JUDGMENT
Sunil Kumar Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 19.6.1989 against the respondents with the prayer that by an appropriate writ, order or direction,
(a) the respondents be directed to commute and third of pension of Shri Gani Mohammed (hereinafter referred to as the deceased) and the amount of commutation of pension be paid to the petitioners, who are heirs of deceased.
(b) in case the provisions of Rule 16 of the Rajasthan Civil Services (Commutation of Pension) Rules, 1981 (hereinafter referred to as “the Rules of 1981”) come in the way of the petitioners, then the same may be struck down as being unconstitutional.
(c) the respondents be further directed to make payment of the amount towards earned leave due of deceased.
(d) the order dated 29.1.1987 (Annex. 15) passed by the respondent No. 2 Superintendent of Police, Bhilwara by which payment made to the deceased in excess was ordered to be deducted from the gratuity payable to deceased, be quashed and set aside.
2. The case of the petitioners as put forward by them in this writ petition is as follows:
The petitioners are LRs of deceased Gani Mohammed, who died on 3.3.1987.
The case of the petitioners is that while the deceased was working on the post of Assistant Sub-Inspector of Police in Bhilwara, the deceased was compulsorily retired from service with proportionate pension through order dated 25.10.1986 (Annex. 1) passed by the respondent No. 2 Superintendent of Police, Bhilwara and that order Annex. 1 was subsequently modified vide order dated 29.1.1987 (Annex. 2) by which it was made clear that pension, gratuity would be payable to the deceased as per Rules available.
After retirement, the deceased moved an application for commutation of pension on 4.12.1986, a copy of which is marked as Annex. 3, and he also sent a reminder on 3.1.1987, a copy of which is marked as Annex. 4. However, before any communication could be received from the respondents, the deceased died on 3.3.1987.
Thereafter, the petitioner No. 1 sent a letter dated 20.1.1988 (Annex. 5) to the respondent No. 2 Superintendent of Police, Bhilwara for grant of commutation of pension. Thereafter, the respondent No. 2 Superintendent of Police, Bhilwara wrote a letter Annex. 6 to the respondent No. 1 Director, Department of Pension, Government of Rajasthan, Jaipur on 4.2.1988 for consideration of the application of the petitioner No. 1 for grant of commutation of pension.
3. Thereafter, through Annex. 7 dated 11.2.1988, the respondent No. 1 Director, Department of Pension, Jaipur informed the respondent No. 2 Superintendent of Police, Bhilwara that without medical examination of the deceased, the commutation of pension could not be allowed.
4. Thereafter, through Annex. 8 dated 17.2.1988, the respondent No. 2 Superintendent of Police informed the petitioner No. 1 that commutation of pension could not be granted to her. The petitioner No. 1 was further informed by the Dy. Inspector General of Police, Ajmer Range vide letter dated 23.2.1988 (Annex. 9) that after the death of a pensioner the amount of commutation cannot be paid to his family members.
The first claim of the petitioners is that they are entitled to the payment of commutation of pension and if Rule 16 of the Rules of 1981, which requires medical examination of the concerned employee before granting commutation of pension, comes in the way of the petitioners,the same should be declared null and void.
The second claim of the petitioners is that at the time of retirement, the deceased was having earned leave in his credit and, therefore, an application Annex. 12 was made on behalf of the petitioners before the respondent No. 2 Superintendent of Police, Bhilwara with the prayer that payment towards earned leave at the rate of 180 days’ salary be made to the petitioners, but the respondent No. 2 Superintendent of Police through his letter dated 18.2.1988 (Annex. 13) informed the petitioners that because of Rule 172-A of the Rajasthan Service Rules, 1951 (hereinafter referred to “as the RSR”), the deceased was not entitled to the payment towards earned leave as he was retired compulsorily and thus, payment towards earned leave could not be made available to the petitioners. The said order Annex. 13 dated 18.2.1988 has been challenged in this writ petition.
The third claim of the petitioners is that the deceased was promoted to the post of Assistant Sub-Inspector of Police on temporary basis by the order dated 24.7.1979 and, thereafter, his salary was fixed under Rule 26-A of the RSR vide order dated 20.9.1979. After retirement of the deceased, an order dated 29.1.1987 (Annex. 15) was passed whereby the order dated 20.9.1979 was withdrawn and the payment already made in excess was ordered to be deducted from the gratuity payable to the deceased. The said order Annex. 15 has also been challenged in this writ petition on various grounds and one of the grounds is that no opportunity of hearing prior to deduction of amount was given to the petitioners and because of this, the order Annex. 15 cannot be sustained and should be set aside. Hence, this writ petition with the prayers as stated above.
