CWP No.3466 of 2008 : 1 : In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 03.07.2009 Subhash Chander Arora ... Petitioner Versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Ranjivan Singh, Advocate, for the petitioner. Mr.SS Gill, D.A.G., Punjab, for the respondents. PERMOD KOHLI, J. (Oral): The petitioner has challenged order No.260 dated 08.02.2008, Annexure P-6, whereby the pay of the petitioner has been refixed and recovery of Rs.2,12,606/- has been ordered. In the year 1997, the pay of the petitioner was fixed at par with one Krishan Kumar at Rs.2300/- per month with effect from 01.01.1988 and entry to this effect has been made in the service book of the petitioner. The petitioner was also granted all subsequent pay revisions. He was due to retire on 31.05.2007. Before the retirement of the petitioner, his case was sent to the Accountant General, Punjab, for sanction of the pensionary benefits. The Accountant General, Punjab, vide his letter dated 06.07.2007, Annexure P-2, asked the Principal, Government Senior Secondary School (Boys), Jawahar Nagar, Ludhiana, where the petitioner was serving at the relevant time, to make available the service book of Krishan Kumar to ascertain the genuineness of the anomaly. In response to the letter aforesaid, the Accountant General, Punjab, was informed by the Principal, Government Senior Secondary School (Boys), Jawahar Nagar, Ludhiana, CWP No.3466 of 2008 : 2 : vide his communication dated 20.11.2007, Annexure P-3, that the service book of Krishan Kumar is not available. However, vide subsequent letter dated 03.01.2008, Annexure P-4, the Principal of the aforesaid school sent the comparative statement with regard to the emoluments of the petitioner as also Krishan Kumar to the Accountant General. The Accountant General, Punjab, vide letter dated 23.01.2008, Annexure P-5, found various shortcomings in the claim of the petitioner. It has been observed that Krishan Kumar stated to be junior to the petitioner, acquired higher qualification on 15.05.1977 whereas the petitioner acquired higher qualification on 03.08.1977. It is also mentioned that Krishan Kumar was drawing higher pay at Rs.268/- and the petitioner was drawing less pay at Rs.244/-. It is further stated that Krishan Kumar was entitled to advance increment which benefit was not available to the petitioner. It is also stated that Krishan Kumar opted for the revised pay scale with effect from 01.01.1998 whereas the petitioner opted for revised pay scale with effect from 01.08.1987. It is accordingly observed that there was no anomaly between the pay scales of the petitioner and Krishan Kumar on account of the aforesaid facts. On the basis of the aforesaid letter, the Principal of the aforesaid school recommended to the Accountant General, Punjab, for refixation of the pay of the petitioner and recovery of Rs.2,12, 606/- to be deducted from DCRG of the petitioner. In view of the above, the pay of the petitioner was refixed. In the reply filed, the State has tried to justify the refixation of the pay and recovery from the petitioner. I have heard the learned counsel for the parties at length. Learned counsel for the petitioner has argued that the petitioner CWP No.3466 of 2008 : 3 : was not provided any opportunity of being heard before passing the order of refixation of the pay and recovery. Hence, the impugned order is liable to be set aside. No doubt, the order has been passed without affording any opportunity of being heard to the petitioner. However, the petitioner has failed to make out any ground to justify the earlier fixation of salary. This clearly indicates that the petitioner has no valid reasons to challenge the refixation. In so far the question of recovery is concerned, the respondents neither in the communication from the Accountant General, Punjab, nor in the Principal of the school aforesaid, nor in the reply have taken any stand that fixation of pay of the petitioner at par with Krishan Kumar was on account of any misrepresentation or fraud attributed to the petitioner. This clearly establishes that the benefit conferred upon the petitioner was either on mis-interpretation of the rules or on their own accord by the respondents. The issue relating to the recovery is squarely covered by a Full Bench judgment of this Court in CWP No.2799 of 2008 (Budh Ram and others Vs. State of Haryana and others), decided on 22.05.200, wherein the 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 CWP No.3466 of 2008 : 4 : employee on the basis of any such erroneous grant. We say so primarily because if the employee is not responsible for 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 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. ....................We have, therefore, no 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, CWP No.3466 of 2008 : 5 : 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 the dictum of the aforesaid judgment, the respondents though entitled to refix the salary of the petitioner, but are not entitled to make any recovery from him. The action of the respondents to the extent recovery is sought to be effected from the petitioner is hereby set aside with liberty to refix the pay. Learned counsel for the petitioner has argued that the petitioner has retired on 31.05.2007, but his pensionary and other retiral benefits have not been paid till date, though provisional pension is being paid to him. In view of the above circumstances, this petition is partly allowed. Recovery of amount of Rs.2,12,606/- is hereby quashed. The respondents are entitled to refix the salary of the petitioner. However, retiral benefits of the petitioner shall be redetermined and his pension and other retiral benefits shall be finalised/settled within a period of three months from today and all consequential benefits will be released within a period of one month thereafter. The petitioner shall be entitled to statutory interest where-ever payable till the amount is actually paid. 03.07.2-009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? No