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2015 DIGILAW 267 (ALL)

STATE OF U. P. v. RAM ADHAR SINGH

2015-02-11

D.Y.CHANDRACHUD, SUNEET KUMAR

body2015
JUDGMENT By the Court.—The learned Single Judge has allowed the writ petition filed by the respondent, who retired on 30 June 2012 after thirty five years of service as Ziledar, challenging a recovery which was sought to be effected from his retiral benefits on the ground that he had been granted the benefit of an Assured Career Promotion (ACP) scheme contrary to law. The learned Single Judge has set aside the action on two counts: firstly, on merits by holding that the grant of ACP benefits originally was not contrary to law and hence, the action for recovery was not warranted; and secondly, on the principle that irrespective of the merits, it was not open to the State to effect recovery since there was no allegation or finding of fraud or misrepresentation against the employee. Since the State is in appeal against the judgment and order of the learned Single Judge, for convenience of reference, we will refer to the parties by their description in the writ petition. 2. The petitioner was initially appointed as a Seenchpal in the Irrigation Department on 28 August 1977 and was promoted as Seench Paryavekshak on 1 September 1985. On 2 September 1995, he was granted the first increment. After fourteen years of service, the petitioner was sanctioned the first promotional pay-scale of Rs. 430-700 on 2 September 1999. On 7 March 2003, he was promoted as Ziledar in the pay-scale of Rs. 430-700 (which admittedly was the same pay-scale which was allowed to him following the grant of the first promotional pay-scale on the completion of fourteen years of service). On 4 May 2010, a new Government Order was issued by the State Government which was effective from 1 December 2008 under which, the benefit of three financial progressions was permissible on the completion of ten, eighteen and twenty six years of service respectively (the eighteen years’ requirement was subsequently reduced to sixteen years but that is not material for the purposes of the present controversy). The petitioner retired on 30 June 2012. During his tenure, he was granted the third promotional pay-scale on 1 December 2008 in accordance with the ACP scheme. The petitioner retired on 30 June 2012. During his tenure, he was granted the third promotional pay-scale on 1 December 2008 in accordance with the ACP scheme. When the papers pertaining to the petitioner were forwarded to the Department for sanctioning his pension, the Additional Director (Treasuries and Pension), Vindhyachal Division, Mirzapur was of the view that since the promotion to the post of Ziledar had taken place on 7 March 2003, treating that post to be of direct recruitment, the first promotional pay-scale could be granted to the petitioner on 7 March 2013 after he completed ten years of service. A direction was subsequently issued to re-determine the pay and if necessary, to effect recoveries. In pursuance of the said order, the Executive Engineer, re-determined the salary of the petitioner by omitting the benefit of the third promotional pay-scale. 3. Eventually, on 11 December 2012, the Additional Director passed a consequential order for the recovery of Rs. 3,59,974/- on the ground that the petitioner had been paid in excess. That led to the writ petition. The learned Single Judge held that under the ACP scheme, three financial progressions were available against a post of direct recruitment on the completion of ten, eighteen and twenty six years of satisfactory service. The learned Single Judge held that the first promotional pay-scale was made available to the petitioner as a Seench Paryavekshak. The State, by treating his promotion to the post of Ziledar as the first substantive appointment, had ignored his services of merely twenty six years. In the view of the learned Single Judge, the appointment of the petitioner on 28 August 1977 would constitute the beginning of his service and he was granted two promotions. Hence, the petitioner was correctly granted the benefit of the ACP scheme with effect from 1 December 2008, when the scheme was introduced, by granting him the third financial progression. Since the petitioner had completed twenty six years of service at an earlier point of time, in terms of the ACP scheme, he was entitled to the third financial progression with effect from 1 December 2008. The learned Single Judge has held that in any event, no case was made out for effecting recoveries after the petitioner had superannuated from service particularly, when no allegation of fraud or misrepresentation was levelled against the petitioner. 4. The learned Single Judge has held that in any event, no case was made out for effecting recoveries after the petitioner had superannuated from service particularly, when no allegation of fraud or misrepresentation was levelled against the petitioner. 