IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Letters Patent Appeal No.216 of 2004 in
Civil Writ Petition No. 5118 of 1995
Date of decision : 10th September, 2008
State of Punjab and others
... Petitioners
Versus
Sh. V.P. Dubey, IAS (Retd.)
... Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present : Mr. Salil Sagar, Additional Advocate General, Punjab for the
petitioners.
Mr. R.D. Gupta, Advocate for the respondent.
KANWALJIT SINGH AHLUWALIA, J.
Vide separate order, legal representatives of deceased
respondent, as mentioned in para 2 of the application have been permitted
to be brought on record, subject to just exceptions.
Present Letters Patent Appeal has been preferred by State of
Punjab with the prayer that the impugned judgment passed by a Single
Bench of this court dated 08.01.2004 be set aside, wherein while
placing reliance upon a judgments of Hon’ble Apex Court rendered in
Sahib Ram v. State of Haryana, 1994 (1) SLR 753 and Shyam Verma
and other v. Union of India and others, 1994 (1) SLR 827, recovery by
the State of Punjab was held to be bad on the ground that there was no
misrepresentation on the part of respondent-employee rather the higher
LPA No. 216 of 2004 in CWP No.5118 of 1995 2
pay scale was allowed to the respondent-employee by the appellants by
misinterpreting the instructions.
Briefly stated, Sh.V.P. Dubey, IAS (Retd.) had preferred Civil
Writ Petition No. 5118 of 1995 in this Court. It was stated in the writ petition
that Sh.V.P. Dubey respondent to the appeal had served the Punjab
Government for 31 1/2 years and retired as IAS officer on 31st October,
1990. He was drawing total salary of Rs.8720/-, i.e., basic pay of Rs.6300/-
plus dearness allowance Rs.1920/- plus special pay Rs.500/-. It was further
submitted that pay of Sh.V.P. Dubey was revised from Rs.6300/- to
Rs.6500/- w.e.f. 01.01.1990 and his pension was fixed in accordance with
last pay drawn on the basis of revised pay. At the time of retirement, his
pension was sanctioned at the rate of Rs.3341/- per month. After his
retirement on 01.12.1990, Sh.V.P. Dubey was appointed as member of the
Punjab Public Service Commission (hereinafter referred to as,
‘Commission’) and retired as such on 12.10.1994. As member of the
Commission, pay of Sh.V.P. Dubey was fixed at the rate of Rs.6300/- as
basic pay along with dearness allowance in addition to the pension, which
he was drawing before his appointment as member of the Commission.
Petitioner, in fact retired as member of the Commission on 12.10.1994. Re-
fixation of his pay has been reproduced in the impugned judgment and the
same reads as under:
“PUNJAB PUBLIC SERVICE COMMISSION, PATIALA
OFFICE ORDERThis is in continuation of this office order No.1
B.F.104/90CAG/20048-52 dated 20.12.1990. The pay of
Dr.V.P. Dubey, IAS (Retd.), Member, Punjab Public Service
Commission, Patiala is hereby refixed under Regulations No.
5(i) of the Punjab Public Service Commission (Condition of
Services) Regulations 1958 in the pay scale of 5900-200-6700
as under:
LPA No. 216 of 2004 in CWP No.5118 of 1995 3
Sr. No. Dated Refixation of pay
1. 1.12.1990 as 6300 PM
Deductions:
(i) Pension Rs.3341-250 3091.00
(Benefit of first 250/-)
(ii) P.E.G. 797.00
----------------
Total 3888.00
----------------
Net payable = 6300 - 3888 = Rs.2412/- PM
He is also entitled to get such other allowances as may be
admissible from time to time to Govt. Servants getting similar pay.
2. 1.12.1991 Rs.6500/- PM
(by annual increment)
Deductions:
(i) Pension Rs.3341-250 3091.00
(benefit of first 250/-)
(ii) P.E.G. 797.00
----------------
Total 3888.00
----------------
Net payable = 6500 - 3888 = Rs.2612/- PM
He is also entitled to get such other allowances as may be
admissible from time to time to Govt. Servants getting similar pay.
3. 1.12.1992 to 1.3.1991 Rs.6700/- PM
(by annual increment)
Deductions:
(i) Pension Rs.3341-250 3091.00
(benefit of first 250/-)
(ii) P.E.G. 797.00
----------------
Total 3888.00
----------------
Net payable = 6700 - 3888 = Rs.2812/- PM
LPA No. 216 of 2004 in CWP No.5118 of 1995 4
He is also entitled to get such other allowances as may be
admissible from time to time to Govt. Servants getting similar pay.
