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Jharkhand High Court · body

2016 DIGILAW 1185 (JHR)

Dhirendra Nath Layak v. State of Jharkhand

2016-08-01

ANANDA SEN

body2016
ORDER : In this application, the petitioners have prayed for quashing the office order as contained Memo No. 1153 dated 01.06.2006, passed by the respondent no. 6, by which the B.Sc. Untrained Scale of Rs. 680-965/-granted to the petitioners and others has been cancelled w.e.f. 01.09.1982 and it was further ordered to recover the excess amount paid to them since 01.09.1982 in 24 installments and consequently the petitioners have been placed in the pay scale of Rs. 535-765/-. 2. The petitioners being Science Graduates had responded to an advertisement issued on 31.03.1981, inviting applications for appointment of Science Teachers on monthly stipend. The advertisement made it clear that in absence of trained teacher, the post should be filled up by the untrained teachers. The petitioners, being the successful candidates, were called for the interview and, thereafter, a Selection Establishment Committee was constituted for selection of the candidates pursuant to which a District level panel was prepared which included the name of these petitioners. Accordingly, the petitioners joined their services in the year 1982 on a monthly stipend of Rs. 150/-per month. In terms of letter no. 3629 dated 20.11.1982, issued by the Commissioner-cum-Secretary, Bihar, Patna, all the posts, which were filled up, were given the regular pay-scale. Subsequently, by order of the Director, Primary Education, Bihar, Patna dated 30.11.1987, services of the petitioners were terminated holding the same to be an illegal appointment. Being aggrieved by the said order, the petitioners moved before the Patna High Court by filing writ petition wherein a Division Bench of Patna High Court by judgment dated 11.08.1989, directed the respondents to proceed with the appointment of teachers in the elementary schools by inviting applications from the petitioners and other persons who have been removed on account of illegal recruitment by the District Superintendent of Education. The petitioners and others moved before the Hon'ble Supreme Court in S.L.P. No. 11699/1990 and other analogous cases, which was disposed of by an order dated 07.02.1991 with an observation that the petitioners shall have the credit of past service both in regard to payment of salary as well as seniority and other benefits. Although fresh selections were made, but the candidature of the petitioners have been rejected on the ground that they were untrained graduate teachers. Although fresh selections were made, but the candidature of the petitioners have been rejected on the ground that they were untrained graduate teachers. A fresh round of litigation started which culminated in the order dated 22.11.1991, passed by the Hon'ble Supreme Court wherein a direction was given to the respondent to make appointment from the panel and in case trained teachers are not available, the posts were to be filled up by untrained graduate teachers. Pursuant to the said directions, applications were invited from those who were appointed in the year 1981-82 and were terminated. Thereafter, by different letters the petitioners were appointed as untrained science teachers and were given B.Sc. untrained pay scale of Rs. 680-965/-. All of a sudden, D.S.E., Dumka (Respondent no. 6) vide his order contained in letter no. 1153 dated 01.06.2006, cancelled the benefit of B.Sc. Untrained pay scale of Rs. 680-965/-, granted to the petitioners and others w.e.f. 01.09.1982 and directed to recover the excess payment made to them in 24 installments and placed the petitioners in the pay scale of Rs. 535-765/-. 3. Heard learned counsel appearing for the petitioners and learned counsel for the respondents. 4. It has been submitted by the counsel for the petitioners that the impugned office order dated 01.06.2006 is arbitrary and illegal. Further, it has been submitted that respondent no. 6 has once again taken resort to the initial appointment of the petitioners made by the then District Superintendent of Education, whereas the said issue has already been set at rest by various judicial pronouncements. It is further submitted that the petitioners have been discharging their duties since 1982 and it is absolutely illegal on the part of respondent no. 6 to cancel the B.Sc. Untrained scale which was granted to the petitioner on 01.09.1982. It is further submitted that even in the advertisement it was clearly mentioned about recruitment of Science teachers and in absence of any trained Science graduate, untrained graduate could also be appointed. It is further submitted that Hon'ble Supreme Court vide order dated 22.11.1991 had categorically directed to appoint untrained teachers who are otherwise qualified for appointment without putting the condition of training or age bar against them, where