Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 871 (JHR)

Narinder Nath Aggarwal v. State of Jharkhand

2014-08-13

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the petitioner, State and R.I.M.S. 2. The petitioner has filed this writ petition seeking quashing of letter dated 3rd November, 2011, Annexure5 bearing no. 7753 issued by Director, Rajendra Institute of Medical Sciences(R.I.M.S.), Ranchi, whereunder he has been directed to refund a sum of Rs. 8,12,937.00, as it was drawn in excess by the petitioner in his capacity as Director, R.I.M.S when he was engaged on contractual basis under advertisement dated 30th October, 2005, Annexure1 and appointment letter issued thereunder, Annexure-2 dated 25th February, 2006. 3. I. A. No. 1824 of 2014 has been filed for challenging the certificate case no. 22 (Misc)/1314 initiated under the Bihar & Orissa (now Jharkhand) Recovery Act, 1914 for recovery of the amount of Rs. 8,12,937.00. The proposed amendment deserves to be allowed as by the instant certificate case the said amount is being sought to be recovered in consequence of the order of recovery challenged in the main writ application. Let it be treated as a part of the record. 4. Learned senior counsel for the petitioner has placed reliance upon the Advertisement at Annexure-1 to submit that there were no stipulations contained therein that the amount of pension which he was drawing as defence personnel, after superannuation from the Air Force was to be deducted from the total pay + allowances admissible on the said post of Director, R.I.M.S. pursuant to his appointment. It is submitted that the rules of the game cannot be changed after selection and appointment has been made. It is further submitted that these payments have been duly authorized by the authorities of the State. There are no overriding conditions under the appointment order to that effect. Further it has been argued that the mode of recovery through a certificate proceeding is unknown in a case of such alleged excess payment drawn in service under the Respondent State or its instrumentalities. He has relied upon the judgment rendered by learned Single Judge of the Patna High Court in the case of Uma Shankar Pathak Vs. The State of Bihar & Ors. reported in 2010 (3) PLJR 243 in support of the same. 5. He has relied upon the judgment rendered by learned Single Judge of the Patna High Court in the case of Uma Shankar Pathak Vs. The State of Bihar & Ors. reported in 2010 (3) PLJR 243 in support of the same. 5. Learned counsel for the Respondent R.I.M.S submits on the basis of the same Advertisement, Annexure-1 and the appointment letter, Annexure-2 to the writ petition that the said advertisement clearly stipulated at Clause-8 that all provisions of R.I.M.S. Act, 2002 / RIMS Rule, 2002 and Regulations shall be applicable and shall be followed. The same conditions were also incorporated in the appointment letter, Annexure-2 of the petitioner. The petitioner was Drawing and Disbursing Officer himself and he has drawn the total amount of salary without deducting the pension amount which he was getting as an Ex Air Force Personnel. The aforesaid act of the petitioner was noticed by the Additional Finance Commissioner, Government of Jharkhand and were found to be in clear contravention of Rules 157, 158 and 159 of the Jharkhand Pension Rules. Therefore, the impugned letter has been issued upon direction of the Respondent State for recovery of the aforesaid amount drawn in excess by the petitioner. The petitioner cannot claim unjust enrichment of any pay or allowances to which he was not legally entitled. Therefore, when the amount in question has been illegally drawn, the respondents have chosen to recover the same paid in excess through a known process of recovery i.e., through certificate proceeding . 6. Learned counsel for the Respondents State also submitted in support of the contention of the learned counsel for the RIMS that the statutory Rules governing the service condition of the employees of the State including those relating to salary, allowances etc. shall govern the service condition under which the petitioner was appointed in the RIMS as Director, in the absence of any Rules and Regulations framed in that regard by RIMS. It is submitted that RIMS has yet not framed Rules or Regulations to that effect, therefore, the Jharkhand Pension Rules applies to the same. The stipulation at Annexure-1 and Annexure-2, the advertisement and appointment letter would squarely mean application of the extent statutory Rules of the State Government to the case of the petitioner as well. It is submitted that RIMS has yet not framed Rules or Regulations to that effect, therefore, the Jharkhand Pension Rules applies to the same. The stipulation at Annexure-1 and Annexure-2, the advertisement and appointment letter would squarely mean application of the extent statutory Rules of the State Government to the case of the petitioner as well. Therefore, the amount paid in excess has been sought to be recovered in a procedure known to law which is not required to be interfered by this Court. 7. Having heard learned counsel for the parties and upon a considered analysis of the submission and the materials including the judgments relied upon by the parties, this Court is of the view that the terms and conditions under which the petitioner was appointed under the advertisement and the appointment letter clearly stipulated that drawing of salary and further allowances admissible to the post of Director, RIMS were as per the prevailing Rules and Regulations of RIMS. It is not disputed fact that on the aforesaid subject in absence of any Rules or Regulations framed by RIMS and in view of Rule 15 of the RIMS Rules, 2002, the Rules governing the service condition of the State Government employees also in respect of salary and other allowances would govern the case of the petitioner as well, who was appointed as Director in RIMS. Having observed that, the extant Rules which govern the case of the petitioner so far as the question of reemployment as a pensioner is concerned, are laid down under Chapter-VIII of the Jharkhand Pension Rules, relating to reemployment of the pensioners. Rules 157, 158 and 159 are quoted here-in-below for better appreciation. “Rules 157 : No Government servant, may retire with a view to being reemployed and drawing pension in addition to pay, in Government service. 