1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.68/2005. : : Smt. Somoti Devi Vs. State of Rajasthan & Ors. : : Date of Order 22.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.N.K.Singhal for the petitioner. Mr.B.L.Avasthi, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. The writ-petitioner who is a widow of Shri Khachera Ram Sharma, the late husband of the petitioner was serving the respondents on the post of Teacher. He was appointed on 3.2.1973 and died while serving the respondents on 1.10.2003. The petitioner has made the following grievances :- (i)that the respondents should calculate the retiral benefits including gratuity and pension taking the initial date of appointment of petitioner's husband as 1.7.1973 instead of 3.2.1973. (ii)on account of aforesaid, the respondents should refund the wrongly deducted salary of 2 vacation period of 48 days paid to her husband. (iii)that the respondents should refund the wrongly deducted sum of Rs.15,919/- on account of wrong pay fixation treating the petitioner's husband date of appointment as 1.7.1973 whereas he was actually appointed on 3.2.1973. (iv)the salary of petitioner's husband be stepped up on 15.10.1976 because one teacher Dallan Singh Arya, who was junior to him was granted higher pay scale and representation made by the petitioner remain pending. (v)that since the terminal dues of the petitioner's husband was paid to her after six months after his death, he should be awarded the interest on the aforesaid amount as also on the amount which becomes due consequent upon acceptance of the present writ petition. The respondents have contested the writ petition but in respect to pleadings made by the petitioner in para No.2 of the writ petition that date of initial appointment of her husband was 3.2.1973, have replied in para No.2 of the 3 reply that this fact is not disputed but according to them the appointment of the petitioner's husband on 3.2.1973 was on ad hoc basis and if a teacher is appointed on ad hoc basis he is not entitled to salary of the summer vacation. It has been submitted that because of the fact that date of appointment of petitioner's husband was treated as 3.2.1973, he was given one additional increment and accordingly his pay was wrongly fixed and as a result of correction thereafter, a sum of Rs.15,919/- was found to be paid in excess which was rightly deducted. It was submitted that for the higher pay allegedly given to the junior of the petitioner's husband in 1990, he never made any representation to the respondents till he died on 1.10.2003. The respondents however, made efforts by sending her letters dated 16.10.2003 and 6.11.2003 to take signature of the petitioner and furnish particulars of her married/unmarried sons and daughters and her photograph, but she did not contact them, thereafter an official was deputed to go to her residence and obtain signature on the papers but she did not sign the papers. The delay in making payment was attributable to the petitioner and not to the respondents. So far as question with regard to benefit of stepping up from 15.10.1976, the cause of action arose to 4 him in 1990 when his junior was given higher pay scale to him, but he never made any efforts for redressal of his grievance, this issue cannot be raised at such late stage. However, the stand of the respondents that the respondents have deducted a sum of Rs.15,919/- on account of wrong pay fixation treating the petitioner's husband date of appointment as 1.7.1973 whereas he was actually appointed on 3.2.1973, cannot be accepted. Law is well settled that recovery of an amount due to wrong pay fixation cannot be made unless it is shown that it was owing to some fraud or mis-representation on the part of recipient thereof. So far as delay is concerned, the respondents themselves admitted that finally the petitioner sent the papers on 7.11.2003 when their representative visited her resident, which was within 40 days of the date of death of petitioner's husband, but the terminal dues and other benefits were paid to the petitioner after six months. The respondents cannot escape from their liability to make payment of interest on such delay as according to Rule 89 of the Rajasthan Civil Services (Pension) Rules, 1996, the maximum time limit within which they have to process the matter to pay retiral dues is 60 days. They are thus liable to pay interest. The recovery of the amount paid to the petitioner's husband in 2003 cannot be made on the 5 analogy because that was based on taking his date of initial appointment i.e. 1.7.2003 whereas he was actually appointed on 3.2.2003. Even if the petitioner was on ad hoc basis, then cannot be the reason of recovery. In the result, this writ petition is allowed in part, the respondents are directed to pay to the petitioner terminal dues and other dues such as gratuity and pension taking date of initial appointment of her husband as 3.2.1973 and not 1.7.1973 and on that basis refund to the petitioner deducted amount of salary and also refund the amount of Rs.15,919/- which was illegally deducted. They are further directed to pay interest to the petitioner for the period of delay beyond 60 days i.e. occurred after 1.12.2002 @ 12% per annum according to Rule 89 of the aforesaid Rules, on whatever is found payable and returnable to the petitioner pursuant to this judgment. Compliance of the judgment be made within two months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/-