IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 15885 of 2008
DATE OF DECISION: August 25, 2009
Rajan Kumar and Others .........PETITIONER(S)
VERSUS
State of Punjab and Others ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
Present: Mr. R.S. Manhas, Advocate,
for the petitioner.
Ms. Charu Tuli, Sr. DAG, Punjab.
AJAI LAMBA, J. (ORAL)
15 petitioners have filed this petition under Articles 226 and 227
of the Constitution of India praying for issuance of a writ in the nature of
certiorari quashing order dated 17.03.2005 Annexure P-6 and order dated
07.04.2006 Annexure P-7 and consequential action of the respondents in
refixing the pay of the petitioners in accordance with the judgment
Annexure P-5 dated 16.03.2004.
Under orders Annexures P-6 and P-7, it has been directed that the
persons who have been given the benefit of 89 days adhoc service towards
annual increment, the benefit be withdrawn in terms of orders passed by this
Court in CWP No. 7765 of 2003 titled Harinder Kaur and Another Vs.
State of Punjab and Others decided on 16.03.2004. Annexure P-7 are
instructions and clarification to Annexure P-6 making it evident that service
rendered for 89 days would not be counted for any purpose.
C.W.P. No. 15885 of 2008 -2-
Learned counsel for the petitioner has not been able to dispute the
legal proposition that the petitioners are not entitled to the benefit of service
rendered by way of stop gap arrangement/on temporary basis for grant of
annual increments. In this view of the matter, learned counsel choses not to
pursue the challenge to Annexures P-6 and P-7. Learned counsel states that
the petitioners confine their claim to challenge to recovery of the monetary
benefits already released in favour of the petitioners.
Learned counsel for the respondent, on the issue of recovery,
concedes that the same would be covered even by Full Bench judgment of
this Court dated 22.05.2009 in Budh Ram and Others vs. State of
Haryana and Others bearing CWP No. 2799 of 2008.
I have heard the learned counsel and have gone through the
documents to which reference has been made.
In Budh Ram and Others vs. State of Haryana and Others
bearing CWP No. 2799 of 2008, while considering the second question for
determination viz.:- “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 following has been held:-
“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
C.W.P. No. 15885 of 2008 -3-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, 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
C.W.P. No. 15885 of 2008 -4-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.”
On a perusal of judgment rendered in CWP No. 7765 of 2003
titled Harinder Kaur and Another Vs. State of Punjab and Others
Annexure P-5, I find that Division Bench of this Court by way of this
judgment has also directed the respondents not to recover excess amount
paid to the petitioners.
In view of the above, no material having been placed before this
Court to indicate that fraud had been played by the petitioners or
misrepresentation had been made so as to actuate the grant of benefit for
temporary service, it is clear that the respondents shall not be entitled to
effect any recovery from the petitioners. Consequently, it is directed that
the amount recovered from the petitioner would be refunded to the
petitioners within a period of three months of receipt of certified copy of the
order.
C.W.P. No. 15885 of 2008 -5-
Allowed in the limited terms as given out above.
25.08.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the Digest?