CW 6399/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.6399/2006 Girraj Prasad Vijay Versus State & Ors. Date of Order ::: 10/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Banwari Sharma, for petitioner Mr. BK Sharma for respondent No.2 & 3 Mr. Chetan Bairwa, Addl. Govt. Counsel, for respondents. Instant petition has been filed by petitioner with the grievance that on account of audit objection communicated vide order dt. 09/03/07 (Ann.3), all of his retiral dues, which otherwise became due and payable under Rules, were arbitrarily withheld by respondents. Petitioner initially joined service on 01/03/77 as Naka Guard in Municipal Board, Rajgarh (Alwar) and upon abolition of post of Naka Guard, stood absorbed in the cadre of Class IV and retired from service on 30/04/2007. While in service, he was served with a letter dt.09/03/07 (Ann.3) alongwith audit objection pointing out that while his fixation was made under Revised Pay Scale Rules, he was entitled to get benefit of fixation on 01/09/88 and increment from 01/09/89 while his increment date was wrongly fixed of 15th April, 1989; and accordingly excess amount of Rs. 58,930/- was required to be recovered – in absence whereof, his pension case could not have been CW 6399/06 //2// finalised. Counsel for petitioner submits that there was no misrepresentation on the part of petitioner and if at all respondents committed an error, and at least he cannot be made scape-goat for their erroneous decision and no recovery can be made for their fault, if committed. In support, Counsel placed reliance upon decisions of this Court in Nandlal Vs. RSEB (1992) RLR 707) and Goverdhan Lal Vs. State (2004(1) RR 347). Counsel further submits that his retiral dues were withheld only on account of audit objection and despite increment being revised as per audit objection from 15/04/89 to 01/03/07 vide order dt.27/06/07 (Ann.8), still thereafter his pension has not been released, that certainly makes him entitled for interest in terms of R.89 of Rajasthan Civil Services (Pension) Rules, 1996 (“Pension Rules, 1996”). In reply, respondents inter-alia averred that after audit objection being raised with regard to date of increment, the reply was sent to Auditor General that increment has rightly been granted under revised pay scale Rules; but audit objection was not over-ruled by auditor general; and in absence of recovery being first settled, his pension could not have been finalised. CW 6399/06 //3// I have considered contentions of Counsel for parties and with their assistance examined material on record. It is not the case of respondents that petitioner was not entitled for pension and other retiral dues under Scheme of Pension Rules on his retirement on 30/04/2007. It is also not their case that there was any misrepresentation made by petitioner or there was any fault being attributed to him while he was allegedly granted increments from April, 1989 under revised pay scale Rules, 1989. In Goverdhan Lal Vs. State (supra), after taking note of several decisions of Apex Court, a co-ordinate Bench of this Court held ad infra: “19. Apart from this, when the person to whom payment was wrongly made without there being any fault on his part and that person had retired, in such a case, after his retirement, to ask such person to pay amount already received, would necessarily cause a legal injury to him as in the meanwhile, he would have utilised that amount and therefore, from this point of view also, it can easily be said that a legal right has accrued in favour of the petitioner and under Article 226 of the Constitution of India, this Court has power to grant consequential relief such as not to recover the amount from the person to whom it was wrongly paid without there being any fault on his part.” CW 6399/06 //4// In Nandlal Vs. RSEB (supra), this Court also held ad infra: “16. In Shyam Babu Verma Vs. Union of India and others, 1994(2) SCC 521; Sahib Ram Versus State of Haryana and others, 1995 (suppl) (1) SCC 18; and Union of India and others Versus Ram Gopal Agrawal & others, 1998(2) SCC 589), it has been held that if a higher pay scale has erroneously been given to a person long back and he had received it out of no fault on his part it shall not be just and proper to recover the excess amount already paid to him. Thus, in view of the above, the respondents are restrained to take any steps to recover or adjust any excess amount paid to the petitioners due to the fault of the respondent Board as the petitioners cannot, by any means, be held responsible for the same. However, it is further clarified that if the amount has already been recovered fully or partly, the recovered amount shall not be liable to be refunded to the employees.” In the absence any misrepresentation on the part of the petitioner, respondents could not be held to be justified in making recovery of Rs.58,930/- from the petitioner as pointed out by audit objection (Ann.3). As regards submission made by Counsel for petitioner claiming interest, suffice it to say that it is not the case of respondents that there CW 6399/06 //5// was fault or delay, if any, being attributable to the petitioner, in absence whereof, whatever the reason may be, incumbent/retired personnel is certainly entitled for payment of interest in terms of R.89 of Pension Rules, 1996. That apart, in instant case, respondents had already revised fixation of pay pursuant to the alleged audit objection as is evident from document (Ann.8) and thereafter pension papers were prepared, still payment towards retiral dues were withheld till date without any justification. Consequently, writ petition succeeds and is hereby allowed. Recovery of Rs.58930/- under order dt.09/03/2007 (Ann.3) is hereby quashed & set aside. Respondents are directed to release retiral dues payable to petitioner with interest @9% per annum from the date of his retirement (30/04/07) till actual payment. Compliance be made by respondents within three months. No costs. (Ajay Rastogi), J. K.Khatri/p.5/6399CW07-10Fb.doc