IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T)No. 2181 of 2008. Date of decision: 27.7.2009 Om Parkash Sharma …. Petitioner Versus State of H.P & ors. .... Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ? No For the petitioner: Mr.Sanjeev Thakur, Advocate vice Mr.R.P.Singh, Advocate. For the respondents: Mr.R.K.Bawa, Advocate General with Mr.R.M.Bisht, Dy.Advocate General. _____________________________________________________ Deepak Gupta, J.(Oral) By means of this writ petition, the petitioner has challenged the order Annexures PC and PD whereby his pay has been re-fixed and certain recoveries have been ordered to be made from his pay. The admitted facts of the case are that the petitioner joined the Indian Army prior to 1962. He was released from the Army on 23rd July, 1980 and joined the civil post as Clerk with the State of Himachal Pradesh against the ex-serviceman quota on 4.8.1987. Since the 2 petitioner had joined the Indian Army prior to 1.11.1962, he cannot be considered to be a Demobilized Armed Forces Personnel in terms of the Himachal Demobilised Armed Forces Personnel Rules, 1972. The petitioner is to be treated as a plain and simple ex-serviceman. Therefore, the only benefit available to the respondents was that his pay could not have been fixed below than the last pay received by him in the Army. When the petitioner was appointed as a Clerk, the pay scale for this post was 400-600. The petitioner’s total emoluments in the Army were Rs.630.40 paise and, therefore, his pay was fixed in the maximum of scale at Rs.600/-. The pay scale of Rs.400-600 was revised to Rs.950-1800 w.e.f. 1.1.1986. However, the order of revision was passed sometime in the year 1988. The petitioner’s pay was re-fixed in the scale of Rs.950-1800 by treating his pay at Rs.600/- and resultantly his pay was fixed at Rs.1350 as on 4th August, 1987. The stand of the Government is that the only benefit available to the ex-serviceman was that his pay could not be less than the last pay drawn in the Army and the petitioner not being a Demobilized Armed Forces Personnel could not take the benefit of the number of 3 years of service rendered in the Army for fixation of his pay. This stand of the Government appears to be correct. We find no error in the order of the respondents in re-fixing the pay. Having held as above, we are also of the considered view that the orders Annexure PC and PD cannot be allowed retrospectively. The petitioner did not mis-represent any facts and the pay in the higher scale was fixed by the Government itself. The petitioner in the meantime has retired in 1996 and it would be totally unjust and unfair to allow the State to make recoveries from the petitioner for the excess payment made to him for no fault of his. The Apex Court in a number of cases has held that where the employee is not at a fault and over- payment is made by the employer without any overt act or mis-representation by the employees, recovery cannot be made. In view of the above discussion, we dispose of this writ petition with the direction that the orders Annexures PC and PD shall be treated only as prospective in nature. No recoveries prior to the date of passing of the order shall be made. 4 The writ petition is disposed of in the aforesaid terms with no order as to costs. ( Deepak Gupta ) Judge July 27, 2009 (Surinder Singh) (m) Judge