Judgment : Tarlok Singh Chauhan, Judge : Following substantive reliefs have been claimed in the present writ petition: 1. Entire records pertaining to this case may kindly be summoned and perused. 2. Impugned letter dated 3.8.2007, Annexure P-2, issued by respondent No.2 may kindly be quashed and set aside. 3. directions may kindly be issued to release the revised pay scale granted to the employees in the State Government w.e.f. 1.1.2006 and also arrears accrued therefrom along with interest, which has been withheld without any legal justification and authority and similarly the revised pension and the other pensionary benefits have also been denied without any rhyme or reason, more particularly when the petitioner has been retired from service and is has limited source of income for his livelihood and is in dire necessity in these hard days. 4. Any other writ, order or direction as this Hon’ble Court may deem just and proper in the peculiar facts and circumstances of the case. 2. The undisputed facts are that the petitioner joined the Indian Army on 4.2.1949 and thereafter came to be appointed as Physical Education Teacher (for short ‘PET’) on ad hoc basis on 2.9.1985 and continued as such till his regular section under quota meant for ex-servicemen vide office order dated 16.11.1989. Petitioner applied for fixation of his pay under Rule 5(1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Services) Rules, 1972 (for short ‘The Rules’) in view of the fact that had rendered more than 16 years service in Army. His case was forwarded by respondent No.2 to respondent No.1and finally the petitioner was granted 16 annual increments in lieu of his service rendered in the Indian Army as provided under the Rules ibid. 3. The petitioner retired from service on 28.2.2007 after attaining the age of superannuation and was granted all pensionary benefits due and payable to him under the Rules and he was sanctioned pension on the last pay drawn. It is only the pay fixation which has not been granted to him though the same was revised w.e.f. 1.1.2006. 4. 3. The petitioner retired from service on 28.2.2007 after attaining the age of superannuation and was granted all pensionary benefits due and payable to him under the Rules and he was sanctioned pension on the last pay drawn. It is only the pay fixation which has not been granted to him though the same was revised w.e.f. 1.1.2006. 4. The petitioner’s grievance is that instead of granting revised pay scale to him in lieu of the revision w.e.f. 1.1.2006, respondents issued letter dated 3.8.2007, whereby it has been informed that clarification regarding counting of annual increments given for ad hoc service rendered by the petitioner towards fixation of pay on regularization of the re-employed ex-servicemen has been received and on the basis of which, now recovery is required to be effected from the petitioner. It is claimed that the action of the respondents in effecting recovery from the petitioner by directing him to deposit the amount paid to him on account of pay fixation as far back as in the year 1991, is wrong, illegal, arbitrary and un-constitutional and against the principles of natural justice and, therefore, the letter dated 3.8.2007, whereby recovery has been ordered to be effected from the petitioner should also be declared as wrong and illegal as no recoveries can be effected from the retiral dues of the petitioner 5. Respondents have contested the claim of the petitioner by filing reply, wherein the main thrust is that the petitioner had been initially appointed as Physical Education Teacher on ad hoc basis in the general category but was appointed afresh on regular basis against the vacancy of PET reserved under the quota meant for ex-servicemen and he joined the service as such afresh w.e.f. 25.11.1989. Petitioner has been wrongly granted the benefit whereby his pay was wrongly fixed at the stage of Rs. 2300/- instead of Rs. 2150/- by giving him wrong benefit of the increments of ad hoc service which were otherwise not admissible to the petitioner since he had been appointed afresh on regular basis against PET reserved for ex-servicemen. 6. I have heard the learned counsel for the parties and have gone through the records of the case. The petitioner, in support of his contention that the service rendered by him on ad hoc basis is required to be counted for the purpose of increments, has relied upon the judgment in Paras Ram Vs. 6. I have heard the learned counsel for the parties and have gone through the records of the case. The petitioner, in support of his contention that the service rendered by him on ad hoc basis is required to be counted for the purpose of increments, has relied upon the judgment in Paras Ram Vs. State of Himachal Pradesh & anr, Latest HLJ 2009 (HO) 887, where this court has held as under: “4. In the present case the petitioner has uninterruptedly worked against the host of Junior Basic Trained Teacher on ad hoc basis and has been awarded special certificate. He was regularized on 13.11.1997. In view of Annexure PB, the ad hoc services rendered by the petitioner before his regularization are to be counted towards annual increments. The petitioner has served the respondent-State as Junior Basic Trained Teacher from 1987. He is entitled to get the entire services counted which has rendered on ad hoc basis with effect from 1987 for the purpose of annual increments. The petitioner has worked as a Junior Basic Trained Teacher for all intents and purposes and has been issued a certificate by the State as per notification dated 31.8.1995. There is no distinction visualized/contemplated in Annexure PB to which category the benefit of ad hoc services is to be granted for the purpose of annual increments. This notification will cover all the cases where the persons had worked on ad hoc basis and immediately thereafter they were regularized without any break in the Education Department. The services which the petitioner had similarly situate persons have rendered on ad hoc basis for a long period, cannot be permitted to be rendered otiose.” 