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2010 DIGILAW 75 (GAU)

Babu N. J. v. Union of India

2010-02-03

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. R.B. Yadav, learned Counsel for the petitioner. Also heard Ms. G. Deka, learned additional senior Government advocate for the respondent No. 3 and Mr. Muk Pertin, learned Counsel appearing on behalf of the respondent Nos. 4 and 5. None appears on behalf of the respondent Nos. 1 and 2. 2. The petitioner challenges an order passed by the Chairperson, Arunachal Pradesh State Social Welfare Board, Naharlagun ('the State Board') whereby he has been directed to deposit the excess payment received by him in respect of pay and allowances prior to 14.1.2002 due to up-gradation of pay scale of Accountant post in the State of Arunachal Pradesh from Rs. 4500-7000 to Rs. 5000-8000 p.m. w.e.f. 14.1.2002. There is a background in passing the said order. The material facts are to be stated for the purpose of adjudicating this matter as under: The petitioner is serving as Accountant in the State Board in the scale of pay of Rs. 425-700 p.m. which was revised to Rs. 1400-2600 p.m. due to adoption of State revision of pay with due concurrence from the Central Social Welfare Board, New Delhi ('Central Board') and approval by the Governor of the State of Arunachal Pradesh with effect from 1.1.1986. The State Government of Arunachal Pradesh further revised the scale of pay of its staff in 1997. The pay scale of Rs. 1400-2600 attached to the post of Accountant has been revised to Rs. 5000-8000. The State Board submitted proposal to the Central Board and sought for approval to adoption of State Government's revised pay scales for its staff. The Governor of Arunachal Pradesh accorded sanction to such adoption of revised pay scales as proposed by the State Board w.e.f. 1.1.1996 as per the recommendations of the 5th Pay commission. Accordingly, the petitioner's pay scale was fixed at Rs. 5000-8000 p.m. by the State Board and he was allowed to enjoy the same. Trouble started while the Secretary to the Social Welfare, Women and Child Development Department, Arunachal Pradesh issued a corrigendum dated 30.1.2001 providing that the scale of pay of Accountant be read as Rs, 4500-7000 only instead of Rs. 5000-8000 p.m. In compliance to Governor's order by way of said corrigendum, the State Board issued a formal order dated 2.3.2001 to that effect. 5000-8000 p.m. In compliance to Governor's order by way of said corrigendum, the State Board issued a formal order dated 2.3.2001 to that effect. The petitioner put up a challenge against the said order by filing WP(C) 75(AP)/2001 on the grounds, amongst other, that it was in violation of principle of natural justice inasmuch as no notice and opportunity of hearing was provided to him. This Court accepting the petitioner's submission set aside the said order and allowed the petition vide judgment and order dated 29.4.2005. This Court provided that it would be open for the authority to pass necessary orders giving reasonable opportunity of hearing to the petitioner, if so advised. 3. Pursuant to the court's order, the State Board issued notice on 3.9.2005 to the- petitioner to which he filed a reply. The State Board, after due consideration, decided to retain the pay scale of Rs. 5000-8000 p.m. and a formal order was passed by the Chairperson of the State Board on 9.2.2006. So far so good. But a fresh trouble started when an internal audit team from the Directorate of Audit and Accounts, during 25.2.2008 to 29.2.2008, visited and inspected the accounts of the State Board for the period from 1.4.2001 to 31.3.2007 and recorded an adverse note on the action of the State Board in seeking ex-post-facto approval from the State Government. This necessitated issuance of O.M. dated 11.10.2007 by the Chairperson of the State Board whereby all the orders including the operation' of the aforesaid order dated 9.2.2006 was kept in abeyance providing that the petitioner would be liable to refund the excess drawal of money right from the date of pay fixation in erroneous pay scale of Rs. 5000-8000 p.m. The said order was passed on the ground that the petitioner was placed in the scale of pay of Rs. 5000-8000 without concurrence of the State Government and the approval of the Central Board was irregular and beyond the jurisdiction of the State Board for which the State Board was asked to obtain ex-post-facto approval of the State Government to regularise the issue. The Central Board also vide letter dated 26.7.2008, requested the Secretary of the State Board to obtain the ex-post-facto approval from the State Government. 4. The petitioner had to file the second writ petition, viz.; WP(C) 428(AP)/2007 challenging the said order dated 11.10.2007. The Central Board also vide letter dated 26.7.2008, requested the Secretary of the State Board to obtain the ex-post-facto approval from the State Government. 