Civil Writ Petition No.3427 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 7.9.2009 Gurdeep Singh ..Petitioner Versus State of Punjab and others ..Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT:- Mr.D.D.Bansal, Advocate for the petitioner. Mr.P.C.Goyal, Additional Advocate General, Punjab. Permod Kohli, J. (Oral) The petitioner was appointed on 30.1.1984 as Junior Draftsman. One Dev Raj later came to be appointed in the same capacity on 26.8.1986. Dev Raj was, however, getting higher scale than the petitioner. On the basis of Government instructions dated 17.11.1993, the petitioner claimed pay at par with Dev Raj. Accordingly, the pay of the petitioner had been stepped up with the level of Dev Raj, who was junior to the petitioner with effect from 26.8.1994 vide order dated 28.12.2001 (Annexure P2). In the year 2005 audit was conducted and the Audit Party raised an objection regarding excess payment to the petitioner vide Memo No.10 dated 4.3.2005 and amount of Rs.18613/- plus allowances was ordered to be recovered from the petitioner. Based upon the said audit report, the respondents have passed an order dated 26.2.2008 (Annexure P4) for re-fixation of the pay of the petitioner and consequent recovery from him. The petitioner has challenged both these orders i.e. re-fixation and recovery. During the course of arguments, the petitioner has, however, Civil Writ Petition No.3427 of 2008 2 given up the claim in so far it relates to the challenge of re-fixation of the pay and has confined only to the recovery part. The respondents in the reply justified the re-fixation and it is stated that due to early accrual of the annual increment, some of the juniors were able to draw more pay than the seniors and thus, the senior is not entitled to step up of the pay at par with the junior. It is stated that the petitioner was not entitled to benefit of government notification referred to above and pay tariff. It is further the case of the respondents that the recovery has been ordered on the basis of the audit report. It is, however, the common case of the parties that the petitioner was granted benefit of the higher pay at par with his junior without mis-representation of fraud. It seems that it was an interpretation of the government instructions, which resulted in the payment of stepped-up salary to the petitioner. However, the petitioner is not guilty of mis- representation and fraud. The issue is squarely covered by a Full Bench judgment of this Court dated 22.5.2009 passed in CWP No.2799 of 2008 wherein following observations have been made:- “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 Civil Writ Petition No.3427 of 2008 3 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. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no Civil Writ Petition No.3427 of 2008 4 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 above, the respondents are not entitled to make any recovery from the petitioner even though the re-fixation is permissible. Otherwise also, the petitioner has abandoned the relief regarding re-fixation. This petition is, accordingly, allowed with a direction to the respondents not to effect any recovery from the petitioner on account of Annexures P3 and P4. However, the respondents are at liberty to re-fix the salary of the petitioner as already done vide the impugned orders. (Permod Kohli) 7.9.2009 Judge AS