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2015 DIGILAW 865 (GAU)

Wobenthung Lotha v. State of Nagaland

2015-07-20

L.S.JAMIR

body2015
JUDGMENT AND ORDER L.S. Jamir, J. - All these writ petitions dwell on common facts and the relief sought for being similar, the same are being disposed of by this common judgment. 2. The petitioners were all appointed as Graduate Teachers under the directorate of School Education and some of them are redeployed as Deputy Mission Director. Rashtriya Madyamik Siksha Abhiyan (RMSA) and Asstt. Project Director, RMSA, Nagaland. Kohima. The petitioners are aggrieved by the circular dated 11.3.2013 issued by the respondents wherein direction was issued to scrutinise all cases of Modified Assured Career Progression Scheme (MACP in short) 2nd lift granted under the various establishment and to recover the excess pay and allowances drawn by the petitioners who were granted 2nd financial up-gradation under MACPS without completing 10 years of service from the date of granting 1st financial up-gradation under old ACP Scheme. The circular further stipulates that the recovery should be made from the monthly salary of the incumbents in 10 instalments. The petitioners are before this Court challenging the said circular dated 11.3.2013 on the ground that they are not responsible for grant of the 2nd up-gradation as there has been no misrepresentation or fraud on their part and that the circular dated 11.3.2013 was also issued without any show cause notice and without giving an opportunity to the petitioners of being heard. 3. Heard Mr. P.B. Paul, learned counsel appearing for the petitioners. Also heard Mr. K. Sema, learned Addl. A.G assisted by Ms. Inaholi. learned Government Advocate for the State respondents and Mr. Yangerwati, learned C.G.C. appearing for the Accountant General, Nagaland. 4. Mr. P.B. Paul, learned counsel appearing for the petitioners submits that when the impugned circular dated 11.3.2013 was issued, the same was done without giving an opportunity to the petitioners of being heard and without any show cause notice. He also submits that the petitioners were granted 2nd financial up-gradation under MACPS after being scrutinised and recommended by the Screening Committee of MACPS by orders dated 24.5.2011 and 10.10.2011. Therefore, when the Screening Committee had recommended the case of the petitioners for granting financial up-gradation, the same cannot be withdrawn or directed to be recovered by the said impugned circular dated 11.3.2013. Therefore, when the Screening Committee had recommended the case of the petitioners for granting financial up-gradation, the same cannot be withdrawn or directed to be recovered by the said impugned circular dated 11.3.2013. He further submits that it was on the recommendation of the Screening Committee that the petitioners were granted the financial up-gradation and therefore, there was no misrepresentation or fraud on their part and accordingly, the respondents cannot take away such rights granted to the petitioners. In his support, learned counsel for the petitioners places reliance in the case of Gajanan L. Perneker v. State of Goa & Anr. reported in (1999) 8 SCC 378 wherein it has been held that it is the duty of the respondents to give opportunity to show cause to adversely effected persons before recalling an administrative order passed in his favour. He also placed reliance in the case of Col. B.J. Akkara (Retd) v. Government of India & Ors. reported in (2006) 11 SCC 709 . In the facts and circumstances of the case, learned counsel for the petitioner submits that the impugned circular dated 11.3.2013 should be set aside and the respondents should be restrained from recovering the excess amount paid to the petitioners. 5. Mr. K. Sema, learned Addl. A.G. appearing on behalf of the State respondents at the outset fairly submits that when the orders dated 24.5.2011 and 10.10.2011 were issued, the same was done on misconception of the Office Memorandum dated 12.10.10. He submits that the MACPS was introduced to replace the existing ACP scheme to grant 3 financial up-gradation under the MACPS at interval of 10, 20 and 30 years of continuous regular service. Thereafter, there were certain confusion in the various Departments and therefore, the Finance Department, Government of Nagaland had issued another Office memorandum dated 10.3.2011 where after examining the doubt that have been raised, clarifications were given for information and guidance of all concerned. The Department of School Education while granting 2nd financial up-gradation by the said orders dated 24.5.2011 and 10.10.2011 was not aware of the clarification contained in the Office memorandum dated 10.3.2011. Therefore, certain mistakes were committed by the respondents while allowing the petitioners to enjoy the 2nd financial up-gradation under the MACPS. The Department of School Education while granting 2nd financial up-gradation by the said orders dated 24.5.2011 and 10.10.2011 was not aware of the clarification contained in the Office memorandum dated 10.3.2011. Therefore, certain mistakes were committed by the respondents while allowing the petitioners to enjoy the 2nd financial up-gradation under the MACPS. It was only after the Department of School Education came to know of the clarifications contained in Office memorandum dated 10.3.2011 that steps were taken to rectify the mistake committed by issuing the circular dated 11.3.2013 for recovery of excess pay and allowance drawn by the petitioners. Learned Addl. A.G. has placed reliance in the case of Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors. reported in (2012) 8 SCC 417 wherein the Hon'ble Supreme Court has held that for recovery of public money, the concept of fraud or misrepresentation by the recipient has no role to play and therefore, any amount paid, received without any authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of light, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. He submits that the present petitioners are all appointed as Graduate Teachers and therefore, recovery of the excess amount/pay made to the petitioners would not cause any undue hardships to them. He therefore, submits that when the law' have been made clear in the ease of Chandi Prasad Uniyal(supra), the case of Col. B.J. Akkara (supra) has no application in the present case. In the facts and circumstances of the case, he submits that the respondents should be at least given the opportunity of giving a show cause notice to the petitioners and thereafter pass appropriate orders as deemed fit and proper. Learned Addl. A.G has also placed reliance in the case of Union Territory of Chandigarh & Ors. v. Gurcharan Singh & Anr. reported in (2014) 13 SCC 598 wherein it has been held that when disbursement of higher pay scale to respondents was made by mistake such extra amount paid by mistake must be rectified and the amount paid pursuant to such mistake should he recovered. 