IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 3152 of 2010 Date of Decision: 23.2.2010. Om Parkash Midha --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. H.N. Khanduja, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) Notice of motion. Mr. R.K.S. Brar, Addl. A.G., Haryana has been asked to accept notice on behalf of respondents-State. Copy furnished. Keeping in view the nature of relief claimed and with the consent of learned counsel for the parties, this petition is being disposed of at the motion stage itself. The petitioner was appointed as J.B.T Teacher w.e.f. 11.1.1978 on ad hoc basis. He was regularized w.e.f. 16.9.1982. The petitioner acquired higher qualification of Inter Examination on 29.7.1977. In view of the policy decision of the State of Punjab issued vide letter dated 23.7.1957 as adopted by the State of Haryana, the petitioner was granted the JST grade on the basis of the higher qualification w.e.f. 1982. This benefit was conferred upon the petitioner in view of the judgement of the Hon'ble Apex Court in case of Wazir Singh JBT Teacher & others Vs. State of Haryana and reported as 1996(1) RSJ 784. Subsequently, Hon'ble Supreme Court in case of State of Haryana & others Vs. Sumitra Devi & others reported as 2004(1) SCT309 reversed its earlier decision and held that such of the JBT CWP. No. 3152 of 2010 -2- teachers who acquired the higher qualification prior to joining of the service are not entitled to the benefit of the higher scale on the basis of the Govt. circular dated 23.7.1957. In view of the aforementioned judgement the respondents have passed the impugned order dated 29.7.2009 (Annexure P- 10) whereby the JST grade granted to the petitioner has been withdrawn and his salary re-fixed. The respondents have also ordered recovery from the petitioner. I have heard learned counsel for the parties. The issue is no more res integra in terms of the judgement of Hon'ble Apex Court in case of State of Haryana & others Vs. Sumitra Devi & others. The petitioner is not entitled to the benefit of the JST grade, he having acquired the higher qualification before joining the service. However, the respondents released the benefit of the JST grade on the basis of the interpretation of the Govt. circular and in view of the earlier judgement of the Hon'ble Supreme Court. Even from the impugned order it appears that the benefit was not conferred on account of any misrepresentation or fraud attributable to the petitioner. It is on account of the subsequent judgement of the Hon'ble Apex Court that the salary of the petitioner has been re-fixed and higher pay scale withdrawn. Under such circumstances, the respondents are not entitled to effect recovery from the petitioner, though, re-fixation can not be interfered. A Full Bench of this Court in case of (Budh Ram and others vs. State of Haryana and others) has held as under:- ii)Cases in which the benefits sought to be recovered were granted on the basis of a bonafide 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 CWP. No. 3152 of 2010 -3- benefits involved the performance of higher or more onerous duties by the employee concerned; Issue No. ii) has been answered with the following observations:- “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, inequitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct interpretation of the rules, such a benefit was not due…… 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 view of the dictum of the aforesaid judgement, this petition is disposed of with the following directions:- CWP. No. 3152 of 2010 -4- 1. The impugned order to the extent it effects the recovery is quashed. 2. In so far it decides about the re-fixation, same is upheld. 3. If, any amount is recovered from the petitioner, the same shall be refunded to him within two months from the date of receipt of certified copy of this order. (PERMOD KOHLI) JUDGE 23.2.2010. lucky