IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 15411 of 2008. Decided on 21.06.2010. _____________________________________________________ Vimla Devi. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. S.R. Chauhan, Advocate. For the respondents No. 1 and 3. : Mr. P.M. Negi, Deputy Advocate General. For respondent No. 2. : Mr. Varun Chandel, Advocate vice Mr. Sandeep Sharma, Assistant Solicitor General of India. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner’s husband was appointed as untrained J.B.T. teacher on 18th October, 1968. He passed J.B.T. examination on 24th September, 1975. The selection scale was granted by the department on 18th October, 1986. The State Government has taken a decision vide letter dated 6th April, 1990 not to count the untrained period of J.B.T. for the purpose of allowing Sr. scale/Selection Scale. However, fact of the matter is that the petitioner’s husband was given the selection scale by the department after his passing the J.B.T. examination on 24.9.1975 vide letter dated 18th October, 1986. He retired from Government 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. service on 31.05.2006. However, vide impugned order Annexure A-1, dated 30th May, 2007, the pay of the petitioner was revised w.e.f. 26th April, 1975. Petitioner’s husband died on 12th April, 2008. Thereafter, she was brought on record by way of Miscellaneous Application No. 2432 of 2008. 2. Mr. S.R. Chauhan, learned counsel for the petitioner has strenuously argued that petitioner’s husband was not served with a notice before the issuance of office order dated 30th May, 2007. He then argued that the selection scale was released to petitioner’s husband on the basis of letter dated 18th October, 1986 after he has passed the J.B.T. examination on 24th September, 1975. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the untrained period cannot be counted for the purpose of Sr. Scale/Selection Scale as per letter dated 6th April, 1990. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner’s husband neither mis-represented nor mis- stated the facts at the time when he was granted the Sr. Scale/Selection Scale on the strength of letter dated 18th October, 1986 after he has passed his J.B.T. examination on 24th September, 1975. He retired from Government service on 31.05.2006. His pensionary benefits were to be paid to him on the basis of his pay last drawn by him before 31.05.2006. The pay of the petitioner’s husband was revised w.e.f. 26.04.1975 on 30.5.2007. In other words, the untrained period w.e.f. 24.09.1975 to 18.10.1986 has not been counted. It is not one of those cases, where an employee has mis-represented or mis-stated the facts to the authorities concerned to get the benefit of a particular pay scale. The decision has been taken by the respondent-State to accord/grant Sr. Scale/Selection scale to the petitioner on the strength of letter dated 18th October, 1986. In these circumstances, once the pay of the petitioner’s husband has been fixed in the year, 1986, the same could not be revised/re-fixed on 30th May, 2007 belatedly. Petitioner’s husband retired on 31st May, 2006 and decision to re-fix the pay of the petitioner’s husband has been taken on 30th May, 2007. 6. The matter is required to be considered from another angle. Admittedly, the petitioner has not been heard before the issuance of Annexure A-1, dated 30th May, 2007. Petitioner’s husband has suffered civil and evil consequences. He ought to have been heard before the issuance of Annexure A-1, dated 30th May, 2007. 7. Their Lordships of the Hon’ble Supreme Court in Rajesh Kumar and others versus Dy. CIT and others, 2007 (2) SCC 181 have held that when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. Their Lordships have held as under: “26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v.Dr. (Miss) Binapani Dei and Ors. (1967 (2) SCR 625). It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance of principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.” 8. Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants- teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 56. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22- C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake." 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors.,vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants- teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” Accordingly, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. Annexure A-1, dated 30th May, 2007 is quashed and set aside. Since we are dealing with a case of widow, who has lost her husband in 2008, the proceedings in this case shall stand closed. No costs. (Rajiv Sharma) Judge June 21, 2010. (bhupender)