IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 5021 of 2009 Date of Decision: 23.2.2010. Raj Singh --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- None for the petitioner. Mr. R.S. Kundu, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) The petitioner was appointed as P.T.I on ad hoc basis on 22.7.1983. His services were regularized w.e.f. 1.11.1983. The minimum qualification for the post of P.T.I was matriculation with diploma/certificate in physical education. The petitioner had, however, qualification of B.A. III, which was acquired by him on 1.1.1976 i.e prior to his appointment on ad hoc basis. On the basis of the Govt. order dated 9.3.1990 and in view of the earlier Govt. Instructions issued vide Circulard No. 5056-FR-11/57 dated 23.7.1957 the teaching personnel of the education department who acquired higher qualification were granted the higher pay scale. The petitioner was also granted higher pay scale of J.S.T grade w.e.f. 23.1.1984 and his pay was fixed accordingly in terms of the order dated 25.10.1999. At the relevant time the judgement in case of Wazir Singh Vs. State of Haryana reported as 1996(1) RSJ 784 was operating the field whereunder the benefit of the higher pay scale was allowed on the basis of the Govt. Circular. Later, Hon'ble Superme Court rendered a judgement in case of State of Haryana Vs. Sumitra Devi reported as 2004(1) RSJ 552 holding CWP. No. 5021 of 2009 -2- that an employee acquiring qualification before the date of appointment is not entitled to the benefit of the Govt. Circular for placement in the higher grade of J.S.T. In view of the judgement in Sumitra Devi's case (supra) a show cause notice was issued to the petitioner for re-fixation of the salary and consequential recovery of Rs.1,25,766/-. The petitioner has accordingly challenged the order (Annexure P-5) whereby recovery has been ordered. In Sumitra Devi's case the Hon'ble Apex Court has clearly held that if, a teacher acquires the higher qualification before the date of appointment he/she is not entitled to the benefit of the higher pay scale. It is only where a teacher improves the qualification after joining service, he/she is entitled to the benefit of the Govt. Circular. In view of the above, petitioner was not entitled to the benefit of the J.S.T grade. Hence, the respondents are well within the right to re-fix the salary of the petitioner by withdrawing the higher pay scale. At the same time, the respondents are not entitled to effect any recovery from the petitioner as the benefit was granted to the petitioner on the basis of interpretation of the Govt. Circular and an earlier judgement of the Hon'ble Apex Court and not on account of any misrepresentation or fraud attributable to the petitioner. There is no such allegation in the impugned order. The issue is set at rest by a Full Bench judgement of this Court. In CWP No.2799/2008 etc. (Budh Ram and others vs. State of Haryana and others)-on consideration of the controversy, Hon’ble Full Bench held as under: Issue No. ii) has been answered with the following observations:- “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 CWP. No. 5021 of 2009 -3- 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, 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…… 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….” In view of the above, the recovery against the petitioner vide Annexure P-5 is hereby quashed. However, respondents are at liberty to re-fix the salary of the petitioner. (PERMOD KOHLI) JUDGE 23.2.2010. lucky