Rajasthan High Court - Jaipur
Narain Lal vs State Of Rajasthan And Ors. on 4 February, 2003
Equivalent citations: RLW2003(2)RAJ1088, 2003(3)WLC330, 2003(2)WLN505
JUDGMENT Garg, J.
1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents with a prayer that by an appropriate writ, order or direction, the respondents be restrained from effecting any recovery mentioned in the Audit Report (Annex. 3) to the tune of Rs. 19,000/- and further they may be directed to make payment of difference of pay between first grade and Second grade teacher treating the petitioner to be holding the post of Teacher 1st Grade from Nov., 1979.
2. It may be stated here that in this writ petition, the learned counsel for the petitioner has confined his argument to the recovery of amount as mentioned in Audit Report (Annex. 3) and he does not want to press other arguments.
3. The facts of the case as put forward by the petitioner are as under :
(i) That the petitioner's first appointment was made on 1.9.55 as a third grade teacher in the Education Department. Government of Rajasthan in the substantive capacity.
(ii) That the petitioner was fixed in ihe second grade as soon as he passed his graduation and the seniority was allotted to him in the second grade with effect from 1.7.64.
(iii) That the petitioner was formally promoted in the Second Grade (i.e. in the pay scale of Rs. 115-245-SB-300) on temporary basis along with other various teachers vide order did. 12.12.67 (Annex.. 1) passed by the Deputy Director, Education, Udaipur.
(iv) That it is further case of the petitioner that since the petitioner was appointed by way of promotion in the abovernentioned pay scale i.e. Rs. 115-300, as such it was clearly mentioned in the aforesaid order dtd. 12.12.67 (Annex, 1) that his pay is fixed under Rule 26-A of the Rajasthan Service Rules, 1951.
(v) That it is the further case of the petitioner that during the audit inspection of the Panchayat Samiti, Dungarpur, the audit objection No. 5 of 1987-88 was made by the Local Fund Department. A C9py of audit objection is marked as Annex. 3. In the audit objection it was mentioned that fixation of the petitioner under Rule 26-A of the Rajasthan Service Rules which was made at Rs. 155/- was wrongly made as the petitioner was to be fixed at Rs. 150/- and thus, according to audit objection (Annex. 3), the petitioner was paid Rs. 16209.90 in excess and that amount was to be recovered from him. Apart from this, the petitioner was paid special pay of Rs. 30/- which was wrong and as per audit report (Annex. 3), he was not entitled for that and consequently, a recovery of Rs. 2790/- was recommenced and in this way total recovery of Rs. 19,000/- was to be made from the petitioner as per audit report (Annex. 3).
4. Reply to the writ petition was filed by the respondents.
5. Heard and perused the record.
6. It may be mentioned here that this Court vide order dtd. 1.2.91 stayed the ' recovery to be effected from the petitioner.
7. There is no dispute on the point that the petitioner has now retired from the service in the year 1994. There is also no dispute on the point that whatever benefit were given to the petitioner, they were given by the respondents and mistake if any was committed, it was committed by the respondents and not by the petitioner.
8. Now, the question arises for consideration is whether amount paid to the petitioner wrongly after giving him benefit of Rule 26-A of the Rajasthan Service Rules without any fault on the part of the petitioner can be permitted to be recovered from him or not especially when he has retired in the year 1994.
9. In Shyam Babu Verma and Ors. v. Union of India and Ors. (1), 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.
10. In Bhagwan Shukla v. Union of India and Ors. (2), 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 reducting pay was set aside.
11. In Ramesh Kumar Sharma v. State of Raj. and Ors. (3), 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 only benefit on the official.
12. In Sahib Ram v. State of Haryana and Ors. (4), 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.
13. In Nand Lal and Ors. v. Raj. State Electy. Board and Ors. (5), 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.
14. In another decision in Shravan v. State of Raj. and Ors. (6), 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.
15. In the latest decision Of the Hon'ble Supreme Court in Lakshmi Narayan Mukhopadhyay v. Union of India and Ors. (7), 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.
16. 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 allowed him to retain such benefit.
17. In the present case, the benefit of Rule 26-A of the RSR was given to the petitioner and such benefit was received by the petitioner 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 the petitioner to retain such benefit.
18. Apart from this, when the person to whom payment was wrongly made without there being any fault on his part and that person has retired, in such a case, after his retirement, to ask such person to pay amount already received, would necessarily cause a legal injury to him as in the meanwhile, he would have utilised that amount and therefore, from this point of view also, it can easily be said that a legal right has accrued in favour of the petitioner and under Article 226 of the Constitution of India, this Court has power to grant consequential relief such as not to recover the amount from the person to whom it was wrongly paid without there being any fault on his part.
19. Thus, the above question formulated by this Court is answered in the manner that the amount paid to the petitioner wrongly on his fixation after giving him benefit of Rule 26 of the RSR without any fault on the part of the petitioner cannot be permitted to be recovered from him.
For the reasons stated above, this writ petition filed by the petitioner is partly allowed and the impugned audit objection report (Annex. 3) issued by Local Fund Audit Department is quashed and set aside and the respondents are restrained from recovering the excess amount which was already paid to the petitioner.
The rest relief claimed by the petitioner stand rejected.