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2000 DIGILAW 432 (RAJ)

Alam Ali v. State of Rajasthan

2000-04-07

S.K.GARG, V.S.KOKJE

body2000
JUDGMENT 1. JUDGEMENT By The Court - This is a D.B. Civil Special Appeal (Writ) by the appellant-petitioner against the order dated 1.2.2000 passed by the learned Single Judge, by which S.B. Civil Writ Petition No.1223/1999 filed by the appellant-petitioner was dismissed. 2. Brief facts giving rise to this appeal are as follows. 3. The petitioner filed a writ petition before this Court against the respondents stating that the petitioner was initially appointed on the post of Helper on daily rated/muster-roll basis on 30.11.1968. Later-on, the petitioner was promoted to the post of Helper Grade-I on 17.10.1989. During this period, the petitioner was given the higher pay scale wrongly by the respondents and therefore, on 15.2.1999, the respondent no.6 passed order Annexure-1 directing the petitioner to deposit र 35,501/-, as while making fixation of the petitioner at the time of his promotion to the post of Helper Grade-I, his pay was wrongly fixed at र 1400/-, though it should have been fixed at र 1225/-. It has been prayed by the petitioner that by an appropriate writ, order or direction, the impugned order dated 15.2.1999 (Annex.1) may be quashed and set aside. 4. The respondents contested the writ petition and filed a detailed reply. 5. After hearing the learned counsel for both the sides, the learned Single Judge dismissed the writ petition of the petitioner by the order dated 1.2.2000 holding inter-alia (i) that there is no dispute on the point that the petitioner was wrongly given the higher pay by the respondents, though there was no fault on the part of the petitioner; (ii) that the employer has a right to rectify the mistake and to recover the excess amount paid; (iii) that the petitioner cannot be permitted, in the instant case, to agitate that by rectification of a mistake and passing an order of recovery, the respondents have caused some legal injury to the petitioner; (iv) that the Hon'ble Supreme Court protected such recoveries in exercise of its powers under Article 142 of the Constitution of India, but this power cannot be exercised by the High Court under Article 226 of the Constitution of India and, therefore, the writ petition was dismissed by the learned Single Judge. Hence, this appeal by the appellant-petitioner against the order dated 1.2.2000. 6. The learned counsel for the appellant-petitioner has placed reliance on the following decisions: 1. Hence, this appeal by the appellant-petitioner against the order dated 1.2.2000. 6. The learned counsel for the appellant-petitioner has placed reliance on the following decisions: 1. Shyam Babu Verma & ors._ V/s Union of India & ors. (1994) 2 SCC 521 2. Sahib Ram V/s State of Haryana and others. (1995 Supp (1) SCC 18) 3. V. Gangaram V/s Regional Joint Director & ors. ( AIR 1997 SC 2776 ) 4. Nand Lal & Ors. V/s Raj. State Electry. Board & ors. (1999(2) RLR 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. 9. 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. 10. In Nand Lal's case (supra), this Court relying on the aforesaid judgments of the Hon'ble Supreme Court, has held that if a higher pay scale has erroneously been given to an employee long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him. 11. During the course of the arguments, the learned counsel for the respondents argued that the above decisions were considered by the learned Single Judge and they were distinguished on the point that the power to protect recoveries can only be exercised by the Hon'ble Supreme Court under Article 142 of the Constitution of India and, therefore, these rulings are not helpful to the appellant-petitioner. 12. To appreciate the contention it would be worthwhile to see the scope of Article 226 of the Constitution of India. 13. 12. To appreciate the contention it would be worthwhile to see the scope of Article 226 of the Constitution of India. 13. The power of the High Court to issue writ under Article 226 can be exercised for a two-fold purpose; (1) for enforcement of fundamental rights; as well as (2) for enforcement of non-fundamental or ordinary legal rights, and for any other purpose. Under the second part, writ can be issued only after a finding that the aggrieved party ha a legal right which entitles him to any of the writs and that such right has been infringed. Not only this, the High Court under Article 226 has also the power to give consequential relief, such as ordering repayment of money realised without the authority of law or under an invalid law. The petitioner under Article 226 of the Constitution of India may ask for some specific reliefs and such other relief as the Court may deem fit and proper. Under such residuary prayer, the Court may grant an applicant the proper relief which he should get in view of the changed circumstances, even though that relief may be altogether different from the specific reliefs asked for. 14. Now the question that arises for determination is whether the amount paid to the appellant-petitioner wrongly on his fixation without any fault on the part of the appellant-petitioner can be permitted to be recovered from him or not. 15. From the rulings of the Hon'ble Supreme Court just quoted above, it is clear that in case the Court finds that any benefit was received by a person without there being any fault on his part in receiving such benefit, it would be just and proper to allow him to retain such benefit. 16. In the instant case, when the fixation was made in the year 1989 and the process of recovery was started in the year 1999, looking to all aspects of the matter, the appellant should have been allowed to retain the benefit derived by him unwittingly without there being any fault on his part. 17. 16. In the instant case, when the fixation was made in the year 1989 and the process of recovery was started in the year 1999, looking to all aspects of the matter, the appellant should have been allowed to retain the benefit derived by him unwittingly without there being any fault on his part. 17. This Court in Nand Lal's case (supra) relying on the above judgments of the Supreme Court, has held that if a higher pay scale has erroneously been given to an employee long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him. In the present case, the position is the same and there is no dispute that the appellant-petitioner is not at fault. Therefore, there is no justification for recovery being made after ten years from him. 18. In the result, for the aforesaid reasons, this appeal is allowed and the impugned order dated 1.2.2000 passed by the learned Single Judge in S.B. Civil Writ Petition No. 1223/1999 is set aside and allowing the petition and quashing Annexure-1 to the petition, the respondents are restrained from recovering the excess amount from the appellant-petitioner pursuant to Annexure-1 to the writ petition. 19. It is however made clear that the respondents may rectify the mistake prospectively with effect from the date of Annexure-1 and if so deemed fit, they may take action against the officials who are found responsible for wrong fixation in favour of the appellant-petitioner.Spl. Appeal Allowed *******