Judgment:
Narendra Kumar Jain, J.
1. At the request of learned Counsel for both the parties, the arguments were heard in the writ petition and the same is being disposed of finally.
2. The petitioners were working on the post of Munshi, Store Munshi and Time Keeper, the Chief Engineer (Roads), Public Works Department, Rajasthan, Jaipur, vide its order dt. 21.10.1989 (Annexure 1), amended the order dt. 07.12.1984 and the words 'Senior Munshi' were substituted by the words 'Supervisor (Store)-(Pay Scale No. 9)'. In pursuance of the aforesaid order, the petitioners' posts were re-designated and they were posted as Supervisor (Store) in the pay scale No. 9. Subsequently, the Deputy Secretary to the Government, Public Works Department, vide its order dt. 17.05.2002 (Annexure 3) wrote a letter to the Chief Engineer, Public Works Department, Rajasthan, Jaipur, that the order passed by the Chief Engineer is without jurisdiction or contrary to rules and the aforesaid posts cannot be included in the revised pay scales 1988 and 1996. In pursuance thereof, the respondents deducted the excess amount paid to the petitioners, Hari Singh and Ram Niwas who had already retired from their gratuity amount vide G.P.O. (Annexure 5 and 6, respectively). Being aggrieved with the aforesaid orders of with-holding/deductions of the amount, the present writ petition has been preferred by Hari Singh and Ram Niwas and other aggrieved persons with the order dt. 17.05.2002 (Annexure 3).
3. A notice to show cause was given to the respondents and an interim stay order dt. 04.12.2002 was also passed that till further orders the respondents will not recover any amount from the petitioners.
4. The respondents in their reply have stated that the pay scale of Supervisor, Polytechnic Diploma Holders is revised from Rs. 1160-2360 to Rs. 1400-2600 along with other employees, it has been revised from Rs. 950-1800 to Rs. 1200-2050 and has justified the recovery from two petitioners Hari Singh and Ram Niwas vide Ex. 5 and 6. The petitioners have filed rejoinder along with affidavit denying the contents of reply and contending that the petitioners are claiming pay scale No. 9 only.
5. Be that as it may, it is clear from the above contents that there was no misrepresentation or fraud on behalf of the petitioners for re-designating their posts and sanction of pay scale of Supervisor (Store). The respondents themselves re-designated the posts of petitioners and paid the salary thereof.
6. The Hon'ble Supreme Court in Syed Abdul Qadir and Ors. v. State of Bihar and Ors. 2009 AIR SCW 1871, considered its number of earlier decisions on the point and held that the excess amount that has been paid to the employee without any misrepresentation or fraud on his part and that he had no knowledge that the amount that was being paid to him was more than what he was entitled, no recovery of the amount that has been paid in excess to the employee should be made. The Hon'ble Apex Court also directed the respondents that amount, which has been recovered from some of the teachers, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months. Paras 27, 28 and 30 of the judgment are reproduced as under:
27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by the Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana : 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India : [1994] 2 SCC 521; Union of India v. M. Bhaskar : [1996] 4 SCC 416; V. Ganga Ram v. Regional Jt., Director : [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] v. Government of India and Ors. : (2006) 11 SCC 709; Purshottam Lal Das and Ors. v. State of Bihar : [2006] 11 SCC 492; Punjab National Bank and Ors. v. Manjeet Singh and Anr. : [2006] 8 SCC 647; and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. : [2000] 10 SCC 99.
28. 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.
30. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants-teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not.
We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.
7. In view of above authoritative pronouncement of the Hon'ble Apex Court, it is clear that there was no misrepresentation or fraud on the part of the petitioners before passing the orders (Annexures 1 and 2) referred above and whatever amount paid under that order is not recoverable from the petitioners.
8. In view of the above discussions, the writ petition is allowed. The impugned recovery/deduction of amount under orders/G.P.O. (Annexures 5 and 6) are quashed and respondents are directed to refund the amount recovered from the petitioners Hari Sing and Ram Niwas vide Annex. 5 and 6 with interest @ 10% p. a. within a period of three months from the date of submission of this order. The parties are directed to bear their own costs.
9. Consequent upon the disposal of the writ petition, the stay application annexed therewith, also stands disposed of.