RSA No.3815 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3815 of 2009 Date of Decision: 31.08.2010. Dharam Chand .....Appellant Versus Punjab State and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.H. S. Saggu, Advocate for the appellant. Mr. Vivek Chauhan, AAG, Punjab for the respondents. L. N. MITTAL, J (ORAL) Plaintiff-Dharam Chand having lost in both the Courts below has come up by way of instant second appeal. Plaintiff was employee of defendants since 14.09.1972. He superannuated on 30.06.2006 on attaining the age of 58 years. Defendant No.3-Superintending Engineer granted 16 years proficiency set up with effect from 01.01.1996 after reckoning entire service period, although he was not entitled to the same according to Government instructions. Even after audit objection was raised vide note dated 25.02.2000, instead of compliance of the audit objection, defendants granted second proficiency step up of 24 years service with effect from 14.09.1996 and next higher scale after 32 years of service with effect from 14.09.2004. Defendant No.3 vide impugned order dated 21.03.2006 withdrew the benefit of second proficiency step up with effect from 14.09.1996 and next higher scale with effect from 14.09.2004. RSA No.3815 of 2009 -2- However, during pendency of the suit, said order was modified by defendant No.3 vide order dated 03.08.2006 wherein 16 years proficiency step up was given to the plaintiff with effect from 01.01.2002. The plaintiff has challenged order dated 21.03.2006 whereby his higher scales with effect from 14.09.1996 and 14.09.2004 have been withdrawn retrospectively. The plaintiff also challenged consequent order dated 30.03.2006 thereby re-fixing the pay of the plaintiff in the lower scale. Defendants pleaded that order dated 21.03.2006 has already been modified vide order dated 03.08.2006 whereby 16 years proficiency step up has been withdrawn from 01.01.2002 which is as per Government instruction. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mansa vide judgment and decree dated 16.08.2008 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 17.04.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that benefits of higher scale with effect from 14.09.1996 and 14.09.2004 had been granted by the defendants of their own, without any misrepresentation or fraud played by the plaintiff in obtaining the same, and consequently, the said benefits could not be withdrawn retrospectively nor any recovery of the benefits already drawn by the RSA No.3815 of 2009 -3- plaintiff could be made. In support of this contention, learned counsel for the appellant has relied on Full Bench Judgment of this Court in the case of Budh Ram and others versus State of Haryana and others, 2009(3) SCT 333. On the other hand, learned counsel for respondent contended that the benefits which were erroneously granted to the plaintiff have been rightly withdrawn by the defendants. I have carefully considered the rival contentions. Case of the plaintiff is covered by following category No.(ii) mentioned in the case of Budh Ram (supra):- “ Cases in which the benefits sought to be recovered were granted on the basis of a bona fide mistake 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 benefit involved the performance of higher or more onerous duties by the employee concerned.” According to Full Bench Judgment in the case of Budh Ram (Supra), the amount of benefits already drawn by employees in cases covered by the said category cannot be recovered, although the benefits erroneously granted can be withdrawn prospectively i.e with effect from the date of the order. In the instant case, plaintiff did not contribute to the passing of the erroneous orders granting him benefits of higher scales. Consequently, case of the plaintiff falls under the aforesaid category. In view of authoritative pronouncement of Full Bench of this Court in the case of Budh Ram (supra), plaintiff- appellant is entitled to succeed to this extent. RSA No.3815 of 2009 -4- Substantial question of law i.e whether the recovery of benefits already drawn by the plaintiff could be made by making the order retrospectively, arises for determination in the instant second appeal and the said question is answered in favour of the appellant in view of judgment of Full Bench of this Court in the case of Budh Ram (supra). For the reasons recorded hereinabove, the instant second appeal is allowed partly. Judgments and decrees of the Courts below are set aside and suit filed by the plaintiff is decreed partly holding that defendants shall not be entitled to recover the benefits already drawn by the plaintiff prior to passing of order dated 21.03.2006, but with effect from 21.03.2006, the plaintiff shall be entitled to the pay scales as granted by the said order and as modified by order dated 03.08.2006. Except barring recovery of benefits drawn prior to 21.03.2006, the order dated 21.03.2006 as modified by order dated 03.08.2006 and consequent re-fixation of pay of the plaintiff is upheld. 31.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE