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2015 DIGILAW 1563 (RAJ)

Shiv Chandra Mathur v. State of Rajasthan

2015-08-21

ANUPINDER SINGH GREWAL

body2015
JUDGMENT 1. - The petitioner is challenging the orders dated 09.09.1999 and 10.09.1999 whereby his pay has been refixed in the lower pay scale and recovery of the salary paid in the higher pay scale is sought to be effected from him. 2. The petitioner was appointed as Senior Demonstrator in Sawai Man Singh College, Jaipur on 31.05.1976 after regular selection through the Rajasthan Public Service Commission. He was promoted as Assistant Professor on 28.10.1978 in terms of recommendation of the Departmental Promotion Committee. Subsequently he was promoted as Associate Professor (Reader) on the basis of merit prepared by the Departmental Promotion Committee vide order dated 07.12.1985. 3. The petitioner then applied for the post of Professor in Organization (Health) in pursuance to an advertisement issued by the Center for Management Studies, HCM Rajasthan State Institution of Public Administration, Jaipur on 18.09.1993 (Annx.4). The qualification which was stipulated in the advertisement for the post of Professor in Organization (Health) was Bachelor's degree in Medicine and Post-Graduate Degree or Diploma in the field of Public Health or equivalent qualification and 10 years' experience in the field of Health Administration and minimum 5 years' experience in the field of Management Training. 4. The petitioner was selected by the Selection Board and appointed on deputation to the post of Professor in Organization (Health) in the pay scale of Rs. 4500-150-5700 vide order dated 06.01.1994. The petitioner joined on the post of Professor in Organization (Health) on 11.05.1994. However, vide orders dated 09.09.1999 and 10.09.1999 the pay scale of the petitioner was reduced from Rs. 4500-5700, which was applicable to the post of Professor, to Rs. 3700- 5000 which is the pay scale of Associate Professor. These orders have been impugned in the instant writ petition.s 5. The learned counsel for the petitioner has contended that the petitioner had been duly selected on the post of Professor and the pay scale which had been stipulated in the appointment order could not have been reduced after a period of 5 years without any cogent reason. He has further submitted that the petitioner has superannuated on 30.11.2009 and he has been paid all the retiral benefits in the pay scale of Professor as operation of the impugned orders had been stayed by this Court on 22.11.1999, which subsequently stood confirmed by this Court on 24.01.2005. 6. He has further submitted that the petitioner has superannuated on 30.11.2009 and he has been paid all the retiral benefits in the pay scale of Professor as operation of the impugned orders had been stayed by this Court on 22.11.1999, which subsequently stood confirmed by this Court on 24.01.2005. 6. On the contrary, learned counsel for the State submits that as the petitioner had been erroneously granted the pay scale of the post of Professor, the competent authority was well within its right to effect recovery from the petitioner. 7. I have heard the learned counsel for the parties and with their assistance perused the record. 8. It is manifest from perusal of the appointment order Annx.5 dated 06.01.1994 that the petitioner was to be treated on deputation to the post of Professor in Organization (Health) in the pay scale of Rs. 4500-150- 5700. He had continued to draw the salary in this pay scale till the time the impugned orders were passed. It is not case of the respondents that the petitioner was not qualified to be appointed to the post of Professor. The only reason mentioned in the impugned orders for reducing the pay scale and effecting recovery is that the petitioner had earlier been working on the post of Associate Professor and hence, he could not draw salary of the post of Professor. 9. This reasoning appears to be fallacious on the face of it especially when the petitioner had been duly selected on the post of Professor in pursuance to the advertisement issued by the concerned Institution. After having paid him salary of the post of Professor in terms of the appointment order as well as the terms & conditions of petitioner's appointment, the respondents could not have turn around after a period of 5 years to contend that he should be given pay scale of the post of Associate Professor. 10. Further, case of the petitioner is also squarely covered by the judgment of Hon'ble Supreme Court of India in the case of State of Punjab & others v. Rafiq Masih (White Washer) and others - (2015) 4 SCC 334 . In this judgment, Hon'ble Supreme Court has resolved the apparent divergence of views expressed earlier regarding effecting recovery from the employees. In this judgment, Hon'ble Supreme Court has resolved the apparent divergence of views expressed earlier regarding effecting recovery from the employees. It has been held that the benefit of non-recovery can not be extended to the employee merely because he had not misrepresented or furnished factually incorrect information while obtaining said benefit. However, 5 exceptions have been carved out wherein recovery from the employee would be impermissible in law, which are reproduced herein below: "(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." 11. It is not in dispute that the petitioner had been paid salary of the post of Professor in the pay scale of Rs. 4500- 5700 from 11.05.1995 when he joined on the post till passing of the impugned orders dated 09.09.1999 and 10.09.1999. In other words he had drawn the salary in the pay scale of Professor for over 5 years. He has also retired from the service on 30.11.2009. There is also no dispute that he discharged the functions of the post of Professor during this period. Hence, case of the petitioner would squarely fall in at least exceptions (ii) and (iii). 12. Therefore, I have no hesitation to hold that the impugned orders wherein recovery is sought to be effected cannot be sustained. 13. In the result, the writ petition is allowed and the impugned orders dated 09.09.1999 (Annx.14) and 10.09.1999 (Annx.15) are set aside. No order as to costs.Writ Petition allowed. *******