Rajasthan High Court - Jaipur
Man Singh vs State (Home Department)Anr on 6 September, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.12043/2012 Man Singh versus State of Rajasthan & anr 6.9.2013 HON'BLE MR. JUSTICE MN BHANDARI Mr RC Joshi - for petitioner Mr BS Rajawat, Addl GC for respondents BY THE COURT:
With consent of the parties, writ petition is heard finally.
The petitioner is ex-serviceman and sought appointment as Suraksha Prahari. He was given appointment after selection. It was in the same pay, petitioner was drawing in the Army. The petitioner thereby given protection of pay. After completion of service, he retired. The respondents, thereafter, asked the petitioner to pay the amount of more than 1 lac. It is on the ground of wrong fixation of pay on his appointment. According to the respondents, there is no provision for protection of pay on fresh appointment. The petitioner was not entitled to pay protection he was drawing thus he should have been given pay scale of the post on which appointed. The mistake aforesaid has been rectified vide the impugned order.
Learned counsel for petitioner submits that pay was given by the respondents while making appointment thus benefit was not extended at the instance of the petitioner but was given by the respondents themselves. If it is considered to be based on erroneous fixation then also they should not recover the amount already paid to him. This is more so when petitioner is a low paid employee and retired thus would be unable to pay the amount. Reference of the judgment of the Hon'ble Supreme Court in the case of PH Reddy & ors versus NTRD & ors[2002(2)SLR 694 has been given.
Learned counsel for the respondents, on the other hand, submits that protection of pay was wrongly given to the petitioner. The petitioner was accordingly directed to repay the excess amount received by him on account of wrong fixation in the pay scale with protection of pay. In such circumstances, recovery may not be interfered with by the court in view of the judgment of the Supreme Court in the case of Chandi Prasad Uniyal & ors versus State of Uttarakhand & ors [(2012) 8 SCC 417).
I have considered the submissions of the parties and perused the record of the case.
In the case in hand, petitioner, after completion of service in the Army, applied and selected for the post of Suraksha Prahari in jail. He was given pay scale with protection of pay last drawn by him. He had completed services and retired and, at that stage, respondents asked him to pay excess amount paid to him. It is on account of protection of pay though he should have been fixed at the basic of the pay scale of the post concerned.
Learned counsel for petitioner states that he will not contest the matter if pensionary benefits are calculated without protection of pay but benefit of increments till the date of retirement may be calculated based on pay he was entitled to receive. However, he has seriously opposed recovery being low paid employee and after retirement.
I find that in the case of PH Reddy & ors (supra), the Bench headed by three Judges held that recovery should not be effected if the benefits were extended by the administration. In the case of Chandi Prasad (supra) recovery has been made permissible by the Apex Court. I find that it was taking note of the facts of that case where the service condition was permitting recovery of the amount, if received in excess. In the case in hand, it is because of wrong fixation and terms and conditions of appointment are not similar. In view of distinguishable facts and otherwise petitioner has retired from service on 31.5.2011 thus now if the recovery of more than Rs.1 lac is allowed, it will cause hardship to the petitioner. Taking note of over all circumstances of the case and considering two judgments referred to above, I am of the opinion that while permitting re-fixation of the petitioner in the pay scale applicable to the post of Suraksha Prahari, recovery pursuant to it is set aside. The petitioner would now be entitled to the pensionary benefits on the pay to be refixed, if not already done. The petitioner may be extended pensionary benefits accordingly within shortest possible time and, if possible, within a period of one month from the date of receipt of copy of this order, if benefits have not been given as yet.
With the aforesaid directions, the writ petition is partly allowed. This also disposes of the stay application so as the application.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J