IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2160 of 2008(O&M) Date of Decision: 06.11.2009 State of Punjab & Ors .....Appellants Versus Hardev Singh .....Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.J.S.Sandhu, AAG, Punjab. Mr.Ashish Gupta & Mr. Achin Gupta,Advocates for the respondent. * * * SABINA,J.(Oral) Plaintiff-Hardev Singh filed a suit for declaration and mandatory injunction which was decreed by the Civil Judge(Jr.Divn.)Faridkot, vide judgment and decree dated 28.01.2008. Aggrieved by the same,defendants preferred an appeal and the same was dismissed by the learned District Judge, Faridkot vide judgment and decree dated 05.04.2008. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower Appellate Court in paras 2 and 3 of its judgment read as under:- “2. Before the learned Lower Court the plaintiff alleged that vide order bearing No.Pen-9/H-15/2004-05/5228-29 dated 7.10.2004, the Accountant General Punjab has withdrawn one increment granted to the plaintiff for the period from 1.12.1971 to .. RSA No.2160 of 2008(O&M) ..2.. 4.12.1972 and has ordered re-fixation of the salary of the plaintiff. Vide another order dated 27.1.2005, the defendant No.2 Executive Engineer has ordered the recovery of Rs.58,834/- from out of the leave encashment amount of the plaintiff. Before the learned Lower Court, the plaintiff challenged both the orders dated 7.10.2004 and 27.1.2005, issued by the defendants contending that the service benefit already allowed by the State of Punjab to the plaintiff cannot be withdrawn. The plaintiff alleged that he joined Army service on 20.12.1962 during the First Emergency declared by the Government of India. He retired from Army from 4.12.1972 after putting in 10 years Military service. Later he joined civil service under defendant No.2 on 10.9.1979 and retired from Civil service on 31.12.2004. His Civil service has been without any stigma. He has contended that as per Punjab Government National Emergency(Concession) Rules,1965, he has been awarded six increments on account of his Military Service rendered during both the National Emergencies (First National Emergency remained in force between 26.10.1962 to 8.1.1968 and the Second National Emergency remained in force between 3.12.1971 to 27.3.1977). Under the aforesaid National Emergency (Concession) Rules, the plaintiff was entitled to six increments, which have been duly granted by the defendants. Now vide impugned orders dated 7.10.2004 and 27.1.2005, the defendants are contemplating to withdraw the benefit of one increment and .. RSA No.2160 of 2008(O&M) ..3.. are contemplating to recover from the plaintiff a sum of Rs.58,834/- being the excess payment made to him on account of 6th increment. Hence before the learned Lower Court plaintiff's suit for declaration to the effect that the impugned orders 7.10.2004 whereby the benefit of one increment granted to the plaintiff has been withdrawn by the defendants and the order dated 27.1.2005 whereby a recovery of Rs.58,834/- has been ordered to be effected from out of the pay of the plaintiff, is illegal. 3. Before the learned Lower Court, the defendants contested the suit and filed a written statement, wherein the defendants contended that as per the instructions of the Accountant General Punjab, the pay of the plaintiff has been re- fixed. It is further contended by the defendants that as per Rule 8A(II Amendment) of the Punjab Recruitment of Ex Servicemen, the Increment and Pension of Military Service rendered during the First National Emergency with effect from 26.10.1962 to 9.1.1968 only was to be counted for the increments and pension and the benefit of such increments shall not exceed five increments. Contending that the re-fixation of pay of the plaintiff by the defendant is legal and as per law and instructions and further contending that the recovery of Rs.58,834/- made from the plaintiff is lawful and under the rules, the defendants prayed for the dismissal of the plaintiff's suit. On the pleadings of the parties, following issues were framed by the trial court: .. RSA No.2160 of 2008(O&M) ..4.. 1. Whether the plaintiff is entitled to declaration as prayed for?OPP. 2. Whether the plaintiff is entitled for mandatory injunction, as prayed for? OPP. 3. Whether the suit of the plaintiff is not maintainable? OPD. 4. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD 5. Whether the notice under Section 80 CPC is not valid? OPD 6. Relief." After hearing the learned State counsel and learned counsel for the respondent, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. Plaintiff had filed a suit for declaration that order dated 07.10.2004 vide which one increment of the plaintiff was ordered to be withdrawn and further it was ordered that the salary of the plaintiff be refixed was illegal. The courts below decreed the suit of the plaintiff and the impugned orders dated 7.10.2004 and 27.01.2005 were set aside and the defendants were directed to make payment of Rs.58,834/- to the plaintiff which had been deducted illegally from leave encashment. The appellate court held that the amount, already paid to the plaintiff though erroneously, could not be recovered from the plaintiff. In case at a later stage, it was found that the plaintiff was entitled to the benefit of maximum five annual increments towards the Military service rendered during the National Emergencies, even then the appellants/State of Punjab could withdraw the benefit of one increment by adopting the prescribed procedure,but the recovery of the excess amount already paid to the plaintiff in that behalf .. RSA No.2160 of 2008(O&M ..5.. cannot be effected from the plaintiff. The question whether the benefits granted on the basis of a bona fide 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 onerous duties by the employee concerned was considered by Full Bench of this court in "Budh Ram and others Vs. State of Haryana and others" 2009(3) PLR 511 it was held in para No.10 & 11 as under: "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 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 erroneous 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. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in .. RSA No.2160 of 2008(O&M) ..6.. accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them. The decisions of the Supreme Court in Smt.Sujata Vedachalam, Comptroller and Auditor General of India and Mafatlal Industries Ltd. Case(supra) have in our view no application to the situations with which we are dealing in the present reference. Mafatlal Industries' case (supra) dealt with refund of excess duty recovered on erroneous mis-application of statutory provisions and not with the recovery on monetary benefits received by an employee. The entire perspective in that case was in our view different from what is being examined by us in these cases. Sujata Vedachalam's case (supra) no doubt dealt with erroneous fixation of pay but the question whether recovery of the amount already paid would cause any injustice, inequity or hardship was never argued before their Lordships. It is also evident from the reading of the order that the kind attention of their Lordships was not drawn to the decisions of the Supreme Court in Sahib Ram's case and Bihar State Electricity Board's case .. RSA No.2160 of 2008(O&M) ..7.. (supra) which are directly on that point. The decision in Comptroller and Auditor General of India's case(supra) does not even deal with the question of recovery of excess amount received by an employee and does not, therefore, lend any help to the respondents." In these circumstances, the courts below rightly held that the benefit which had been granted to the plaintiff by the defendants which involved no misrepresentation on the part of the plaintiff, could not be recovered from the plaintiff. No ground for interference by this court is made out. No su bstantial question of law arises in this case. Accordingly, this appeal is dismissed. 06th Nov.2009 (SABINA) Seema-II Judge ..