4. The petitioner had to file the second writ petition, viz.; WP(C) 428(AP)/2007 challenging the said order dated 11.10.2007. This Court found that the petitioner's case with regard to his scale of pay was still under active consideration by the authorities concerned and therefore, vide order dated 4.9.2008 rejected the said writ petition as being pre-mature one. Thereafter the State Board Chairperson again addressed a letter dated 30.3.2009 to the Director, Department of Social Welfare, Women and Child Development to convey the approval for the pay scale of Rs. 5000-8000, which was currently being drawn by the petitioner. The approval as sought for was never accorded and instead, the Joint Director of Audit and Pension, Arunachal Pradesh. vide his letter dated 25.5.2009 directed the State Board chairperson to recover the excess payment, if any, drawn by the petitioner prior to 14.1.2002 in the pay scale of Rs. 5000-8000 and deposit the same to avoid any further complicacy. Pursuant to above letter, the State Board Chairperson issued the impugned formal order dated 15.6.2009 directing the petitioner to deposit the excess payment received by him prior to 14-1-2002. This is now under challenge. 5. Mr. Yadav, learned Counsel for the petitioner submits that the State Board submitted proposal to the Central Board for adoption of revision of pay as per recommendations of the State Pay Commission and the Central Board in fact, accorded approval to the said proposal. The Governor of Arunachal Pradesh, on receipt of such approval of the Central Board, accorded sanction for adoption of the revised scales of pay to the staff of State Board w.e.f. 1.1.1996. There was no irregularity in according the sanction by the Governor of the State. It is submitted by him that an administrative order issued by the Governor approving adoption of revised scales of pay cannot be superseded by an executive order issued by way of corrigendum. He further submits that even accepting the corrigendum was issued to correct any mistake or lapse on the part of the respondent authorities, no order can be passed for refund of the amount, which have been paid to the petitioner inasmuch as the petitioner was allowed to work in the revised scale of pay of Rs. He further submits that even accepting the corrigendum was issued to correct any mistake or lapse on the part of the respondent authorities, no order can be passed for refund of the amount, which have been paid to the petitioner inasmuch as the petitioner was allowed to work in the revised scale of pay of Rs. 5000-8000 and there is no fault on the part of the petitioner in receiving the said amount. According to him, if any excess amount is paid to an employee by mistake on the part of the authorities concerned, such amount cannot be recovered. He would rest his submissions on the decisions of the Apex Court rendered, in Shyam Babu Verma v. Union of India (1994) 2 SCC 521 and Sahib Ram v. State Haryana and Ors. 1995 (Supp.) 1 SCC 18. 6. Mr. Muk Pertin. learned Counsel appearing on behalf of the respondent Nos. 4 and 5, based on the statements made in their affidavit-in-opposition, submits that there was no concurrence and approval of the Central Board to the proposal sent by the State Board for adoption of pay scales as per revised pay scales of the State Government employees as recommended by the 5th Pay Commission. Before any concurrence/approval was accorded by the Central Board, the Governor of Arunachal Pradesh accorded sanction to adoption of the revised scales of pay to the staff of the State Board vide order dated 25.3.1999. This fact was detected subsequently, which necessitated issuance of corrigendum dated 30.1.2001 in respect of the pay scale of Accountant post held by the petitioner. In spite of that the petitioner has been enjoying salary in the scale of pay of Rs. 5000-8000 p.m. illegally and in an unauthorized manner for which the respondent authorities have directed the petitioner to refund the excess amounts received by him. The scale of pay of Rs. 4500-7000 was revised to Rs. 5000-8000 p.m. with effect from 14.1.2002 only. This has been admitted in para 13 of the show cause reply (Annexure-P/11 to the writ petition) submitted by the petitioner and as such, according to Mr. Pertin, the petitioner would be entitled to draw salary in the revised scale of pay of Rs. 5000-8000 p.m. with effect from 14.1.2002. 5000-8000 p.m. with effect from 14.1.2002 only. This has been admitted in para 13 of the show cause reply (Annexure-P/11 to the writ petition) submitted by the petitioner and as such, according to Mr. Pertin, the petitioner would be entitled to draw salary in the revised scale of pay of Rs. 5000-8000 p.m. with effect from 14.1.2002. Therefore, the impugned order was issued directing him to refund the excess amounts received by him prior to 14.1.2002 and no illegality or arbitrariness has been committed by the authorities concerned in issuing the said order calling for interference by this Court. 