IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 19537 of 2007 DATE OF DECISION: July 02, 2009 Dalbir Singh .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Sandeep Arora, Advocate, for the petitioner. Ms. Charu Tulli, Sr. DAG, Punjab. AJAI LAMBA, J. (ORAL) This civil writ petition under Articles 226 & 227 of Constitution of India prays for issuance of a writ in the nature of certiorari quashing order dated 27.11.2007 Annexure P-4 under which after the retirement of the petitioner, his pay has been refixed w.e.f. 01.01.1996 till the date of his retirement and the amount erroneously paid has been ordered to be recovered. Learned counsel for the petitioner contends that the challenge to order Annexure P-4 is only to the extent of recovery of amount that is yet to be effected and not to the refixation itself. Learned counsel contends that the salary was fixed by the respondents not on any representation made by the petitioner or any misrepresentation made in that regard. The petitioner has not played any fraud in fixation of his salary and, therefore, at this juncture after his retirement the amount paid cannot be recovered. Learned C.W.P. No. 19537 of 2007 -2- counsel has placed reliance on judgment rendered by Full Bench of this Court in Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008. Learned counsel for the respondent-State has not been able to dispute the legal position as settled by this Hon'ble Court in Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008. The facts are also not in dispute in so much as no material has been placed before this court to indicate that the petitioner has made any misrepresentation or has played any fraud for erroneous fixation of pay of the petitioner. I have considered the issue. In Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008, while considering the second question for determination viz.:- “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 benefits involved the performance of higher or more onerous duties by the employee concerned;”, the following has been held:- “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 C.W.P. No. 19537 of 2007 -3- 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, inquitable 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. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat C.W.P. No. 19537 of 2007 -4- according to their cloth. 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.” Perusal of the extracted portion from the Full Bench judgment clearly indicates that the petitioner is the recipient of benefits extended to him on an erroneous interpretation of the relevant rules. It had not been actuated by fraud committed by the petitioner or any misrepresentation made by the petitioner. In such circumstances, it is held that the respondents cannot affect any recovery from the petitioner. Learned counsel for the petitioner contends that the claim of the petitioner is confined to the recovery in future only. In view of the above, the writ petition is allowed in terms that recovery already effected from the petitioner shall not be liable to be refunded in view of the statement given by the learned counsel. It is directed that no further recovery in pursuance of order Annexure P-4 shall be effected from the petitioner. 02.07.2009 (AJAI LAMBA) shivani JUDGE