Regular Second Appeal No.1026 of 2010 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 20, 2010 State of Haryana & others ...Appellants VERSUS Chaudhary Ram & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sunil Nehra, Sr.DAG, Haryana, for the appellants. Mr.N.K.Manchanda, Advocate, for Mr.Dinesh Arora, Advocate, for respondent No.1. ***** RANJIT SINGH, J. The respondent-plaintiff was appointed as Lecturer in Mechanical Engineering Department. He was then promoted as Senior Lecturer in the pay scale of Rs.10000-13900 on 30.6.1998. His pay was fixed on 27.1.1999 by granting him increment of higher responsibility as provided under Rule 4.4 of the Civil Services Rules, Regular Second Appeal No.1026 of 2010 (O&M) : 2 : Volume-1, Part-I. He continued to draw his basic pay till his retirement on 31.12.2000. On the date of retirement, his basic pay was Rs.13575/- per month. He was accordingly given gratuity, commutation and leave encashment on the basis of pay being taken as his basic pay. The respondent-plaintiff has retired after rendering 33 years of qualifying service. After retirement, he suddenly received a show cause notice for recovery of sum of Rs.17,988/- from his pension. He was informed that a sum of Rs.13,408/- was paid excess on account of wrong fixation of pay from 4.6.1998 to 31.12.2000 and Rs.4580/- was excess on account of leave encashment. The respondent-plaintiff accordingly challenged this action of the appellants. The grievance was that no documents were supplied to him in support of what was being sought. As per the respondent- plaintiff, his pay was correctly fixed and he was also receiving the pension as per his entitlement. The appellants, however, filed a written statement disclosing that respondent-plaintiff was granted selection grade of Rs.3000-4500 w.e.f. 1.1.1992 and his pay was fixed at Rs.3750/- per month. This was converted to the pay scale of Rs.10000-13900 per month w.e.f. 1.1.1996 when the pay was revised. Respondent-plaintiff was then promoted as a Senior Lecturer on 3.6.1998 and the pay scale was fixed accordingly. Subsequently, Finance Department had clarified on 2.3.2001 regarding the revised pay scales and fixation of pay on promotion to higher post, whose functional pay scale was either equal or lower than the first or second higher standard pay scales in the pre-revised pay scale. Provisions regarding fixation of pay of an employee were Regular Second Appeal No.1026 of 2010 (O&M) : 3 : framed long time back. At that time, there was no concept of higher standard scales or assured carrier progressive scale. On receipt of this clarification, it was observed that the case of Lecturers, who were promoted as Senior Lecturers in the same pay scale, was identical to Mos and SMOs. So, their pay in the selection grade was to be fixed on promotion to the post of Senior Lecturer. In view of the clarification given, case of employee, who was in receipt of a scale other than the functional scale prescribed for the post and was afterward promoted to a post carrying the functional pay scale identical to what he was already drawing as a measure personal to him before promotion, then his pay may not be re-fixed. Accordingly, it is stated that the amount as referred to above was paid in excess. The suit was dismissed. However, the first appellate Court has reversed the finding by holding that there was no misrepresentation on the part of the respondent-plaintiff, who was not given any opportunity of hearing. The grievance of the State is that there may not be a case made out for effecting recovery of excess payment, but the right of the appellants to correct the mistake, if any, cannot be faulted. The first appellate Court, however, has foreclosed the right of the appellant to correct even the mistake. As per the law laid down by the Full Bench decision of this case in Budh Ram & others Vs.State of Haryana & others, 2009(3) S.C.T. 333, the excess payment made in those cases where there is no misrepresentation or fraud, then the same is not recoverable. Accordingly, any excess payment which was sought to be recovered could not have been so recovered as there was no allegation of misrepresentation or fraud on the part Regular Second Appeal No.1026 of 2010 (O&M) : 4 : of the respondent-plaintiff. That part of the order, thus, is sustainable. However, the appellants were well within their right to correct the mistake. The appellants would not be entitled to effect the recovery of the amount but in case there is any mistake, the same would be open to correction. The pension of the respondent-plaintiff could be fixed as is entitled to him in accordance with law. The Regular Second Appeal is accordingly disposed of with the above observations. Modified decree-sheet be prepared by the Registry of this court. May 20, 2010 ( RANJIT SINGH ) ramesh JUDGE