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2006 DIGILAW 1569 (ALL)

RAM MURTI SINGH v. STATE OF UTTAR PRADESH

2006-07-04

R.K.AGRAWAL, SANJAY MISRA

body2006
JUDGMENT By the Court.—By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Ram Murti Singh, seeks the following reliefs : (a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 2.4.2002 passed by the State Government (Annexure 1 to the writ petition) which dispatched on 22.4.2002 and given to petitioner on 1.5.2002 in respect of the petitioner. (b) issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect as impugned order referred above in respect of the petitioner. (c) issue a writ, order or direction in the nature of mandamus directing the respondents not to change the status of the petitioner and permit to continue on the post and salary as held by the petitioner. (d) issue a writ, order or direction in the nature of mandamus which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (e) Award cost of the petition in favour of the petitioner. 2. Briefly stated, the facts giving rise to the present petition are as follows : According to the petitioner, he was initially appointed as Assistant Sales Tax Officer and has been promoted to the post of Sales Tax Officer on 20th March, 1978. The post has been designated as Trade Tax Officer. Vide order dated 6th March, 1993 passed by the Secretary, Institutional Finance, Government of U.P., the petitioner was granted revised pay scale w.e.f. 22nd March, 1986. However, vide order dated 2nd April, 2002 passed by the Principal Secretary, Tax and Registration Department of the Government of U.P. the revised pay scale granted earlier to the petitioner has been shifted from 22nd March, 1986 to 20th March, 1989 and the excess amount paid has been directed to be recovered from him. The order dated 2nd April, 2002 in so far as it directs recovery of the amount paid to the petitioner is under challenge in the present writ petition. 3. We have heard Sri Dilip Singh, learned Counsel for the petitioner and Sri Prakash Singh, learned Standing Counsel appearing for the respondents. 4. The order dated 2nd April, 2002 in so far as it directs recovery of the amount paid to the petitioner is under challenge in the present writ petition. 3. We have heard Sri Dilip Singh, learned Counsel for the petitioner and Sri Prakash Singh, learned Standing Counsel appearing for the respondents. 4. Learned Counsel for the petitioner submitted that the petitioner was paid revised pay scale w.e.f. 22nd March, 1986 by the Secretary, Institutional Finance, Government of U.P. without there being any misrepresentation, fraud or coercion or on the asking of the petitioner and, therefore, the excess amount paid to him cannot be recovered. The fact that there was no misrepresentation or fraud or coercion or asking by the petitioner for payment of revised pay scale w.e.f. 22nd March, 1986, has not been disputed by the respondents. However, their stand is that the petitioner was not entitled for the revised pay scale from 22nd March, 1986 but it was only from 20th March, 1989 when his services were regularized and, therefore, the excess amount paid to the petitioner is liable to be recovered. 5. Having given our anxious consideration to the various pleas raised by the learned Counsel for the parties, we find that now it is well settled by the decision of the Apex Court that if employees have received higher scale due to no fault of theirs, it would only be just and proper not to recover any excess amount already paid to them. 6. The Apex Court in the case of Shyam Babu Verma and others v. Union of India and others, (1994) 2 SCC 521 , dealing with a situation where the petitioner received higher pay scale due to no fault of theirs, they had held that it would not be just and proper to recover the salary already paid to them. In paragraph 11 of the report, the Apex Court has held as follows : “11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from january 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” 7. In the case of Sahib Ram v. State of Haryana and others, JT 1995 (1) SC 24, the Apex Court has held that if excess salary has not been paid on account of any misrepresentation but by wrong construction made by the authorities for which the payee cannot be held to be at fault, the amount already paid cannot be recovered. 8. In the case of Harish Chandra Srivastava v. State of Uttar Pradesh and others, (1996) 3 UPLBEC 1940, a Division Bench of this Court has held as follows: “18. No doubt where any order is passed without affording reasonable opportunity of being heard which entails severe consequences including financial one, the said order suffers from the principles of natural justice rendering the same a nullity. The rule of audi alteram partem mandates that the decision makers should afford to the person concerned a reasonable opportunity of being heard (See Km. Neelima Misra v. Dr. Harinder Kaur, AIR 1990 SC 1402 ). Besides this, in the decision rendered in Shyam Babu v. Union of India, (1994) 2 SCC 521 , the Apex Court dealing with similar situation ruled that since the petitioner received the higher pay scale due to no fault of his own, it shall not be just and proper to recover the salary already paid to him.” 9. Besides this, in the decision rendered in Shyam Babu v. Union of India, (1994) 2 SCC 521 , the Apex Court dealing with similar situation ruled that since the petitioner received the higher pay scale due to no fault of his own, it shall not be just and proper to recover the salary already paid to him.” 9. In the case of Bihar State Electricity Board and another v. Bijay Bahadur and another, (2000) 10 SCC 99 , the Apex Court has concurred with the observations made in Sahib Ram case (supra) regarding payment which had been made without any misrepresentation, the excess amount cannot be deducted or recovered. 10. In the case of Seetaram Singh v. State of Bihar and others, 2002 (3) ESC 102 (Pat), the Patna High Court has held that if the petitioner was allowed the pay scale not on his misrepresentation, the same cannot be recovered. 11. In the case of Kerala State Road Transport Corporation v. K.O. Varghese and others, AIR 2003 SC 3966 , the Apex Court has held that where the respondents were not responsible for the wrong fixation of the pay, the recovery of the amount is inequitable. 12. This Court in the case of Duryodhan Lal Jatav v. State of U.P. and others, 2005(2) ESC 1067 (All), while following the decisions of the Apex Court, in paragraphs 4 and 5 of the report, held as follows : “4. It has, held by the Supreme Court in State of Orissa v. Adwit Charan Mohanty, 1995 Supp (1) SCC 470 : 1995 SCC (L&S) 522; Union of India v. Sita Ram Dheer, 1994 SCC (L&S) 1445; Nand Kishore Sharma v. State of Bihar, 1995 Supp (3) SCC 722 : 1996 SCC (L&S) 124; State of Karnataka v. Mangalore University Non-Teaching Employees’ Association, (2002) 3 SCC 302 : AIR 2002 SC 1223 , that if additional payment has been made to the employees for no fault of their, they should not be penalized for this. 5. In view of the settled legal position, as detailed above, the respondent are not entitled to recover the excess pay, which were paid to him on account of promotion from June, 1996 of June, 2002.” 13. Similar view has been by this Court in Civil Misc. Writ Petition No. 21442 of 2002 (Raj Nath Ram v. State of U.P. and others) decided on 26th May, 2006. Similar view has been by this Court in Civil Misc. Writ Petition No. 21442 of 2002 (Raj Nath Ram v. State of U.P. and others) decided on 26th May, 2006. In view of the well established legal principle, we accept the claim of the petitioner that he is not liable to refund the excess amount paid to him during the period from 2nd March, 1986 to 20th March, 1989 because the same was not paid on any misrepresentation or fraud on the part of the petitioner. 14. Accordingly, we are of the considered opinion that the order dated 2nd April, 2002 passed by the Principal Secretary, Tax and Registration Department of the Government of U.P. filed as Annexure 1 to the writ petition, insofar as it directs recovery of the excess amount paid to the petitioner during the period from 2nd March, 1986 to 20th March, 1989, cannot be sustained and is liable to be set aside. 15. In the result, the writ petition succeeds and is allowed. However, the parties shall bear their own costs. Petition Allowed. ————