GARG, J. - (1.) THIS writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents with a prayer that by an appropriate writ, order or direction, the respondents be restrained from effecting any recovery mentioned in the Audit Report (Annex. 3) to the tune of Rs. 19,000/- and further they may be directed to make payment of difference of pay between first grade and Second grade teacher treating the petitioner to be holding the post of Teacher 1st Grade from Nov. , 1979.
(2.) IT may be stated here that in this writ petition, the learned counsel for the petitioner has confined his argument to the recovery of amount as mentioned in Audit Report (Annex. 3) and he does not want to press other arguments. The facts of the case as put forward by the petitioner are as under : (i) That the petitioner's first appointment was made on 1. 9. 55 as a third grade teacher in the Education Department. Government of Rajasthan in the substantive capacity. (ii) That the petitioner was fixed in the second grade as soon as he passed his graduation and the seniority was allotted to him in the second grade with effect from 1. 7. 64. (iii) That the petitioner was formally promoted in the Second Grade (i. e. in the pay scale of Rs. 115-245-SB-300) on temporary basis along with other various teachers vide order dtd. 12. 12. 67 (Annex. 1) passed by the Deputy Director, Education, Udaipur. (iv) That it is further case of the petitioner that since the petitioner was appointed by way of promotion in the abovementioned pay scale i. e. Rs. 115-300, as such it was clearly mentioned in the aforesaid order dtd. 12. 12. 67 (Annex. 1) that his pay is fixed under Rule 26-A of the Rajasthan Service Rules, 1951. (v) That it is the further case of the petitioner that during the audit inspection of the Panchayat Samiti, Dungarpur, the audit objection No. 5 of 1987-88 was made by the Local Fund Department. A copy of audit objection is marked as Annex. 3. In the audit objection it was mentioned that fixation of the petitioner under Rule 26-A of the Rajasthan Service Rules which was made at Rs. 155/- was wrongly made as the petitioner was to be fixed at Rs. 150/- and thus, according to audit objection (Annex. 3), the petitioner was paid Rs. 16209. 90 in excess and that amount was to be recovered from him. Apart from this, the petitioner was paid special pay of Rs. 30/- which was wrong and as per audit report (Annex. 3), he was not entitled for that and consequently, a recovery of Rs. 2790/- was recommenced and in this way total recovery of Rs. 19,000/- was to be made from the petitioner as per audit report (Annex. 3 ). Reply to the writ petition was filed by the respondents. Heard and perused the record. It may be mentioned here that this Court vide order dtd. 1. 2. 91 stayed the recovery to be effected from the petitioner.
(3.) THERE is no dispute on the point that the petitioner has now retired from the service in the year 1994. THERE is also no dispute on the point that whatever benefit were given to the petitioner, they were given by the respondents and mistake if any was committed, it was committed by the respondents and not by the petitioner. Now, the question arises for consideration is whether amount paid to the petitioner wrongly after giving him benefit of Rule 26-A of the Rajasthan Service Rules without any fault on the part of the petitioner can be permitted to be recovered from him or not especially when he has retired in the year 1994. In Shyam Babu Verma and ors. vs. Union of India and ors. (1), 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. ;