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2010 DIGILAW 650 (MP)

State of M. P. v. Trilok Chand Gupta

2010-07-05

K.K.LAHOTI, S.R.ALAM

body2010
ORDER S.R. Alam, C.J. -- 1. This intra Court appeal is filed against the order dated 23.4.2009 passed in W.P. No. 1515 of 2008 (S) by Single Bench of this Court. 2. It appears that the petitioner/respondent was appointed as an Assistant Teacher on 6.4.1972, however, after completion of 12 years of service, he was granted higher pay scale of Rs. 1400-2640 (revised in the 5th Pay Commission as Rs. 5,000-8000) vide order dated 24.7.1991. Thereafter, on 31.12.2002 he was given promotion to the post of Upper Division Teacher and was posted at Higher Secondary School, Anjangaon. He, however, made a request for change of his posting on the ground of personal difficulty from Higher Secondary School, Anjangaon to Govt. High School Selda, or Govt. Girls Middle School, Selda, or Govt. Boys Higher Secondary School, Bamnala and did not join the place of posting. Consequently, his promotion was cancelled with a further ride-that he shall not be considered for promotion for a period of one year vide order dated 14.6.2003 (Annex. P/2). Thereafter, he was promoted as Upper Division Teacher vide order dated 27.2.2004 and was posted in Middle School, Banjhar wherefrom he retired from service on 31.8.2007. 3. It further appears that subsequently grant of higher pay to the petitioner/ respondent was cancelled. Consequently, his salary was reduced from Rs.6800 to Rs.700. Accordingly, recovery order was issued. The aggrieved petitioner filed the writ petition on the ground inter alia that similarly situated Upper Division Teacher Smt. Sandhaya Lele and Smt. Rajkishori Sen were allowed to draw the same pay in the higher pay scale of Rs. 5000-8000 and, therefore, the same benefit ought to have been given to him as he never refused to accept the promotion, but simply made a request to change of his place of posting, yet the appellants instead of changing the same, cancelled it and debarred from the promotion for one year. It has also been alleged that after his retirement his pension has wrongly been fixed on the lower pay scale i.e. Rs. 4000-6000 in place of Rs. 5000-8000. Consequently, a sum of Rs. 1,43,296/- have illegally been recovered from his retrial benefits. 4. It has also been alleged that after his retirement his pension has wrongly been fixed on the lower pay scale i.e. Rs. 4000-6000 in place of Rs. 5000-8000. Consequently, a sum of Rs. 1,43,296/- have illegally been recovered from his retrial benefits. 4. Learned Single, Judge having found that the petitioner was granted the benefit of 'Kramonnati' in the year 1991, his refusal to accept the promotion in the year 2002, could not entitle the department to withdraw the benefit earlier granted to the petitioner, and further having been noticed that the controversy being covered by the Order 7.1.2009 passed in Writ Petition No. 779412006 (S) Smt. Sheela Netram v. State of M.P. and others allowed the writ petition, quashed the reduction of pay scale of the petitioner and also recovery of Rs.1,43,296/-, and directed that the petitioner is entitled for fixation of pensionary benefits, on the basis of pay, which was being originally paid to him at the time of his superannuation, i.e. before reduction of the same. 5. Learned Dy. Government Advocate sought to argue that since the petitioner/ respondent declined to join the promotional post, he was not entitled to get the higher pay scale and, therefore, payment of excess salary has rightly been recovered. 6. We do not find any force in the submission for the reason that admittedly, the petitioner/respondent was given the higher pay scale vide' Kramonnati' in the year 1991, whereas the said order of promotion which he declined was passed in the year 2002 and, thus, the benefit already accrued and given to the petitioner/respondent could not have been withdrawn on the ground that he refused to join at the transferred place in the year 2002 much after the grant of benefit of higher pay scale, on completion of 12 years of service. Therefore, in our view, the refusal to join at the transferred place on promotion would not have any impact or effect so far the grant of benefits of higher pay scale is concerned which was given on completion of required years of service. Besides, by the order placing the petitioner/respondent in a lower pa~, sale obviously visited with civil consequences and, therefore, before passing the said order, an opportunity of hearing or show cause against the reduction of his salary ought to have been given. Besides, by the order placing the petitioner/respondent in a lower pa~, sale obviously visited with civil consequences and, therefore, before passing the said order, an opportunity of hearing or show cause against the reduction of his salary ought to have been given. Learned Government Advocate could not point out from record that such opportunity was affordable to the petitioner/respondent before taking recourse of recovery. Therefore, the order being in violation of principle of natural justice cannot sustain. 7. There is another aspect of the matter; it is not the case of the appellant that higher scale of pay was granted to the petitioner/respondent on misrepresentation, or fraud, or by suppression of facts, for which the petitioner/respondent is responsible. It is well settled legal position that if the pay has wrongly been fixed and higher salary has been given to the employee without there being any suppression or misleading, or misrepresentation, or fraud on the part of the employee, the same cannot be recovered. Reference may be made to the judgment in the case of Sahib Ram v. State of Haryana and others (1995) Suppl. (1) SCC 18, wherein the apex Court held that even if by mistake higher pay scale was given to the employee without there being misrepresentation or fraud, no recovery can be effected from the retrial dues in the monetary benefit available to the employee. Similar view was reiterated by the apex Court in Kailash Singh v. State of Bihar, (2005) 13 SCC 576 , where their Lordships observed that the employer State is not entitled to recover the salary paid in excess after superannuation of the employee. 8. In the case in hand, it has not been disputed that the petitioner/respondent was given higher scale i.e. 'Kramonnati' on completion of 12 years of service for which he was entitled under the circular and, therefore, in our view, the refusal to join at the transferred place on promotion would not have any impact to the benefits of higher pay scale given on completion of required years of service and the same cannot now be recovered after retirement from the retrial dues in view of the exposition of law made by the apex Court in Sahib Ram v. State of Haryana and others (supra). 9. We, therefore, do not find any merit in the appeal It is, accordingly, dismissed.