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Allahabad High Court · body

2010 DIGILAW 1169 (ALL)

RAMAWATI DEVI v. STATE OF U. P.

2010-04-09

K.N.PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—Heard Shri Yogesh Agrawal, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. 2. The affidavits have been exchanged. With the consent of the parties, the writ petition was finally heard. 3. The petitioner’s husband Late Dr. A.N. Singh was appointed as Medical Officer on 10.5.1977 on adhoc basis in the pay-scale of Rs.850-1020/-. By the order of the Chief Medical Officer, Ballia he was allowed the pay-scale of Rs.3000-4500/- w.e.f. 1.7.1986 and thereafter promotional pay-scale from Rs.3700-5000/- by order dated 10.5.1991. 4. He expired on 26.3.2003 on which the petitioner applied for payment of gratuity, family pension and other service dues. 5. The petitioner is receiving family pension. The payment of gratuity of Rs. 3,50,000/- was, however, withheld on the ground of wrong fixation of the pay of her husband in the year 1986 and thereafter in the year 1991. 6. By this writ petition the petitioner prayed for directions to the respondents to quash the order dated 15.12.2008 in so far as it directs that the excess amount paid to the petitioner’s husband late Dr. A.N. Singh to be deducted from the gratuity and to pay her entire amount with interest immediately or within reasonable time. 7. In the counter affidavit of Shri Rakesh Kumar Singh, Medical Officer Incharge, Primary Health Centre, Badagaon, Varanasi it is stated that the petitioner’s husband was appointed on ad hoc basis. By order dated 27.12.2003 (after his death) on 26.3.2003 the State Government regularised the services of 1051 Medical Officers appointed on adhoc basis prior to 30th June, 1998. It is admitted that the Chief Medical Officer, Ballia under the Government Orders dated 13.5.1993 had granted promotional pay-scale of Rs. 3000-4500/- to the petitioner w.e.f. 1.7.1986 and that in pursuance to the same Government Order he was given second promotional pay-scale of Rs.3700-5000/- w.e.f. 10.5.1991. The Director, Ayurvedic and Unani Services vide order dated 5.12.1997 clarified that the Chief Medical Officer had allowed these pay-scales at his own level, without following the relevant procedure laid down in the Government Orders. He further clarified that only those Medical Officers, who has completed 8 years continuous and regular service were entitled to the said pay-scale. In the present case the pay-scale was allowed to the petitioner at the time when he was in adhoc service and was not regularised. 8. He further clarified that only those Medical Officers, who has completed 8 years continuous and regular service were entitled to the said pay-scale. In the present case the pay-scale was allowed to the petitioner at the time when he was in adhoc service and was not regularised. 8. It is stated by learned Standing counsel that the Chief Medical Officer did not have authority and that in any case he has wrongly granted promotional pay-scale to the petitioner’s husband. The State Government was, therefore, justified in calculating the excess payment made to the petitioner’s husband to the tune of Rs.3,68,719/- from July 1986 to March 2003 and to deduct the same from the gratuity payable to her husband. 9. In Comptroller and Auditor General of India v. Farid Sattar, (2004) 4 SCC 13 ; Union of India v. Sujatha Vedachalam (Smt.) and another, 2000 SCC (L&S) 882 and Syed Abdul Qadir and others v. State of Bihar, (2009) 3 SCC 475 (paras 58 and 59) the Supreme Court held : “58. 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. 59. Undoubtedly, the excess amount that has been paid to the appellant 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. 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” 10. The principle evolved by the Supreme Court is an exception to unjust enrichment of the employee. It is applicable only to those cases, where the wrong fixation was not attributed to any act or representation on the part of the employee. 11. In the present case we find that there is no allegation that the petitioner’s husband had misrepresented or played fraud with the department. He was appointed on adhoc basis on 28.11.1977 and had joined as AS Medical Officer RHS. He was given first promotional pay-scale by the Chief Medical Officer, Ballia by order dated 13.5.1993 w.e.f. 1.7.1986 and the second promotional pay-scale w.e.f. 10.5.1991. The service book of the petitioner annexed to the counter affidavit as Annexure No. 2 shows that these entries were duly made by the Chief Medical Officer and that the petitioner had drawn the salary in the pay-scale allowed to him. The respondents did not take care to correct these orders during the life time of the petitioner’s husband. 12. In our view the petitioner’s husband cannot be faulted as there is nothing attributable to him for grant of promotional pay-scale. He was ultimately regularised. In the circumstances, the salary drawn by him in the promotional pay-scale cannot be withdrawn from him, and in any case from his wife after his death. 13. The writ petition is allowed. 12. In our view the petitioner’s husband cannot be faulted as there is nothing attributable to him for grant of promotional pay-scale. He was ultimately regularised. In the circumstances, the salary drawn by him in the promotional pay-scale cannot be withdrawn from him, and in any case from his wife after his death. 13. The writ petition is allowed. The respondents are directed to pay the entire gratuity amount, which has been deducted from the emoluments payable on the retiral benefits to the petitioner’s husband and to be received by her. The entire amount of gratuity shall be paid to her within a period of three months from the date a certified copy of this order is produced before him. ————