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Karnataka High Court · body

2006 DIGILAW 251 (KAR)

N. JAGADEESH v. KUVEMPU UNIVERSITY, SHIMOGA

2006-03-07

S.ABDUL NAZEER

body2006
ORDER Respondent-University issued an advertisement on 3-12-1992 calling for applications to fill several posts through direct recruitment which included two posts of “Draftsman and Tracer” in the pay-scale of Rs. 1720-3170. The petitioner was one of the applicants for the said post. He was appointed to the said post as per the order dated 1-8-1994 in the pay scale of Rs. 1130-2100. Petitioner has accepted the appointment order and joined the service. Later on, he made a representation to the University to increase his pay scale to Rs. 1720-3170 as per the advertisement or at least in the scale of Rs. 1520-2900, as was paid in other Universities for the similar post. The University on consideration of the said representation passed an order dated 18-3-1996 fixing the pay scale at Rs. 1520-2900. Later on, the University has reduced the pay-scale to Rs. 1130-2100 and initiated action for recovery of excess amount paid to him by an order dated 24-11-1999. The said order was challenged by the petitioner before this Court in W.P. No. 43017 of 1999. This Court by an order dated 2-11-2000 quashed the said order and directed the University to reconsider the matter in accordance with law. Thereafter, the University has issued a show-cause notice on 27-11-2000 calling upon the petitioner as to why his pay scale should not be reduced from 1520-2900 to 1130-2100 and the excess amount paid to him should not be recovered. The petitioner has sent replies to the said notice as per Annexure-E, dated 9-12-2000 and Annexure-G, dated 14-6-2002. After considering the replies and after hearing the petitioner, the University has passed the impugned order dated 11-7-2002 holding that the petitioner is entitled for pay scale of Rs. 1130-2100. The University has further directed the petitioner to refund the excess amount paid to him in a sum of Rs. 78,592/- in terms of earlier order dated 18-3-1996. The petitioner has challenged the said order of the University in this writ petition. 2. Mr. M.S. Bhagwat, learned Counsel appearing for the petitioner would contend that petitioner is entitled for the pay-scale as advertised on 3-12-1992 at Rs. 1720-3170. He further submits that at least University ought to have fixed the pay scale of Rs. 1520-2900, as was paid in other Universities for the similar post. He further argues that the University is estopped from in reducing the pay scale to Rs. 1720-3170. He further submits that at least University ought to have fixed the pay scale of Rs. 1520-2900, as was paid in other Universities for the similar post. He further argues that the University is estopped from in reducing the pay scale to Rs. 1130-2100 as it is contrary to the pay scale advertised as per Annexure-A. Alternatively, he contends that the excess payment received by the petitioner is not on account of his misrepresentation. Therefore, the University is not justified in recovering the excess amount of Rs. 78,592/-. In this connection, he has placed reliance on the decisions of the Apex Court in the cases of Shyam Baba Verma and others v union of India and Others and Sahib Ram v State of Haryana and others. 3. On the other hand, Sri T.P. Rajendra Kumar Sungay, learned Counsel appearing for the respondent-University submits that as per the relevant statute of the University the pay scale for the aforesaid post was Rs. 1040-1900 when Annexure-A was issued. Subsequently, when the petitioner was appointed the pay scale was revised at Rs. 1130-2100 and the pay scale of the petitioner was fixed at Rs. 1130-2100 when he was appointed which is in accordance with the statute of the University. It is further argued that the respondent-University is an autonomous body and it is not free to act according to whims and fancies of the individuals. Since the University is governed by the statute, ordinance and regulations, the pay-scale cannot be granted higher than what has been fixed in the statute. It is submitted that the concerned Assistant Registrar had committed an error while advertising the post in the pay scale of Rs. 1720-3170. It is further contended that the petitioner having accepted the order of appointment and joined the post, he cannot raise the plea of estopped at this belated stage. Learned Counsel has justified the action initiated by the University for recovery of excess amount paid to the petitioner in a sum of Rs. 78,592/- in installments. 4. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record. 5. It is no doubt true that the post in question was advertised in the pay scale of Rs. 1720-3170. As per the statute framed by the University, the admissible pay scale during the relevant point of time was Rs. 1130-2100. 