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2007 DIGILAW 1751 (PAT)

Nanda Aryani v. State Of Bihar

2007-11-08

BARIN GHOSH

body2007
Judgment 1. Fundamental Rules 22(l)(a)(1) & 22(l)(a)(2) replaced Fundamental Rule 22(c). The relevant portion of Fundamental Rule 22(c), which was replaced by Fundamental Rules 22(1)(a)(1), was as follows: "When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis." 2. As against that, Rule 78(a)(ii) of the Bihar Service Code provided, amongst others, as follows: "When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time-scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage the stage next below that pay, plus personal pay equal to the difference and in either case will continue to draw that pay until such time as he would have received an increment in the time-scale of the old post or for period after which an increment is earned in the time-scale of new post, whichever is less." 3. A look at the provisions of the Rules set out above would show that there is a difference in the benefit to be accorded to an employee by and under the said Rules. In terms of the Fundamental Rules, the employee in question in the situation contemplated therein will get one more increment, but in terms of Bihar Service Code a similarly situated employee would get one less increment. There cannot be any dispute that Bihar Service Code would apply to a State Government employee. However, on 18th December, 1989, the State Government in relation to the teachers of nationalized schools of the State Government took a decision, inter alia, as follows: "The existing procedure of fixation of pay on promotion will cease to be appliable to teachers in the revised pay-scales with effect from 1st January, 1986. In their case the pay fixation on promotion shall be governed by Rule 22(c) of Fundamental Rules and instructions issued by the Central Government for their teachers from time to time. The fixation of pay on promotion referred to in sub-paragraphs (ii). In their case the pay fixation on promotion shall be governed by Rule 22(c) of Fundamental Rules and instructions issued by the Central Government for their teachers from time to time. The fixation of pay on promotion referred to in sub-paragraphs (ii). (iii), (iv) and (v) shall also be governed by those provisions." 4. In terms of the said decision of the Government, on 17th January, 1991 the pay of the petitioner with effect from 1st July, 1987 was fixed at Rs. 1560/-, upon the petitioner obtaining a promotion as dealt with by the Rules set out above. 5. On 20th February, 1993, the Government took a further decision to make available the facility of fixation of pay in terms of the said decision dated 18th December, 1989 to those teachers, who have worked for 12 years before 1st of January, 1986. It is the contention of the petitioner that by 1st of January, 1986, she had completed 12 years of service; to that some dispute has been raised by the respondents. 6. Be that as it may, the said decision can be held to be only a prospective decision, as has been held by this Court in relation to a similar subsequent decision dated 16th November, 2000 in the matter of Syed Abdul Qadir & Ors. V/s. State of Bihar & Ors., 2001 3 PLJR 412 and, accordingly, even if the petitioner did not render services for 12 years as on 1st January, 1986, still then she was entitled to the benefits of the conscious decision of the Government dated 18th December, 1989 which was given to her on 17th January, 1991. 7. The petitioner retired on 31st January, 2006. After such retirement, when her retiral dues and claims were being settled, it was opined by the respondents that by reason of a mistake, the petitioner has got one more increment and, accordingly, purported to contend that the petitioner has made extra drawal over and above her legal entitlement and as such decided to deduct a sum in excess of Rs. 68,000/- from the Gratuity payable to the petitioner. 8. It is the case of the respondents that by a sheer clerical mistake the petitioner was given the said extra increment to which she was not entitled. However, it appears that there was no mistake at all. 68,000/- from the Gratuity payable to the petitioner. 8. It is the case of the respondents that by a sheer clerical mistake the petitioner was given the said extra increment to which she was not entitled. However, it appears that there was no mistake at all. It was a conscious decision of the respondents to accord the said increment to the petitioner and the same was given to the petitioner in accordance with the said decision of the Government dated 18th December, 1989 by an action taken on 17th January, 1991 with effect from 1st July, 1987. 9. On 16th November, 2000, the Government wanted to put the clock back and accordingly issued a direction to fix pay of the teachers in the manner provided in the Bihar Service Code, as according to the Government, its decision dated 18th December, 1989 was an illegal decision. At the same time, the Government decided to recover extra payments made to the teachers pursuant to pay fixation made on the basis of its decision dated 18th December, 1989. The challenge thrown to the said decision of the Government dated 16th November, 2000 was considered and decided by this Court in the matter of Syed Abdul Qadir vs. State of Bihar & Ors. (supra) when this Court made the decision dated 16th November, 2000 prospective and quashed that part of the decision dated 16th November, 2000 which directed refixation of pay already fixed prior thereto and consequential recovery of excess payment. 10. The question whether recovery can be made when mistakes have been made while making pay fixation has been considered by the Full Bench of this Court in the case of Ram Binod Singh V/s. Bihar State Electricity Board, 2007 3 PLJR 398 . The Court at paragraph 26 of the report has held as follows: "Hence, in law, the position appears to be clear that there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation of pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. However, it has been correctly submitted on behalf of the petitioners that the theory of simple mistake or error to justify recovery will not hold good where the grant did not suffer from patent illegality or perversity so as to attract the Wednesbury Principle or the vice of mala fide in law. For example, where two interpretations of a provision were possible and one was consciously approved and adopted by the competent authority meant to be applied generally to all concerned, any error in such decision of the competent authority if corrected at a later stage may be ordered to apply only prospectively. Moreso, if the decision has been followed for many years. In other words, if on reinterpretation or adjudication the earlier view permitting the grant of monetary benefits is found to be by a competent authority and bona fide but wrong, mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case of Madan Mohan Prasad (supra)". 11. The exceptions pointed out in Madan Mohan Prasads case are not available in the instant case. 12. By reason of the above observations of the Full Court, the benefit accorded to the petitioner from 1.07.1987 by an action taken on 17.01.1991 as per the decision taken by the competent authority, i.e., the State Government, on 18th December, 1989 cannot be taken away from her by a subsequent adjudication that the decision authorizing the subject grant was erroneous or on mistaken notion of the applicable law. 13. In those circumstances the writ petition succeeds and the decision to alter the pay of the petitioner with effect from 1.07.1987 and thereby to take steps to recover the excess drawal from the Gratuity of the petitioner is quashed. 14. The respondents are directed to forthwith but not later than two months from today settle and pay all retiral/pensionary dues and claims of the petitioner proceeding on the basis that, as recorded in the Service Book of the petitioner, the petitioner was entitled to the pay of Rs. 1560.00 as on 1.07.1987.