RAMESH CHANDRA PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Counsel for the petitioner and the Standing Counsel. Counsel for the petitioner submits that the opposite parties have illegally recovered Rs.48,189/- from the post-retiral benefits of the petitioner and have calculated the pension treating the total period of service rendered by the petitioner as 32 years and 13 days, whereas the petitioner has completed 38 years 6 months and 19 days of service. In the writ petition, it has also been indicated that the petitioner made several representations for correcting the total years of service rendered by him and paying the pensionary benefits thereupon. Learned Standing Counsel has stated that the petitioner has consented the recovery of excess payment from the retiral benefits of the petitioner which was given due to wrong fixation w.e.f. 1.7.1979 instead of 23.7.1981. As regards the total length of service, it has been pointed out that the Deputy Director, Malariology, U.P. Lucknow has given continuity of service to the petitioner from 18.6.1969 and not from 11.12.1962 as alleged by the petitioner. Thus, the total period of service, which has been calculated by the respondents is from 18.6.1969 to 30.6.2001. It has also been submitted that in compliance of the order passed by this Court, papers regarding correction of pension and other retiral benefits of the petitioner have been sent to the Additional Director vide letter dated 1.8.2003. Further, the Additional Director Treasury has corrected the pension and other retiral benefits, which was informed to the petitioner by the letter dated 20.8.2003. Rebutting the arguments of the learned Standing Counsel, learned counsel for the petitioner submits that he has never given his consent for the recovery of alleged excess amount of Rs.48,189/- from his retiral benefits and moreover, there was no illegality in the fixation of the petitioner and as such no recovery can be done from the retiral benefits of the petitioner. Further, he submits that the Deputy Director, Malariology, U.P., Lucknow has given continuity to the services of the petitioner w.e.f 11.12.1962 and not from 18.6.1969. Further, the petitioner was not re-appointed; rather, his services were treated to be continued since 11.12.1962. It is settled proposition of law that in case, the excess amount is paid on account of fixation of salary, without there being any fault on his part, the government shall not be entitled to recover the amount paid to the employees. In support of the petitioner's submissions, he has relied upon the cases of Bindeshwari Sahai Srivastava v. The Chief Engineer, Irrigation Department, U.P. and others [(1996) 4 UPLBEC 2634]. In the said case, the Apex Court's judgment passed in Sahib Ram v. The State of Haryana and others [JT 1995 (1) SC24] has been followed, wherein it was laid down as under:- "Admittedly the appellant does not passes the required educational. Under circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher payscale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The Principle of equal pay for equal work would not apply to the scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." In the case of Purushottam Lal Das and others v. The State of Bihar and others [2006 AIR 5325] the Hon'ble Supreme Court has held that no recovery shall be made from the amounts already paid in respect of the promotional posts. The Apex Court in the case of Shyam Babu Verma and others v. Union of India and others [(1994) 2 Supreme Court Cases 521], has held that it shall only be just and proper not to recover any excess amount which has already been paid to them. A Division Bench of this Court in B. N. Singh v. State of U.P. [1979 ALJ 1841] has also laid down that if an employee has been paid excess wages voluntarily by the employer without there being any fraud or misrepresentation committed by the employee, the excess amount cannot be recovered from him. Relevant extract of the judgment is reproduced below:- "It is well settled principle that wages paid to an employee by an employer voluntarily in bona fide manner without there being any element of fraud or misrepresentation cannot be recovered from the employee subsequently merely on the ground that some mistake of interpretation of rules might have been committed by the employer for which the employee could not he held responsible. This view finds support from the decision of this Court in Gulab Chand v. State of U.P. Civil Misc. Writ Petition No. 1479 of 1962, decided on 19th March, 1969." In view of the aforesaid legal proposition, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. The recovery order of Rs.48,189/- is quashed. In case, the same has been recovered from the petitioner, the same shall be returned to the petitioner within a period of three months. As far as calculation of total length of service for the purposes of pension is concerned, the Director, Medical Health and Family Welfare is directed to consider the matter afresh, after giving oral hearing to the petitioner and pass appropriate reasoned order.