basis of original date of his selection scale i.e. from the date of his initial appointment and grant him consequential benefits. He shall be entitled to SBCWP No.5445/07. 5 interest @ 6% per annum on all such benefits. Compliance of the judgment be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil