Shrimati Uma Sachdeva vs Union Of India (Uoi) And Anr.
2006 Latest Caselaw 1634 Del

JUDGMENT

Manju Goel, J.

1. The petitioner joined the Central Council of Indian Medicine on 6.1.1981 in the post of Hindi Translator in the scale of Rs. 425-700/-, which was subsequently revised to Rs. 1400-2300/- with effect from 1.1.1986. Pursuant to a decision taken in the Executive Body Meeting of the Council on 4.2.2004, petitioner and anothers of Group `C' and Group `D' employees were given career advancement and the petitioner, therefore, obtained in situ promotion in the scale of Rs. 1640-60-2600-EB-75-2900 which scale was subsequently revised to Rs. 5500-9000/- with effect from 6.1.1996. With effect from 6.1.1996, the petitioner's pay was fixed at Rs. 2060/-. The respondents subsequently withdrew in situ promotion, vide an office memorandum dated 2.9.2004 on the ground of office objection. The petitioner was then placed at the lower scale 4500-125-7000. The order dated 2.9.2004 says that in situ promotion was irregular inasmuch as before any such promotion was given, no approval of the Central Govt. had been taken. The respondent, thereafter, passed an order for recovery of Rs. 67,993/- which had been paid to the petitioner as excess. This is the impugned order.

2. The petitioner relies upon the judgment of the Supreme Court in the case of Sahib Ram v. The State of Haryana and Ors. . In that case, an employee was paid higher pay scale by over looking that such amount should not have been paid to her as she lacked in the minimum educational qualification. The employer / State of Haryana wanted to withdraw the amount paid to the employee under the mistake. The Supreme Court found that the extra payment had not been made on account of misrepresentation made by the employee and that the benefit of higher pay scale had been given to him by wrong construction made by the Principal for which the employee could not be held to be at fault. Consequently, the Supreme Court ordered that the amount paid under that mistake be not recovered. The present case has exactly the same facts.

3. On behalf of the respondent, it is submitted that the petitioner would not have been entitled to the ACP promotion if the in situ promotion had remained in place and that if the amount paid to her in excess on account of the in situ promotion is not withdrawn, the petitioner would be entitled to two promotions namely the in situ promotion as well as the ACP promotion.

4. In my opinion, the respondent cannot have any grudge in this regard inasmuch as the in situ promotion has actually been withdrawn. Only thing is that the financial benefit given cannot now be recovered from the petitioner.

5. In view of the above, the writ petition is allowed and the impugned order dated 19.1.2005 is quashed. In case, any recovery under the order has been made, the same be refunded to the petitioner.