Rajwinder Singh and Others vs State of Punjab and Others

Mahesh Grover, J.—The petitioners impugn Annexure P-5 by which a condition adverse to their rights was incorporated while giving them antedated promotion. They also impugn Annexure P-9 by which a recovery is sought to be effected from them. Both the petitioners were appointed in the year 1997 as Apprentices Signalers on regular basis but in the year 1998 their order was withdrawn leading to the filing of a writ petition which was allowed with a direction to the respondents to reconsider the order of withdrawal of the benefit of regularization. The petitioners were then taken back on regular basis once again but in 2001 another order was passed withdrawing the same benefit once again which led to the filing of another CWP No. 17799 of 2001 which was admitted and the operation of the order impugned therein was stayed. The petitioners then continued to work on regular basis and drew their annual grade increments as well. Subsequently, the respondents urged the petitioners to withdraw their writ petitions if they wanted promotion and other benefits to which the petitioners agreed and withdrew their writ petitions from this Court leading to the passing of order Annexure P-5 where the petitioners were asked to furnish affidavit that they will not oppose the recovery of monetary benefits if initiated by the respondents. The said condition as contained in Annexure P-5 is extracted here below:-

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Before passing the order of promotion, affidavit of the Apprentice Signaler be obtained, a copy of which be sent to this office, stating that he will not claim any arrears of pay for the period from the deemed date of promotion to the date of issue of promotion order."

Subsequent thereto Annexure P-9 has been issued seeking to initiate recovery from the petitioners.

Learned counsel for the petitioners apart from his submissions places reliance on the ratio of decision rendered in LPA No. 1361 of 2010 decided on 9.12.2010 where in absolutely similar circumstances of employees equally placed as the petitioners from the same department were granted the benefit of a restraint on recovery initiated by the respondents.

Learned counsel for the respondents would, however, refer to the delay on the part of the petitioners to approach this Court to oppose the prayer of the petitioners.

After having considered the arguments raised by the petitioners and the respondents, I am of the view that the ratio of decision rendered in LPA No. 1361 of 2010 are attracted to the facts of the case with great intensity. The matter is being squarely covered I have no hesitation to accept the petition in the same terms and restrain the respondents from effecting the recovery from the petitioners.

The LPA Bench while disposing of the similar petitions had placed reliance on the ratio of decision rendered by a Full Bench of this Court in case titled as Budh Ram and Others Vs. State of Haryana and Others, which was eventually tested before the Hon''ble Supreme Court. It would be relevant to extract the observations of the Hon''ble Supreme Court in Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, observed as under:

"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected overpayment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."

In the same very judgment, the Hon''ble Supreme Court has held as under:-

"12. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (retd.) case (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:-

"Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."

Later, a three-Judge Bench in Syed Abdul Qadir case (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows:

"Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.

(emphasis added)"

The matter being no longer res integra the petitioners'' case fall within the exceptions carved out in the Chandi Prashad''s case (supra), I deem it appropriate to grant similar relief to the petitioners as granted in LPA No. 1361 of 2010 by quashing Annexure P-9.

Ordered accordingly.

Petition stands allowed.