IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 9537 of 2009 DATE OF DECISION: September 02, 2009 Darshan Kaur .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM: HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. S.K. Rattan, Advocate, for the petitioner. Mr. Yatinder Sharma, DAG, Punjab. AJAI LAMBA, J. (ORAL) This order shall dispose of four petitions namely CWP No. 9537 of 2009 titled Darshan Kaur Vs. State of Punjab and Others, CWP No. 9566 of 2009 titled Amarjit Kaur Vs. State of Punjab and Others, CWP No. 12755 of 2009 titled Mohan Singh and Others Vs. State of Punjab and Others and CWP No. 9619 of 2009 titled Lakhbir Kaur Vs. State of Punjab and Others as common questions of facts and law are involved. In all these cases, the petitioners are employees of Department of Education, Punjab. All the petitioners are aggrieved by withdrawal of advance increments, earlier granted to the petitioners on account of the petitioners acquiring higher qualification of Giani/Prabhakar. Learned counsel for the petitioner, in all these cases confines the claim only in challenge to recovery and not to the parent order itself under C.W.P. No. 9537 of 2009 -2- which the advance increments have been ordered to be withdrawn and pay refixed accordingly. The facts in detail are not required to be given in so much as learned counsel for the petitioner has withdrawn the prayer in challenge to withdrawal of advance increments. For reference to record, CWP No. 9537 of 2009 titled Darshan Kaur Vs. State of Punjab and Others is being taken up. This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order dated 02.06.2008 Annexure P-4 under which three advance increments given to the petitioner on acquiring higher education of Giani w.e.f. 01.04.1977 have been withdrawn and the pay has been refixed. Resultantly, recovery of amount already taken by the petitioner on account of the advance increments has been ordered to be effected. In regard to recovery, learned counsel relies on judgment rendered by Full Bench of this Court in Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008 decided on 22.05.2009. Learned counsel for the respondent, so far as the issue of recovery is concerned, has not disputed that the issue would be covered by Budh Ram's case (supra). In Budh Ram's case (supra), the following question was framed for determination:- “ii) Cases in which the benefits sought to be recovered were granted on the basis of a bonafide mistake C.W.P. No. 9537 of 2009 -3- committed by the authority granting the same while applying or interpreting a provision contained in the service rule, regulation or any other memo or circular authorizing such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned;” The question has been answered in the following way:- “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 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 him 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, inquitable and harsh for the Government to direct recovery of the excess amount simply C.W.P. No. 9537 of 2009 -4- because on a true and correct interpretation of the rules, such a benefit was not due. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. 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, 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 the case in hand, the department had taken a decision to give advance increments to the petitioner and other persons on account of higher qualification acquired, though erroneously. Learned counsel for the respondent has not been able to show any document or material that would indicate fraud played by the petitioner or C.W.P. No. 9537 of 2009 -5- any misrepresentation made by the petitioner to actuate release of advance increments. In this view of the matter, in my considered opinion, the matter is covered by Budh Ram's case (supra) Consequently, the petition is allowed to the extent that the respondents would not be entitled to effect recovery from the petitioner. Consequently, it is directed that the amount recovered in the interregnum period would be refunded to the petitioner within a period of four months of receipt of certified copy of the order. All the petitions are disposed of in the above terms. 02.09.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?