S.B. CIVIL WRIT PETITION NO.6878/2007 (Moolgiri Vs.State of Rajasthan & ors.) Date of Order :: 15th November 2007 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vikram Singh Choudhary for the petitioner Having heard learned counsel for the petitioner and having perused the material placed on record, this Court is clearly of opinion that this writ petition does not merit admission. The petitioner, while working on the post of Assistant Sub-Inspector, was fixed in the maximum of revised pay scale of Rs.4,000-6,000 at Rs.6,000/- with Rs.209/- PP, as on 11.06.1997 by an order issued from the Office of Superintendent of Police, Pali on 15.02.1999 (Annex.1) under and in pursuance of the Rajasthan Civil Services (Revised Pay Scales) Rules, 1998. However, the said order dated 15.02.1999 was withdrawn for the objection raised by the Treasury Officer, Pali and the petitioner was fixed at Rs.6,000/- + Rs.60/- PP by an order issued on 16.07.1999 (Annex.2). The petitioner questioned the order dated 16.07.1999 in Appeal No.349/1999 before the Rajasthan Civil Services Appellate Tribunal, Circuit Bench, Jodhpur. The 1 Tribunal proceeded to dispose of the appeal on 27.03.2000 (Annex.3) with the observations that the petitioner was not extended any opportunity before withdrawal of the benefits of pay fixation already extended to him and, therefore, the respondents shall extend him an opportunity of hearing and shall pass speaking order; and left it open for the petitioner to approach the Tribunal again, if aggrieved. Thereafter, the petitioner was served with a show cause notice and he replied to the effect that once the order passed earlier has been set aside by the Tribunal, his pay could not be reduced on the basis of the said order; that once his pay was fixed at Rs.6,000/-+ Rs.209/- PP from 11.06.1997, the Treasury Officer has wrongly put his objection and once he had been extended the benefits, the same could not be withdrawn; and referred to the decisions of the Hon'ble Supreme Court in the case of Sahib Ram Vs. State of Haryana and others: 1995 Supp (1) SCC 18 and Shyam Babu Verma and others Vs. Union of India and others: JT 1994 (1)SC 574. From the material placed on record, it appears that the Additional Superintendent of Police dealing with the matter asked for the opinion from the Assistant Accounts Officer, Internal Audit who in turn stated under the letter dated 25.05.2000 (Annex.7) that the pay in relation to the petitioner was required to be fixed only at Rs.6000/- + 60/- PP; and the 2 petitioner was accordingly informed by the letter dated 26.05.2000 (Annex.6) that he was entitled for 6000/- + 60/- PP in the pay scale of 4,000-100-6,000 and was not entitled for any other relief. A copy of the opinion received from the Assistant Accounts Officer (Annex.7) was also endorsed to the petitioner. The petitioner questioned the order dated 26.05.2000 before the Tribunal in Appeal No.424/2000. It appears that after filing of the appeal and before its decision, the petitioner retired on reaching the age of superannuation on 31.01.2001. The Tribunal has found that the order dated 15.02.1999 having mistakenly been issued in relation to the petitioner, the same was recalled by the order dated 16.07.1999 and the petitioner was fixed at Rs.6,000/- + Rs.60/- PP. The Tribunal has also observed that the Department has rightly rejected his representation after adequate opportunity of hearing; and with reference to the decision of the Hon'ble Supreme Court in V. Gangaram Vs. Regional Joint Director and others: (1997) 6 SCC 139 and that of this Court in Abdul Salam and another Vs. Maharana Pratap University and others: 2004 WLC (Raj.) UC 621 has observed that an amount mistakenly paid to the employee could definitely be recovered and hence has rejected the appeal on 10.08.2007 (Annex.11). 3 Seeking to question the order dated 10.08.2007 made by the Tribunal, learned counsel has contended that the decisions cited on behalf of the petitioner have not been taken into consideration by the Tribunal; that the decision of the Hon'ble Supreme Court in V.Gangaram's case (supra) could not have been relied upon in the fact situation of the present case nor the said decision of the Hon'ble Supreme Court could be read laying down any law contrary to that declared by the Hon'ble Supreme Court in Shyam Babu Verma (supra) and Sahib Ram (supra); and that the petitioner has been denied adequate opportunity of hearing particularly when he has not been supplied with the copy of the so-called objection on whose basis the pay fixation order in his relation was sought to be recalled. The submissions remain totally baseless and there is no scope for interference. So far the decisions referred by learned counsel are concerned, it may be pointed out that this Court in the case of Abdul Salam (supra) after a comprehensive survey of the case-law related with the question at hands, including those referred by learned counsel for the petitioner herein, has found that in Shyam Babu's case (supra) payments were made to the employees for about 10 years from 1973 and it was in the year 1984 that recovery was sought to be made and the matter was directly taken to the Supreme Court under Article 4 32 of the Constitution