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2010 DIGILAW 522 (GAU)

Ranjit chowhan v. State of Tripura

2010-08-02

C.R.SARMA, MADAN B.LOKUR

body2010
JUDGMENT Madan B. Lokur, J. 1. The Appellant is aggrieved by the order dated 20.5.2004 passed by a learned Single Judge in WP(C) No. 65 of 2004. 2. The Appellant was appointed as a Night Guard on 20.3.1990 on a fixed salary of Rs.442.50 per month. 3. Subsequently, it appears that an order was issued by the State Government on 1.10.1992 placing certain categories of fixed pay employees on a regular scale of pay. The employees placed on a regular scale of pay were Class IV/Helper - Cook/Water Carrier on a fixed pay of Rs.500 per month and they were given the regular scale of pay of Rs.775-15-790-16-950-20-1130. 4. The Appellant who was a Night Guard on a fixed salary of Rs.442.50 per month clearly did not fall within the categories mentioned in the order dated 1.10.1992. Nevertheless, through some error the Respondent s granted him the regular scale of pay. This situation continued till some time in 2004 when the State Government realized its mistake and passed a rectification order on 5.2.2004 to the effect that the salary of the Appellant in the regular scale of pay be stopped from the month of February 2004 and the over payment made in the regular scale of pay w.e.f. 1.10.1992 up to date be recovered from him in installments. 5. Feeling aggrieved, the Appellant preferred a writ petition challenging the order dated 5.2.2004. The writ petition which came to be disposed of by the judgment and order under appeal. 6. It was held by the learned Single Judge that the Appellant had no right to the regular scale of pay. However, the learned Single Judge also held that insofar as over payment is concerned, the Appellant should return only 50% of the amount in installments and the balance 50% may be recovered from the employees of the State Government who had made the over payment to the Appellant. 7. Learned Counsel for the Appellant has raised two contentions before us. It is firstly contended that since the Appellant was given the regular scale of pay for almost 12 years, he should not be deprived of that regular scale, particularly since no fault can be attributed to him. The error, if any, was committed by the State Government. In support of his contention, learned Counsel for the Appellant has relied upon Roshni Devi and Ors. v. State of Haryana and Ors. The error, if any, was committed by the State Government. In support of his contention, learned Counsel for the Appellant has relied upon Roshni Devi and Ors. v. State of Haryana and Ors. AIR 1998 SC 3268 . 8. The second contention of learned Counsel for the Appellant is that it would be unjust and inequitable to now require the Appellant to return even 50% of the over payment when he had done nothing wrong and also because he had already utilized the amount over the course of time. 9. Insofar as the first contention of learned Counsel for the Appellant is concerned, we are unable to accept it. No doubt a mistake was committed by the State Government in placing the Appellant in a regular scale of pay. This was clearly not postulated by the order dated 1.10.1992. Merely because an error has been committed by the State, it does not mean that the error should be perpetuated. The error having come to the notice of the State Government, it is entitled to correct it. 10. The decision cited by learned Counsel for the Appellant is clearly distinguishable on facts. In that case, some persons were selected beyond the requisitioned number of posts. Those selectees continued to hold the posts for as long as nine years. The High Court took the view that since the selection was not in accordance with law, the selectees ought to be discharged from service. The Supreme Court did not agree with the High Court and held that since the selectees had worked for as long as nine years, without any fault on their part, they should be allowed to continue and so a direction was given in this regard. If the Supreme Court had not given direction that it did, the selectees would have been out of a job. In the present case, such a situation does not arise. The Appellant has been and still is continuing in service. The only question is what salary he should get. 11. There is a world of difference between removing a person from his job because of an error committed by the authorities and over payment made to an employee because of an error having been committed by the State Government. The two circumstances cannot be compared with each other. The only question is what salary he should get. 11. There is a world of difference between removing a person from his job because of an error committed by the authorities and over payment made to an employee because of an error having been committed by the State Government. The two circumstances cannot be compared with each other. That apart, merely because of error has been committed by the State Government, it should be perpetuated if it does not lead to any injustice. It is well settled that the State Government is entitled to correct an error. In this case, there is nothing on record to show that any order was passed in favour of the Appellant granting him a regular scale of pay. When the State Government realized that it had made a mistake in giving to the Appellant a regular scale of pay, it corrected the mistake, which it was entitled to do. We do not find any error in the decision taken by the learned Single Judge in this regard. 12. Insofar as the second contention of learned Counsel is concerned, we do find some substance in it. We agree that it would be highly inequitable at this late stage to direct the Appellant to return the amount overpaid to him by the State Government. The State Government gave a regular scale of pay to the Appellant for as many as 12 years and when the error was detected directed him to refund the over payment-There is no doubt that the Appellant would have already spent that amount in his day-to-day requirement. To now require the Appellant to refund 50% of the over payment would be a huge financial burden on him. To this extent, the direction given by the learned Singe Judge should be set aside considering the fact that the Appellant has been working as Night Guard on fixed scale of pay, which is not particularly high. 13. Under the circumstances, we accept the second contention of learned Counsel for the Appellant and set aside the impugned judgment and" order to the extent that it requires him to return the balance 50% of the amount overpaid to him. 14. Learned Counsel for the Appellant finally submits that there are regular posts available. If so advised, the Appellant may make an application for regularization, which may be considered by the State Government on its own merits. 14. Learned Counsel for the Appellant finally submits that there are regular posts available. If so advised, the Appellant may make an application for regularization, which may be considered by the State Government on its own merits. 15. The writ appeal is disposed of in the above terms. No costs.