Vineet Kothari, J. - (1.) THE petitioners have filed the present writ petition with the following prayers: a. The impugned orders 18/19.02.2014 (Annex. 7) and 5.6.2013 and 7.6.2013 (Annex. 8) may kindly be declared illegal and quashed with all consequential benefits and if the during the pendency of this writ petition any recovery of amount of salary/remuneration of the petitioners are made by the respondents then the respondents may kindly be directed to refund the same with interest @9% per annum to the petitioners with all consequential benefits. b. That the respondents may also be directed to pay Rs. 7,578 and 9,840/ - p.m. w.e.f. 1.4.2013 to the petitioners and other increments strictly in accordance with the terms and conditions of the services enumerated in the agreement and contained in the circular dated 30.11.2006 by granting 10% increment of the salary every year with all consequential benefits.
(2.) THE learned counsel for the petitioners submitted that the controversy in hand is squarely covered by the decision of this case in the case of Dharmendra Jain and ors. V/s State of Rajasthan and ors - SBCWP No. 2351/2014 decided on 5.5.2014. The petitioners were working as Lab Technician/Nurse Grade II under the NRHM Scheme funded by the Central Government. This court in the case of Dharmendra Jain held as under: 9. The petitioners are lowly paid contractual employees, were working in various positions of NRHM Scheme like Data Entry Operators, Asha -Supervisor, Accountant, Nurse etc., and their monthly fixed honorarium @ Rs. 6600/ - which was increased under the agreed contractual terms @ 10% per year on yearly basis, has already taken them to the higher level and some of them are getting monthly honorarium ranging between Rs. 9600/ - and above, and that is why the respondent State Government had recommended for sanction of Budget to the Central Government @ Rs. 9600/ - per month for the position of Data Entry Operators, for example. Merely because the Central Government has not sanctioned the said Budget but the payments were already made to the petitioners, this Court is of the opinion that no recovery deserves to be effect of the alleged excess amount so paid to these lowly paid petitioners. They are already lowly paid employees and the low amount of monthly fixed honorarium already paid to them is presumed to have been spent by them and they cannot be expected cough up the said alleged excess amount at this stage and that too in the one go. 10. It is true, as held by the Hon'ble Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. reported in : (2012) 8 SCC 417 that question of fraud or misrepresentation on the part of the recipient or even if payers and the payee both are at fault, then at best, the mistake is mutual and such questions cannot be brought before the Court but the Hon'ble Apex Court in para 14 of the said judgment also observed that otherwise it would amount to unjust enrichment. This Court in respectful agreement of the said judgment finds that there is no question of unjust enrichment in the present case. The monthly fixed honorarium were paid to these persons under the contracts executed with them by the authorities of the State Government and as per the terms of the contract only the 10% increase in the monthly fixed honorarium was given to them. The correspondence between the State Government and the Central Government clearly shows that while the State Government was perusing for grant of higher Budget approvals for these persons, but the Central Government, for undisclosed reasons, has chosen only to sanction such lesser amount. 11. The contentions raised by the learned counsel for the petitioners that for some of the positions of higher officials, the monthly fixed honorarium were increased and the approval for them was given by the Central Government, subject to verification, and if it is true, all the more sanction of the lesser amount for the lowly paid employees like the present petitioners, cannot be said to be per se justified, more so when no such specific reasons have been disclosed in the affidavit filed in reply to the present writ petition as well. 12. In these circumstances, this Court is of the considered opinion that the recovery of any amount on account lesser Budget approval, should not be made from the present petitioners, however, for grant of monthly fixed honorarium for future period, both the parties are at liberty to arrive at the revised fixed monthly honorarium as per the Budget approvals in the fresh yearly contractual employment of the present petitioners and the persons like them. The petitioners are also at liberty to make suitable representations to the State Government or the Central Government for increase of their monthly fixed honorarium in these circumstances. They may rely upon such material as is available with them in support of their representations. The respondent authorities of the State Government and the Central Government are expected to consider such representation objectively and fairly and then decide the same in accordance with law. 13. It may also be noted that the impugned recovery of the alleged excess amount paid to the petitioners is directed to be made without even affording the opportunity of hearing to them. This is in clear breach of principles of natural justice. The said recovery of the alleged excess amount paid cannot be said to be a recovery of the money paid under a mistake of fact or law covered by the provisions of Section 72 of the Contract Act. It was paid under the valid agreement executed between the parties and the same is sought to be recovered back only on account of approval of lesser amount of the Budget by the Central Government. Therefore, for these reasons also, the recovery of the alleged excess amount from the petitioner would be illegal and cannot be upheld. 14. Therefore, these writ petitions are disposed of with aforesaid liberty to the petitioners and while holding that no recovery of the amount allegedly excess paid to them, deserves to be made in these circumstances because of such lesser Budget approval given by the Central Government in the aforesaid NRHM Scheme. These directions will apply to all such similarly situated persons working in NRHM, even if they have not filed any writ petition in this Court. No costs. A copy of this order be sent to the concerned parties forthwith. Accordingly, the present writ petition is also disposed of in same terms. No order as to costs. A copy of this order be sent to the parties concerned forthwith.;