SBCWP NO.9247/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.9247/2002. Smt.Narbada Devi Vs. State of Rajasthan & Ors. Date of Order:- April 10, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashok Gaur for the petitioner. Shri Zakir Hussain, Additional Government Counsel. ****** BY THE COURT:- This writ petition has been filed by the petitioner challenging the action of the respondents in deducting Rs.14,147/- from the gratuity of the late husband of the petitioner who died while serving on 2/1/2002 as Physical Training Instructor Grade-II. While he was in service, he acquired qualification of D.P.Ed. in the year 1983. Respondents granted one advance grade increment to him vide order dated 16/12/1992 passed by Head Master, Government Secondary School, Rewasa, SBCWP NO.9247/02. 2 District Sikar. Head Master of that school passed an order on 1/6/1995 to make recovery of amount of advance increment from the salary of late Shri Narain Lal Sharma from 4/9/1992 to May 1995. The said order was passed on the premise that since late Shri Narain Lal Sharma had already been granted second Selection Scale and was receiving salary in the pay scale of Rs.2000-3200, therefore, he was not entitled to be given one advance annual grade increment. He had acquired qualification of D.P.Ed. in the year 1983 while in service on the post of Physical Training Instructor Grade-II, pay scale of which, was Rs.1200-2050 (Scale No.9). As per the notification of the government dated 4/9/1992, one advance annual grade increment was to be given to those who were receiving salary in the pay scale of Rs.1200-2050 (Scale No.9). 2) Shri Ashok Gaur, learned counsel for the petitioner submitted that late Shri Narain Lal Sharma did not make any misrepresentation or did not play fraud on his part and therefore the recovery order could not be given effect to. Learned counsel cited the judgment of this Court in State of Rajasthan Vs. Ramnaraian wherein, the judgment and order passed by the Tribunal allowing similar claim SBCWP NO.9247/02. 3 was challenged by the State and the writ petition was dismissed. Petitioner earlier also filed a writ petition in which it was directed that he shall make a representation to the respondents and the respondents shall decide the same; only thereafter petitioner shall be entitled to challenge the same. Since the respondents have not decided the representation, petitioner has filed this writ petition. 3) Shri Zakir Hussain, learned Additional Government Counsel opposed the writ petition and submitted that late Shri Narain Lal Sharma was wrongly granted the benefit of one advance annual grade increment owing to the mistake on the part of the officials of the department which lateron was rectified by the impugned order. 4) Even if what is pleaded by the respondents is accepted that as per the government notification dated 4/9/1992 advance increment was meant to be given to those who were receiving salary in the pay scale of Rs.1200-2050, fact remains that respondents have not been able to show that late husband of the petitioner received such one advance increment on account of any fraud or misrepresentation on his part. SBCWP NO.9247/02. 4 5) In the result, writ petition is allowed. Respondents are restrained from making any recovery from the petitioner and in case the recovery has been made, it be refunded to the petitioner together with interest @6% p.a. Although, the respondents would be free to make corrections prospectively. Compliance of the judgment shall be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ) J. anil