RSA No. 990 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 990 of 2011 (O&M) Date of decision : 29.9.2011 ... Smt Veena @ Kumari Veena ................Appellant vs. Punjab State Civil Supplies Corporation Ltd. and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri 1. Whether reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? Present: Sh. Amarjit Singh, Advocate for the appellant. ... K.C. Puri, J. CM No. 2691 C of 2011 has been filed for exemption from filing certified copy of judgment and decree dated 14.9.2009. The application stands allowed, subject to all just exceptions. Challenge in the present appeal is to the judgment and decree RSA No. 990 of 2011 -2- dated 28.10.2010 passed by Sh. Parminder Pal Singh, Additional District Judge, Amritsar, vide which the appeal preferred by the plaintiff-appellant against the judgment and decree dated 14.9.2009 passed by Sh. Vikrant Kumar, Civl Judge (Junior Division), Amritsar, was dismissed. Briefly stated, Smt. Veena @ Kumari Veena filed suit for declaration to the effect that order dated 15.1.2007 bearing endorsement No. E-14 (875) – 2007/22676-77 dated 24.1.2007 passed by defendant No.2, vide which the plaintiff has been designated as Senior Public Distribution Clerk w.e.f. 26.1.1991 instead of 1.1.1986 and consequential recovery of Rs.87,520/- are illegal, wrong, inoperative, null and void and not binding on the rights of the plaintiff. The case of the plaintiff is that date of birth of the plaintiff is 21.7.1954. The plaintiff is serving with defendant No.3 as Senior Public Distribution Clerk ((hereinafter to be mentioned as 'PDC'). She is entitled to the protection of departmental rules, revised pay scale, rules, notification and recommendation of the Punjab Pay Commission dealing with the pay. In the matter of her civil right, she is entitled to get her grievance redressed by filing the present suit. It has been further averred that 3rd Pay Commission was implemented by the State of Punjab. The senior scale/selection grade of pay/Master scale of pay was to be allowed by way of elevation. On merit-cum- seniority basis, she was found fit for senior scale of pay of Rs.1200- 2100 with designation as Senior PDC and vide order dated 11.11.2005, w.e.f. 11.1.1986. In the 5th Pay Commission, revised pay RSA No. 990 of 2011 -3- scale was fixed on 1.4.2005 and was fixed @ Rs.7,000/- in the revised pay scale. Defendant No.2 has issued an order dated 15.1.2007 whereby plaintiff has been granted senior scale of pay @ Rs.1200-2100 w.e.f. 26.1.1991 instead of 1.1.1986. The ground taken by the plaintiff is that her junior Smt. Ravinder Kaur Batra was designated as Senior PDC w.e.f. 26.1.1991. The order is wrong, illegal, unwarranted and contrary to the letter and spirit of the Pay Commission report and recommendation. The said order re-fixing the pay and ordering the recovery of Rs.87,520/- is not justified. Upon notice, defendants appeared and contested the suit by filing written statement taking certain preliminary objections that suit of the plaintiff is not legally maintainable in its present form and that the plaintiff has not come to the court with clean hands. On merits, it is admitted that plaintiff is working with the defendant Corporation as PDC. It is alleged that plaintiff was given selection grade w.e.f. 1.1.1986 by mistake, which was corrected by placing her in the right place and she was accordingly given scale of PDC w.e.f. 26.1.1991 from the date her junior and senior were given senior scale. The seniority of the plaintiff is at Sr.No. 248 whereas seniority of Smt. Kamaljit Kaur, senior of plaintiff is at Sr. No. 246 and Smt. Ravinder Kaur, junior of plaintiff is at Sr. No. 250 and both have been given the scale of PDC w.e.f. 26.1.1991. Inadvertently, the amount of Rs.87,250/- was paid. The re-fixation has been made correctly. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled for declaration as prayed RSA No. 990 of 2011 -4- for? OPP. 2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP. 