Himmat Bharati Vs. State of Raj. and ors - Court Judgment

Excerpt:
1 s.b. civil writ petition no. 8953/2009 (himmat bharti vs. state & ors) date of order ::21. 08.2012 hon'ble mr. justice gopal krishan vyas mr. s.k.m. vyas, for the petitioner. mr. vimal mathur ] for the respondents. mr. k.k. bissa, for the pension department. heard learned counsel for the parties. the petitioner who is retired employee of p.h.e.d department is challenging validity of the order dated 25.05.09 passed by assistant engineer, public health and engineering department, construction sub division-iii, jodhpur and prayed that respondents may be directed to make payment of entire retiral dues after making proper fixation as per revised payscale rules, 2006 with interest @ 12% within stipulated period. learned counsel for the petitioner submits that earlier a writ petition was preferred before this court for making proper fixation which was registered as s.b. civil writ petition no. 3458/90. the division bench of this court vide judgment dated 07.07.99 issued certain directions to respondents to consider and pass appropriate orders regarding fixation of pay in the revised payscale, arrears of salary, increments, promotion and other consequential benefits within a period of two months from the date of receipt of certified copy of order. further it was ordered that respondents will also consider case of the petitioner for payment of reasonable interest on the delayed payment so far it relates to delay in payment of amount for the relevant 2 period. learned counsel for the petitioner submits that in pursuance of above order, pay fixation was made by respondents and on that basis, petitioner was getting salary till his superannuation on 30.04.2008. after retirement, his retiral benefits were to be paid in time but till today it has not been paid and on the contrary, an order has been passed illegally for recovery for wrong fixation made by the respondent department against the petitioner on 25.05.09 which is placed on record as annex.4, therefore, it is prayed that order impugned may be quashed because fixations were made by the respondents in compliance of judgment dated 07.07.1999 passed in s.b. civil writ petition no. 3458/90 by this court and upon which petitioner was drawing salary till his superannuation. learned counsel for the petitioner vehemently submits that there was no mis-representation or fraud on his part for making fixation but all of sudden petitioner received a communication from the respondent department for recovery for the reason that benefit of jump has wrongly been allowed as per orders of this court passed in earlier writ petition. in view of above, it is obvious from the facts that petitioner cannot be held responsible for any wrong committed by the respondent department for making fixation of petitioner's salary. if any benefit is granted by the respondent themselves while committing mistake then petitioner cannot be blamed for the same in view of judgment of hon'ble supreme court in the case of shyam babu vs. union of india & ors reported in 1994 scc(2”521. therefore, it is prayed that while quashing the order impugned, respondents may be directed to finalise the petitioner's case for retiral benefits on the basis of fixation already made in pursuance of earlier order. on the contrary, learned counsel for the respondent department submits that after preparing pension case of the petitioner, the pension papers were sent to pension department but at the time of scrutiny by the pension department, it was found that benefit of jump has wrongly been granted to the petitioner, therefore, a communication was received by the respondent department from the pension department that recovery may be made from the retiral benefits of the petitioner after making appropriate fixation and thereafter, the pension case may be sent back for finalisation. learned counsel for the pension department submits that whatever amount is to be paid, it is to be paid in accordance with law and if any mistake is committed by the administrative department while making fixation as per revised payscale rules and illegal benefits are allowed, then pension department is under an obligation to point out therefore, after examination of case, the pension case of the petitioner was sent back to administrative department for the purpose of correcting the mistake committed by the administrative department. after hearing learned counsels for the parties, i am in full agreement with the argument of learned counsel for pension department that an employee is entitled for all benefits including retiral benefits in accordance with law and by mistake 4 any benefit is given by the administrative department, then it is the duty of pension department to point out the same for the purpose of correcting the mistake of department. there is strength in argument of learned counsel for the petitioner also that when petitioner is not responsible for any mistake and mistake is committed by the administrative department, then no recovery can be made at this stage from the petitioner because he has already been superannuated from service. in view of above, the order of recovery dated 25.05.09 is against the principles of natural justice in view of judgment of shyam babu (supra) and therefore, the order of recovery is hereby quashed and set aside and respondents are directed to make correct fixation of petitioner's pay scale and finalise the retiral benefits accordingly, within a period of four months from the date of receipt of certified copy of this order and also pay interest in accordance with section 89 of the rajasthan civil services (pension) rules, 1996. with these observations, the writ petition is disposed of. (gopal krishan vyas), j.bjsh

