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Madhya Pradesh High Court · body

2013 DIGILAW 44 (MP)

Dinesh Kumar Mishra v. State of M. P.

2013-01-07

SANJAY YADAV

body2013
ORDER 1. I.A. No. 12615/2012, an application for issuance of orders and directions, is taken up for consideration. 2. Vide said interlocutory application the petitioner seeks final disposal of the petition with a direction to the respondents/State of Madhya Pradesh to constitute the Committee headed by Principal Secretary, General Administration Department for considering the inclusion of the post of Draftsman for grant of time-scale of pay of Rs. 12,000/--16,500/- with effect from 1.4.1996. 3. The petitioner, a Draftsman (Civil) in the Water Resources Department, Government of Madhya Pradesh, vide this petition seeks the following relief:- “(i) To call for the relevant record pertaining to grant of Time Scale pay to the petitioner in terms of State Government Orders as contained in Annexures P/4 and P/5 for perusal of the Hon’ble Court. (ii) To issue the appropriate writs, orders, directions in the nature of mandamus, commanding thereby the respondents to pay the petitioner Time Scale of pay of Rs. 12,000/-16,500/-, payable to him w.e.f. 1.4.1996, in terms of Finance Department Order dated 24.1.2008 (P/4). (iii) To issue the appropriate writs, orders, directions in the nature of mandamus commanding thereby the respondents to make the proper pay fixation of the petitioner in the time scale of pay as contained in State Government Circular’s dated 24.1.2008 (Annexure-P/4) and subsequently clarified in terms of order dated 1.4.2008 (P/5). (iv) Cost of the case may also be awarded to the petitioner. (v) Any other relief this Hon’ble Court as may deem just and proper in the facts and circumstances of the case be also made.” 4. The relief has been sought in the backdrop of order dated 30.7.2009 passed by the Executive Engineer on the basis of the objection raised by Joint Director (Treasury, Accounts and Pension), Bhopal, whereby the order dated 5.3.2009 by virtue whereof the petitioner was granted time scale of pay of Rs. 8,000-275-13,500 has been cancelled. 5. Apparent it is from the document on record that the time scale of pay was erroneously granted to the petitioner by order dated 23.8.2003 as the post of draftsman does not find mention in the circular dated 24.1.2008 whereupon the said benefit was extended. 8,000-275-13,500 has been cancelled. 5. Apparent it is from the document on record that the time scale of pay was erroneously granted to the petitioner by order dated 23.8.2003 as the post of draftsman does not find mention in the circular dated 24.1.2008 whereupon the said benefit was extended. This aspect has been duly highlighted by the respondents in the return wherein it is stated that the petitioner being a Draftsman and the said post having not been ear-marked for grant of time scale as per circular dated 24.1.2008 and appendix-2 appended therewith also the clarification issued on 1.4.2008 (Annexure-P/5) as such he has not been held entitled for grant of time-scale of pay of Rs. 8,000-275-13,500. 6. Faced with such a situation learned counsel for the petitioner placing reliance on clause 15 of the circular dated 24.1.2008 which stipulates that in case the employees whose post/designation is not mentioned in Appendix-2, the State Government to constitute a Committee headed by Principal Secretary, Department of General Administration, and after consideration of the matter of the said Committee according to the recommendations thereof the said further action for grant of said benefit shall be taken in such matters, has filed I.A. No. 12615/2012 seeking disposal of the petition with a direction to the respondents to initiate action in furtherance to stipulations contained in clause 15. Clause 15 of the circular dated 24.1.2008 stipulates:- ^^15- fofHkUu osruekuksa ds fy, ifjf’k”V&1 ds vuqlkj mPprj osrueku dk izko/kku fd;k tk,xkA bl ifji= ds ifjf’k”V&2 esa mfYyf[kr fofHkUu foHkkxksa ds fofHkUu laoxksZ dks izR;sd ds lkeus vafdr fd;s vuqlkj mPprj osruekuksa dh ik=rk blh ifji= ds vuqlkj gksxhA ifjf’k”V&2 esa ftu foHkkxksa@laoxksZa dk mYys[k ugha gS muds laca/k esa izpfyr ØeksUufr ;kstuk esa la’kks/ku@izkIr izLrkoksa@ekaxksa ij fopkj fd, tkus gsrq izeq[k lfpo lkekU; iz’kklu foHkkx dh v/;{krk esa xfBr lfefr dh vuq’kalk ds izdk’k esa fy, x, fUk.kZ; ds vuqlkj dk;Zokgh dh tk,xhA** 7. Admittedly, the post of Draftsman does not find mention in Appendix-2 appended with the circular dated 24.1.2008. That being so, clause 15 comes in operation in respect of such a post. The State Government is under an obligation to initiate action in pursuant thereto. The return filed by the respondents also admits the onus of the State Government to appoint a Committee as stipulated in clause 15. That being so, clause 15 comes in operation in respect of such a post. The State Government is under an obligation to initiate action in pursuant thereto. The return filed by the respondents also admits the onus of the State Government to appoint a Committee as stipulated in clause 15. It is stated in paragraph 2 of the return that “it is also submitted that at Clause 15 of the said Circular it has further been specified that in matter of those employees whose post/designation is not mentioned in the aforesaid schedule in their cases separate proposal shall be made to the Government, the same shall be considered by a duly appointed Committee headed by the Principal Secretary, Deptt. Of General Administration and after consideration of the matter by the said Administration and after consideration of the matter by the said Committee according to recommendations thereof further action for grant of said benefit shall be taken in such matters. 8. This Court has not been commended to any such material indicating therein that any action has been taken by the respondents/State to implement clause 15. Be that as it may, since the decision has already been taken to constitute a committee headed by Principal Secretary, General Administration Department to examine the matters of such employees whose post/designation is not mentioned in the appendix appended with the circular dated 24.1.2008, it is high time for respondents to act upon its own decision. 9. In view whereof the petition is disposed of with a direction to the respondents to act upon the stipulations contained in clause 15 of the Circular dated 24.1.2008 and take a decision within a period of three months from the date of communication of this order. 10. In respect of recovery which is contemplated in pursuance to the order dated 30.7.2009, since it is established that the petitioner is not entitled for time-scale pay of Rs. 8,000-275-13,500, the amount paid towards the said scale is liable to be recovered. 11. Recently, it has been held in Chandi Prasad Uniyal and others v. State of Uttarakhand and others: 2012(III) MPWN. 29 = (2012)8 SCC 417 that. “13. 8,000-275-13,500, the amount paid towards the said scale is liable to be recovered. 11. Recently, it has been held in Chandi Prasad Uniyal and others v. State of Uttarakhand and others: 2012(III) MPWN. 29 = (2012)8 SCC 417 that. “13. We are not convinced that the Court in various judgments referred by hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients has retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bonafide mistake. Possibly, effecting excess payment of public money by “Government officers may be due to various reasons like negligence, carelessness, collusion, favouritiesm, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situation law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” 12. In view whereof it will be within the authority of the respondents to effect the recovery of the payment made on the basis of erroneous grant of time scale of pay of Rs. 8,000-275-13,500 by order dated 5.3.2009, which has been cancelled by order dated 30.7.2009. 13. I.A. No. 12615/2012 as well as the petition is finally disposed of in above terms.