1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.465/2008 Ram Kalyan Vs. State & Ors. Date of order : 26/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vijay Kumar Khandelwal for the petitioner. Shri Ganesh Meena, Government Counsel) Shri S.D. Khaspuria, Addl. Govt. Counsel) for the respondents. ****** This writ petition has been filed by the petitioner Ram Kalyan with the prayer that the order dated 29.6.2007 (Annexure-14) by which his pay was revised by changing the date of his second selection scale and the order dated 5.7.2007 (Annexure-15) by which a sum of Rs.90,303/- were ordered to be recovered from his retiral benefits, be quashed and set aside and the action of the respondents in making such recovery be held illegal and the petitioner should be held entitled to refund all such benefits. Shri Vijay Kumar Khandelwal, learned counsel for the petitioner has argued that the aforesaid orders were passed by the respondents on the premise that the petitioner was granted the benefit of selection scale on completion of 9, 18 and 27 years counting such period from the date of his initial appointment, which was made on 23.5.1977, whereas he was regularised in service by order dated 18.4.1984. Learned 2 counsel submitted that such recovery order was passed at the time when the petitioner got voluntary retired with effect from 6.7.2006 and his retiral / pensionary benefits were finalised. It is contended that no notice prior to making such recovery was served upon the petitioner inasmuch as petitioner did not make any misrepresentation, nor did he played any fraud on the respondents by receiving such benefits. 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 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 Ganesh Meena, learned 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 judgement of Supreme Court, 3 supra. However, learned 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 judgement 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 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 6.7.06 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. 4 In the result, this writ petition is allowed. The respondents are directed to refund to the petitioner the amount of Rs.90,303/- recovered 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 and grant him consequential benefits. He shall be entitled to interest @ 6% per annum on all such benefits. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/-