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TMI Blog2022 (3) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... l installments. The Division Bench of the High Court has not committed any error in reserving liberty in favour of the State to recover the amount paid in excess to the original writ petitioners. However, at the same time, considering the prayer made on behalf of the original writ petitioners to recover the amount in easy equal installments, we direct that whatever amount is paid in excess to the original writ petitioners, pursuant to the order passed by the learned Single Judge, be recovered from the original writ petitioners in thirty-six equal monthly installments, to be deducted from their salary commencing from April, 2022. Appeal disposed off. - CIVIL APPEAL NOS. 2229-2234 OF 2022 ,CIVIL APPEAL NOS. 2235-2249 OF 2022 ,CIVIL APPEAL NOS. 2250-2251 OF 2022 ,CIVIL APPEAL NO. 2252 OF 2022 ,CIVIL APPEAL NOS. 2253-2256 OF 2022 - - - Dated:- 29-3-2022 - JUSTICE M.R. SHAH AND JUSTICE B.V. NAGARATHNA JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 06.05.2016 passed by the Division Bench of the High Court of Judicature for Rajasthan, Jaipur Bench Jaipur in D.B. Special Appeal (Writ) No. 1883/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to comply with the observations and expectations of the Hon ble Apex Court as given in the case of Sushil Sharma (supra) [State of Rajasthan vs. Sushil Sharma, Civil Appeal No. 5283/2001, dated 10.08.2001], thereby, they will not allow benefit of deputation allowance to anyone in violation of rule 112 read with rule 97 of the RSR. This is irrespective of the categories of the post in the respondent department; 2. If there is shortage of Junior Specialist, endeavour should be to amend the Rules so that direct recruitment can be made, as presently aforesaid post is filled up by promotion only. However, on the pretext of shortage of Junior Specialist, respondents cannot be allowed to violate or circumvent the rules. This is more so when it goes even against the observations and expectations of the Hon ble Apex Court in the case of Sushil Sharma (supra). The respondents will accordingly allow study leave and benefit thereupon as per rule 111 and 112 read with rule 97 of the RSR; 3. Since for many posts, benefit of study leave with full salary has been allowed, hence, to avoid discrimination, respondents have agreed to extend similar benefit to the petitioners also, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that view of the matter, the only issue which is now required to be considered is, whether there shall be recovery of the amounts from the original writ petitioners, as directed in the impugned judgment and order passed by the Division Bench of the High Court. 4. Shri R.K. Singh, learned Advocate appearing on behalf of the original writ petitioners has heavily relied upon the decision of this Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334. Relying upon the aforesaid decision, it is vehemently submitted that as observed and held by this Court, recovery from the employees belonging to Class III and Class IV service (Group C and Group D service) is impermissible. 4.1 Learned counsel appearing on behalf of the original writ petitioners has prayed and submitted that as the respective original writ petitioners are serving on Class III and Class IV posts, the amount already paid in excess may not be recovered by the State. In the alternative, it is prayed that the original writ petitioners may be given reasonable monthly installments to repay the amount which is paid in excess to them. 5. Dr. Manish Singhvi, learned Senior Advocate appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount paid in excess to the appellants was not due to any mistake on the part of the State/State authorities. The excess amount has been paid pursuant to the order passed by the learned Single Judge, which has been subsequently set aside by the Division Bench. Therefore, on quashing and setting aside the judgment and order passed by the learned Single Judge under which the original writ petitioners were paid the excess amount, the necessary consequences must follow. Therefore, considering the fact that the amount already paid in excess was not paid by the State mistakenly but was paid pursuant to the order passed by the learned Single Judge which has been set aside subsequently, the decision of this Court in the case of Rafiq Masih (Supra) shall not be applicable. The said decision of this Court may be applicable only in a case where the amount has been paid by the State/State Authorities mistakenly and it is found that there was no fault and/or any misrepresentation on the part of the employee and that the concerned employee is not found responsible for such excess amount paid mistakenly. The amount paid in excess pursuant to the order passed by the learned Single Judge which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. This Court observed in South Eastern Coalfields [South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648] thus: (SCC pp. 662-64, paras 26-28) 26. In our opinion, the principle of restitution takes care of this submission. The word restitution in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P. [Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505] ). In law, the term restitution is used in three senses : (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, 7th Edn., p. 1315). The Law of Contracts by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation. (emphasis supplied) 336. In State of Gujarat v. Essar Oil Ltd. [State of Gujarat v. Essar Oil Ltd., (2012) 3 SCC 522 : (2012) 2 SCC (Civ) 182] , it was observed that the principle of restitution is a remedy against unjust enrichment or unjust benefit. The Court observed : (SCC p. 542, paras 61-62) 61. The concept of restitution is virtually a common law principle, and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the court, which prevents a party from retaining money or some benefit derived from another, which it has received by way of an erroneous decree of the court. Such remedy in English Law is generally different from a remedy in contract or in tort and falls within the third category of common law remedy, which is called quasi-contract or restitution. 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparate suit, the Court of first instance which passed such decree or order; (c) Where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. 2. No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1). 8. In the present case, the order passed by the learned Single Judge has been set aside by the Division Bench of the High Court and therefore by applying Section 144 CPC also, the amount paid pursuant to the order passed by the learned Single Judge which has been set aside by the Division Bench is required to be refunded/returned by the original writ petitioners. Therefore, in the facts and circumstances of the case, narrated hereinabove, the Division Bench of the High Court is absolutely justified in reserving liberty in favour of the State to recover the amount pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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