An officer's acceptance of pay revision and undertaking to refund any excess payment binds them to the recovery of the amount, as established in the judgments referenced by the court.

JUDGMENT

Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 27.3.2012 passed by Engineer-in-Chief, I & PH Department, Shimla, H.P., whereby a sum of Rs. 88,838/- has been ordered to be deducted from the arrear of revised pay scale of the officer i.e. petitioner, petitioner has approached this Court in the instant proceedings, praying therein following reliefs:-

(i) That order dated 27.3.2012 may kindly be quashed and set-aside and respondents may kindly be directed to refund a sum of Rs.88,838/- to the petitioner alongwith interest at some Nationalized bank;

(ii) That the respondents may kindly be burdened with costs;

2. Certain undisputed facts, which are necessary for adjudication of the case are that initially petitioner joined services as Assistant Engineer in the respondent department on 23rd January, 1979. Person namely, Sh. Rajesh Kamal Sharma also joined the post of Assistant Engineer as Direct Recruit on 28.7.1981. On 1.7.2009, final seniority list as it stood on 31.12.2008 was circulated by the respondent department, wherein name of the petitioner finds mention at Sr. No.7, whereas above named person Sh. Rajesh Kamal Sharma at Sr. No.13 of the seniority list.

3. It is not in dispute that subsequently both the petitioner as well as person namely, Sh. Rajesh Kamal Sharma were promoted as Superintending Engineer in the I & PH Department. On 30.6.2010, petitioner retired from the respondent department, but on 12.10.1999 he after having come to know that person namely, Sh. Rajesh Kamal Sharma, who was junior to him is drawing higher salary, represented the competent authority, praying therein for stepping up of his salary qua Sh. Rajesh Kumar Sharma.

4. Consequent upon aforesaid representation made by the petitioner, his pay was re-fixed by step up w.e.f.26.6.1996, as is evident from the office order dated 19.3.2011 (Annexure R-3). However, respondent department subsequently vide communication dated 28th September, 2011 informed the petitioner (Annexure P-4) that after having carefully perused the Due Drawn Statement, it has transpired that sum of Rs. 88838/-( Rupees Eighty Eight Thousand Eight Hundred Thirty Eight only) is recoverable from you. Engineer-in-Chief I& PH Department by way of aforesaid communication specifically stated in the aforesaid communication that before further action is taken, you may furnish your comments within a period of thirty days. Pursuant to aforesaid communication, petitioner filed reply dated 20.12.2011 (Annexure P-5) stating therein that since there was no misrepresentation on his part when the re-fixation was done in year 1996, amount paid to him on account of step up cannot be recovered at this stage, as has been held by the Hon'ble Apex Court in Sahib Ram vs. State of Himachal Pradesh, (1995) Supp1 SCC 18 . While filing aforesaid reply, petitioner prayed to the competent authority that recovery as pointed out vide letter dated 28.9.2011 may be waived of because recovery cannot be affected at the belated stage as per the judgment rendered by Hon'ble Apex Court in Sahib Ram's case supra. Competent authority after having taken note of aforesaid reply filed by the petitioner as well as judgment rendered by Hon'ble Apex Court in Sahib Ram's case supra, rejected the claim of the petitioner vide order dated 27.3.2012 (Annexure P-6). Vide aforesaid order, competent authority observed that pay of Sh. G.S.Guleria, Superintending Engineer (petitioner) was stepped up on his request and after having obtained his undertaking dated 5.9.2009 (Annexure R-5). In the aforesaid background, petitioner approached this Court in the instant proceedings, praying therein for the relief(s), as has been reproduced hereinabove.

5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that request of step up of pay scale came to be made on behalf of the petitioner vide communication dated 12.10.1999 (Annexure R-1). Perusal of afo