LALCHAND Vs. U O I

JUDGEMENT

(1.) THE short point involved in this special appeal is that a particular seniority was assigned to the petitioner and his fixation was done according to that seniority but that seniority was revised. The petitioner came before this court in writ petitioner to challenge that revision of the seniority on the ground that before ordering revision of the seniority he has not been heard. The learned Single Judge has taken a view that the seniority was determined under mistake and therefore rectifying a bonafide error an opportunity of hearing was not essential and consequently the writ petition has been dismissed. In the meanwhile it so happened that on account of the decision of the learned Single Judge recoveries were ordered to be made on account of the wrong fixation made by the competent authority and, therefore, now it is that order of recovery which has been challenged before us in this special appeal.

(2.) MR . Upadhyay, learned Counsel for the appellant has submitted that the appellant has retired and has also expired. He has also submitted that determination of seniority if any error was committed, it was committed by the authority concerned and the appellant did not induce the authority to fix his seniority at a particular date and, therefore, if any advantage has been conferred on him on account of the wrong fixation made in pursuance of wrong determination of seniority then he is not at all at fault and therefore, no recovery could be made from him of the excess amount paid to him specially because now the petitioner has not only retired but has also expired on 18.12.1992; In this respect he has placed reliance on the decision of the learned Single Judge of this Court rendered in Ramchandra Sharma v. Union of India reported in 1980 WLN (UC) 507 where the learned Single Judge relied upon certain observations made in the case of State of Punjab v. Balbir Singh in 1976(1) SLR -36 wherein their lordships of the Supreme Court observed that justice requires that the Government should not claim any refund of any part of the salary paid to the respondents until today. Partly in view of their understanding and partly because of the requirement of justice, we direct the Government not to do so. The learned Single Judge while relying on the said authority held that when the petitioner was not at fault in the matter of fixation of the seniority and did not mislead or defraud authorities and if the wrong fixation was done on the basis of wrong fixation of seniority the benefit that has been conferred on the petitioner cannot be allowed to be withdrawn. We entirely agree with the observations of the learned Single Judge which are based on the decision of the their lordships of the Supreme Court rendered in State of Pun. v. Balbir Singh (supra). In this view of the matter when the petitioner's seniority has been wrongly fixed and if that has been corrected without hearing the petitioner, then the order of the learned Single Judge cannot be set aside but so far as the recovery aspect is concerned, the respondents No. 1 to 4 are directed not to make any recovery from the salary or gratuity or from retiral benefits which are conferred on the petitioner or his legal representatives Mr. Upadhyay submits that certain recoveries have been made from the pension and the gratuity has not been paid to the legal representatives of the deceased -petitioner. If any recovery has been made it should be refunded to the legal representatives of the petitioner and the amount of the gratuity should be released in favour of the legal representatives of the deceased petitioner Lalchand as the respondents No. 1 to 4 are not entitled to effect any recovery of the excess amount of fixational benefit paid to the deceased petitioner.