IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 15885 of 2008 DATE OF DECISION: August 25, 2009 Rajan Kumar and Others .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. R.S. Manhas, Advocate, for the petitioner. Ms. Charu Tuli, Sr. DAG, Punjab. AJAI LAMBA, J. (ORAL) 15 petitioners have filed this petition under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order dated 17.03.2005 Annexure P-6 and order dated 07.04.2006 Annexure P-7 and consequential action of the respondents in refixing the pay of the petitioners in accordance with the judgment Annexure P-5 dated 16.03.2004. Under orders Annexures P-6 and P-7, it has been directed that the persons who have been given the benefit of 89 days adhoc service towards annual increment, the benefit be withdrawn in terms of orders passed by this Court in CWP No. 7765 of 2003 titled Harinder Kaur and Another Vs. State of Punjab and Others decided on 16.03.2004. Annexure P-7 are instructions and clarification to Annexure P-6 making it evident that service rendered for 89 days would not be counted for any purpose. C.W.P. No. 15885 of 2008 -2- Learned counsel for the petitioner has not been able to dispute the legal proposition that the petitioners are not entitled to the benefit of service rendered by way of stop gap arrangement/on temporary basis for grant of annual increments. In this view of the matter, learned counsel choses not to pursue the challenge to Annexures P-6 and P-7. Learned counsel states that the petitioners confine their claim to challenge to recovery of the monetary benefits already released in favour of the petitioners. Learned counsel for the respondent, on the issue of recovery, concedes that the same would be covered even by Full Bench judgment of this Court dated 22.05.2009 in Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008. I have heard the learned counsel and have gone through the documents to which reference has been made. 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 C.W.P. No. 15885 of 2008 -3- 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, 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 C.W.P. No. 15885 of 2008 -4- would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat 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.” On a perusal of judgment rendered in CWP No. 7765 of 2003 titled Harinder Kaur and Another Vs. State of Punjab and Others Annexure P-5, I find that Division Bench of this Court by way of this judgment has also directed the respondents not to recover excess amount paid to the petitioners. In view of the above, no material having been placed before this Court to indicate that fraud had been played by the petitioners or misrepresentation had been made so as to actuate the grant of benefit for temporary service, it is clear that the respondents shall not be entitled to effect any recovery from the petitioners. Consequently, it is directed that the amount recovered from the petitioner would be refunded to the petitioners within a period of three months of receipt of certified copy of the order. C.W.P. No. 15885 of 2008 -5- Allowed in the limited terms as given out above. 25.08.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?