CWP No.10161 of 2001 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 10161 of 2001 Date of Decision: 9 - 9 - 2010 S.K.Grover and others ....Petitioners v. State of Punjab and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.N.S.Bawa, Advocate for the petitioners. Mr.J.S.Puri, Addl. A.G., Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Counsel for the petitioners contends that the present petition has been rendered infructuous qua petitioner No.1 – S.K. Grover, petitioner No.3 – R.L. Dhanda and petitioner No.4 – Munshi Ram Kamboj. Counsel states that present petition survives qua petitioner No.2 – Paramjit Singh Pawar. Petitioner Paramjit Singh Pawar in the present writ petition has prayed that impugned order dated 25.6.2001, Annexure P17, whereby the Higher Pay Scale granted to him was withdrawn, be quashed and consequential recovery be not made retrospectively. Petitioner joined the respondent-Department as Sub Divisional CWP No.10161 of 2001 [2] Engineer on 10.9.1980. Case of the petitioner is that his service record was good and there was no adverse remark in the Annual Confidential Reports, therefore, on completion of 4 years, 9 years and 14 years of service, he ought to have been granted the higher pay scale. It is further stated that after completion of 14 years of service, the pay of the petitioner was fixed in the pay scale of Rs.14300-18150/-. Later the Government reviewed its order of grant of pay scale on the ground that service record of the petitioner was not good and after comparison of the Annual Confidential Reports, the competent authority came to conclusion that record of the petitioner was below average. Counsel for the petitioner disputes this fact and states that only for a short period of 4 months, service record of the petitioner was not good, therefore, that period should have been excluded. To controvert this, Mr. Puri submits that petitioner has to meet the benchmark. In the present writ petition only two questions arise for consideration:- i) From which date, the petitioner will become entitled for grant of Higher Pay Scale? ii)Whether the recovery of the amount already paid to the petitioner on the grant of Higher Pay Scale, can be effected or not? In answer to the first question, Mr.Puri on instructions from Mr.A.K.Khuller, Executive Engineer of the respondent-Department states that in case the petitioner files reply to the show cause notice issued and as and when he meets the benchmark, Higher Pay Scale shall be granted to him. Mr.Bawa states that petitioner will file reply to the show cause notice CWP No.10161 of 2001 [3] within 15 days from the date of receipt of a certified copy of this order, in case this course is adopted, the respondent-Department shall take a decision thereupon within 3 months by passing a speaking order. So far as the second question regarding recovery is concerned, a Full Bench of this Court in Budh Ram and others v. State of Haryana and others, 2009(3) S.C.T. 333 has held that once payment has been made, no recovery can be effected, if there is no misrepresentation on the part of the employee. It is not the case of the respondent-department that petitioner is guilty of misrepresentation, fraud or deception. The Full Bench in Budh Ram's case (supra) has held as under:- “.....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. .....” Hence, the writ petition is partly allowed and it is ordered that no recovery of the excess amount already paid shall be made from the petitioner. No costs. ( KANWALJIT SINGH AHLUWALIA ) September 9, 2010. JUDGE RC