RSA No. 1536 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1536 of 2011 (O&M) Date of Decision: 30.03.2011. State of Punjab & others .......Appellants Vs. Jasneter Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Satish Bhanot, Addl. A.G. Punjab for the appellants. ..... SABINA, J. Plaintiff had filed a suit for declaration and permanent injunction. The case of the plaintiff in brief was that he was working as a Conductor with the defendants. The pay of the plaintiff was revised to the scale of `. 950-1800 after implementation of the Punjab Civil Service (revised Pay Rules) 1988 applicable w.e.f. 1.1.1986. As per the rules, the conductors were liable to be granted senior scale of `. 1200-2100 in the ratio of 50:50 as per combined seniority list. A departmental committee was constituted and the plaintiff was granted senior pay scale of `. 1200-2100 w.e.f. 1.1.1987 vide order dated 26.7.1993. Thereafter, pay of the plaintiff was revised w.e.f. 1.1.1996. However, the plaintiff was served with a notice dated 9.2.2007 alleging that he had been wrongly given the senior scale w.e.f. 1.1.1987. Plaintiff filed a reply to the said notice but the RSA No. 1536 of 2011 (O&M) -2- defendants, without considering the same, had passed the impugned order dated 3.4.2007 whereby the senior pay scale granted to the plaintiff w.e.f. 1.1.1987 was ordered to be withdrawn and it was also ordered that recovery of the amount, paid to the plaintiff on account of revision of pay scale, be got effected. Hence, the suit was filed by the plaintiff. Defendants, in their written statement, averred that as per Government notification dated 3.5.1991, senior pay scale in the scale of `. 1200-2100 was to be given to the extent of 50% to the conductors of the Punjab Roadways with a view to put an end to the stagnation in their career. At the time of grant of senior pay scale to the plaintiff w.e.f. 1.1.1987, the committee overlooked the punishment, awarded to the plaintiff as the plaintiff had been ordered to be kept at minimum time scale by way of punishment at that time. Hence, the plaintiff was not entitled to be given the scale of `. 1200-2100, as per the instructions. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to seek the declaration that order dated 3.4.2007 is illegal, null and void and unconstitutional?OPP 2. Whether the plaintiff is entitled to seek the relief of permanent injunction? OPP 3. Whether the plaintiff has concealed the material facts from the court? OPD 4. Whether the suit of the plaintiff is liable to be dismissed as per the notification of Punjab Govt. RSA No. 1536 of 2011 (O&M) -3- dated 3.5.1991? OPD 5. Whether the present suit is not maintainable in the present form? OPD 6. Relief.” Vide judgment and decree dated 20.4.2010, Civil Judge (Junior Division) decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was partly allowed by the District Judge vide judgment and decree dated 23.10.2010. It was ordered that recovery of excess amount, already paid to the plaintiff, be not effected but the department would be at liberty to refix the pay of the plaintiff, as per law. Hence, the present appeal by the defendants. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. The question involved in the present case is as to whether recovery of the amount, paid to the plaintiff on account of refixation of his pay scale, can be effected from the plaintiff. In the present case, the plaintiff had not been allowed the senior pay scale on any misrepresentation, made by the plaintiff. It was the departmental committee who had overlooked the punishment awarded to the plaintiff while fixing his pay scale. The question whether the benefits granted on the basis of a bona fide 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 RSA No. 1536 of 2011 (O&M) -4- duties by the employee concerned was considered by Full Bench of this court in "Budh Ram and others Vs. State of Haryana and others" 2009(3) PLR 511 and it was held as under: "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 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. It does not RSA No. 1536 of 2011 (O&M) -5- 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 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. The decisions of the Supreme Court in Smt. Sujata Vedachalam, Comptroller and Auditor General of India and Mafatlal Industries Ltd. Case(supra) have in our view no application to the situations with which we are dealing in the present reference. Mafatlal Industries' RSA No. 1536 of 2011 (O&M) -6- case (supra) dealt with refund of excess duty recovered on erroneous mis-application of statutory provisions and not with the recovery on monetary benefits received by an employee. The entire perspective in that case was in our view different from what is being examined by us in these cases. Sujata Vedachalam's case (supra) no doubt dealt with erroneous fixation of pay but the question whether recovery of the amount already paid would cause any injustice, inequity or hardship was never argued before their Lordships. It is also evident from the reading of the order that the kind attention of their Lordships was not drawn to the decisions of the Supreme Court in Sahib Ram's case and Bihar State Electricity Board's case (supra) which are directly on that point. The decision in Comptroller and Auditor General of India's case(supra) does not even deal with the question of recovery of excess amount received by an employee and does not, therefore, lend any help to the respondents." In these circumstances, the learned District Judge had rightly held that recovery of the amount, already paid to the plaintiff, could not be effected from him. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 30, 2011 Gurpreet