IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.11917 of 2004 (O&M) Date of Decision : February 11, 2010. Beant Kaur .....Petitioner versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Ms.Alka Chatrath, Advocate for the petitioner. Ms.Charu Tuli, Senior DAG, Punjab. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- ORDER Surya Kant, J. (Oral) The petitioner is a retired lecturer who was lastly posted in Government Senior Secondary School, Samana, District Patiala. She has retired from service on attaining the age of superannuation on 30.11.2003. She seeks quashing of the orders dated 11.12.2003 (Annexure P-13) and 18.3.2004 (Annexure P-14) whereby the Accountant General (A&E), Punjab, raised an objection against the grant of three annual increments to the petitioner w.e.f. 1.2.1978 on account of an alleged anomaly in pay fixation of junior/senior and has ordered consequential recovery of Rs.1,31, 287/- from her and then decided to release the provisional pension C.W.P.No .11917 of 2004 (O&M) 2 @ 90% per month. It is informed that the petitioner is still drawing the provisional pension only payment of gratuity to the extent of the above mentioned alleged recoverable amount, has also been with-held. The petitioner's precise case is that the three increments were granted to her w.e.f. 1.2.1978 not only to remove the anomaly so as to bring her pay at par with her junior but also to give effect to the Government Policy/Instructions dated 1.9.1960 (Annexure P-3) whereby it was decided that the Masters working in the Education Department who improve or have improved their educational qualifications would be entitled to additional increments, i.e., those having M.A./M.Sc./M.Ed. in 3rd division, shall get two increments and M.A./M.Sc./M.Ed. in 1st or 2nd Division shall get three increments. The petitioner had done M.A. with second division from Panjab University vide certificate dated 12.9.1974 (Annexure P-1/II. She is said to have been granted three increments raising her basic pay from Rs.660/- to Rs.725/- in terms of the above-mentioned Government Policy. The respondents, on the other hand, have averred in their counter-affidavit that the petitioner was granted three additional increments as she claimed parity with a male teacher who was said to be junior to her even when male and female teachers constitute separate and distinct cadres. On this premise, it is maintained that the benefit of three increments was erroneously granted to the petitioner to remove an alleged anomaly which never existed. C.W.P.No .11917 of 2004 (O&M) 3 To counter the respondents' above-stated plea, the petitioner has filed a rejoinder stating therein that even in the Female Masters Cadre, one Paramjit Kaur, Science Teacher who was junior to her, was getting pay higher than the petitioner and this instance was also specifically brought to the notice of the respondents by the petitioner. I have heard learned counsel for the parties at some length and also perused the records. There are two issues which arises for consideration. Firstly, whether the petitioner is entitled to the benefit of three additional increments w.e.f. 1.2.1978? If so, on what basis? Secondly, whether the respondents are entitled to effect the recovery at this belated stage and after her retirement, from the petitioner of the increments granted to her way back on 1.2.1978. Adverting to the first issue, it appears that the respondents themselves are uncertain as to why the additional increments were granted to the petitioner in the year 1978? Suffice it to observe that the petitioner's claim for the grant of three increments on the basis of her improved academic qualifications which she passed in second division, appears to have gone unnoticed and has not been considered at all by the respondents. Similarly, it is nowhere indicated in the impugned order as to why there was no anomaly in the petitioner's' pay when Paramjit Kaur, Science- Mistress who admittedly belonged to female cadre, was drawing higher pay than the petitioner? As both these questions cannot be effectively answered with C.W.P.No .11917 of 2004 (O&M) 4 ascertainment of correct facts, it is imperative upon the respondents to re- consider the same and determine as to whether or not the petitioner was entitled to additional increments over and above the basic pay as on 1.2.1978 either in terms of the Government Policy dated 1.9.1960 (Annexure P-3) and/or for the reason that her junior namely, Paramjit Kaur, Science Mistress was allegedly drawing pay more than her. The needful in this regard shall be done by the respondents within a period of three months from the date of receiving a certified copy of this order. So far as the second issue, namely, recovery of the alleged erroneous monetary benefits granted to the petitioner w.e.f. 1.2.1978 is concerned, the controversy is no longer res-integra as a Full Bench of this Court in Budh Ram and others versus State of Haryana and others, 2009 (3) S.C.T.333 has ruled that no recovery of excess payment can be effected where the employee is not found guilty of mis-representation of facts or of fraud, deception etc. From the counter affidavit filed by the petitioner, I am unable to draw any inference that petitioner ever misled the authorities or concealed any material facts in order to secure monetary gains. If that is so, no recovery can be effected from the petitioner. In other words, even if the respondents arrive at a conclusion that the petitioner was not entitled to the grant of three advance increments w.e.f. 1.2.1978, yet, no recovery can be permitted to be effected from her after her retirement. For the reasons aforestated, the writ petition is allowed in part; the impugned orders dated 11.12.2003 (Annexure P-13) and 18.3.2004 C.W.P.No .11917 of 2004 (O&M) 5 (Annexure P-14) recovering the amount of Rs.1,31, 287/- are set-aside and the respondents are directed to release the with-held amount of gratuity to the petitioner forthwith but not later than 2 months from the date of receiving a certified copy of this order. It is further directed that entitlement of the petitioner regarding grant of three annual increments w.e.f. 1.2.1978 shall be re-determined in the light of the observations made herein-above. In case the competent authority holds that the petitioner is entitled to the benefit of those three increments, necessary orders to this effect shall be passed and all the retiral benefits shall accordingly be re- fixed. However, if the competent authority is of the view that the petitioner was not entitled to the benefit of such increments, the retiral benefits including the pension of the petitioner shall be fixed on the basis of the revised and reduced pay and shall accordingly be also released forthwith within the above stipulated period without prejudice to the petitioner's legal right to challenge such a decision, if so advised/desired, before this Court. Dasti. 11-02-2010 (SURYA KANT) Mohinder JUDGE