IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 12041 of 2009
DATE OF DECISION : SEPTEMBER 2, 2009
AJMER SINGH KOONER & ORS.
....... PETITIONER(S)
VERSUS
THE STATE OF PUNJAB & ANR.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. RK Arora, Advocate, for the petitioner(s).
Ms. Charu Tuli, Senior DAG, Punjab.
AJAI LAMBA, J. (Oral)
This order shall dispose of two petitions viz. CWP 12041 of
2009 (Ajmer Singh Kooner and others v. The State of Punjab and another)
and CWP 12179 of 2009 (Lakhwinder Singh and others v. The State of
Punjab and another), as common questions of law and fact are involved.
The prayer, in both these petitions, has been made against the same
department i.e. Department of Agriculture, Punjab.
For reference to facts, record of CWP 12041 of 2009 (Ajmer
Singh Kooner and others v. The State of Punjab and another) is being taken
up.
Civil Writ Petition No. 12041 of 2009 2
This petition under Articles 226/227 of the Constitution of
India has been filed praying for issuance of a writ in the nature of
certiorari quashing order dated 1.4.2008 (Annexure P-7), whereunder the
claim of the petitioners for withdrawing the recovery of excess payment
on account of wrong fixation of pay and refund of the recovered amount
has been declined. Vide the impugned order (Annexure P-7), the decision
on the legal notice of the petitioners has been taken, as a consequence of
directions issued by this Court, while dealing with earlier petition of the
petitioners; namely, CWP 4382 of 2008 (Ajmer Singh Kooner and others
v. The State of Punjab and another) decided on 18.1.2008. On
consideration of the grounds taken in the legal notice, the respondent-
Department has taken a decision that the pay of the petitioners was liable
to be refixed with effect from 1.1.1996 under the Punjab Civil Services
(Revised Pay) Rules, 1998, and excess payment of salary is required to be
recovered.
Learned counsel for the petitioners states that the petitioners
confine the claim only in challenge to recovery.
In regard to recovery, learned counsel for the petitioners
contends that the petitioners did not play any fraud and did not
misrepresent the facts. In these regards, learned counsel for the
petitioners relies on Full Bench judgment of this Court rendered in CWP
2799 of 2008 (Budh Ram and others v. State of Haryana and others)
decided on 22.5.2009.
Learned counsel for the respondent-State has not been able to
distinguish the judgment in Budh Ram’s case (supra).
Civil Writ Petition No. 12041 of 2009 3
Learned counsel for the respondent-State has further not been
able to draw the attention of the Court towards any material or evidence to
indicate that the petitioners had played any fraud or had misrepresented
the facts, on account of which the pay was erroneously fixed.
In Budh Ram’s case (supra), the following second question
was framed, for consideration:-
“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
onerous duties by the employee concerned;”
The question has been answered in the following terms:-
“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
Civil Writ Petition No. 12041 of 2009 4the 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,
inquitable 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 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.”
Considering the facts and circumstances of the case and
particularly the fact that the petitioners had not played any fraud and had
not misrepresented the facts in getting the pay erroneously fixed, this
petition is allowed to the limited extent that the respondents would have
Civil Writ Petition No. 12041 of 2009 5
no right to effect recovery from the petitioners of the amount already
released in favour of the petitioners. Consequently, it is further held that
any amount recovered in the interregnum period shall be refunded to the
petitioners within 4 months of receipt of certified copy of this order.
September 2, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
