IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 6626 of 2008 Date of Decision : September 3, 2010 Sh. Satya Pal Maini Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Yudhbir Singh, Advocate, vice Mr. K.D. Shreedhar, Advocate, for the petitioner. For the respondents : Mr. Rajesh Mandhotra, Dy. Advocate Gengeral for respondents No. 1 to 3 and 5. Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs:- “(i) The impugned orders of recovery dated 8th January, 1998 passed by the respondent No. 2 (annexure-F) and subsequent recovery order dated 23.12.98 (annexure–G) passed by respondent No. 4 may be quashed. (ii) That a sum of Rs. 34,364/- on account of the alleged over payment already recovered from the amount of DCRG of the applicant after retirement may kindly be ordered to be refunded alongwith 18% interest. Whether reports of Local Papers may be allowed to see the judgment? 2 (iii) That the respondents be directed to make full payment of the DCRG and no recovery be effected on the basis of impugned orders.” 2. Facts are not in dispute. In terms of decision taken by the Government on 30.4.1990 an office order (Annexure-A) was issued whereby benefit of 2/3 increments was allowed to such Trained Graduate Teachers who had acquired higher qualifications during the period of their service. Petitioner’s name is mentioned in the list of such persons held entitled for the same. 3. This decision of the Government was reviewed in terms of office order dated 25.2.1994 (Annexure-B) and the decision dated 30.4.1990 of granting 2/3 advance increments was treated to be cancelled. 4. Importantly this order does not apply with retrospective effect. It also does not clarify that increments which already stand disbursed prior to the issuance of this order, are to be recovered from the employees. It is also not indicated in this office order that the amount of increments were wrongly disbursed. 5. Petitioner retired from service on 31.3.1998 and only on the basis of audit objections the respondents took steps for recovering payments disbursed towards the increments paid to the petitioner. This decision was taken in terms of letter dated 8.1.1998 (Annexure- F). Pursuant thereto a sum of Rs. 34,364/- was recovered from the petitioner which is evident from Annexure – G. 3 6. The decision taken by the Government to recover the amount from the petitioner is untenable in law. The disbursement was not on account of any misrepresentation or fraud exercised by the petitioner. Petitioner was held entitled to increments in terms of office order (Annexure A) which was subsequently withdrawn in terms of office order (Annexure B) which in any event does not talk of recovery of the amount disbursed to the petitioner in terms of Annexure – A. Consequently action on the part of the respondents and that too after a gap of 3 to 4 years is illegal and arbitrary. 7. No recovery could have been affected. While taking this view I am fortified by the view taken by the Apex Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475. 8. Consequently Annexure – F and Annexure – G are quashed. The respondents are directed to refund the sum of Rs. 34,364/- already recovered from the petitioner alongwith interest @ 6% per annum payable from the date of recovery. It is clarified that if the amount is not paid within a period of three months, then thereafter, petitioner shall be entitled to interest @ 9% p.a. 9. With the aforesaid observations the present petition stands disposed of. (Sanjay Karol), Judge. September 3, 2010 (PK)