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Jharkhand High Court · body

2015 DIGILAW 321 (JHR)

Celorina Dhan v. State of Jharkhand

2015-02-27

SUJIT NARAYAN PRASAD

body2015
Order Since common issues are involved in all these writ petitions, the same are being decided by this common order. 2) In these writ petitions the petitioners have prayed for quashing the office order as contained in Memo No. 1745 dated 12.8.2014, issued by the Director (Administration), Birsa Agriculture University, Kanke, Ranchi (Annexure-10), whereby the benefit of upgradation under Assured Career Progression (ACP) scheme grated in favour of the petitioners pursuance to the decision of the Board of Members in its 57th meeting held on 17.3.2005, has been recalled with a direction to recover the excess amount paid to the petitioners by way of lump sum or in monthly instalments. 3) Learned counsel for the petitioners submitted that the petitioners had been appointed as Class-III employees on daily rated basis vide office order dated 16.8.1982 and subsequently they had been regularized vide office order dated 24.12.2003. The Agriculture and Sugarcane Development Department, Government of Jharkhand vide its resolution as contained in Memo No. 2810 dated 23.9.2004, issued under the signature of the then Secretary, Department of Agriculture and Sugarcane, Government of Jharkhand, Ranchi had issued a resolution, whereby it was decided that non-teaching employees of the Birsa Agriculture University will get the benefit of pay revision as per the State Government employees. The State of Jharkhand had come with one resolution as contained in Memo No. 5207 dated 14.8.2002 for granting financial upgradation under ACP scheme w.e.f 9.8.1999 with certain conditions for the State Government employees. The Managing Committee of the Birsa Agriculture University in its 57th Board of Members meeting held on 17.3.2005 had implemented the provision of ACP scheme to be given to the non-teaching employees of the University. Accordingly, the Principal Secretary, Department of Agriculture and Sugarcane Development, Government of Jharkhand, Ranchi had issued a letter addressed to the Accountant General, Bihar for financial aid to the tune of Rs. 98 Lacs for payment towards financial upgradation under the ACP scheme. In terms of the Board of Members meeting held on 17.3.2005, the petitioners along with others had been given benefit of financial upgradation under ACP scheme vide office order No. 4476/Kanke dated 1.10.2005 and accordingly the same was started to be paid to the petitioners and other similarly situated employees of the University. In terms of the Board of Members meeting held on 17.3.2005, the petitioners along with others had been given benefit of financial upgradation under ACP scheme vide office order No. 4476/Kanke dated 1.10.2005 and accordingly the same was started to be paid to the petitioners and other similarly situated employees of the University. The grant of financial upgradation under ACP scheme had also been approved by the State Government, as would be evident from the resolution dated 30.4.2013 issued under the signature of the Joint Secretary, Agriculture and Sugarcane Development Department, Government of Jharkhand, Ranchi and accordingly the petitioners had got the benefit of upgradation under ACP scheme, but all of a sudden vide order dated 12.8.2014, issued by the Director (Administration), Birsa Agriculture University, Ranchi, whereby the benefit granted under the ACP scheme has been cancelled on the basis of the decision taken by the Principal Secretary, Department of Agriculture and Sugarcane Development, Government of Jharkhand, Ranchi dated 27.5.2014, which is under challenge. 4) Learned counsel for the petitioners has submitted that the order dated 12.8.2014 is not sustainable on the following grounds: The Birsa Agriculture University being an autonomous body was competent enough to grant the benefit of financial upgradation under ACP scheme and accordingly the Board in its meeting held on 17.3.2005 had granted the said benefit with the approval of the Secretary, Department of Agriculture and Sugarcane Development in the year 2005 and accordingly the petitioners had been started to be paid financial upgradation and after about nine years the said benefit has been recalled by the impugned order with a direction of recovery of the said benefit. The letter dated 27.5.2014, issued by the Principal Secretary, Department of Agriculture and Sugarcane Development, Government of Jharkhand, Ranchi is absolutely improper because the decision had been taken by the Birsa Agriculture University in its 57th Board of Members Meeting held on 17.3.2005 on the basis of the communication dated 23.9.2004, which was issued by the then Secretary, Agriculture and Sugarcane Development Department, Government of Jharkhand, Ranchi by which the non-teaching employees of the Birsa Agriculture University had been treated to be at par with the State Government employees for the purpose of granting benefit of revision in pay scale. Since the financial upgradation is also a part of revision in pay scale, on the basis of the said resolution dated 23.9.2004, the Birsa Agriculture University had taken decision in its Board of Members meeting held on 17.3.2005 and accordingly vide office order dated 1.10.2005, the financial upgradation had been granted to the petitioners and other similarly situated employees. Since the said benefit had been granted after approval of the Secretary to the Agriculture and Sugarcane Development Department, the subsequent letter dated 27.5.2014, issued by the Principal Secretary, Department of Agriculture and Sugarcane Development Development, is absolutely without any application of mind. The action of the respondents in recalling the benefit of upgradation under ACP scheme after about nine years cannot be said to be justifiable that too with the order of recovery. The order of recovery is per se illegal in view of the fact that there is no fraud or misrepresentation on the part of the petitioners, who are Class-III & IV employees and as such after making payment for a period of about nine years, the order of recovery is absolutely harsh decision that too some of the employees have retired from service in the meantime. 