7. Ms. Deka, learned Additional Senior Government Advocate endorsing the submissions made by the learned Counsel for the respondent Nos. 4 and 5, submits that there was approval of the Central Board for adoption of State Government's revised pay scales in respect of the revision of pay scale of Accountant of the State Board from Rs. 425-700 p.m. to Rs. 1400-2600 p.m. but no such approval was obtained from the Central Board in respect of the revision of pay of the Accountant from Rs. 1400-2600 p.m. to Rs. 5000-8000 p.m. The approval of the Governor vide order dated 25.3.1999 was accorded without any prior approval of the Central Board. According to Ms. Deka, the Central Board failed to accord approval to fix the pay scale of the petitioner in the scale of pay of Rs. 5000-8000 p.m. and the State Board also failed to take necessary steps for obtaining the ex post facto sanction from the authorities concerned and under such circumstances, the State Government had to issue the corrigendum dated 30.1.2001. 8. I have carefully examined and considered the pleadings of the parties along with the materials placed by them. The petitioner was appointed as Accountant by the State Board in the scale of pay of Rs. 1400-2600 p.m. whereas the pay scale of Accountant in the Directorate of Cultural Affairs is Rs. 1400-2300 p.m. With the proposal in the 5th Pay Commission to revise the pay scale of Accountant at Rs. 5000-8000 p.m. the State Board sent a proposal to the Central Board for revision of pay scale of the Accountant at Rs. 5000-8000 p.m. Series of correspondences were made by the State Board but the Central Board, for some reasons, best known to them it only, did not accord concurrence/approval to the said proposal. 5000-8000 p.m. the State Board sent a proposal to the Central Board for revision of pay scale of the Accountant at Rs. 5000-8000 p.m. Series of correspondences were made by the State Board but the Central Board, for some reasons, best known to them it only, did not accord concurrence/approval to the said proposal. There was a lapse on the part of the Central Board in taking any decision in this regard or in sending the communication, if any decision was taken by it. What is apparent, rather admitted fact, is that the Governor of Arunachal Pradesh, without obtaining such concurrence/approval from the Central Board, accorded sanction for adoption of the revised pay scales to the staff of the State Board vide order dated 15.3.1999 including that of the Accountant showing the revised pay scale as Rs. 5000-8000 p.m. with effect from 1.1.1996. The petitioner has been enjoying the said pay scale till the corrigendum was issued on 30.1.2001 whereby his scale of pay has been reduced to Rs. 4500-7000 p.m. for want of approval from the Central Board. But what is surprising is that the pay scales of other staff of the State Board have not been altered or modified although the proposal was sent by the State Board for its entire staff and for them also, there was no concurrence/approval from the Central Board. It is found that while issuing the corrigendum, the State Government singled out the pay scale of the Accountant only. The action of the State respondents is clearly discriminatory in nature inasmuch as the other staff of the State Board, except the petitioner have been allowed to draw the revised pay scale without any sanction from the Central Board. 9. There may be some reasons behind this which is not found, in the records. I do not want to deal with this aspect in view of the submissions made by the learned Counsel for the petitioner that for the lapse or mistake of the respondent authorities, the petitioner should not be made to suffer and he is not liable to refund whatever excess amount he received in the pay scale of Rs. 5000-8000 p.m. w.e.f. 1.1.1996. I have gone though the decision of the Apex Court in Shyam Babu's case (supra). That was a case where the incumbents concerned were erroneously given higher pay scale since 1973 and it was reduced in 1984. 5000-8000 p.m. w.e.f. 1.1.1996. I have gone though the decision of the Apex Court in Shyam Babu's case (supra). That was a case where the incumbents concerned were erroneously given higher pay scale since 1973 and it was reduced in 1984. It was held in that case that since the petitioners received the higher pay scale due to no fault of their, it shall only be just and proper not to recover any excess amounts already paid to them and it was directed that no steps should be taken to recover or to adjust excess amounts paid to the petitioners due to the fault of the respondents, the petitioners being nowhere responsible for the same. In Sahib Ram (supra), the Principal of a College granted upgraded pay scale to the appellant due to wrong construction of relevant order of the authority concerned