Disposed

Major Gen G S Riar v. State of Punjab and Ors.

Punjab & Haryana HC12 May 2010CWP/13007/2005

Case brief

AI extract

What is this about?

The court disposes of two writ petitions filed by retired military officers appointed as PSC members against recovery of excess salary. Relying on the Budh Ram Full Bench judgment, the High Court held that the State cannot recover salary paid based on erroneous rule interpretation unless the employee committed fraud. The State must allow the petitioner to draw salary from the reduced scale moving

What did the court decide?

The authorities are not justified in recovering excess amount paid. The petitioner must refund any excess salary drawn after the impugned order within 6 weeks, otherwise with 9% interest.

Major Gen G S Riar Vs State of… — Pension and Retirement Benefits | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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1. Civil Writ Petition No. 13007 of

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2005

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Date of Decision: 12.5.2010

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Major General G.S.Riar

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..Petitioner

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versus

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State of Punjab and others

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..Respondents

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and

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2. Civil Writ Petition No. 13395 of 2005

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Lt. General Surjit Singh (Retd.)

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..Petitioner

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versus

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State of Punjab and others

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..Respondents

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CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH

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Whether Reporters of local papers may be allowed to see the judgment?

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Whether to be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr.S.S.Brar, Advocate for the petitioner in CWP No.13007 of 2005

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Mr.Tarun Gupta, Advocate for the petitioner in CWP No.13395 of 2005

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Mr.H.S.Sidhu, Additional Advocate General Punjab for the respondents

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MUKUL MUDGAL, C.J.

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Civil Writ Petition No. 13007 of 2005

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This order will dispose of Civil Writ Petition Nos.13007 of 2005 and 13395 of 2005, involving similar questions of law and facts. For facility of reference, facts are being mentioned from CWP No.13007 of 2005.

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At the time when this writ petition was filed, the petitioner was working as a member of Punjab Public Service Commission, Patiala (in short, PPSC). He was appointed as such on 29.11.2001. Before his appointment, he was working in the Indian Army and had retired as a Major General on 27.11.2001. It is case of the petitioner that in his previous service, he was drawing a salary of Rs.22,400/- per month. As per documents on record, pay of the petitioner was fixed in the scale of Rs.18400-500-22400 vide order dated 15.1.2002 (P3). It is not in dispute that conditions of service of the petitioner, as member of PPSC, were governed by the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 (in short, 1958 Regulations). So far as pay is concerned, Regulation 5 of 1958 Regulations needs to be looked into, which reads thus:-

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“5. (1) The Chairman shall receive pay in the scale of Rs.22,400-525-24,500 and other members in the pay scale of Rs.18,400-500-22,400 and in addition thereto they shall also be entitled to get such other allowances as may be admissible from time to time to Government employees getting similar pay

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Provided that:-

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(i) If the Chairman or a Member at the time of appointment as such is a person who has retired from service under the Central Government, a State Government, a local authority, a university, a privately managed recognized school or an affiliated college or any other body wholly or substantially owned or controlled by the Punjab Government, and who is in receipt of or has received or has become entitled to receive and retirement benefit by way of pension, gratuity, contributory provident fund or otherwise, the pay specified in this regulation shall be reduced by the gross amount of any kind of pension

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Civil Writ Petition No. 13007 of 2005

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including any portion of the pensions which may have been commuted.

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Provided that the amount of pension not exceeding five hundred rupees per mensem, shall not be taken into consideration for fixing the pay.”

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On an audit objection raised, pay of the petitioner was re-fixed vide impugned order dated 19.8.2004 (P5) and it was further ordered that the excess amount paid to him earlier be recovered. Hence, this writ petition.

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This matter came up for hearing before this Court on 4.2.2010. Counsel for petitioner in both the writ petitions, primarily raised a plea regarding recovery of excess amount paid to the petitioners. Taking note of the same, following order was passed by this Court on 4.2.2010:-

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“ The issue involved in the present writ petition essentially consists of erroneous interpretation of the rules.