5) Learned counsel for the respondents-State contested the cases and submitted by referring to Section 25(ii) of the Jharkhand Agricultural Universities Act, 2000 that prior sanction of the State Government is necessary before granting any financial benefit to the employees of the University. Since no prior approval had been given by the Government of Jharkhand, the letter dated 27.5.2014 had been issued stating therein that the State will not bear any financial burden of the benefit which is being given to the non-teaching employees of the Birsa Agriculture University. It has been further submitted that in absence of any prior sanction by the State Government, the order by which the financial benefit had been given or is being given, cannot be said to be in accordance with law. It has been further submitted by referring to Clause 3(xviii) of the circular dated 14.8.2002, which speaks that the scheme of financial upgradation under ACP scheme will not be applicable with respect to the employees of autonomous Institutions/Universities/Colleges/Corporation/Board and other similar Institutions incorporated under the Indian Companies Act. It has been further submitted by referring to Clause 3(xviii) of the circular dated 14.8.2002, which speaks that the scheme of financial upgradation under ACP scheme will not be applicable with respect to the employees of autonomous Institutions/Universities/Colleges/Corporation/Board and other similar Institutions incorporated under the Indian Companies Act. If such institutions want to extend the benefit of financial upgradation, the Government will not interfere with the same, but no State Government assistance/grant will be provided for the said purpose. It has been submitted that although certain letter had been issued by the functionary of the Agriculture and Sugarcane Development Department, but that cannot be said to be a decision of the State Government because the State Government through its Cabinet had not taken such decision and cannot take such decision contrary to the condition given in Clause 3(xviii). 6) The stand of the Birsa Agriculture University is that although initially on misconception the benefit of financial upgradation had been given in anticipation of its approval by the State Government in terms of the provision as contained under Section 25(ii) of the Jharkhand Agricultural Universities Act, 2000, but when the Government has refused it, the same has been recalled by the impugned order. The Birsa Agriculture University has no its independent source of income and whatever source of income is there, that is very limited and is not sufficient to grant the benefit of financial upgradation to its non-teaching employees, but on initial occasion, on good faith it was given in anticipation of approval by the State Government, but when the Government had refused it, there was no option before the University, but to recall the decision by which the benefit of financial upgradation was given to the non-teaching employees of the University. It has been submitted that if anything had been done contrary to the law, the same cannot be perpetuated to be done. The moment the University had realized it and appraised that the State Government will not provide any fund for the said purpose, the impugned order has been passed. Thus, it has been submitted that anything done on misconception cannot confer any right upon the petitioner and other similarly situated employees. The moment the University had realized it and appraised that the State Government will not provide any fund for the said purpose, the impugned order has been passed. Thus, it has been submitted that anything done on misconception cannot confer any right upon the petitioner and other similarly situated employees. 7) Having heard the parties and perused the record, the following issues are to be adjudicated upon in these writ petitions: (i) Whether the petitioners and other similarly situated non-teaching employees of the Birsa Agriculture University are entitled to get the benefit of financial upgradation under ACP scheme or not ? (ii) Whether the excess amount paid contrary to the provision of the ACP scheme can be recovered or not? 8) The ACP scheme had been implemented by virtue of resolution as contained in Memo No. 5207 dated 14.8.2002 and in the very first paragraph of the said scheme, it has been stated that the Government employees are entitled to get the Central Pay Scale on the basis of the Central Services Terms and Conditions and accordingly the Fitment Committee, which was constituted by the Sate of Jharkhand, has accorded sanction for grant of the pay scale at par with the Central Government employees. Simultaneously the Fitment Committee has also recommended to extend the benefit of ACP scheme to the employees of the State Government. 9) From perusal of the first paragraph of the said scheme, it is apparent that the benefit under financial upgradation is altogether different from that of the revision in pay scale. 