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2001 DIGILAW 143 (GAU)

Samir Bhattacharjee v. State of Tripura and Ors.

2001-05-24

D.BISWAS

body2001
This writ petition has been filed for a direction to allow the writ petitioner to continue as Honours Graduate Assistant Teacher of Secondary School wef 1.4.1974 and further to allow him the scale of pay of Rs 5,000-10,300 wef 1.1.1996 along with quashment of the Notification No. F.4(l-2885)-DSE/99 dated 16.5.2000. 2. The petitioner was appointed as Assistant Teacher, Secondary School on 1.4.1974 after selection initially on ad hoc basis. He was allowed to continue as such. In 1991, he acquired Master degree in History. He was confirmed with effect from 1.1.1974 as Assistant Teacher of Secondary School and allowed to draw Honours Graduate pay scale. Long thereafter it was detected that the petitioner was not Honours Graduate, the minimum educational eligibility prescribed for the post of Assistant Teacher in Secondary School. The Director of School Education by order dated 16.5.2000 directed recovery of the excess pay paid to the writ petitioner on the ground that he was not entitled to the scale meant for Honours Graduate. The order reads as follows : "Memo: The Service Book of Shri Samir Bhattacharjee, Assistant Teacher, RK Institution, Kailashahar, North Tripura and other relevant papers have been carefully examined. On examinations, the undersigned observes as follows: (i) Shri Samir Bhattacharjee was appointed the Assistant Teacher on ad hoc basis against a temporary post on Rs. 175 (fixed) per month in the scale of pay of Rs. 175-325 for a period of 3 (three) months vide Memo No. F.5 (5)-E/73 dated 8.6.73 and finally he was allowed to continue his service as Assistant Teacher, Secondary School (Middle stage) on temporary basis until further order vide No. F. 5 (5)-E/74 dated 15.6.74. From the above entry in his Service Book it is clear that he was treated as an untrained graduate teacher at the time of appointment. (ii) The entry in his Service Book made by the Principal, Govt College of Education on 8.9.76 allowing him Rs 225 (fixed) in the scale of pay of Rs 225-475 treating him untrained Hons Graduate is not correct. Moreover, the Deputy Controller of Examinations, University of Calcutta confirms vide his letter No. 23/99/Record dated 11.6.99 that Shri Bhattacharjee passed B A Part II Supplementary Examination from Kailashahar RK Mahavidyalaya in 1971. Therefore, the said entry should be cancelled under proper authentication. Moreover, the Deputy Controller of Examinations, University of Calcutta confirms vide his letter No. 23/99/Record dated 11.6.99 that Shri Bhattacharjee passed B A Part II Supplementary Examination from Kailashahar RK Mahavidyalaya in 1971. Therefore, the said entry should be cancelled under proper authentication. (iii) The entry in his Service Book in respect of passing MA Examination in History in 1990 is also not correct. According to the attested photo copy of the certificate as submitted by Shri Bhattacharjee in support of date of publication of result of the aforesaid examination, it is evident that the result was published on 8.1.91. Accordingly, this should be corrected under proper authentication making a reference to original certificate of date of publication of result. 2. The Head of office, RK Institution, Kailashahar, North Tripura is requested to take action as per above instructions and refix the pay of Shri Bhattacharjee wef 20.6.73 in the scale of pay of Rs. 175-325 and corresponding revised scale thereof as per the TGS(RP) Rules, 1975,1982, the 17th Amendment Rules, 1986 and the TSCS (Revised Pay) Rules, 1988 by preparation of fresh IPS thereof and regulate as such upto the date proceeding the date of allowing him Post Graduate Trained Scale of Rs 1,700-3,980 wef 8.1.91, for obtaining the MA degree, in pursuance of the FD 's OM No. F.4 (62)- FIN (PC)/92 dated 7.12.92 under proper authentication. 3. Pay of the incumbent on the option date in pursuance of the TECS (RP) Rules, 1999 may be fixed in the corresponding revised scale of pay of Rs 5,500- 10,700 and regulate as such upto 31.12.98. Thereafter, he may be allowed next higher scale of pay of Rs 6,500-12,300 wef 1.1.96 being the second scale advancement (CAS II) under the Career Advancement Scheme of the Rules ibid. Fixation and regulation of pay in the scale of pay of Rs 6,500-12,300 should be made under the provisions of FR 22 (1) (a) (2), the erstwhile FR 22 a (i). 4. Over payment involved for the above refixation and regulation of pay upto date should be worked out through a Due and Drawn statement of salary and recovered from him by giving a recovery notice as such. A certificate as to the recovery of over payment should also be recorded in his Service Book under proper authentication, 5. 