A reply to the writ petition was filed by the respondents. On point of commutation of pension, it was submitted by the respondents that the deceased was only entitled to commute a fraction of his pension after he was declared fit by the appropriate Medical Authority and the deceased was required to apply to the Head Office under Rule 17 of the Rules of 1981 in Form-2 for commutation of pension, but he applied for commutation of pension in Form-I under Rule 12 of the Rules of 1981 which dealt with those pensioners, who can seek commutation of pension without medical examination. It was further submitted by the respondents that deceased applied for commutation of pension on 4.12.1986 and he died after three months on 3.3.1987 and therefore, since no medical examination of the deceased was got conducted, therefore, the petitioners were not entitled to amount of commutation of pension.
On point of earned leave, it was submitted by the respondents that the petitioners are not entitled to payment towards earned leave.
On point of recovery ordered to be made through Annex. 15, it has been submitted by the respondents that as excess payment was wrongly made to the deceased, therefore, recovery could be made. Hence, the writ petition filed by the petitioners be dismissed.
5. I have heard the learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondents and gone through the materials available on record.
Point No. 1 with regard to commutation of pension
6. Rule 16 of the Rules of 1981 makes the person eligible for commutation of pension only when he has been declared fit by the appropriate Medical Authority and in this case, there is no dispute on the point that the deceased was not got medically examined from this point of view.
7. The case of the petitioners is two-fold on this point–
(1) That so far as the medical examination of the deceased is concerned, that was not done on account of the reasons beyond the control of the deceased as he expired on 3.3.1987and furthermore, before that, the respondents did not ask deceased for medical examination and, therefore, the requirement of Rule pertaining to medical examination should be dispensed with in the case of the deceased; and
(2) That Rule 16 of the Rules of 1981, which imposes condition of prior medical examination for the purpose of commutation of pension is bad in law and should be struck down.
8. Through Annex. 8 dated 17.2.1988, the petitioners were informed that in absence of medical examination of deceased, amount of commutation of pension cannot be granted to them and through Annex. 9 dated 23.2.1988, the petitioners were further informed that after the death of pensioner the amount of commutation cannot be paid to his family members.
9. In my considered opinion, when there is a condition in Rule 16 of the Rules of 1981 that medical examination was must before commutation of pension, therefore, in absence of medical examination of the deceased, the petitioners are not entitled to press for commutation of pension of deceased as it is a statutory requirement.
10. So far as the validity of Rule 16 of the Rules of 1981 is concerned, Rule 16 of the Rules of 1981 cannot be declared invalid and if reasonable restrictions are imposed, they should be respected and the imposition of condition of pre-medical examination does not appear to be unreasonable condition. Apart from this, even the Central Civil Services (Commutation of Pension) Rules, 1981 contain similar provisions and therefore, from this point of view also, Rule 16 of the Rules of 1981 cannot be said to be unreasonable, invalid or violative of any of the provisions of the Constitution of India.
11. Thus, it is held that Rule 16 of the Rules of 1981 is not violative of any of the provisions of the Constitution of India and the petitioners are not entitled to the payment of commutation of pension.
Point No. 2 with regard to earned leave
12. On this point, the case of the respondents is that through Annex. 13 dated 18.2.1988, they refused to grant benefit of earned leave due of deceased to the petitioners on the ground that since the deceased was compulsorily retired, therefore, as per Rule 172-A of the RSR, he was not entitled to the benefit of earned leave.
13. The deceased was compulsorily retired from service vide order dated 25.10.1986 (Annex. 1) and that order Annex. 1 was modified through order dated 29.1.1987 (Annex. 2) and in that order Annex. 2, it was stated that because of Rule 172-A of the RSR, no deduction in any manner in respect of pension gratuity would be made.
14. When this being the position, not to allow payment towards earned leave due of deceased would amount to injustice to the petitioners, when it has been mentioned in the order Annex. 2 that because of the provisions of Rule 172-A of the RSR, the deceased would not be deprived of any benefit.
15. Thus, it is held that the petitioners are entitled to the payment towards earned leave due of deceased and the order dated 18.2.1988 (Annex. 13) by which the petitioners were refused payment towards earned leave due to deceased cannot be sustained and liable to be set aside.