4. In assailing the judgment and order of the learned Single Judge, the learned Standing Counsel has based his submission on the terms of the ACP scheme as contained in the Government Order dated 4 May 2010. Clause 2 (i) (B) of the ACP scheme, which has been relied on by the learned Standing Counsel, contemplates the grant of benefits after the completion of ten, eighteen and twenty six years respectively. It was urged that clause 3 of the ACP scheme has been ignored. 5. Clause 2 of the ACP scheme contemplates that following the first regular appointment against a post of direct recruitment, three financial progressions are contemplated on the completion of continuous satisfactory service of ten, eighteen and twenty six years. Clause 2 (i) (B) of the ACP scheme further provides that a person who has already been granted two promotions/financial progressions would be entitled to the third financial progression after completing eight years of service from the second financial progression or a total service of twenty six years, whichever is earlier. This requirement, in the view of the learned Single Judge, was duly met. This requirement, in the view of the learned Single Judge, was duly met. Clause 3 of the ACP scheme, as set out in the Government Order dated 4 May 2010, provides as follows: “3& iqujhf{kr osru lajpuk esa lqfuf'pr dSfj;j izksUu;u ¼,0lh0ih0½ ykxw fd;s tkus dh frfFk fnukad 01 fnlEcj] 2008 dks ;fn dksbZ deZpkjh /kkfjr in ds lk/kkj.k osrueku esa gS vkSj mls lEcfU/kr in ij le;eku osrueku dh iwoZ O;oLFkk ds vUrZxr dksbZ ykHk vuqeU; ugh gqvk gks] rks ,0lh0ih0 dh ubZ O;oLFkk esa ykHk vuqeU; fd;s tkus gsrq vgZdkjh lsok vofèk dh x.kuk lEcfU/kr deZpkjh ds mDr /kkfjr in ds lUnHkZ esa dh tk;sxh vkSj ,0lh0ih0 ds vUrZxr ns; lHkh ykHk mDr vk/kkj in ns; gksaxsA ,sls deZpkjh tks fnukad 01 fnlEcj] 2008 dks le;eku osrueku dh iwoZ O;oLFkk ds vUrZxr dksbZ le;eku osrueku@ykHk oS;fDrd :i ls izkIr dj jgs gSa rks ,sls deZpkfj;ksa dks ,0lh0ih0 dh ubZ O;oLFkk ds vUrZxr ns; ykHk fnukad 01 fnlEcj] 2008 vFkok mlds mijkUr fuEukuqlkj vuqeU; gksaxsA ¼1½ le;eku osrueku dh iwoZ O;oLFkk ds vUrZxr 08 o”kZ rFkk 19 o"kZ ds vk/kkj ij vuqeU; vfrfjDr osruo`f) dks ,0lh0ih0 ds vUrZxr ns; fofRr; LrjksUu;u dh vuqeU;rk gsrq laKku esa ugh fy;k tk;sxkA fdlh in ij uku QaD'kuy osrueku feyus ij ,0lh0ih0 dh lsok vof/k dh x.kuk gsrq iwoZ vkns'kksa ds vuqlkj uku QaD'kuy osrueku bXuksj fd;k tk;sxkA ,0lh0ih0 ds vUrZxr vxys ykHk ds :i esa uku QaD'kuy osrueku ds lkn`’; xzsM osru ls vxyk xzsM osru ns; gkssxkA ¼2½ ftUgsa 14 o"kZ dh lsok ds vk/kkj ij izFke izksUurh;@vxyk osrueku vuqeU; gks pqdk gks] mUgsa mi;qZDr ykHk vuqeU; gksus dh frfFk ls U;wure 04 o"kZ dh lsok lfgr dqy 18 o"kZ dh lsok iw.kZ djus dh frfFk vFkok fnukad 01 fnlEcj] 2008] tks Hkh ckn esa gks] ls f}rh; foRrh; LrjksUu;u vuqeU; gksxkA mDr frfFk dks lEcfU/kr dkfeZd dks iwoZ ls vuqeU; izFke izksUurh;@vxys osrueku ds lkn`’; xzsM osru ls vxyk xzsM osru ns; gksxkA ¼3½ ftUgsa 24 o"kZ dh lsok ds mijkUr f}rh; izksUurh;@vxyk osrueku vuqeU; gks pqdk gks] mUgsa mDr ykHk vuqeU; gksus dh frfFk ls U;wure~ 02 o"kZ dh lsok lfgr 26 o"kZ dh lsok iw.kZ djus dh frfFk vFkok fnukad 01 fnlEcj] 2008] tks Hkh ckn esa gks] ls r`rh; foRrh; LrjksUu;u vuqeU; gksxkA mDr frfFk dks lEcfU/kr dkfeZd dks iwoZ ls vuqeU; f}rh; izksUurh;@vxys osrueku ds lkn`’; xzsM osru ls vxyk xzsM osru ns; gksxkA ijUrq] fnukad 01 fnlEcj] 2008 ds iwoZ izkIr inksUufr vFkok le;eku osrueku dh iwoZ O;oLFkk ds vUrZxr vuqeU; izksUurh; osrueku@vxys osrueku ds lkn`’; xzsM osru] iqujhf{kr osru lajpuk esa osruekuksa ds lafofy;u@inksa ds mPphdj.k ds QyLo:i lEcfU/kr in ds lk/kkj.k xzsM osru ds leku gks tkus dh fLFkfr esa ,slh inksUufr vFkok izksUurh; osrueku@vxys osrueku dks ,0lh0ih0 dh O;oLFkk dk YkkHk ysrs le; laKku esa ugha fy;k tk;ssxkA^^ 6. The first paragraph of clause 3 provides, insofar as is material, that if an employee as on 1 December 2008 holds a post and is in receipt of the ordinary pay-scale and if he has not received the benefit of a time scale of pay till date, the employee would be entitled to the benefit of the new scheme for which, the period of qualifying service would be computed on the basis of the post which he is holding and all the benefits of the scheme would then be made available. Learned Standing Counsel has relied on this part of the provision contained in clause 3. What his submission has, however, ignored is the second part of paragraph 3. The second sub-paragraph of paragraph 3 deals with those employees who had as on 1 December 2008 received the benefit of the time scale of pay under the earlier regime. Their cases are governed by the clauses which follow, which define the benefits to which such employees would be entitled on and after 1 December 2008. Clause 2 provides that those employees who have received the first promotional