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2002 DIGILAW 1459 (RAJ)

Deva Ram Chaudhary v. The State of Rajasthan

2002-08-23

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 4-8-97 and amended on 25-7-98 with a prayer that by an appropriate writ, order or directions, sub-rule (3) of Rule 5 of the Rajasthan Civil Services (Appointment and other Service Conditions of Employees of Private Institutions and other Establishment Taken Over by Government) Rules, 1977 (hereinafter referred to as the Rules of 1977) be declared ultra vires to the Articles 14 and 16 of the Constitution of India and further the petitioner be paid post- retiral benefits considering and counting the complete past services rendered by the petitioner in the private aided school and the orders dated 12-3-97 and 7-6-97 (Annex. 5 and 6 respectively) by which recovery of already paid amount to the petitioner had been ordered to be effected, be quashed. 2. The facts as put forward by the petitioner are as under : i) That the petitioner was initially appointed as Assistant Teacher in the Sagubari, Dist. Nagpur vide order dated 25-12-58 and was confirmed w.e.f. 1-1-60. ii) That looking to the efficiency of the petitioner, he was promoted as Head Master vide order dated 28-6-63 w.e.f. 1-7-63 and also was confirmed to the post of IInd grade teacher w.e.f. 1-7-64. iii) That Sagubari School was aided School and substantial grant was being given by the Government. In the year 1975, the Government conveyed sanction of the Governor for taking over of SDM Sagubari (Dist. Nagpur), school and accordingly on 5-1-76 this Sagubari aided school was taken over by the Government and all the employees of the School became Government employees. iv) That the case of the petitioner is that after his retirement, he is entitled to retiral benefits after counting his seniority from the date of initial appointment i.e. 1-5-59 and not from the date i.e. 5-1-76 when the aided School was taken over by the Government and in this respect, it has been further prayed that sub-rule (3) of Rule 5 of the Rules of 1977 be declared unconstitutional. It further appears that some amount was accordingly paid to the petitioner and, therefore, the respondent passed two orders one on 12-3-97 and another on 7-6-97 (Annex. 5 and 6) by which the amount which was paid earlier to the petitioner was ordered to be recovered from him. It further appears that some amount was accordingly paid to the petitioner and, therefore, the respondent passed two orders one on 12-3-97 and another on 7-6-97 (Annex. 5 and 6) by which the amount which was paid earlier to the petitioner was ordered to be recovered from him. Hence, this writ petition with the above mentioned prayer. 3. Reply to the writ petition was filed by the respondents and it has been submitted that sub-rule (3) of Rule 5 of the Rules of 1977 is not ultra vires to the Constitution of India and seniority of a person appointed as a result of taking over of private institutions shall be determined with reference to the year of taking over of such employee and not from the date of initial appointment in private institution. On second point, it has been replied by the respondents that if some wrong payment has been made to the petitioner, the State has got right to recover it without hesitation and the petitioner is not entitled to challenge the recovery orders (Annexs. 5 and 6). Hence, this writ petition should be dismissed. 4. That during the course of argument, the learned counsel for the petitioner has not assailed the validity of sub-rule (3) of Rule 5 of the Rules of 1977 and thus, the first prayer stands rejected. 5. On second point, the submission of the learned counsel for the petitioner is that since the petitioner has retired and if some amount has been paid to the petitioner to which he was not entitled, that amount should now not be recovered from him on the ground of principle of equity and justice and further that amount was paid by the respondents not because of fault of the petitioner, but it was paid to the petitioner by the respondents because of their fault. 6. I have heard both and perused the record. 7. This court in the case of Dr. D.K. Nagar v. University of Rajasthan, (1994 Lab IC 848) : (1993)1 Raj. LR 246 has held that if university was negligent in granting study leave with pay to the petitioner (Asst. Professor) for certain period, the amount of salary paid for such period cannot be recovered from the petitioner. Meaning thereby that if the respondents have committed wrong, they should not be allowed not to rectify that mistake. 8. LR 246 has held that if university was negligent in granting study leave with pay to the petitioner (Asst. Professor) for certain period, the amount of salary paid for such period cannot be recovered from the petitioner. Meaning thereby that if the respondents have committed wrong, they should not be allowed not to rectify that mistake. 8. Similarly, the Hon'ble Supreme Court in the case of State of Punjab v. Balbir Singh, (1976)1 Serv LR 36 : ( AIR 1977 SC 629 : 1977 Lab IC 281) has held that amount already paid should not be allowed to be refunded back on the ground of equity and justice. 9. This Court in the case of Panchayat Samiti, Shahpur v. Pratap Singh, 1995(2) SCT 157 (Raj.) : (1995)1 WLC (Raj) 566 has held that in such cases, on compassionate ground, the petitioner is not required to refund the amount whatever paid to him. 10. This Court in the case of Smt. Pushplata Thada v. State, 2002(2) SCT 635 (Raj.) : (2001)2 WLC (Raj) 560 : (2002 Lab IC 6) has held that withdrawal of selection grade and recovery thereof is a civil consequence and such withdrawal is not sustainable in the eye of law. 11. In view of above law laid down by this Court as well as by Hon'ble Supreme Court, it would not be proper now to allow the respondents to recover back the amount already paid to the petitioner especially when the petitioner has already retired from the service. 12. For the reasons mentioned above, this writ petition is liable to be allowed in part and the orders dated 12.3.97 and 7.6.97 (Annex. 5 and 6 respectively) are liable to be quashed.Accordingly, this writ petition is partly allowed and the orders dated 12.3.97 and 7.6.97 (Annex. 5 and 6 respectively) are quashed and set aside and the respondents are directed not to recover the amount mentioned in the orders dated 12.3.97 and 7.6.97 (Annex. 5 and 6 respectively).Cost made easy.Petition allowed. *******