Judgment:
1 S.B. CIVIL WRIT PETITION NO. 8953/2009 (Himmat Bharti Vs. State & Ors) Date of Order ::

21. 08.2012 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. S.K.M. Vyas, for the petitioner. Mr. Vimal Mathur ] for the respondents. Mr. K.K. Bissa, for the Pension Department. Heard learned counsel for the parties. The petitioner who is retired employee of P.H.E.D department is challenging validity of the order dated 25.05.09 passed by Assistant Engineer, Public Health and Engineering Department, Construction Sub Division-III, Jodhpur and prayed that respondents may be directed to make payment of entire retiral dues after making proper fixation as per revised payscale rules, 2006 with interest @ 12% within stipulated period. Learned counsel for the petitioner submits that earlier a writ petition was preferred before this Court for making proper fixation which was registered as S.B. Civil Writ Petition No. 3458/90. The Division Bench of this Court vide judgment dated 07.07.99 issued certain directions to respondents to consider and pass appropriate orders regarding fixation of pay in the revised payscale, arrears of salary, increments, promotion and other consequential benefits within a period of two months from the date of receipt of certified copy of order. Further it was ordered that respondents will also consider case of the petitioner for payment of reasonable interest on the delayed payment so far it relates to delay in payment of amount for the relevant 2 period. Learned counsel for the petitioner submits that in pursuance of above order, pay fixation was made by respondents and on that basis, petitioner was getting salary till his superannuation on 30.04.2008. After retirement, his retiral benefits were to be paid in time but till today it has not been paid and on the contrary, an order has been passed illegally for recovery for wrong fixation made by the respondent department against the petitioner on 25.05.09 which is placed on record as Annex.4, therefore, it is prayed that order impugned may be quashed because fixations were made by the respondents in compliance of judgment dated 07.07.1999 passed in S.B. Civil Writ Petition No. 3458/90 by this Court and upon which petitioner was drawing salary till his superannuation. Learned counsel for the petitioner vehemently submits that there was no mis-representation or fraud on his part for making fixation but all of sudden petitioner received a communication from the respondent department for recovery for the reason that benefit of jump has wrongly been allowed as per orders of this Court passed in earlier writ petition. IN view of above, it is obvious from the facts that petitioner cannot be held responsible for any wrong committed by the respondent department for making fixation of petitioner's salary. If any benefit is granted by the respondent themselves while committing mistake then petitioner cannot be blamed for the same in view of judgment of Hon'ble Supreme Court in the case of Shyam Babu Vs. Union of India & Ors reported in 1994 SCC(2”

521. therefore, it is prayed that while quashing the order impugned, respondents may be directed to finalise the petitioner's case for retiral benefits on the basis of fixation already made in pursuance of earlier order. On the contrary, learned counsel for the respondent department submits that after preparing pension case of the petitioner, the pension papers were sent to Pension department but at the time of scrutiny by the pension department, it was found that benefit of jump has wrongly been granted to the petitioner, therefore, a communication was received by the respondent department from the Pension department that recovery may be made from the retiral benefits of the petitioner after making appropriate fixation and thereafter, the pension case may be sent back for finalisation. Learned counsel for the Pension department submits that whatever amount is to be paid, it is to be paid in accordance with law and if any mistake is committed by the administrative department while making fixation as per revised payscale rules and illegal benefits are allowed, then pension department is under an obligation to point out therefore, after examination of case, the pension case of the petitioner was sent back to administrative department for the purpose of correcting the mistake committed by the administrative department. After hearing learned counsels for the parties, I am in full agreement with the argument of learned counsel for Pension department that an employee is entitled for all benefits including retiral benefits in accordance with law and by mistake 4 any benefit is given by the administrative department, then it is the duty of Pension department to point out the same for the purpose of correcting the mistake of department. There is strength in argument of learned counsel for the petitioner also that when petitioner is not responsible for any mistake and mistake is committed by the administrative department, then no recovery can be made at this stage from the petitioner because he has already been superannuated from service. In view of above, the order of recovery dated 25.05.09 is against the principles of natural justice in view of judgment of Shyam Babu (Supra) and therefore, the order of recovery is hereby quashed and set aside and respondents are directed to make correct fixation of petitioner's pay scale and finalise the retiral benefits accordingly, within a period of four months from the date of receipt of certified copy of this order and also pay interest in accordance with Section 89 of the Rajasthan Civil Services (Pension) Rules, 1996. With these observations, the writ petition is disposed of. (GOPAL KRISHAN VYAS), J.

Bjsh