pay-scale after fourteen years of service would be eligible for a financial progression after the completion of four years of service since receipt of the first benefit upon the completion of eighteen years of service or with effect from 1 December 2008, whichever is later. That would constitute the second financial progression. Clause 3 deals with those employees who have received the second financial progression on the completion of twenty four years of service already in whose case, it has been provided that they would be entitled to the third financial progression after lapse of a period of two years from the second progression subject to the completion of twenty six years of service or on 1 December 2008, whichever is later. In other words, the second paragraph of paragraph 3 deals with the cases of those employees who had already been given the benefit of ACP under the earlier regime. The first sub-paragraph of paragraph 3 applies to that class of employees to whom no benefit of financial progression had been granted at all, and who are receiving the ordinary pay-scale in the post which they are holding. The first sub-paragraph of paragraph 3 applies to that class of employees to whom no benefit of financial progression had been granted at all, and who are receiving the ordinary pay-scale in the post which they are holding. The first sub-paragraph of paragraph 3 has no application to the case of the petitioner, but the petitioner would be governed by the second sub-paragraph. The fallacy of the State lies in ignoring the second sub-paragraph of paragraph 3. 7. Evidently, it was within the notice of the State that there were employees who had received the benefit of ACP under the earlier scheme or regime which operated prior to 4 May 2010. Provision was specifically made for such employees so as to allow them, inter alia, the second and the third financial progressions subject to the fulfilment of conditions set out in paragraphs 2 and 3 as noted above. 8. ars of service as Seench Prayavekshak and the first promotional pay-scale on 2 September 1999 after which, he was promoted as Ziledar on 7 March 2003 albeit in the same pay-scale. The petitioner completed twenty six years of service, including two years after the grant of the second financial progression prior to 1 December 2008, but he was entitled, in terms of the Government Order, to the third financial progression with effect from 1 December 2008. This was exactly what was granted to the petitioner and it was in accordance with the terms of the Government Order. Hence, the order passed by the Additional Director (Treasuries and Pension) was manifestly misconceived and was justifiably quashed and set aside by the learned Single Judge. 9. We are also in agreement with the view of the learned Single Judge on the second aspect which is governed by a recent judgment of the Supreme Court delivered on 18 December 2014 in State of Punjab v. Rafiq Masih, 2015(1) ESC 33 (SC). The Supreme Court, while holding that it would not be possible to make an exhaustive enumeration governing all those cases of recoveries where payments have been made mistakenly by an employer in excess of the entitlement, referred to a few situations where recoveries by the employer would be impermissible in law. The Supreme Court, while holding that it would not be possible to make an exhaustive enumeration governing all those cases of recoveries where payments have been made mistakenly by an employer in excess of the entitlement, referred to a few situations where recoveries by the employer would be impermissible in law. The observations of the Supreme Court are thus: “It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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.” 10. The case of the petitioner, who is a retired employee, is governed by the principles of law which have been formulated by the Supreme Court above. Hence, even if the payment has been made mistakenly to the petitioner, no case for recovery had been made out. However, for the sake of clarity, we may reiterate that we are in agreement with the finding of the learned Single Judge that the original payment was correctly made to the petitioner and hence, the recovery, in any event, would be contrary to law. However, for the sake of clarity, we may reiterate that we are in agreement with the finding of the learned Single Judge that the original payment was correctly made to the petitioner and hence, the recovery, in any event, would be contrary to law. If the retiral dues of the petitioner have not been released thus far, they shall be released in terms of the present judgment no later than within a period of one month of the receipt of a certified copy of this order. 11. For these reasons, we find no merit in the special appeal. The special appeal is dismissed. There shall be no order as to costs. ——————