C.W.P No.1798 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.1798 of 2011 Date of Decision 31.1.2011 Kiran Gupta Petitioner versus State of Punjab and others Respondents CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.R.K.Arora, Advocate for the petitioner. *** PERMOD KOHLI, J. (ORAL) Notice of motion. Ms. Charu Tuli, Senior Deputy Advocate General,Punjab, has been asked to accept notice on behalf of the respondents. Keeping in view the nature of relief and with the consent of learned counsel for the parties, this petition is being disposed of at the motion stage itself. The petitioner was initially appointed as Clerk on 23.12.1976 on regular basis in the Punjab Printing & Stationery Department. She was given placement as Senior Clerk on 2.1.1978 and thereafter as Junior Assistant on 23.2.1986 and as Senior Assistant on 30.11.1993. Later on, the date of promotion of the petitioner was changed from 30.11.1993 to 24.12.1994. At the time of promotion, the petitioner was granted benefit of two increments. On the basis of some objection raised, the petitioner was issued show cause notice dated 18.8.2010 for withdrawal of one increment. Even though the petitioner submitted reply (Annexure P-3) disputing the C.W.P No.1798 of 2011 2 action of the respondents, however, the respondents passed the order dated 20.12.2010 whereby one increment granted to the petitioner was withdrawn and pay of the petitioner re-fixed and consequently, an amount of Rs.76,179/- has been sought to be recovered from the salary of the petitioner. It is this order which is under challenge in this writ petition. Mr.Arora, learned counsel for the petitioner submits that the petitioner is only aggrieved from the recovery and do not dispute the re-fixation. In so far as the question of recovery is concerned, admittedly, the benefit was granted to the petitioner without any misrepresentation or fraud on her part. Under these circumstances, recovery from the petitioner is not permissible in view of the judgment of the Full Bench of this Court in Budh Ram & others Vs. State of Haryana & Others (Civil Writ Petition No. 2799 of 2008, decided on 22.5.2009) reported as 2009(3) PLR 511, wherein following observations have been made:- “(ii) Cases in which the benefits sought to be recovered were granted on the basis of a bonafide 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 enerous duties by the employee concerned; Issue No.(ii) has been answered with following observation:- 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 C.W.P No.1798 of 2011 3 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 onerous 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......” In view of the above, this petition is accordingly allowed and impugned order dated 20.12.2010 (Annexure P-4) is quashed to the extent recovery has been ordered from the petitioner. Amount, if any, recovered shall be refunded within three months. However, the order relating to re-fixation is kept intact. (PERMOD KOHLI) 31.1.2011. JUDGE Anoop