of India; and though writ petition was decided in the year 1994 holding that employees were not entitled to the amount paid to them but it was held that it would not be just and proper to recover any excess amount which had already been paid. Thus pointed out this Court that the Hon'ble Supreme Court in Shyam Babu Verma's case proceeded on the considerations as to what was 'just and proper' obviously in the peculiar facts and circumstances of the given case. Similarly, while referring to Sahib Ram's case (supra), wherein payments were made to the employee in the year 1987 and recovery was sought to be made in the year 1993, it has been noticed that the Hon'ble Supreme Court though held that the employee was not entitled to the revised pay scale but observed that the benefit of higher pay scale was given to him by wrong construction made by the Principal for which the employee could not be held at fault and it was directed that under the circumstances the amount paid till then be not recovered. This Court has, thus, pointed out that 'under the circumstances' of the said case it was directed that the amount be not recovered. This Court while deciding Abdul Salam's case has considered various other decisions dealing with the question of recovery of payment erroneously made to an employee; has also considered the dictum of the Hon'ble Supreme Court that 5 it is the ratio of a particular decision that is required to be followed and applied and not merely the directions issued to deal with the fact situation of a given case; and has observed,- ''Thus, on a collective reading of the aforesaid judgments of Hon'ble the Supreme Court, it cannot be concluded, that Hon'ble the Supreme Court ever laid down, as an absolute proposition, that no recovery can ever be made from the employee, where the amount has been paid to him without any fault on his part. Similarly within the meaning of Article 141, in none of these judgments, has it been expressly laid down, as a legal proposition as to in what circumstances the recovery cannot be made, and in what circumstances recovery can be made.'' This Court has further pointed out that while exercising jurisdiction under Article 226 of the Constitution of India one of the important considerations was of substantial failure of justice and has noticed that when the petitioners had received the amount they were not entitled to, assistance of this Court under Article 226 jurisdiction was not available so as to prevent the respondents from recovering the amount and so as to enable the employees to retain the amount to which otherwise they are not entitled to and when they were hit by the doctrine of unjust enrichment. This Court has further pointed out that while exercising jurisdiction under Article 226, larger interest including that of public exchequer cannot be ignored. 6 There does not appear any necessity to dilate further on this aspect of the matter except following respectfully the decision of this Court in the case of Abdul Salam's case (supra) rendered after considering the decisions of the Hon'ble Supreme Court sought to be relied upon on behalf of the petitioner. Thus, there is no rule of universal application that no recovery can ever be made where the amount has been paid to the employee under some mistake; and the decisions wherein such recovery has not been permitted are required to be read as related to the fact situation of the given case. It may be pointed out that in the present case, no such equity is available for the petitioner so as to consider if he could be permitted to retain the amount erroneously paid. It is noticed that the mistaken order was issued on 15.02.1999 and the same was withdrawn within about five months, on 16.07.1999. The petitioner earlier complained before the Tribunal about denial of opportunity of hearing. After the Tribunal’s directions, the petitioner has been extended adequate opportunity of hearing; and the Assistant Accounts Officer in his communication dated 25.05.2000 (Annex.7) has clearly pointed out the reasons wherefor the petitioner was required to be fixed only at Rs.6,000/- + Rs.60/- PP and not at Rs.6,000/- + Rs.209/- PP as wrongly ordered on 15.02.1999. 7 The submission about the petitioner having not been supplied with the copy of the objection raised by the Treasury Officer carries no substance particularly when it is noticed that though having been supplied with the copy of the reasons stated by the Assistant Accounts Officer (Annex.7), the petitioner has nowhere, in the entire length of submissions, been able to suggest that in accordance with the Rules he could have been fixed at Rs.6,000/- + Rs.209/- PP. The main plank of the case of the petitioner is and has been that once an order was issued, the same was a fait accompli and could not have been altered. Such a proposition is not supported by law; and, as noticed, is not available in equity in the fact situation of the present case. In the circumstances of the case, the Tribunal does not appear to have committed any error in rejecting the appeal filed by the petitioner; and there appears no reason to consider any interference in the writ jurisdiction. The writ petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK 8