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Rajasthan High Court · body

2016 DIGILAW 1879 (RAJ)

Shyam Lal Solanki v. State of Rajasthan

2016-12-22

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. 1. By way of this writ petition, the petitioner has questioned legality of order dated 10.2.14 issued by the Vikas Adhikari, Panchayat Samiti, Shergarh, whereby third selection grade granted to the petitioner in terms of order dated 17.2.98 issued by the State Government, stands withdrawn and order dated 10.2.14, whereby the difference of the salary paid to the petitioner on account of third selection grade being granted erroneously is ordered to be recovered. 2. The petitioner entered the services of the respondents on being appointed as Class IV Employee on 13.11.75. The petitioner was promoted to the post of Lower Division Clerk vide order dated 18.12.79. Pursuant thereto, petitioner joined the duties on the post of LDC in Panchayat Samiti, Shergarh on 22.12.79. Later, pursuant to the decision taken by the Panchayat Samiti in its meeting held on 28.7.83, the petitioner was confirmed on the post of LDC w.e.f. 22.12.79. 3. The State Government issued an order dated 25.1.92 providing relief to the employees in Class IV Ministerial Subordinate Services and those holding isolated posts, three selection grades on completion of nine, eighteen and twenty seven years of service. Vide order dated 31.12.93, the petitioner was granted first selection grade w.e.f. 22.12.92 treating him to be initially appointed on the post of LDC on 22.12.79. 4. The order dated 25.1.92 issued by the State Government was amended from time to time. Consequent upon, revision of pay scales of the State Government employees from 1.9.96 under Rajasthan Civil Services (Revised Pay Scale) Rules, 1998, in supersession of all earlier orders issued regarding grant of selection grade, the State Government issued order dated 17.2.98. 5. After issuance of the order dated 17.2.98 as aforesaid, the petitioner on completion of twenty seven years of service, was granted third selection grade w.e.f. 22.12.06 in the pay scale 5500-175-9000 and accordingly, his salary was fixed at Rs. 7,075/-. 6. The petitioner retired from service on attaining the age of superannuation on 31.8.13 and accordingly, the pension case of the petitioner was forwarded to the Department of Pension, Government of Rajasthan. The Department of Pension raised an objection that the petitioner was not entitled for third selection grade inasmuch as, he was initially appointed on the post of Class IV Employee and had already got one promotion earlier i.e. promotion to the post of LDC. The Department of Pension raised an objection that the petitioner was not entitled for third selection grade inasmuch as, he was initially appointed on the post of Class IV Employee and had already got one promotion earlier i.e. promotion to the post of LDC. In this view of the matter, vide order dated 10.2.14 issued by the Vikas Adhikari, Panchayat Samiti, Shergarh, the third selection grade granted to the petitioner on completion of twenty seven years of service was cancelled and accordingly, re-fixation was made. Consequent upon, the withdrawal of third selection grade, vide communication dated 10.2.14, the Vikas Adhikari, Panchayat Samiti, Shergarh, requested Joint Director, Department of Pension to recover the difference of pay quantified at Rs. 1,18,963/- from the gratuity payable to the petitioner but, as per the calculation chart placed on record, the amount sought to be recovered comes to Rs. 1,43,283/-, which includes the excess amount paid to the petitioner towards the earned leave on attaining the age of superannuation. 7. Learned counsel appearing for the petitioner submitted that though initially appointed on the post of Class IV Employee, on selection the petitioner was appointed on the post of LDC and the same cannot be treated to be promotion from the post of Class IV Employee to LDC and thus, the order impugned passed treating the petitioner as promoted from Class IV Employee to LDC, is ex facie erroneous. Learned counsel submitted that the order impugned withdrawing the third selection grade has been passed by the respondents without giving an opportunity of hearing to the petitioner, which is violative of principles of natural justice. However, learned counsel fairly submitted that if the petitioner is treated to be promoted from the post of Class IV Employee to the post of LDC, the withdrawal of third selection grade cannot be faulted with. Learned counsel would submit that it is not the case of the respondents that the order granting third selection grade on completion of twenty seven years of service, was obtained by the petitioner by committing fraud and thus, on account of mistake on the part of the respondents in granting the third selection grade, the petitioner cannot be made to suffer at this stage when he already stands superannuated. In support of the contention, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of "Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department" (2014) 0 Supreme (SC) 316 and "State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors.", (2015) Supreme Court Cases 334. 