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Relief. In order to prove her case, the plaintiff herself appeared as PW-1 and closed the evidence. In rebuttal, defendants examined DW-1 Rattan Lal Verma and closed the evidence. Learned trial Court has taken up issues No. 1 and 2 together and returned the finding on both these issues against the plaintiff. Issue No. 3 was decided in favour of the defendants and against the plaintiff. In view of the findings on the issues, the suit of the plaintiff was dismissed. Feeling dissatisfied with the judgment and decree dated 14.9.2009 passed by Sh. Vikrant Kumar, Civl Judge (Junior Division), Amritsar, the plaintiff filed the Ist Appeal. The said appeal was heard by Sh. Parminder Pal Singh, Additional District Judge, Amritsar and after re-appraisal of the evidence, the same was dismissed vide judgment dated 28.10.2010. Feeling still dissatisfied with the judgments and decree dated 28.10.2010 and 14.9.2009, referred to above, the present regular second appeal has been preferred by the plaintiff-appellant. The appellant in paragraph No. 13 of the grounds of appeal has mentioned that the following substantial questions of law have arisen in the present appeal for consideration: RSA No. 990 of 2011 -5- i) Whether the judgment and decree of learned Civil Judge (Junior Division), Amritsar and learned Additional District Judge, Amritsar are as per law in view of various decisions of the Courts? ii)Whether the order dated 15.1.2007 of respondent No.2 designating the appellant/plaintiff as senior PDC w.e.f. 26.1.1991 and recovering amount of Rs.1,10,031/- is legal and sustainable in the eyes of law? iii)Whether the representation dated 13.10.2004 of the appellant/plaintiff falls under misrepresentation in view of government's instructions dated 21.5.2003 and different decisions of Hon'ble Courts? Learned counsel for the appellant has submitted that plaintiff filed representation dated 13.10.2004 to the effect that since she has been exonerated during the departmental proceedings and as such she is entitled to the scale of Rs.1200-2100 w.e.f. 1.1.1986. The said representation was accepted and vide order dated 16.10.2005, she was allowed the scale of Rs.1200-2100. There was no misrepresentation on the part of the appellant and as such the arrears of pay paid to her cannot be ordered to be recovered, in view of various authorities of this Court, including that of Full Bench reported as Budh Ram and others vs. State of Haryana and others 2009 (3) S.C.T. 333. Both the Courts below have ignored the Full Bench authority. The judgments of the Courts below are the result of mis-interpreting and mis-reading of evidence. The plaintiff may be granted the scale of Rs.1200-2100 w.e.f. 26.1.1991 but the arrears of RSA No. 990 of 2011 -6- amount paid to the plaintiff cannot be ordered to be recovered. I have carefully considered the said submission. Counsel for the appellant is fair enough to concede that the entitlement of the plaintiff for the scale of Rs.1200-2100 is from 26.1.1991 and not from 1.1.1986. It was only on the representation made by the plaintiff in the year 2004 that the pay scale of Rs.1200-2100 was granted to the plaintiff w.e.f. 1.1.1986, which was wrongly granted. It is also not disputed during course of arguments that amount in question has already been recovered by the defendant-respondents. So, the authority in Budh Ram's case (Supra), will not come to the rescue of the appellant. It is submitted by counsel for the appellant that judgments of both the Courts below are a result of misinterpreting and misreading of evidence. The amount which has been Inadvertently paid on the basis of representation of plaintiff can be recovered by defendants and that amount has already been recovered. The ratio of Full Bench authority in Budh Ram's case (Supra), is that if by bona fide mistake an employee is paid extra amount, that cannot be allowed to be recovered. However, that plea is not available to the appellant as the amount was paid on her representation and amount has already been recovered. So, I have no hesitation in holding that no substantial question has arisen. The questions of law raised in paragraph No. 13 of the grounds of appeal, does not exist. Consequently, the appeal is without any merit and the same stands dismissed. RSA No. 990 of 2011 -7- A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 29.9.2011 Judge chugh