6. Mr. Yangerwati, learned C.G.C. appearing for the Accountant General, Nagaland submits that the Central Government particularly, Ministry of Personnel. 6. Mr. Yangerwati, learned C.G.C. appearing for the Accountant General, Nagaland submits that the Central Government particularly, Ministry of Personnel. PC and Pension, Department of Personnel and Training had also issued Office Memorandum dated 6.2.2014 wherein under the guidelines at paragraph 3(ii) it provides that where the authorities decided to rectify an incorrect order, a show cause notice must be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the over payment, and intention to recover such excess payment. He submits that in the present case as no show cause notice was given to the petitioners, the State respondents may be directed to issue such show cause notice and thereafter pass appropriate orders. 7. I have heard the learned counsel appearing for the parties. 8. In the present ease it is not disputed that when the 2nd up-gradation under the MACPs was granted to the petitioners, the same was done due to mistake committed by the Department of School Education while interpreting the Office memorandum dated 12.10.2010. It is not the case of the State respondents that such 2nd financial up-gradation was granted due to misrepresentation or fraud committed by the petitioners. 9. This Court has also considered the ratio laid down in the case of Col B.J. Akkara (supra) wherein it has been held at paragraph 27 as under:- “27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7.6.1999. This Court has consistently granted relief against recovery of excess wrong payment of emoulments/allowances from an employee, if the following conditions are fulfilled (Vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional jt. Director): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous.” 10. In the case of Chandi Prasad Uniyal (supra), the Hon'ble Supreme Court had also considered the case of Col. B.J. Akkara (supra) and thereafter has held at paragraph 14 as under:- "14. In the case of Chandi Prasad Uniyal (supra), the Hon'ble Supreme Court had also considered the case of Col. B.J. Akkara (supra) and thereafter has held at paragraph 14 as under:- "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 to the recipients. We fail to see why the concept of fraud and misrepresentation is being brought in such situations. The questions to be asked is whether excess money has been paid or not may be, due to a bona fide mistake. Possibly effecting excess payment of public money by the Government officers may be due to various reasons like negligence, carelessness, collusion favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and 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 the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment." 11. In the case of Gurcharan Singh (supra), the Hon'ble Supreme Court has also held at paragraph 13 as under:- "13. Though a submission had been made on behalf of the respondent that no amount should be recovered from the salary paid to the respondent; the said submission cannot be accepted because if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered. It might also happen that the employer might have to pay some amount to the respondent as a result of some mistake and in such an event, even the appellant might have to pay to the respondent. Be that as it may; upon settlement of the account: whatever amount has to be paid to the respondent employee or to the appellant employer shall be paid and the account shall be adjusted accordingly." 12. Be that as it may; upon settlement of the account: whatever amount has to be paid to the respondent employee or to the appellant employer shall be paid and the account shall be adjusted accordingly." 12. When the new MACPS was introduced replacing the old ACP scheme by Office Memorandum dated 12.10.2010 it was the decision of the Government of Nagaland to grant three financial up-gradation under MACPS at interval of 10, 20 ant 30 years of continuous regular service. When there was confusion as to the applicability of 10. 20.30 years under MACPS as per the Office Memorandum dated 12.10.2010, the finance Department had also issued clarification contained in Office Memorandum dated 10.3.2011 wherein it was clarified that in case of incumbents who already got the 1st financial up-gradation under old ACP scheme, the length of service required for giving 2nd financial up-gradation under the new MACPS will be 12+10, i.e.after 10 years of service from the 1st financial up-gradation under the old ACP schemes. It appears that the said clarification contained in Office memorandum dated 10.3.2011 was not before the Department of School Education when he orders dated 24.5.2011 and 10.10.2011 were issued granting financial up-gradation to the petitioners. As reflected in the affidavit-in-opposition filed by the state respondents, the same was done due to mistake and the respondents had tried to rectify such mistake by issuing the impugned circular dated 11.3.2013. While issuing the circular dated 11.3.2013, the respondents have failed to issue show cause to the petitioners who would have been adversely effected by such decision taken to recover the excess pay and allowances drawn by them. 13. This Court has also noticed the Office Memorandum dated 6.2.2014 issued by the Ministry of Personnel, PG and Pension, Department of Personnel and training. At paragraph 3(ii) therein it has been advised as under:- “ii. In a case like this where the authorities decide to rectify an incorrect order, a show cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the over payment and intention to recover such excess payments. Reasons for the decision should be clearly conveyed to enable the employee to represent against the same. Reasons for the decision should be clearly conveyed to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if and, made by the employee.” This Court is therefore, of the considered opinion that the respondents should have given a show' cause notice to the petitioners thereby allowing them to represent to such show cause. Accordingly, the impugned circular dated 11.3.2013 is set aside and quashed. However, the State respondents are given liberty to issue show' cause notice to the petitioners and thereafter, take appropriate steps as per the guidelines contained in the Office Memorandum dated 6.2.2014 issued by the Ministry of Personnel, PG and Pension, Department of Personnel and Training and thereafter pass appropriate orders as deemed fit. Let such steps be taken and completed at the earliest but not later than 3 months from the date of receipt of a certified copy of this order by the State respondents. 14. With the above observation and directions, all these writ petitions are disposed of.