158: When a person who was formerly in Government employee obtains reemployment, whether temporarily or permanently, in Government service it shall be incumbent on him to declare to the appointing authority the amount of any gratuity, bonus, or pension granted to him in respect of the previous employment. The authority reappointing him shall specifically state in the order of reappointment whether any deduction is to be made from pension or pay as required by the rules of this chapter and shall communicate a copy of the order to the Accountant General. The authority reappointing him shall specifically state in the order of reappointment whether any deduction is to be made from pension or pay as required by the rules of this chapter and shall communicate a copy of the order to the Accountant General. 159: The attention of every Government servant who is reemployed should be specially called to the provisions of this chapter by the authority reemploying him, and, whenever he becomes aware of such an appointment by the Accountant Genera, but the failure of such authority to do this will not be admitted as a ground for condoning any breach of the regulations contained in this chapter.” 8. From perusal of the aforesaid Rules, it is therefore evident that in case of reemployment of a pensioner, whether temporarily or permanently, in government service, it is incumbent upon such appointee to declare to the appointing authority the amount of any gratuity, bonus or pension granted to him in respect of the previous employment. The said Rules also stipulate that the amount of pension would be deducted from pay of the said appointee and it should be stated in the order of reappointment. Rule 159 however at the same time indicates that failure of such authority to do so will not be admitted as a ground for condoning any breach of regulations contained in this Chapter. The said pension drawn by such appointee are therefore to be deducted from the admissible pay or salary drawn on his reemployment. 9. In this context, learned senior counsel for the petitioner has drawn the attention of the Court to Section III relating to Military Pensioners under the same Chapter specifically Rules 169 and 170, to submit that the said general rules under Section 1 would not apply to the case of Military Pensioners. Relevant Rules 169 and 170 (a) & (b) are quoted hereunder: “Rules 169 : Except where it is otherwise expressly provided, the rules in section II of this chapter do not apply to a military officer, department officer, warrant or noncommissioned officer or soldier who is taken into or allowed to continue in civil employ after he has been granted a pension under military rules. The claims of such a Government servant to pay inthe civil department are governed by the rules in this section. His pension for service in the civil department will not be affected by his military pension. The claims of such a Government servant to pay inthe civil department are governed by the rules in this section. His pension for service in the civil department will not be affected by his military pension. 170(a): When a person who was formerly in military service obtain employment in the civil department after having been granted a military pension, he shall continue to draw his military pension, but the authority competent to fix the pay and allowances of the post in which he is reemployed shall have, in fixing his pay and allowances in the post in which he is reemployed, the power to take into account the amount of pension, including such portion of it as may have been commuted. (b) : A military officer, departmental officer, warrant or noncommissioned officer or soldier who is granted a pension under military rules while he is in civil employ, shall draw such pension while he is in civil employ but the authority competent to fix the pay and allowances of the post in civil employ may, with effect from the date from which the pension is granted, reduce such pay and allowances with reference to such officer or soldier by any amount not exceeding the amount of such pension. 10. Perusal of Rule 170(a) & (b) indicates that in the case of civil employment of military pensioner in the category of military officer, departmental officer, warrant or noncommissioned officer or soldier, the authority competent to fix the pay and allowances of the post in civil employment, has the power to reduce such pay and allowances with reference to such officer or soldier by any amount not exceeding the amount of such pension. 11. From perusal of the aforesaid provisions which apply to the case of military pensioner and in the background of the general provisions relating to reemployment of pensioners, it is clear that the case of present petitioner, who was engaged on contractual basis as Director in RIMS, would be subject to Rules and Regulations of the organization which in the instant case are governed by the Jharkhand Pensions Rules. The Advertisement and the appointment letter i.e., Annexure-1 & 2 provided for such a stipulation. The Advertisement and the appointment letter i.e., Annexure-1 & 2 provided for such a stipulation. The said Pension Rules, 170(a) & (b) provides that an amount of pension drawn by military officer like the petitioner on his civil reemployment was to be deducted from the salary and allowances which he would draw on his reemployment. Therefore, the petitioner could not have drawn the salary and allowances without deduction of the pension drawn by him as it would amount to unjust enrichment at the hands of the State Exchequer which cannot be countenanced in the eye of law. The argument that the rules of the game have been changed after his appointment does not merit acceptance. Therefore the challenge to the order for recovery of the amount drawn in excess by him has to fail. 12. However so far as mode of recovery of the amount is concerned, which is being done by way of certificate proceeding under the Act of 1914, the petitioner is justified in challenging the same on the strength of the principles laid down in the case of Uma Shankar Pathak (Supra) relied upon by him. Perusal of the said judgment indicates that recovery of illegally drawn salary by an employee of the State Government does not come in the category of public demand under any of the Clause of Schedule-1 of the Act, 1914 to recover the same through a certificate proceeding. Therefore, the manner of recovery of excess amount drawn by the petitioner cannot be supported by way of a certificate proceeding as it cannot be said to come in the category of public demand. Therefore, the certificate proceeding bearing Certificate Case No. 22 (Misc)/1314 initiated for realization of the said amount cannot be sustained. Accordingly, the same is quashed. 13. However, since the order for recovery is found to be perfectly legal and justified, the respondents authorities are at liberty to recover the said amount through a process of law and after compliance of the principle of natural justice. The writ petition is allowed in part to the extent indicated hereinabove.