10) In the circular dated 14.8.2002, issued by the Government of Jharkhand, the employees of the State Government have been made entitled for getting the benefit of financial upgradation, subject to certain conditions as mentioned in Condition No.3. 11) Condition No. 3(xviii) is that the scheme of financial upgradation under ACP scheme will not be applicable with respect to the employees of autonomous Institutions/Universities/Colleges/Corporation/Board and other similar Institutions incorporated under the Indian Companies Act. If such institutions will provide the said benefit of upgradation in the pay scale, the Government will not interfere with the same, but the Government will not give any special assistance/grant on that head and Government will also not be accountable for the same. If such institutions will provide the said benefit of upgradation in the pay scale, the Government will not interfere with the same, but the Government will not give any special assistance/grant on that head and Government will also not be accountable for the same. Thus, this condition stipulates that the scheme of financial upgradation will not be applicable to the Universities, rather it is the discretion of the University to adopt the said circular for the purpose of extending the benefit of financial upgradation to its employees, but without any hope of any financial assistance from the State Government. 12) It is necessary to see Section 25 of the Jharkhand Agricultural University Act, 2000, wherein at Chapter-V, there is provision under Section 25, which speaks the service condition of teachers and staff related to appointment, selection and fixation of pay and allowances, which is being quoted herein below: “25. Appointment, selection and fixation of pay and allowances – (i) Subject to the provision of this Act, the procedure for appointment, promotion, selection, fixation of pay and allowances, and other service conditions of teachers and members of the staff of a University shall be as prescribed in the Statutes. (ii) Notwithstanding anything contained in the Act no University or any college or its institution shall create any teaching or non-teaching post involving financial liability, nor shall increase the pay and allowances of its staff without prior sanction of the State Government.” 13) Thus, it is evident that before taking any decision regarding financial liability or in case of pay and allowances of its staffs, the prior sanction of the State Government shall be mandatory. 14) From perusal of the record, it is evident that the Birsa Agriculture University in its 57th meeting of Boards of Members had taken a decision to extend the benefit of financial upgradation under ACP scheme (Annexure-6), wherein it has been stated that in view of the provision as laid down in the Finance Department, Government of Jharkhand, Resolution No. 5207 dated 14.8.2002, the Board of Management vide Agenda item No. 57/1135 dated 17.3.2005, has recommended for grant of financial upgradation on completion of 12 and/or 24 years of satisfactory services. 15) Thus, office order dated 1.10.2005 speaks that the said decision has been taken in view of the circular of the Finance Department as contained in Resolution No. 5207 dated 14.8.2002. 15) Thus, office order dated 1.10.2005 speaks that the said decision has been taken in view of the circular of the Finance Department as contained in Resolution No. 5207 dated 14.8.2002. 16) The Board of Management in its meeting dated 17.3.2005 had taken a decision on the basis of the resolution as contained in Resolution No. 2810 dated 23.9.2004, which strictly restricts with respect to revision in pay scale. From perusal of the resolution dated 14.8.2002, it would be evident that there is difference between the revision in pay scale and upgradation in pay scale by virtue of the benefit of ACP scheme, meaning thereby, there is two aspects of the matter in the resolution dated 14.8.2002, one is revision on the basis of the recommendation of 5th Pay Revision Committee and another is upgradation under ACP scheme on completion of 12/24 years of service in order to avoid stagnation in service in case of no regular promotion and in order to compensate the employees in case of stagnation. 17) Since the Board of Management meeting is based on the circular dated 23.9.2004 and perhaps that is the reason the Birsa Agriculture University had taken a decision to give the benefit of financial upgradation under ACP scheme to its non-teaching employees, which had been implemented w.e.f 1.10.2005. 18) Learned counsel for the petitioners submitted that the decision taken by the Birsa Agriculture University had been approved by the functionary of the Agriculture and Sugarcane Development Department and whatever had been given by way of financial upgradation, the same was within the knowledge of the Agriculture and Sugarcane Development Department and the functionary of the Finance Department, but they had kept mum for a long period of nine years and thereafter the impugned order has been passed. 19) So far as this contention of learned counsel for the petitioners is concerned, since the circular dated 14.8.2002 has been issued in the name of His Excellency, The Governor of Jharkhand i.e. after due approval by the Cabinet and is restricted only for the State Government employees, even if the decision of the Birsa Agriculture University is said to be correct at one stage of time, the same cannot be said to be the decision of the State Government in view of the specific provision as laid down in the Rules of Executive Business, 1979 framed under the provision of Article 166 of the Constitution of India for the purpose of conduct of business of the Government in a State, which speaks that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. 