IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 15058 of 2008 Judgment reserved on: 23.3.2011. Date of decision: 24.3.2011. C. R. Verma …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. T.S.Chauhan, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General, for respondents No. 1 to 3. Mr. Sandeep Sharma, Asstt. Solicitor General of India, for respondent No. 4. Kuldip Singh, Judge. The following prayers have been made in the petition:- (i) That the orders contained in Annexure A-4 to A-6 may kindly be quashed and set-aside; (ii) That the respondents may be directed to re- determine the pension and refund the amount of Rs.35870/- which was recovered from him. Such other or further order as may be deemed just and proper may also be passed while allowing the original application. Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… 2. The brief facts of the case are that petitioner was appointed as Clerk on 9.12.1964, he was promoted as Assistant on 3.11.1982 and then as Superintendent Grade II on 4.11.1992. On 17.8.1999, the pay of the petitioner was stepped up to the level of his juniors, Superintendent Grade II. The petitioner was granted the benefit of Assured Carrier Progressing Scheme on 11.4.2000. 3. The petitioner was promoted as Superintendent Grade I vide notification dated 24.6.2004, initially the promotion of the petitioner was on ad hoc basis, but lateron he was confirmed on the same post. On 6.9.2005, vide Annexure A-4, the respondents re- determined the date of placement of the petitioner in the higher pay scale. The respondent No. 4 vide communication dated 2.6.2004 Annexure A-6 informed the petitioner that benefit of ACP as granted to the petitioner is not admissible as he has already been given step- up with his juniors on 6.2.1997. The respondent No. 3 vide office order dated 24.5.2005 Annexure A-5 withheld the amount of Rs. 35870/- on account of over payment made to the petitioner due to step-up given to the petitioner in the year 1997. 4. It has been stated that Annexures A-4 to A-6 are against the principles of natural justice. No show cause was ever given to the petitioner before effecting recovery from the retirement gratuity of the petitioner. The petitioner did not make any representation or prayed for obtaining the benefit. The respondents of their own granted the benefit, which the petitioner has drawn and spent. The recovery made from the petitioner is illegal. The respondents in their own …3… wisdom had granted the benefit, which cannot be recovered from the petitioner in the manner, it has been done by the respondents. 5. The petition has been contested by respondents No. 1 to 3 by filing reply, in which preliminary objections of maintainability and alternative remedy have been taken. On merits, it has been stated that benefit of stepping up was given by respondent No. 2 to the petitioner vide office order dated 17.8.1999, which was withdrawn by respondent No. 2 vide order dated 6.9.2005. The respondent No. 3 had sent the pension case of petitioner to Accountant General (A&E), H.P. and said office vide observation No. 12 vide C&R No. P- 3/63979/C-3/2004-05/121-24/4515-16 dated 21.12.2004 has stated in C&R that petitioner initially was not senior to the incumbent against whom the petitioner had taken the benefit of stepping up. The matter was referred to respondent No. 2, who vide order dated 6.9.2005 had withdrawn the step-up given to the petitioner vide order dated 10.8.1999 and allowed ACP from the due date. In compliance to the order of respondent No.2, the respondent No. 3 has withheld the amount of Rs.35870/- excess paid to the petitioner after granting step-up. An error can be rectified at any stage in the interest of government as the petitioner had received over payments, which have been recovered from his gratuity, and, therefore, the petitioner is not entitled to any relief. The respondents No. 1 to 3 have prayed for dismissal of the petition. 6. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that monetary benefit was given to the petitioner by respondents No. 1 to 3 of their own. It is not …4… the case of respondents No. 1 to 3 that petitioner obtained monetary benefit by playing fraud or misrepresentation. The petitioner even did not apply to respondents No. 1 to 3 for giving him monetary gain, which was given by respondents No. 1 to 3 at their own level. The learned counsel for the petitioner has relied Sahib Ram vs. State of Haryana and others 1995 Supp (1) SCC 18 and Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475 in support of his submissions that amount already paid to the petitioner by respondents No. 1 to 3 cannot be recovered from him nor it can be deducted from his pensionary benefits. 7. The learned Additional Advocate General has submitted that action of respondents No. 1 to 3 to recover Rs.35870/- is legal, inasmuch as, this amount was wrongly given and paid to the petitioner. The respondents No. 1 to 3 have every right to rectify the mistake at any stage. 8. It is not in dispute that amount of Rs.35870/- recovered by respondents No. 1 to 3 from the pensionary benefits of the petitioner is equivalent to the amount which has been paid by respondents No. 1 to 3 to the petitioner though it is the case of respondents No. 1 to 3 that such monetary benefit was wrongly given to the petitioner to which he was not entitled to. It is also not the case of respondents No. 1 to 3 that monetary benefit was given to the petitioner on the basis of misrepresentation or petitioner obtained benefit by playing fraud. In Sahib Ram (supra), when the benefit of higher pay scale was not based upon misrepresentation but by wrong construction for which appellant was not at fault, the Supreme …5… Court has held that amount paid till date would not be recovered from the appellant. In Syed Abdul Qadir (supra), where the excess amount that was paid to appellants teachers was not because of any misrepresentation or fraud on their part and the teachers also had no knowledge that the amount that was being paid to them was more than what they were entitled to. 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. It was held by the Supreme Court that in view of peculiar facts and circumstances of the case to avoid any hardship to the appellants teachers, no recovery of the amount that has been paid in excess to the appellants- teachers should be made. 9. The facts in the present case are also to the effect that respondents No. 1 to 3 of their own had given the monetary benefit of Rs.35870/- to the petitioner without any fault, misrepresentation or fraud on the part of the petitioner. The respondents No. 1 to 3 interpreted the rules at their own level and then gave the monetary benefit to the petitioner. The learned counsel for the petitioner has submitted that petitioner had no knowledge that he was not entitled to the monetary benefit, which was granted to him. The petitioner had spent the amount which was paid to him and now it is not possible for the petitioner to refund the amount of Rs. 35870/- from his pensionary benefits. The recovery has been ordered by respondents No. 1 to 3 without following the principles of natural justice. In these circumstances, the petitioner has made out a case for a direction to respondents not to recover Rs.35870/- from the pensionary benefits …6… of the petitioner and refund the said amount of Rs.35870/- to petitioner immediately. 10. No other point was urged. 11. The result of above discussion, the petition is allowed. The respondents are directed to refund the amount of Rs.35870/- to the petitioner in two months from the date of supply of copy of this judgement by the petitioner to the competent authority, failing which the petitioner shall also be entitled to interest at the rate of 9% per annum on the amount of Rs.35870/-. No costs. March 24, 2011. ( Kuldip Singh ), (Hem) Judge.