trained teachers are not available. It is further submitted that Hon'ble Supreme Court vide order dated 22.11.1991 had categorically directed to appoint untrained teachers who are otherwise qualified for appointment without putting the condition of training or age bar against them, where trained teachers are not available. Learned counsel further submits that in the office order dated 02.09.1998, the petitioners, on the basis of the District panel, were appointed as an untrained graduate Science teacher in the pay-scale of Rs. 685-965/-w.e.f. 01.09.1982 and there being no illegality in grant of such pay scale, the respondent no. 6 was precluded from cancelling the pay-scale so granted. It is also submitted that admittedly there was no misrepresentation on the part of the petitioners. In such circumstances, prayer has been made that the impugned office order dated 01.06.2006 deserves to be quashed and set aside. In support of his submissions, learned counsel has relied on a decision of the Hon'ble Supreme Court rendered in the case of “State of Punjab and others versus Rafiq Masih (White Washer) and others, reported in 2015 (1) JCR 122 (SC) : (2015) 4 SCC 334 5. On the other hand, learned counsel appearing for the respondents submits that the initial appointment of the petitioners was itself illegal and pursuant to the orders passed by this Court as well as by the Hon'ble Supreme Court, the petitioners were reappointed in service. He further submits that according to the letter dated 20.02.1981 eligible candidates appointed were to be given stipend. It is further submitted that in the appointment letters of the petitioners there were no mention that they were give pay-scale of Rs. 685-965/-and in fact the impugned order dated 01.06.2006 was passed after hearing the petitioners and in view of the fact that in the schools, in which the petitioners were appointed, there were no sanctioned post of B.Sc. Untrained teachers and, therefore, there is no illegality in the impugned order. 6. The facts, which have been narrated above and the arguments which have been advanced by the parties, discloses that pursuant to an advertisement dated 31.03.1981, the petitioners were appointed but, subsequently, their appointments were cancelled holding that it was an illegal appointment. After series of litigations, petitioners were reappointed in service and were granted B.Sc. untrained scale of Rs. 685-965/-. The facts, which have been narrated above and the arguments which have been advanced by the parties, discloses that pursuant to an advertisement dated 31.03.1981, the petitioners were appointed but, subsequently, their appointments were cancelled holding that it was an illegal appointment. After series of litigations, petitioners were reappointed in service and were granted B.Sc. untrained scale of Rs. 685-965/-. The impugned office order dated 01.06.2006 has concluded that the advertisement was made for the post of Science teachers and it was also clarified that in absence of trained teachers the post should be filled up by untrained teachers. The respondent no. 6 has raked up an issue which already remained settled. Even if it is assumed that the pay-scales granted to the petitioners were wrongly given, there is no averment in the affidavit filed by the respondents that the same was on account of misrepresentation or fraud on the part of the petitioners. In the case of “State of Punjab & Others” (supra), certain eventualities were contemplated with respect to recovery of excess amount from the employee than their entitlement and the same were delineated in following manner:- “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payment, 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 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. (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.” 7. The respondents therefore, were not entitled to pass order for recovery as has been contained Office order dated 01.06.2006 after an inordinate long period of time in absence of any misrepresentation on the part of the petitioners. Apart from the exclusion of recovery in terms of the judgment referred to above, the impugned order as has been discussed, does not take into consideration the subsequent event pursuant to the cancellation of the appointment of the petitioners as has been done by the then District Superintendent of Education. 8. In such circumstances, therefore, the issuance of the Office order as contained in Memo No. 1153 dated 01.06.2006 being arbitrary and is colourable exercise of power on the part of the respondents is hereby, quashed and set aside. It is further ordered that in case, the excess amount pursuant to the impugned Office order dated 01.06.2006 has been recovered from the petitioners, the same shall be refunded to them within a period of 8 weeks from the date of receipt/production of a copy of this order. 9. Thus, this application stands allowed.