20) The role of Finance Department has been given under Rule 35, which speaks as follows: “35. The Finance Department shall be consulted before the issue of orders upon all proposals which affect the finances of the State in particular – (a) proposals to add any post or abolish any post from the public service or to vary the emoluments of any post. (b) proposals to sanction an allowance or special or personal pay for any post or class of posts or to any servant of the Government of the State; and, (c) proposals involving abandonment of revenue or involving an expenditure for which no provision has been made in the Appropriation Act.” 21) Further, it would be relevant to see the provision as contained in Rule 15 of the Rules of Executive Business, which speaks as follows: “15. All cases referred to the Third Schedule shall be submitted to the Chief Minister through the Secretary to the Council (Cabinet Secretariat) after consideration by the Minister-in-charge, with a view to obtaining his orders for circulation of the case or for bringing it up for consideration at an meeting of the Council under rule 6 or in case of extreme urgency the order of the Chief Minister shall be obtained for authorizing action in anticipation of the approval of the Council. Where the approval of the Council is anticipated, the concerned Department shall send a memorandum of consideration of the Council at a meeting within three weeks.” 22) Thus, it is evident from the Rules of Executive Business as per the provision quoted herein above that any decision pertaining to financial burden upon the Sate exchequer is to be decided by the State Government and not by the functionary of the State Government. 23) Since Annexure-7 or other annexures, issued by the authorities of the Department of Agriculture and Sugarcane Development cannot be said to be an order of the State Government, the benefit of upgradation is creation of a scheme and the same cannot be given in absence of any scheme. Since there is specific condition as contained in Condition No. 3(xviii) that the benefit of ACP scheme cannot be extended to the employees of the University, the State Government cannot be said to be liable for any payment, if the benefit of financial upgradation is granted by the University. Although the University on its own is competent enough to take decision in this regard, but in that circumstance, the University will have to bear all the expenses on its own. As per the counter affidavit of the University, the said benefit had been given on misconception and by mistake and if anything had been done on misconception and by mistake contrary to the statutory provision or the provision of the scheme, no enforceable right will accrue to the petitioners. 24) Although the said decision had been taken in the meeting of Board of Management, but if it is contrary to the provision of the scheme or if it has not been adopted or if there is no financial viability to meet the expenses, the University cannot be overburdened and that too, since the matter pertains to the policy decision, this Court under Article 226 of the Constitution of India cannot interfere with the same by giving a direction on the University to implement a scheme. 25) At this stage it will be worth quoting the views of Hon’ble Apex Court regarding judicial interference in policy decision of the state. In case of State of Jharkhand & Ors. Vs. Ashok Kumar Dangi & Ors. 25) At this stage it will be worth quoting the views of Hon’ble Apex Court regarding judicial interference in policy decision of the state. In case of State of Jharkhand & Ors. Vs. Ashok Kumar Dangi & Ors. reported in (2011) 13 SCC 383 , Hon’ble Apex Court has held that in framing a policy, various inputs are required and it is neither desirable nor advisable for court of law to direct or summarise the Government to adopt a particular policy which it deems fit or proper. Hon’ble Apex Court further said that State Government must have liberty and freedom in framing policy. Hon’ble Apex Court at Paragraph 17 has held as follows: “17…………..In framing of the policy, various inputs are required and it is neither desirable nor advisable for a court of law to direct or summarise the Government to adopt a particular policy which it deems fit or proper. It is well settled that the State Government must have liberty and freedom in framing policy. Further, it also cannot be denied that the courts are ill-equipped to deal with competing claims and conflicting interests. Often, the courts do not have the satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of the case.” 26) Further, in case of BALCO Employees Union (REGD.) Vs. Union of India & Ors. reported in (2002) 2 SCC 333 , Hon’ble Apex Court has held that wisdom and advisability of economic policies are not amenable to judicial review. At Paragraph 93 Hon’ble Apex Court has held as follows: “93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved.” 27) In view of the discussions made herein above, in my view, there is no infirmity in the order impugned by which the benefit granted has been recalled, since Birsa Agriculture University has expressed its inability in doing so. The issue No. 1 is decided accordingly. The issue No. 1 is decided accordingly. 28) So far as the second issue regarding recovery of the excess amount paid to the petitioners is concerned, the submission has been made on behalf of the petitioners that the amount which has been paid by the Birsa Agriculture University cannot be recovered on the ground that the amount had been paid by the order of the Apex Body of the Birsa Agriculture University, who had taken a conscious decision as per the provision made under circular dated 14.8.2002, wherein at Clause 3(xviii) the power has been given to the institution like Birsa Agriculture University to implement the scheme of financial upgradation to be paid to its employees. 