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2012 DIGILAW 1906 (RAJ)

Kusum Bhatnagar v. State of Rajasthan

2012-09-07

SANGEET LODHA

body2012
JUDGMENT 1. - This writ petition is directed against order dated 15.03.2011 issued by the District Education Officer, Secondary Education, Bikaner, whereby the benefit of stepping up of petitioner's pay in terms of Rule 26A of the Rajasthan Service Rules (for short 'RSR') extended at the time of her promotion to the post of Head Mistress stands withdrawn. The petitioner has also assailed the validity of the order dated 21.03.2011, whereby re-fixation of the petitioner's salary has been made. 2. The petitioner entered the service of the respondents on being appointed as Teacher Gr. III on 19.09.1975. While in employment, she appeared for recruitment to the post of Teacher Gr. III. She was selected and appointed on the said post w.e.f. 23.09.1976. Vide order dated 23.11.2011, the petitioner was promoted to the post of Head Mistress on ad hoc basis till regularly selected candidates are made available the Rajasthan Public Service Commission. The petitioner was promoted on the post of Head Mistress on regular basis against the vacancies of year 2001-02 in pay scale of Rs. 7500- 12000. The petitioner was given the benefit of step up of her pay in terms of Rule 26A of RSR. The petitioner has retired from service on attaining the age of superannuation w.e.f. 28.02.2011. 3. It is submitted that at the time of preparing the (sic) case of the petitioner, certain objections were pointed out and (sic) thereto the benefit of step up of pay extended to the petitioner at the time of her promotion to the post of Head Mistress has been withdrawn vide order dated 15.03.2011 and the amount already paid is ordered to be recovered. Accordingly, re-fixation of the petitioner's salary has also been made vide order dated 21.03.2011. Hence, this petition. 4. Learned counsel for the petitioner submitted that benefit of step up of the pay was extended to the petitioner by the respondents on their own without any misrepresentation or fraud on the part of the petitioner. Learned counsel submitted that the excess payment alleged to have been made to the petitioner over the years was received by her innocently and the same stands spent away. Learned counsel submitted it is settled law that the amount over paid to the employees cannot be ordered to be recovered where the employees were not guilty of misrepresentation or fraud. Learned counsel submitted that the excess payment alleged to have been made to the petitioner over the years was received by her innocently and the same stands spent away. Learned counsel submitted it is settled law that the amount over paid to the employees cannot be ordered to be recovered where the employees were not guilty of misrepresentation or fraud. Learned counsel submitted that as a matter of fact controversy involved in the matter stands squarely covered by a decision of this Court in the matter of Madan Gopal Joshi v. State of Rajasthan, 2011 (3) CDR 1427 (Raj.). 5. On the other hand, learned counsel appearing for the respondents submitted that the benefit of step up of pay in terms of Rule 26A of RSR was against the order dated 18.08.1992 issued by the State Government, according to which, if an employee is promoted to higher post after grant of selection scale equal to pay scale admissible to the promotional post, then, he is not entitled for benefit of stepping up. Accordingly, it is submitted that the excess amount paid has rightly been ordered to be recovered and re-fixation has also been correctly made. Learned counsel submitted that the excess amount paid can always be recovered from the retrial benefits. 6. I have considered the rival submission and perused the material on record. 7. It is not disputed before this Court by the learned counsel appearing for the respondents that stepping up of pay was extended to the petitioner by the respondents, without any intervention on the part of the petitioner. There is no allegation of petitioner's being guilty of misrepresentation or fraud. 8. In Sahib Ram v. State of Haryana , the Hon'ble Supreme Court has 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 monetary benefits available to the employees. 9. The view taken as aforesaid in Sahib Ram's case and other earlier decisions, has been further followed by the Hon'ble Supreme in the matter of State of Bihar v. Pandey Jagdishwar Prasad., 2009 (3) SCC 117 10. 9. The view taken as aforesaid in Sahib Ram's case and other earlier decisions, has been further followed by the Hon'ble Supreme in the matter of State of Bihar v. Pandey Jagdishwar Prasad., 2009 (3) SCC 117 10. In Murlidhar Verma's case (supra), this Court while dealing with the matter with regard to recovery of over payment as a result of stepping up of pay being granted erroneously, relying upon the decision of Hon'ble Supreme Court in Pandey Jagdishwar Prasad's case (supra) observed as under: "9. It has been the consistent practice of the Courts and there are legions of judgment where under, the amount over paid to the employees where the employees were not guilty of any misrepresentation or fraud has been consistently protected by the Courts and the Courts have directed that the money innocently over paid to the employees is not to be recovered. In the case of State of Bihar & Ors. v. Pandey Jagdishwar Parsad, reported in, (2009) 3 SCC 117 , the Hon'ble Supreme Court has held that when higher pay is given to an employee without there being misrepresentation or fraud, no recovery from the retrial dues of the employees ought to be made. 10. In this case, contrary to the enunciation of the Hon'ble Supreme Court as above, a sum of Rs. 71692/- has been recovered from the gratuity payable to the petitioner without any just cause as there is no case that the petitioner was guilty either of misrepresentation or fraud. The over payment was innocently received by the petitioner in tiny amounts over years consequent to the step up of his pay. The petitioner obviously has utilised the aforesaid amount and was awaiting his retirement benefits to plan his life after superannuation. This Court in the circumstances of the case is of the view that in so far as the amount of Rs. 71692/- (which has been recovered from the gratuity payable to the petitioner) is concerned, the petitioner is entitled to succeed in this petition." 11. Thus, by now it is well settled that the monetary benefits actually paid to an employee on account of grant of higher pay scale, even if by mistake, without there being misrepresentation or fraud on the part of the employee cannot be recovered from retrial dues. Thus, by now it is well settled that the monetary benefits actually paid to an employee on account of grant of higher pay scale, even if by mistake, without there being misrepresentation or fraud on the part of the employee cannot be recovered from retrial dues. However, the re-fixation of pay for the purpose of computation of pension payable consequent to withdrawal of higher pay scale erroneously given cannot be faulted with. 12. In the result, the writ petition is partly allowed. The order impugned dated 15.03.2011, directing recovery of the excess amount already paid to the petitioner on account of stepping up being granted erroneously is quashed. The respondents are directed to refund the amount deducted from the retrial benefits payable to the petitioner on account of withdrawal of benefits of stepping up of pay, within a period of two months from the date of this order. If the amount is not paid to the petitioner within the stipulated period, the same shall carry interest at the rate of 12% per annum from the date of this order. However, the pension payable to the petitioner determined taking into account the withdrawal of stepping up of pay erroneously granted, shall not be affected by this order. No order as to costs.Writ petition partly allowed. *******