8. On the other hand, the counsel appearing for the respondents submitted that from bare perusal of the orders placed on record, it is abundantly clear that the petitioner was promoted from the post of Class IV Employee to the post of LDC and therefore, in terms of the Government order dated 17.2.98, the withdrawal of third selection grade erroneously granted to the petitioner is just and proper. Learned counsel submitted that any payment made to an employee in excess can always be recovered and therefore, the order passed for recovery of the amount paid in excess does not warrant any interference by this court. 9. I have considered the rival submissions and perused the material on record. 10. Indisputably, initially, the petitioner entered the services of the respondents on being appointed as Class IV Employee on 13.11.75. A perusal of the order dated 17.12.79 (Annex. 1) makes it abundantly clear that the petitioner holding the requisite qualification for promotion to the post of LDC was promoted on the said post and was allotted to the Panchayat Samiti, Shergarh and accordingly, vide order dated 18.12.79 (Annex. 2) issued by Vikas Adhikari, Panchayat Samiti, Shergarh, the petitioner was appointed by promotion to the post of LDC in the pay scale of Rs. 355-10-415-15-550-20-570 and pursuant thereto, the petitioner joined duties on 22.12.79. Thus, the stand sought to be taken by the petitioner that the petitioner was not promoted to the post of LDC rather was appointed by way of direct recruitment to the said post, cannot be accepted. 11. It is not disputed before this court if the petitioner is treated to be promoted from the post of Class IV Employee to the post of LDC w.e.f. 22.12.79 then the withdrawal of third selection grade erroneously granted, cannot be faulted with and thus, the challenge of the petitioner to the order withdrawing the selection grade is not sustainable. 12. It is not disputed before this court if the petitioner is treated to be promoted from the post of Class IV Employee to the post of LDC w.e.f. 22.12.79 then the withdrawal of third selection grade erroneously granted, cannot be faulted with and thus, the challenge of the petitioner to the order withdrawing the selection grade is not sustainable. 12. Coming to the recovery of the excess amount paid to the petitioner on third selection grade being granted erroneously, it is not the case of the respondents that the third selection grade was granted to the petitioner on account of any misrepresentation or fraud committed by the petitioner. A bare perusal of the order placed on record reveals that the respondents on their own treating the petitioner to be initially appointed on the post of LDC on 22.12.79, on completion of twenty seven years of service, granted third selection grade. The third selection grade was granted to the petitioner w.e.f. 22.12.06, vide order dated 23.4.07 issued by the Vikas Adhikari, Panchayat Samiti, Shergarh. The recovery is sought to be effected when the petitioner already stands retired from service on attaining the age of superannuation. 13. In the matter of "Shyam Babu v. Union of India", (1994)2 SCC 521 , where the excess payments were not made to the employees concerned on account of any fault on their part, the Hon'ble Supreme Court held: "11. Although we have held that the Petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the Petitioners due to the fault of the Respondents, the Petitioners being in no way responsible for the same." 14. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the Petitioners due to the fault of the Respondents, the Petitioners being in no way responsible for the same." 14. In Rafiq Masih's case (supra), the Hon'ble Supreme Court while holding that it is not possible to postulate all situation of hardships which would govern employees on issue of recovery, where payments have mistakenly made by the employer in excess of their entitlement summarized the following situation wherein recoveries by employer 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. (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." 15. As noticed hereinabove, the third selection grade was erroneously granted to the petitioner vide order dated 23.4.07 w.e.f. 22.12.06 and after fixation, the petitioner was paid the salary accordingly till the date of his superannuation w.e.f. 31.8.13. Thus, admittedly, the excess payment has been made to the petitioner for a period in excess of five years before the order of recovery is issued. That apart, the order of recovery has been issued on 10.2.14 after petitioner's retirement from service. In this view of the matter, in absence of any misrepresentation or fraud on the part of the petitioner, in light of the decision of the Hon'ble Supreme Court in Rafiq Masih's case (supra), the order of recovery of excess payment made is not justified. 16. In the result, the writ petition is partly allowed. The order dated 10.2.14 withdrawing the third selection grade granted to the petitioner vide order dated 23.4.07 is not interfered with. 16. In the result, the writ petition is partly allowed. The order dated 10.2.14 withdrawing the third selection grade granted to the petitioner vide order dated 23.4.07 is not interfered with. However, consequent thereupon, the order issued directing recovery of the excess amount paid, is quashed. The amount recovered from the petitioner pursuant to order passed as aforesaid shall be refunded to him within a period of one month from the date of receipt of certified copy of this order, failing which amount due shall carry interest @ 12% per annum. No order as to costs.