CW 8860/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.8860/06 Udal Chand Versus State & Ors. DATE OF ORDER : 28/01/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. K.N. Gupta, for petitioner Mr. Pradeep Kalwania, Addl. Govt. Counsel, for respondents *** Instant petition has been filed by petitioner assailing order Ann.5 dt.12th September, 2000 whereby respondents adjusted a sum of Rs.32,308/- from Gratuity Payment Order paid to the petitioner on attaining age of superannuation on 31st March, 1999. It appears that while he was in service, he made representation pointing out that one Kirori Singh who was junior to him in the cadre, was getting higher pay in the pay scale of 1400-2600. District Education Officer [Elementary Education], Sawaimadhopur find justification in the grievance of the petitioner and in terms of R.32 of Rajasthan Service Rules granted him the benefit of stepping up of pay and accordingly, fixation was made. But after he retired from service, his pension was paid to him but at that stage it revealed that he was not entitled for stepping up of pay on the premise that person CW 8860/06 [2] with whom he was claiming parity Shri Kirori Singh was a trained teacher at the time of his initial appointment and the petitioner joined service as untrained teacher, as such the question of stepping up of pay of the petitioner vis a vis Kirori Singh could not have arisen. In the reply filed by the respondents after this fact was apprised to the petitioner Udal Chand [deceased] he himself wrote a letter that excess amount paid to him of Rs.32,308/- be adjusted from his gratuity and the balance be paid to him which is evident from Ann.R/2 dt.7th July, 2000 and accordingly after due adjustment payment of gratuity was made. Thereafter, petitioner filed writ petition assailing order Ann.5 dt.12th September, 2000 after almost 6 yrs. of the deduction made. However, during pendency of writ petition, petitioner died on 5th May, 2007 and his legal heirs were brought on record. Counsel for petitioner submits that since there was no mis-representation or concealment on the part of petitioner, as such, no recovery could have been made from him. In support of his submission, counsel placed reliance on the judgment of this court in Smt. Kanija Vs. State [2003 (1) WLC-373]. CW 8860/06 [3] Counsel for respondents submits that if an error has been committed, the same can always be rectified and in the instant case when this fact is not disputed that a person with whom petitioner claimed parity Kirori Singh was a trained teacher and petitioner when joined servicer was untrained teacher, as such no parity could have been claimed with him and immediately when this fact was brought to their notice, petitioner was called upon and he himself submitted application on 7th July, 2000 that excess payment made be adjusted from his gratuity and balance be paid to him. In such circumstances, the petitioner is not entitled for relief in the instant petition. I have heard counsel for parties and with their assistance examined the material on record. It is true that if there is no mis- representation or concealment on the part of employee, ordinarily no recovery has to be made from him, but at the same time, this fact cannot be ruled out that if an error has been committed, the same can certainly be rectified after due process of law. In the instant case, petitioner himself submitted application for adjustment of the excess amount and the petitioner admitted CW 8860/06 [4] that excess payment paid to him be adjusted from his gratuity which is evident from Ann.R/2 dt.7th July, 2000 and after taking petitioner's own consent, amount was adjusted from his gratuity and balance was paid to him and at least 6 yrs. after receipt of payment [retiral dues] particularly gratuity petitioner approached this court by filing instant petition and this fact has certainly been concealed by him that it was his own letter Ann.R/2 requesting the respondents to adjust the amount of alleged excess payment made to him in pursuance of order dt.27th December, 1991. In opinion of this court, once it was petitioner's own consent for adjustment of excess amount and only, thereafter, retiral dues were paid to the petitioner, no grievance certainly could have been raised after almost 6 yrs. of payment being received by him. As regards judgment [supra] on which counsel for petitioner placed reliance is of no assistance in the facts of instant case. Consequently, writ petition fails and is hereby dismissed. [AJAY RASTOGI], J. FRBOHRA8860CW06 28-1.doc