Civil Writ Petition No.14601 of 2003 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14601 of 2003 Date of decision: September 09, 2010. Vir Bhan Mittal ...Petitioner(s) v. State of Punjab & Anr. ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri N.S. Bawa, Advocate, for the petitioner(s). Shri J.S. Puri, Additional Advocate General, Punjab for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): The petitioner challenges the action of the respondents in withdrawing retrospectively grant of higher pay scale vide order dated 25.3.2003, Annexure P-8, given to him on possessing the degree of AMIE, on the pretext of wrong assumption. Also prays for non-recovery of the excess payment made. Petitioner joined the services of the respondent-State on 18.1.1968 as Junior Engineer. He obtained degree in Engineering by clearing AMIE. He was promoted as Sub Divisional Engineer on 1.6.1978 and given the higher pay scale. Later on, the Government realized that higher pay scale was not to be given as a matter of right but subject to assessment of the Officer, and for that, his annual confidential reports were Civil Writ Petition No.14601 of 2003 -: 2 :- to be taken into consideration. It is not disputed that for the relevant period of 5 years, petitioner was having average ACRs, therefore, the higher pay scale granted to the petitioner, was withdrawn. Shri J.S. Puri, appearing for the respondent-State, has submitted that with effect from 1.1.1996, higher pay scale of Rs.14,300-18150/- was granted on 3.7.1998. As per the guidelines issued on 11.4.2000, a review was conducted and it was found that since the overall record of the petitioner was not good for 50% and two reports of last 3 years were also not good, therefore, the petitioner was held not entitled to the higher pay scale of Rs.14,300-18150/- and the same was withdrawn and recovery was ordered. He has further submitted that, now the Government has granted higher pay scale to the petitioner with effect from 1.1.2002 as his service record was good, and hence he was held entitled to higher pay scale. However, it is stated that since the petitioner was granted higher pay scale with effect from 1.1.2002, therefore, recovery has to be effected from the petitioner for the period from 1.1.1996 to 31.12.2001 during which he has been erroneously granted the higher pay scale. After hearing Counsel for the parties, I do not find any illegality or infirmity in the order withdrawing the higher pay scale dated 25.3.2003 (Annexure P-8). However, qua recovery of the paid amount, it was held by a Full Bench of this Court in Budh Ram & Ors. v. State of Haryana & Ors., 2009(3) SCT 333 that if there is neither any misrepresentation, fraud nor any deception on the part of the petitioner and no wrong information was furnished by him, the employee has to be given the benefit and the amount so paid cannot be recovered. Hence, this Court Civil Writ Petition No.14601 of 2003 -: 3 :- is of the view that since higher pay scale was granted to the employee by the employer without any act of omission or commission on the part of the employee, recovery of the amount so paid, cannot be effected from the petitioner. Hence, the present writ petition is partly allowed. It is held that no recovery shall be effected from the petitioner of the amount paid in the higher pay scale with effect from 1.1.1996 to 31.12.2001. However, terminal benefits of the petitioner shall be calculated from the date when he was actually given higher pay scale, i.e., 1.1.2002. Shri Bawa has stated that the respondents had withheld the gratuity of the petitioner for effecting the recovery. The respondents are directed to release the gratuity of the petitioner forthwith. No costs. [Kanwaljit Singh Ahluwalia] September 09, 2010. Judge kadyan