5. It is no doubt true that the post in question was advertised in the pay scale of Rs. 1720-3170. As per the statute framed by the University, the admissible pay scale during the relevant point of time was Rs. 1130-2100. It is to be noted here that the University is not a private enterprise. It is an autonomous body. It is a creation of statute. It is not free to act according to the whims and fancies of the individuals. The functioning and the decision of the University are governed by the statutes, ordinance, rules and regulations. Once the statute is approved by the authorities of the University in accordance with law, it has to be followed without any deviation. A statute governs the creation of post, pay scale etc. Therefore, once the pay scale is fixed in the statute, the University has no other option but to follow the same. 6. In the instant case the statute was approved by the chancellor and post of Draftsman and Tracer was granted in the pay scale at 1040-1900. In the year 1994 the pay scale was revised to 1130-2100. A recruitment can take place only against a sanctioned post. The advertisement and other documents are procedural aspects for recruitment and they cannot become substitute for the statute. The error committed by an individual in advertising a post in a pay scale, which is non-existent under the statute cannot become basis for claiming that scale when the mistake was rectified while issuing appointment order. The appointment order was issued mentioning the pay scale very clearly and among the terms and conditions, it is made clear that the appointment is as per the statute. The petitioner has accepted the appointment order and has joined on the strength of appointment order. Therefore, he cannot claim any other pay scale mentioned in the advertisement or otherwise. 7. It is to be stated here that on a representation made by the petitioner, he was granted pay scale as per Annexure-C of Rs. 1520-2900, which was again contrary to the relevant statute. Material on record clearly establishes that the University had formulated a fresh statute and submitted to the Government seeking assent of the Chancellor carrying a pay scale of Rs. 1520-2900 to the post of Draftsman and Tracer. 1520-2900, which was again contrary to the relevant statute. Material on record clearly establishes that the University had formulated a fresh statute and submitted to the Government seeking assent of the Chancellor carrying a pay scale of Rs. 1520-2900 to the post of Draftsman and Tracer. It is not in dispute that the Chancellor has rejected his assent to the same which was communicated by the State Government to the University vide its letter dated 14-9-1999. Thereafter, the University had no option but to reduce the pay scale to Rs. 1130-2100, which was admissible in accordance with the relevant statute of the University. The University on a proper consideration of the entire material on record has passed the impugned order reducing the pay scale to Rs. 1130-2100, which is in conformity with the statute. I do not find any error in the order of the University insofar as reduction of the pay scale is concerned. 8. The second question for consideration is whether the University is justified in recovering Rs. 78,592/- paid in excess of the pay scale provided in the statute? It is not the case of the University that it has paid the said amount on the misrepresentation made by the petitioner. The petitioner cannot be found fault with for the excess payments made by the University. In Shyam Babu Verma's case, the Apex Court has held that no steps should be taken by the authorities concerned to recover any excess amounts already paid, to the petitioners because the petitioners are in no way responsible for the same. It has been held as follows.- “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, with effect from January I, 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. 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.” (Emphasis supplied) 9, Again in Sahib Ram's case, the Apex Court has held that if the excess payment is not on account of any misrepresentation made by the appellant that the benefit of the higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot by held to be at fault, the amount paid till date may not be recovered from the appellant. 10. In the light of the aforesaid decisions, the University is not justified in ordering recovery of Rs. 78,592/- paid in excess of the pay-scale provided in statute for a period from 18-3-1996 till the date of the impugned order. 11. In the result, Writ petition succeeds and it is accordingly allowed in part. The impugned order at Annexure-H dated 11-7-2002 only insofar as the direction to recover the amount of Rs. 78,592/- is hereby quashed. In all other respects Annexure-H is sustained. If any amount has been recovered from the petitioner by the university in terms of the order at Annexure- H the same shall be refunded to him within 8 (eight) weeks from today. No costs.