Point No. 3 with regard to recovery of excess amount
16. There is no dispute on the point that initially the salary of the deceased was fixed under Rule 26-A of the RSR vide order dated 20.9.1979 and thereafter, it was found that salary of deceased was wrongly fixed under Rule 26-A of the RSR and, therefore, an order Annex. 15 dated 29.1.1987 was passed withdrawing order dated 20.9.1979 and deduction of the excess amount was ordered to be made from the amount of gratuity payable to the deceased and this amount is measured at Rs. 7358.00, as is evident from Annex. 16.
17. Now the question that arises for consideration is whether the amount paid to the deceased wrongly on his fixation after giving him benefit of Rule 26-A of the RSR without any fault on the part of the deceased can be permitted to be recovered from him or not.
18. In Shyam Babu Verma and Ors. v. Union of India and Ors., the Hon’ble Supreme Court has held that since the petitioners received the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them.
19. In Bhagwan Shukla v. Union of India and Ors. the Hon’ble Supreme Court observed that if basic pay of any employee is reduced with retrospective effect and employee was not granted opportunity to show cause, in such circumstances, there would be flagrant violation of the principles of natural justice and order of reducing pay was set aside.
20. In Ramesh Kumar Sharma v. State of Raj. and Ors., WLR 1997 Raj. 55, this Court observed that it is well settled law that no order effecting the civil right of a person can be passed without giving an opportunity to the official. The principles of natural justice are the cardinal principles which are to be complied with by the State Authorities even to modify an order howsoever erroneous or illegal that order might be, if that order had bestowed any benefit on the official.
21. In Sahib Ram v. State of Haryana and Ors., 1995 Supp. (1) SCC 18, the Hon’ble Supreme Court restrained the recovery of the payment already made to the appellant, as it was not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault.
22. In Nand Lal and Ors. v. Raj. State Electy. Board and Ors., RLR 1999(2) 707, this Court relying on the aforesaid judgments of the Hon’ble Supreme Court has held that if a higher pay scale has erroneously been given to an employee long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him.
23. In another decision in Shravan v. State of Raj. and Ors., WLR 1998 Raj. 423, where the petitioner was retired from service and his pension was also fixed and later on the Department felt that by mistake he was wrongly paid more amount by way of pension and the Department passed order for recovery of excess payment from the gratuity of the petitioner without giving an opportunity of hearing and in such circumstances, this Court set aside the order of recovery holding that such recovery order could have not been passed without extending opportunity of hearing.
24. In the latest decision of the Hon’ble Supreme Court in Lakshmi Narayan Mukhopadhyay v. Union of India and Ors. , the amount ordered to be recovered from gratuity was not allowed to be recovered on the ground that no opportunity of hearing was given to the employee.
25. Thus, from the rulings of the Hon’ble Supreme Court as well as this Court just quoted above, it is clear that in case the Court finds that any benefit was received by a person without there being any fault on his part in receiving such benefit, it would be just and proper to allow him to retain such benefit.
26. In the present case, the benefit of Rule 26-A of the RSR was given to the deceased and such benefit was received by the deceased without there being any fault on his part, but mistake was committed by the respondents and, therefore, in such circumstances, it would be just and proper to allow deceased to retain such benefit and no recovery from the gratuity be made. Apart from this, no opportunity of hearing was given to the petitioners, who are LRs. of deceased, before ordering deduction of amount from the gratuity and thus, the impugned order Annex. 15 dated 29.1.1987 cannot be sustained and liable to be set aside and consequently, that portion of the order dated 25.10.1987 (Annex. 16) showing deduction of excess payment of Rs. 7358.00 as a result of Annex. 15, is also liable to be set aside.
27. It is further made celar that in case of officiating promotion given by mistake, the excess salary paid could only be claimed back if the Government servant was a party to any fraud in getting the salary due to his own wrong. In the present case, such a situation has not happened.
28. For the reasons stated above, this writ petition filed by the petitioners is partly allowed in the following manner:
(1) That the prayer of the petitioners for payment of commutation of pension is rejected.
(2) That however, the prayer of the petitioners for payment towards earned leave due of deceased is accepted and the order dated 18.2.1988 (Annex. 13) passed by the respondent No. 2 Superintendent of Police, Bhilwara is set aside and the respondents are directed to make payment towards earned leave due of deceased to the petitioners.
(3) That the order dated 29.1.1987 (Annex. 15) passed by the respondent No. 2 Superintendent of Police, Bhilwara is set aside and consequently, that portion of the order dated 25.10.1987 (Annex. 16) showing excess payment of Rs. 7358.00 as a result of order Annex. 15 dated 29.1.1987 is also set aside and the respondents are directed not to recover the said amount from the petitioners, who are LRs. of deceased, and if the amount has already been recovered, then the same be refunded to the petitioners.
No order as to costs.