without any misrepresentation by the employees and in such circumstances, the Supreme Court restrained the authorities concerned from making recovery of the payment already made. 10. The ratio of above cited two cases may be applicable to cases with similar in facts and circumstances. There is no dispute on this law point. The said ratio is to be applied after considering the facts and circumstances of the present case. In the present case, it is an admitted position that the revised pay scale as per recommendations of the 5th Pay Commissions in the scale of pay of Rs. 5000-8000 p.m. was given to the petitioner with due sanction from the Governor of Arunachal Pradesh. The respondent-State subsequently realised its mistake that the sanction was accorded without prior concurrence/approval of the Central Board. The corrigendum was issued correcting its mistake only on 30.1.2001, the petitioner received salary in the scale of pay of Rs. 5000-8000 p.m. There was no fault on the part of the petitioner in receiving the salary in the said scale. It was the fault on the part of the respondent authorities and therefore, the law settled by the Supreme Court in the aforesaid two cases would be applicable for the period from 1.1.1996 to 30.1.2001, only. 11. In my considered view, if the said law is applied, the petitioner is not liable to refund whatever excess amount(s) he has drawn and the respondent authorities is not authorised under the law to claim refund of the excess amount(s) drawn by the petitioner during the aforesaid period. 11. In my considered view, if the said law is applied, the petitioner is not liable to refund whatever excess amount(s) he has drawn and the respondent authorities is not authorised under the law to claim refund of the excess amount(s) drawn by the petitioner during the aforesaid period. The period from 30.1.2001 comes under different footing inasmuch as the State respondents have rectified the mistake and necessary communications were made with the State Board to allow the petitioner's pay scale of Rs. 4500-7000 p.m. since the respondent-Board failed to act as per the corrigendum of the respondent-State and the internal audit party recorded objection in its report as stated earlier. 12. From the records, it is found that the respondent authorities ultimately revised the pay scale of the Accountant at Rs. 5000-8000 p.m. w.e.f. 14.1.2002. The petitioner, in his reply to show-cause notice (Annexure-P/11 to the writ petition) made a statement in para 13 admitting this fact. It is, thus, an admitted fact that the petitioner is entitled to enjoy salary in the scale of pay of Rs. 5000-8000 p.m. with effect from 14.1.2002 and any refund claimed by the respondent authorities for the period from 14.1.2002 would be sustainable. Dispute as regard the refund of excess amount(s) drawn by the petitioner would be only in respect of the period from 30.1.2001 to 31.1.2002. If the law in regard to refund of excess drawal of salary as settled by the Supreme Court is applied, one can find that there is no fault on the part of the respondents in respect of the period from 30.1.2001 to 13.1.2002 inasmuch as the earlier mistake committed by them has been rectified and the same has been made known to all concerned. The petitioner was admittedly receiving the excess amount(s) during the said period in the scale of pay of Rs. 5000-8000 p.m., which was not allowed to him and therefore, his submission that he is not liable to repay the said excess amount(s) applying the principle of aforesaid cases, cannot be accepted. Once it is admitted that he has received salary in the higher scale, which was not allowed to him, he can not escape from the liability of refund of the excess amount(s) he received during the aforesaid period from 30.1.2001 to 13.1.2002. 13. Once it is admitted that he has received salary in the higher scale, which was not allowed to him, he can not escape from the liability of refund of the excess amount(s) he received during the aforesaid period from 30.1.2001 to 13.1.2002. 13. The obvious result of the aforesaid discussion as has been made in the light of the decisions of the Apex Court, would be that the petitioner would not be liable to repay any amount received in the scale of pay of Rs. 5000-8000 p.m. from 14.1.2002 while he would be liable to refund the excess amount drawn by him for the period from 30.1.2001 to 13.1.2002. This impugned order dated 15.6.2009 is liable to be modified accordingly. The respondent authorities concerned shall pass a modified order directing the petitioner to refund the excess amount drawn by him during the period from 30.1.2001 to 13.1.2002 only. They would be at liberty to take lawful steps for recovery of the excess amount from the petitioner for the aforesaid period. 14. With the aforesaid observations and directions, this writ petition stands disposed of. 15. There shall be no order as to costs.