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2009 DIGILAW 474 (HP)

RANJIT SINGH v. STATE OF H. P.

2009-05-18

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge-The petitioners were granted senior scale (Rs.1200-2100) vide letter dated 29.6.1991. The senior scale has been granted to them on the basis of Notification dated 27.8.1990. However, the same was withdrawn, vide office orders dated 5.1.1995 and 19.11.1994. 2. Mr. Sandeep Chauhan, Advocate has strenuously argued that the pay scale has been released to the petitioners on the basis of letter dated 27.8.1990 and the same could not be withdrawn on the basis of letter dated 22.5.1993. He has also argued that his clients have neither misled nor misrepresented the authorities at the time of release of senior scale on 29.6.1991. He then contended that the letter dated 22.5.1993 could not be applied retrospectively. He lastly contended that the petitioners were required to be heard before the issuance of office orders dated 5.1.1995 and 19.11.1994. 3. Mr. Adarsh Sharma, Advocate has supported the issuance of office orders dated 5.1.1995 and 19.11.1994 on the basis of letters dated 8.10.1990 and 23.9.1991 issued by the Finance Department and also on the basis of letters dated 15.11.1991, 20.1.1992, 2.4.1992 and 22.5.1993. 4. I have heard learned counsel for the parties and gone through the pleadings carefully. 5. A decision has been taken by the respondent-corporation to grant the petitioners senior scale on 29.6.1991. The same was being withdrawn vide office orders dated 5.1.1995 and 19.11.1994. Mr. Adarsh Sharma, Advocate has vehemently argued that after the issuance of instructions on the basis of which senior scale was granted to the petitioners and similarly situate persons, the Finance Department had issued instructions on 8.10.1990 and 23.9.1991, whereby it was provided that before releasing the senior scale the entire service record of the employee is to be scrutinized. He further argued that in those cases where the disciplinary proceedings were pending and in those cases where the penalty was imposed, senior scale could not be released. The basis for release of senior scale is letter dated 27.8.1990. In this letter there was no stipulation to scrutinize the service records of the petitioners and similarly situate persons for granting the senior scale. This decision for the first time has been taken as per the arguments of Mr. Adarsh Sharma, Advocate on the basis of letters dated 8.10.1990 and 23.9.1991 issued by the State Government. The respondent-Corporation had also issued letters dated 15.11.1991, 20.1.1992, 2.4.1992 and 22.5.1993 as per the version of Mr. Adarsh Sharma. This decision for the first time has been taken as per the arguments of Mr. Adarsh Sharma, Advocate on the basis of letters dated 8.10.1990 and 23.9.1991 issued by the State Government. The respondent-Corporation had also issued letters dated 15.11.1991, 20.1.1992, 2.4.1992 and 22.5.1993 as per the version of Mr. Adarsh Sharma. It is on the basis of letters issued by the Finance Department on 8.10.1990 and 23.9.1991, office orders dated 5.1.1995 and 19.11.1994 were issued not to release the senior scale to those persons whose service record was not satisfactory. The Court is of the opinion that these letters were to be applied prospectively and the rights which have accrued to the petitioners on the basis of earlier letter dated 27.8.1990 could not be destroyed. The petitioners have been granted senior scale by the respondent-Corporation at its own level. The petitioners have neither misled, nor misrepresented the authorities at the time of issuance of office order dated 29.6.1991. 6. Adarsh Sharma, Advocate has also argued that the petitioners were also issued notices before the issuance of office orders dated 5.1.1995 and 19.11.1994. It is borne out from the record that the petitioners were issued notices and in fact they have also filed the replies to the same. However, in the impugned office orders dated 5.1.1995 and 19.11.1994, there is no mention of either issuance of notice or reply. The petitioners have been visited with civil consequences. Their pay stood reduced, vide office orders dated 5.1.1995 and 19.11.1994. 7. Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake." 8. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 9. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. 9. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors.,vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 10. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 11. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” 12. Accordingly, in view of the observations made hereinabove, the petition is allowed. The office orders dated 5.1.1995 (Annexure-I) and 19.11.1994 (Annexure-II) are quashed and set aside. The petitioners are - 7 held entitled to the pay scale of Rs.1200-2140 w.e.f. 1.1.1986 on the basis of letter dated 29.6.1991. No costs.