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The case of the respondent-State of Punjab is that an erroneous interpretation of the rules had resulted in over payment to the petitioner which was sought to be recovered. The question of recovery of erroneous payment made to the employees has already been settled by a Full Bench judgment of this Court in Civil Writ Petition No. 2799 of 2008 'Budh Ram and others V. State of Haryana and others' and other connected petitions, decided on 22.5.2009,which reads as under:-

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“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 the correct interpretation and application of rules. Having induced that belief in the employee

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Civil Writ Petition No. 13007 of 2005

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and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inequitable 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.”

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We are prima-facie of the view that the aforesaid full Bench judgment fully covers the issue of recovery of erroneous payment already made. At this stage, Mr. Brar submitted that reduction in emoluments being given to the petitioner was stayed by this Court on 4.10.2005. The statement made is not correct because vide order dated 4.10.2005 this Court had stayed the recovery by passing the following orders:-

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“Learned AAG Punjab seeks time file written statement, be filed within three weeks with an advance copy to the counsel for the petitioner. If desired, may file replication, one week before the date fixed.

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Adjourned to 17.2.2006.

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Recovery shall remain stayed till further orders.

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A perusal of the aforesaid order clearly shows that only recovery had been stayed. Since, the question of recovery of erroneous payment has already been settled by this Court in Budh Ram's case (supra), the question of reduction in emoluments could be settled by the State in accordance with the

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Civil Writ Petition No. 13007 of 2005

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Rules and Regulations governing the service conditions of the petitioner.

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At this stage, both the parties seek time to obtain instructions in view of the current factual situation and with regard to the payment of the reduced emoluments w.e.f. 19.8.2004 till the date of the retirement of the petitioner as a member of Public Services Commission.

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List again on 2.3.2010.”

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When this matter was argued again on 3.5.2010, counsel for the petitioners did not raise any objection so far as legal challenge to provisio (i) of Regulation 5 of 1958 Regulations is concerned. By making reference to the ratio of the judgment of a Full Bench of this Court in Budh Ram’s case (supra), it was vehemently contended that when initially pay of the petitioner was fixed at Rs.18400/- vide order dated 15.1.2002 (P3), the same was done by the authorities voluntarily. There is no allegation against the petitioner that any wrong information supplied by him resulted into passing of the above said order. Entire record regarding previous service of the petitioner, Rules and Regulations were available with the authorities when above said order was passed. By stating as above, it was argued that once the petitioner is not to be blamed for any mistake committed by the authorities concerned, excess amount paid to him, cannot be recovered.

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In reply to the pleas of the petitioner, the counsel for the State has failed to show anything to this Court that in getting the order passed on 15.1.2002, fixing higher pay scale of the petitioner, the petitioner was at fault, in any manner. If that is so, this Court is of the opinion that action of the authorities in ordering recovery in the year 2004, by the impugned order, was not justified. So far as challenge to the vires of Regulations is concerned, no plea has been urged in that regard.

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Civil Writ Petition No. 13007 of 2005

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It is apparent from the records that vide order dated 4.10.2005, only recovery of the excess amount paid was stayed. Obviously, it means that the petitioner continued to get salary for the remaining period of his service at a lower pay scale, which was ordered vide order dated 19.8.2004 (P5).

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In view of facts mentioned above, we are of the opinion that the case of the petitioner is squarely covered by the ratio of the judgment of a Full Bench of this Court in Budh Ram’s case (supra). The authorities are not justified in making any recovery of the excess amount from the petitioner. However, it is made clear that if any of the petitioners in these petitions, after passing of the impugned order had drawn salary more than the reduced pay scale, he is bound to refund the excess amount to the respondents. The matter is pending in this Court for the last about five years. In view of this, if any amount is to be refunded, as indicated above, the same be refunded to the authorities within 6 weeks failing which the amount shall carry interest at the rate of 9% per annum.

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With the above observations, the writ petitions stand disposed

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of.

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(MUKUL MUDGAL) CHIEF JUSTICE

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12.05.2010 (JASBIR SINGH) gk JUDGE

Major Gen G S Riar v. State of Punjab and Ors.

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Major Gen G S Riar v. State of Punjab and Ors.

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