4. 2.3.1993 to 30.11.1993 Rs.6700/- PM
(by annual increment)
Deductions:
(i) Pension Rs.3341-500-2814/-
(Benefit of first 500/- according to Punjab Govt.
Notification No.GSR 19/ Contd./ Amd/ (22)/93 dated 26.2.1993).
Net payable = 6700 – 2841 = Rs.3859/- PM
He is also entitled to get such other allowances as may be
admissible from time to time to Govt. Servants getting similar pay.
5. 1.12.1993 Rs.6700/- PM
Deductions:
(i) Pension Rs.3341-500-2814/-
(benefit of first 500/-)
Net payable = 6700 - 2841 = Rs.3859/- PM
He is also entitled to get such other allowances as may be
admissible from time to time to Govt. Servants getting similar pay.”
Written statement was filed to the writ petition by the
appellants. Government of Punjab issued a letter (Annexure R-1) in reply to
the written statement filed to the writ petition that petitioner was not entitled
to Rs.500/- awarded as a special pay while Sh. V.P. Dubey was employed
as an IAS officer. Reliance has been placed upon Rule 2.55 of the Punjab
Civil Service Rules, Part-I, Vol.-I to say that the special pay is not included
in the substantive pay. Therefore, after the re-employment of a retired
person, substantive pay drawn by him immediately before his retirement is
to be taken into consideration while fixing his pay and the same does not
LPA No. 216 of 2004 in CWP No.5118 of 1995 5include special pay. It was stated therein that after retirement, the special
pay drawn earlier by an employee, while in service, cannot be granted to
him on his re-employment. The question whether Sh.V.P. Dubey, who after
his retirement from IAS, has practiced as an Advocate, on appointment as
member of Punjab Public Service Commission can said to be re-employed
or not, need not detain us simply because recovery of Rs.1,60,088/- was
sought to be made after Sh.V.P. Dubey had retired.
We are of the considered view that the employee had neither
made misrepresentation nor had played fraud to obtain benefit. In the
impugned judgment, learned Single Judge had rightly held as under:
“Accordingly, recovery of Rs.1,60,088/- was sought from
the petitioner. The counsel for the petitioner contended that
his main grievance is that he was not instrumental in getting
his pay fixed and no fraud was played by him and once the
pay had been fixed and if some excess payment had been
made by some mistake on the part of the department of the
Government, then the Government is competent to reduce the
pay but it can not recover the amount which had already been
paid. In support of this contention, he placed reliance on the
authorities of Hon’ble Apex Court in Sahib Ram Versus The
State of Haryana and others, 1994 (1) SLR 753 and Shyam
Verma and other Vs. Union of India and others 1994 (1) SLR
827. It is held in the said authorities that if higher pay scale
had been allowed to the employee by mis-interpreting the
instructions and further if the same is not on account of any
mis-representation made by the employee and later on it is
found that the employee was not entitled to benefit of higher
pay scale, then the amount paid till date could not be
recovered from the employee. The same view has been taken
by a Division Bench of this Court in Tej Singh Retired
Superintendent Vs. State of Punjab and others, (2003-1) The
Punjab Law Reporter 492. Thus, it is held that the order,
Annexure P-5, is wholly illegal violative and against the
principles of natural justice. Consequently, this petition is
LPA No. 216 of 2004 in CWP No.5118 of 1995 6allowed and the order dated 25.1.1995. Annexure P-5 is set
aside. However, the respondents are at liberty to refix the pay
of the petitioner but cannot recover the amount paid in excess
for the past period. The petitioner, if entitled may be allowed
other benefits, as per rules.”
A separate application has been filed for impleading the legal
heirs of Sh.V.P. Dubey on the ground that he had expired on 9th June, 2008
during the pendency of the present appeal. We concur with the reasoning
given by a Single Judge of this Court. We further find that view of the
Single Judge is fortified by a recent judgment rendered by Hon’ble Apex
Court in Purshottam Lal Das v. State of Bihar, 2006 (4) SCT 537,
wherein it was ordered that no recovery be made from the amounts already
paid to the employee.
In the present case, the employee had not only retired but he
has no more in this world.
Taking theses facts into consideration along with the fact that
there was no misrepresentation and fraud on the part of the employee and
it was due to wrong interpretation, emoluments were given to Sh.V.P.
Dubey, which were not due, we find that the recovery of the amount is not
justifiable and the reasons stated it the impugned judgment of Single Judge
are just and appropriate in the facts and circumstances of the case.
Hence, present appeal is dismissed.
[HEMANT GUPTA] [KANWALJIT SINGH AHLUWALIA]
JUDGE JUDGE
September 10, 2008.
rps