29) The Birsa Agriculture University in its 57th meeting of the Board of Members had taken a decision to implement the scheme of financial upgradation, which had been given for a period of about nine years continuously and in the meanwhile some of the petitioners have also retired from service. 30) The submission of learned counsel for the petitioners is that there is no misrepresentation or fraud on the part of the petitioners, rather they had been paid the said benefit on the basis of a direction having been given by the competent authority which has been accepted by the University in counter affidavit that the benefit has been given on misconception and even if the same was recalled, the monetary benefit given to them cannot be recovered, otherwise the same will lead to financial burden, as the petitioners are Class-III & IV employees and some of them have also retired from service. 31) Learned counsel for the petitioners has relied upon the judgments rendered by the Hon’ble Supreme Court in Kusheswar Nath Pandey Vs. State of Bihar & Ors. [ (2013) 12 SCC 580 ], Sahib Ram Vs. State of Haryana & Ors. [1995 Suppl. (1) SCC 18] and Col. B. J. Akkara (Retd.) Vs. Government of India & Ors. [ (2006) 11 SCC 709 ], wherein it has been held that there cannot be any recovery of amount, which has been paid in excess of the entitlement, if paid without any fraud or misrepresentation on the part of the concerned Government employees. 32) On the other hand, learned counsel for the respondents have relied upon a judgment rendered by the Hon’ble Supreme Court in Chandi Prasad Uniyal & Ors. Vs. 32) On the other hand, learned counsel for the respondents have relied upon a judgment rendered by the Hon’ble Supreme Court in Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. reported in Judgment Today 2012 (7) SC 460, wherein it has been held that it is the judicial discretion of the Court to pass an order of recovery of the amount depending upon the facts and circumstances of each of the cases, but the Hon’ble Supreme Court after taking into consideration the rival views regarding the recovery of the amount had referred the matter before the Larger Bench in State of Punjab & Ors. Vs. Rafiq Masih reported in Judgment Today 2015 (1) SC 95, but the Larger Bench instead of deciding the issue again sent the matter before the same Bench and thereafter the issue has been decided by the Hon’ble Supreme Court after taking into consideration the earlier views laid down in Shyam Babu Verma Vs. Union of India [JT 1994 (1) SC 574], Sahib Ram Verma Vs. State of Haryana [JT 1995(1) SC 24] and Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. [JT 2012 (7) SC 460] has laid down the following propositions at Paragraph 12: “12. 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, summarize 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. (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.” 33) Thus, after the judgment pronounced in Rafiq Masih (supra), the issue is not of the judicial discretion, rather a rule has been laid down wherein altogether five categories have been given summarizing the situation wherein the recovery by the employees would be impermissible in law. 34) If the instant cases will be compared with the ratio laid down by the Hon’ble Supreme Court in Rafiq Masih's case (supra) (A) All the petitioners are Class -III & IV employees and they are coming under the purview of situation No.1. (B) Some of the employees have also retired and some of them are to retire within one year. Hence the petitioners are also coming under the situation No. 2. (C) The amount had been paid in the year 2005 and continued to be paid up to issuance of the impugned order i.e. for a period of about nine years. Hence the case of the petitioners is also coming under the situation No. 3. 35) So far as condition No. 5 is concerned, if recovery is directed to be made, the same will be too harsh in view of the fact that it is the respondent-University who has granted the said upgradation without any misrepresentation having been made on behalf of the petitioners and the said amount has been paid fairly for long period. 36) The petitioners being Class-III & IV employees and some of them have already retired from service, if recovery will be made from meager salary or pension, a handsome amount will be recovered and in that situation, the petitioners will face acute financial hardship in discharging their liabilities towards their families and will also face difficulty in surviving for no fault on their part. 37) Hence, the order of recovery will be very harsh and it will also be not equitable. In that view of the matter, the recovery will also be not justifiable. 37) Hence, the order of recovery will be very harsh and it will also be not equitable. In that view of the matter, the recovery will also be not justifiable. 38) Thus, the ratio laid down by the Hon’ble Supreme Court in Rafiq Masih's case (supra) is fully applicable to the facts and circumstances of the instant cases. 39) In that view of the matter, the second issue regarding the recovery part as contained in the impugned order is not sustainable and as such the part of the impugned order related to the recovery of the excess amount paid to the petitioners is, hereby, quashed. 40) Accordingly, these writ petitions are allowed in part. Petitions allowed.