Hoshiar Singh And Others v. State Of Haryana And Others
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State Of Punjab & Ors vs Rafiq Masih (White Washer) AIR 2015 SUPREME COURT 696 "# #
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# Sahib Ram v. State of Haryana 1994(5) SLR 753 Purshotam Lal and others v. State of Bihar and others, 2007(1) RSJ 150
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0 # Budh Ram v. State of Haryana 2009(3) SCT 333
Having gone through the averments made in the writ petitions, we are of the opinion that we also need not set out in detail the factual matrix in which
& the question referred to us arises for consideration for determination especially when the facts appear to us to be peculiar to each case forming part of this Bunch. Having said so, the question referred to us can in our opinion be seen from three distinct dimensions. These are : i) Cases in which the benefits sought to be recovered from the employees were granted to them on the basis of any fraud, misrepresentation or any other act of deception; ii) Cases in which the benefits sought to be recovered were granted on the basis of a bonafide mistake committed by the authority granting the same while applying or interpreting a provision contained in the service rule, regulation or any other memo or circular authorising such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned;
iii) Cases that do not fall in either one of the above two categories but where the nature of the benefit and extent is so unconnected with his service conditions that the employee must be presumed to have known that the benefit was flowing to him undeservedly because of a mistake by the authority granting the same.
Dealing with category ii, Cases involving recovery of benefits received by the employees on account of misrepresentation or erroneous application of rules, regulations, circulars or instructions issued by the Government have often come up before the Courts including the Apex Court. The consistent view taken as regards the recovery of such benefits erroneously extended to the employees without the employee being, in any way, guilty of any fraud, misrepresentation or deception is that such recovery would be unfair inequitable and against justice and good conscience.
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Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475
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7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Art, 14 of the Constitution of which non arbitrariness is a signi cant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for
9 public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be a*ected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from a*ecting the bona des of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. 3
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sham Whether speaking/reasoned Yes/No Whether reportable Yes/No