CW 6399/06

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In the High Court of Judicature for Rajasthan

Jaipur Bench

**

Civil Writ Petition No.6399/2006

Girraj Prasad Vijay Versus State & Ors.

Date of Order ::: 10/02/09

Hon'ble Mr. Justice Ajay Rastogi

Mr. Banwari Sharma, for petitioner

Mr. BK Sharma for respondent No.2 & 3

Mr. Chetan Bairwa, Addl. Govt. Counsel, for respondents.

Instant petition has been filed by

petitioner with the grievance that on account of

audit objection communicated vide order dt.

09/03/07 (Ann.3), all of his retiral dues, which

otherwise became due and payable under Rules, were

arbitrarily withheld by respondents.

Petitioner initially joined service on

01/03/77 as Naka Guard in Municipal Board, Rajgarh

(Alwar) and upon abolition of post of Naka Guard,

stood absorbed in the cadre of Class IV and

retired from service on 30/04/2007. While in

service, he was served with a letter dt.09/03/07

(Ann.3) alongwith audit objection pointing out

that while his fixation was made under Revised Pay

Scale Rules, he was entitled to get benefit of

fixation on 01/09/88 and increment from 01/09/89

while his increment date was wrongly fixed of 15^th

April, 1989; and accordingly excess amount of Rs.

58,930/- was required to be recovered – in absence

whereof, his pension case could not have been

CW 6399/06

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finalised.

Counsel for petitioner submits that there

was no misrepresentation on the part of petitioner

and if at all respondents committed an error, and

at least he cannot be made scape-goat for their

erroneous decision and no recovery can be made for

their fault, if committed. In support, Counsel

placed reliance upon decisions of this Court in

Nandlal Vs. RSEB (1992) RLR 707) and Goverdhan Lal

Vs. State (2004(1) RR 347). Counsel further

submits that his retiral dues were withheld only

on account of audit objection and despite

increment being revised as per audit objection

from 15/04/89 to 01/03/07 vide order dt.27/06/07

(Ann.8), still thereafter his pension has not been

released, that certainly makes him entitled for

interest in terms of R.89 of Rajasthan Civil

Services (Pension) Rules, 1996 (“Pension Rules,

1996”).

In reply, respondents inter-alia averred

that after audit objection being raised with

regard to date of increment, the reply was sent to

Auditor General that increment has rightly been

granted under revised pay scale Rules; but audit

objection was not over-ruled by auditor general;

and in absence of recovery being first settled,

his pension could not have been finalised.

CW 6399/06

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I have considered contentions of Counsel

for parties and with their assistance examined

material on record. It is not the case of

respondents that petitioner was not entitled for

pension and other retiral dues under Scheme of

Pension Rules on his retirement on 30/04/2007. It

is also not their case that there was any

misrepresentation made by petitioner or there was

any fault being attributed to him while he was

allegedly granted increments from April, 1989

under revised pay scale Rules, 1989. In Goverdhan

Lal Vs. State (supra), after taking note of

several decisions of Apex Court, a co-ordinate

Bench of this Court held ad infra:

“19. Apart from this, when the person

to whom payment was wrongly made without

there being any fault on his part and

that person had retired, in such a case,

after his retirement, to ask such person

to pay amount already received, would

necessarily cause a legal injury to him

as in the meanwhile, he would have

utilised that amount and therefore, from

this point of view also, it can easily be

said that a legal right has accrued in

favour of the petitioner and under

Article 226 of the Constitution of India,

this Court has