4. Over payment involved for the above refixation and regulation of pay upto date should be worked out through a Due and Drawn statement of salary and recovered from him by giving a recovery notice as such. A certificate as to the recovery of over payment should also be recorded in his Service Book under proper authentication, 5. The Service Book of Shri Samir Bhattacharjee, Assistant Teacher, RK Institution, Kailashahar, North Tripura is returned herewith which may please be acknowledged. Sd/ (RK Debnath) Director of School Education, Tripura" 3. There is nothing in the counter filed by the respondents to show that the petitioner was in any way responsible for the mistake committed by the authorities in his initial appointment. Therefore, it is the officers in the Education Department who can be squarely blamed for his appointment as Honours Graduate teacher. Although not pleaded, this Court finds that the petitioner cannot be fully exonerated since the offer of appointment (Annexure 4) indicates that he was shown to be Honours Graduate in the letter of offer of appointment which he had accepted without pointing out the mistake. He had the knowledge that a mistake was committed by the authorities concerned wrongly treating him as Honours Graduate. The petitioner, therefore, cannot be absolved of his responsibility. He had played a passive role and reaped the benefit out of a wrong order of appointment. 4. Mr. AK Bhowmik, learned senior counsel for the petitioner submitted that the petitioner was appointed as an Assistant Teacher in the Secondary School and he was paid the salary. This would show that he had discharged his duties as an Assistant Teacher to the satisfaction of all concerned. According to Mr. Bhowmik, since the petitioner had discharged the duties of an Assistant Teacher to the satisfaction of all concerned, it would be unjust and improper to direct him at this belated stage to refund the excess amount. Mr. Bhowmik, however, does not controvert that the initial appointment was not as per law. 4A. The orders of the Director in para 2 and 3 of the order quoted above for refixation of pay appear to be in conformity with the entitlement of the writ petitioner. So far the order for recovery in para 4 is concerned, it has to be decided whether the order for recovery of the excess pay could be sustained. 5. The orders of the Director in para 2 and 3 of the order quoted above for refixation of pay appear to be in conformity with the entitlement of the writ petitioner. So far the order for recovery in para 4 is concerned, it has to be decided whether the order for recovery of the excess pay could be sustained. 5. The approach to the question of refund has undergone a change during the past few years. In V. Gangaram vs. Regional Joint Director & others case, reported in (1997) 6 SCC 139 , the Supreme Court directed refund of excess amount paid to the writ petitioner by way of wrong fixation with effect from the date as specified by the authority. Prior to that the Supreme Court in Radha Kishan vs. Union of India & others ( 1997 (2) SLR 418 ) dealt with the question of refund in respect of an employee who had worked beyond the period of superannuation. The Supreme Court in rejecting the prayer held as follows: "The learned counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowances from 1.6.1991 to 26.6.1994 and that he is also entitled to the payment of Provisional Pension. Death-cum-retirement Gratuity, Leave Encashment, commutation of pension amount, GPF money and the amount deposited under CGHS on the plea that he retired from service on May 31, 1994. We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the above said date when admittedly he was to retire on May 31,1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the establishment in the concerned section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that when petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits." 6. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits." 6. The decision quoted above clearly indicates that even if excess amount is paid to an employee by mistake of the authorities, refund has to be made to the State exchequer. The ratio available in the above decision should be the rule. An exception can be curved out to the above rule where it is found that the authorities concerned are grossly negligent in their actions which resulted into excess payment. In the instant case, since the date of initial appointment, the authorities concerned have been negligent. The mistake in the initial letter of offer of appointment as fixation of pay at different points of time clearly indicates that there is no proper check and balance in the office. Therefore, I think this is a case where the amount paid in excess can be recovered from the writ petitioner as well as the officers at default by proportionately distributing the amount. 7. In my opinion considering the degree of negligence, it would be just and proper to order recovery of 40% of the excess amount from the petitioner and remaining 60% from the officers at default. 8. This writ petition is disposed of with a direction to the respondent-State to recover only 40% of the excess amount from the pay and allowances of the writ petitioner by way of installments and remaining 60% from the officers guilty of negligence and laches. An enquiry shall be instituted by the Director to determine and fix the responsibility of the official concerned after giving them an opportunity of hearing and pass an appropriate orders for recovery of the remaining 60% of the excess amount. No order as to costs.