7. Ms. Parul Negi, learned Deputy Advocate General on the other hand has sought to distinguish the aforesaid judgment on the ground that in the aforesaid case the undisputed facts were that the petitioner therein had been appointed as JBT on ad hoc basis in the year 1987 and had continued till 13.11.1997 when he came to be regularized and, therefore, there was no break in service. Further, unlike the present case, it was not a case where fresh appointment had been given to the petitioner therein. Further, unlike the present case, it was not a case where fresh appointment had been given to the petitioner therein. Whereas in the present case, it is undisputed that the petitioner had though worked on ad hoc basis but then his services were never regularized but he was in fact given appointment afresh as a regular teacher w.e.f. 25.11.1989. 8. I am afraid that I cannot agree with the submissions of the learned Deputy Advocate General. The fact which overweighed with the court while issuing directions in Paras Ram’s case was the long service rendered by the petitioner therein on ad hoc basis and not the nature of appointment alone as would be clear from the following observations: “The service which the petitioner and similarly situated persons have rendered on ad hoc basis for a long period; cannot be permitted to be rendered otiose.” 9. There is yet another reason for upholding the claim of the petitioner. Admittedly, the petitioner has retired. There has been no fraud or misrepresentation on the part of the petitioner while receiving the so called excess payment and, therefore, the respondents in this fact situation cannot be permitted to effect recovery. 10. Though in all fairness, it maybe observed that the learned Deputy Advocate General has vehemently contested this legal position and claims that the law now makes no distinction of cases where there has been misrepresentation or fraud on the part of recipients of money in getting excess pay as concept of fraud or misrepresentation by the recipients has no role to play and for this purpose heavy reliance has been placed upon the judgment of the Hon’ble Supreme Court in Chandi Prasad Uniyal Vs. State of Uttrakhand 2012 (8) SCC 417 . 10. I have gone through the judgment minutely and find that the contention as raised by the learned Deputy Advocate General is not wholly correct even the Hon’ble Supreme Court in paragraph 14 of its report had though held that the question of fraud or misrepresentation was irrelevant as the amount paid/received in such like cases was without the authority of law, but then it did carve out certain cases which were termed to be the cases of extreme hardships to be an exception. This would be clear from the collective reading of paragraphs 14 and 15 of the judgment which reads thus: “14. This would be clear from the collective reading of paragraphs 14 and 15 of the judgment which reads thus: “14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” “15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always been recovered”. 11. The Hon’ble Supreme Court has dealt with the cases of Syed Abdul Qadir and Col. B.J. Akkara in paragraphs 11 and 12 of its report which reads as under: “11. We may in this respect refer to the judgment of a two-Judge Bench of this Court in Col. B.J. Akkara case where this Court after referring to Shyam Babu Verma case, Sahib Ram case and a few other decisions held as follows (Col.B.J. Akkara case, SCC pp. 728-29, para 28). “28. Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. 728-29, para 28). “28. Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances or any particular case refuse to grant such relief against recovery.” “12. Later, a three Judge Bench in Syed Abdul Qadir case, after referring to Shyam Babu Verma, Col. B.J.Akkara, etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case, SCC pp. 491-92, para 59). “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their paid 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 appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” (emphasis added). 12. In view of the exposition of law, case of the petitioner is otherwise fully covered by the judgment of the Hon’ble Supreme Court in Chandi Prasad Uniyal’s case (supra) since he is not only a retiree but even otherwise it was not on account of any misrepresentation or fraud on his part that the so called excess payment has been made to him. 13. The upshot of the aforesaid discussion is that there is merit in the petition and the same is allowed and the impugned order dated 3.8.2007 Annexure P-2, issued by respondent No.2 is quashed and set aside and the respondents are further directed to release the revised pay scale in favour of petitioner with effect from 1.1.2006 along with all arrears within a period of three months.