- (1.) HEARD finally with the consent of the learned counsel for the parties.
(2.) THE writ petition has been preferred with the prayer that the order dated 1/2.12.2010 (Annexure-3) be quashed and set aside in respect of pay fixation. It is submitted by the petitioner that he was appointed as Class-IV employee vide order dated 8th June, 1981. Since then, he has been serving with honesty and sincerity and without any blemish. He is working as Jamadar. In order to avoid stagnation, scheme of Selection Grade was introduced. This scheme was applicable to the ministerial, sub-ordinate and Class-IV employees. The scheme provided three selection grades. First, on completion of 9 years of service; second, on completion of 18 years of service; and third, on completion of 27 years of service. Since, the petitioner had completed 27 years of service, his pay scale was accordingly revised and benefit of pay-scale of 2650-4000 was granted to him vide order dated 28th August, 2008 (Annexure-1). As per Rajasthan Civil Services (Revised) Pay Rules, 2008, the pay of the petitioner was fixed vide order dated 22th October, 2008. Thereafter, he received one communication dated 1st December, 2010 by which he was informed that after fixation in the Rajasthan Civil Services (Revised Pay Scale) Rules, 2008, he was granted 3rd A.C.P. On 1st July, 2008, but since the pay band was changed, thus it was to be paid w.e.f. 1st July, 2009 and the increase in pay granted on 1st July, 2008 had been withdrawn and revised fixation was made. Further it was ordered that the amount already paid to the petitioner, pursuant to the earlier fixation, be recovered in 36 months. The order dated 1/2.12.2010 (Annexure-3) has been impugned in this writ petition. It is submitted by the learned counsel for the petitioner that there was no fault on the part of the petitioner. The amount already paid cannot be recovered from him. In support of his arguments, he has relied upon the judgment of the Hon'ble Apex Court delivered in the cases of Syed Abdul Qadir versus State of Bihar reported in (2009) 3 Supreme Court Cases 475 and Alam Ali versus State of Rajasthan and Others reported in 2000 WLC (Raj.) UC 646. Learned counsel for the respondent has taken the stand in the reply that the fixation was wrongly done and the recovery was rightly ordered in view of the Rajasthan Civil Services (Revised Pay Scale) Rules, 2008. In support of the legality of the action taken, he submits that the petitioner had furnished undertaking for making the payment, in case any excess payment was made and thus, the action of the recovery was appropriate. He further submitted that the fixation was wrongly done and in view of the undertaking furnished by the petitioner, the order of recovery is appropriate. Having heard the learned counsel for the parties, we are of the opinion that it is not disputed that fixation was wrongly done, however, it was not the fault on the part of poor employee - Jamadar in wrong fixation of salary. It was too late to order for recovery of the money which was paid to the poor Class-IV employee. The amount must have been utilized by him. In such circumstances, recovery of amount, which has already been paid, cannot be ordered.
(3.) IN the case of Syed Abdul (supra) the Hon'ble Supreme Court has held thus:- "59. 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. 60.Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them." In the case of Alam Ali versus State of Rajasthan and Others reported in 2000 WLC (Raj.) UC 646, the Division Bench of this Court placed reliance on some of the judgments of the Hon'ble Supreme Court and quoted the same in the judgment as under:- "6. The learned counsel for the appellant-petitioner has placed reliance on the following decisions- 1.Shyam Babu Verma and Ors. Vs. Union of India and Ors. (1994) 2 SCC 521. 2.Sahib Ram Vs. State of Haryana and others (1995 Supp. (1) SCC 18) 3.V. Gangaram Vs. Regional Joint Director and ors. (AIR 1997 SC 2776). 4.Nand lal and Ors. Vs. Raj. State Electy. Board and Ors. (RLR 1999(2) 707). 7.In Shyam Babu Verma's case (supra), the Hon'ble Supreme Court has held that since the petitioners received the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. 8.In Sahib Ram's case (supra), the Hon'ble Supreme Court restrained the recovery of the payment already made to the appellant, as it was not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. In V. Gangaram's case (supra), the Hon'ble Supreme Court has observed that the recovery of the excess amount prior to 1985 be not made from the appellant, as the Department itself has wrongly given him four increments. ;