Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1413 (JHR)

Sikender Mandal v. State of Jharkhand

2017-08-09

PRAMATH PATNAIK

body2017
JUDGMENT : PRAMATH PATNAIK, J. 1. In the accompanied writ application, the petitioners have inter alia prayed for quashing the office orders dated 31.12.2007, vide Annexure-13 to the writ application, issued by the respondent No.4 whereby decision has been taken to revise and reduce the pay scale of the petitioners curtailing the annual increments and giving it from the date of their re-appointment instead of their initial appointment and it has been further ordered to recover the excess amount paid to them in one installment. 2. The brief facts, as averred in the writ application, is that the petitioners were appointed against the sanctioned posts of Primary Teachers in pursuance to advertisement published in the newspaper in the year 1982-83 after undergoing the due process of selection and interview. After being appointed the petitioners joined the respective posts and discharged their duties to the utmost satisfaction of his superior authorities without any blemish whatsoever. But unfortunately to the utter surprise and consternation, the services of the petitioners were terminated in the year 1985-86. Several persons similarly situated to the petitioners challenged the order of termination before the Patna High Court in different writ applications and finally the matter went up to the Hon'ble Apex Court in SLP (C) No. 10051 of 1990 which was disposed of by order dated 30.11.1992 (Annexure-3 to writ petition) directing the respondent State of Bihar that if there is vacancy and if there are no trained teachers then the untrained teachers who were employed prior to the new rule came into operation, would be reinstated in service if after subjecting them to the selection process they are found suitable. It was further directed that if there are vacancies and yet the appellants were not appointed in the said vacancies such of the appellants who were eligible to be appointed and yet were not appointed in spite of the vacancies, would be - entitled to the salaries from 1st July, 1992 till their appointment. It was further observed that if there were no vacancies or some of them have to be appointed in the new vacancies they will not be entitled to the salaries from 1st July, 1992 till the date of their appointment. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary. It has been averred in the writ application that the petitioners were appointed prior to new rule. Another set of similarly situated employees moved before the Hon'ble Patna High Court in different writ application being C.W.J.C. No. 7000 of 1992, 9192 of 1992, 9601 of 1992, which was disposed of by judgment dated 20.01.1993 with direction to the respondents to fill up the posts in terms of the aforesaid direction of the Honble Supreme Court with utmost expedition as per Annexure-4 to the writ petition. Another set of similarly situated employees moved before the Hon'ble Patna High Court in CWJC No. 400 of 1998, which was disposed of by its judgment dated 20.05.1997 in terms of the order dated 07.02.1991 passed by the Hon'ble Supreme Court passed in S.L.P (Civil) No.11699 of 1990 whereby the Hon'ble Apex Court was pleased to hold that those teachers who have served in the past but there has been a break in service on account of termination shall have the credit of past service both in regard to the payment of salary as also seniority and other service benefits as evident from Annexure-5 to the writ petition. It is pertinent to mention that in pursuance to judgment of the Hon'ble Apex Court the petitioners were reappointed by the office orders dated 26.12.1995 and 17.01.1997 vide Annexure-7 series to the writ application and the petitioners in pursuance to the said reinstatement orders immediately gave their joining as per Annexure-8 to the writ petition. Since all the petitioners were reappointed against the vacancy prior to 01.01.1992 they were placed in the revised pay scale treating their initial date of appointment as would be evident from office orders dated 12.05.1997 and 23.10.1997 vide Annexures-9 and 10 to the writ petition. In pursuance to a decision taken in the meeting for not to give annual increment benefit of pay revision to the reappointed teachers prior to the period of their reappointment and for recovery of any financial benefits after giving show-cause notice the petitioners have been issued show-cause notice vide office order dated 31.12.2007 vide Annexure-13 series to the writ application. Thereafter the petitioners filed detailed representation before the respondents vide Annexure-14 to the writ petition. Thereafter the petitioners filed detailed representation before the respondents vide Annexure-14 to the writ petition. Being aggrieved by and dissatisfied with the impugned orders vide Annexure-13 to the writ application, the petitioners left with no other alternative and efficacious remedy have knocked the doors of this Court under Article 226 of the Constitution of India for redressal of the grievance. 3. Learned counsel for the petitioners has vehemently submitted that the impugned orders vide Annexure-13 series to the writ application are arbitrary and mala fide exercise of power which is contrary to law and in utter violation of the judgment of the Hon’ble Apex Court and Hon'ble Patna High Court. Learned counsel for the petitioners further submits that the impugned direction of the respondents vide Annexure-13 series for recovery of amount from the petitioners in the absence of any misrepresentation or fraud committed by the petitioners, such action on the part of the respondents is not legally sustainable. 4. Controverting the averments made in the writ application, counter-affidavit has been filed by the respondent No.4-District Superintendent of Education, Pakur wherein it has been, submitted that District Education Establishment Committee on 30.12.2007 decided that the pay of the Assistant Teachers, Graduate Trained Teacher and Headmasters should be fixed in the light of Rule 58 of the Jharkhand Service Code and Rule 74 of the Financial Rule, and as per notification dated 4.4.1985 and departmental notification dated 18.12.1984 and also in the light of promotion Rules, 1993. Further it has been submitted that in response to the said decision and direction of the committee and also in response of the audit objection dated 21.11.2003 of the Accountant General, Jharkhand and on the direction of the Director, Primary Education, Jharkhand vide memo dated 24.09.2005, the then District Superintendent of Education, Pakur on perusal of the record legally fixed the pay scale of the petitioners from the date of their re-appointment and ordered that to recover the excess amount paid to the writ petitioners in one instalment because the initial appointment of the petitioners were declared illegal by the Special Secretary, Govt. of Bihar, vide memo dated 13.09.1984 and 13.11.1984 and the writ petitioners were reappointed after break in service of 11 to 12 years on the decision of the Hon'ble Supreme Court in SLP (C) No. 11699 of 1990, 10051 of 1990, Civil Appeal No. 5148 of 1992, Contempt Petition No. 175 of 1993 and on the decision of CWJC No. 7000 of 1992 of the Hon'ble Patna High Court. The then D.S.E., Pakur has rightly passed the order of recovery of the petitioner who have taken excess amount from the date of initial appointment which was declared illegal. 5. Learned counsel for the State has reiterated the submissions made in the counter-affidavit. Learned counsel for the State has assiduously submitted that the petitioners have been reappointed in new vacancies existing after 01.01.1992 but they have illegally obtained the revised pay scale from their initial appointment which was declared illegal by the Special Secretary to Govt. Education Department, Bihar vide memo dated 13.09.1984 and 13.11.1984 and therefore, petitioners are not entitled to any arrear of salary or initial appointment which has been declared illegal by the competent authority. Hence, there is absolutely no infirmity or illegality in the impugned order vides Annexure-13 to the writ petition. 6. After hearing the learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts, reasons and judicial pronouncements : (I) That on perusal of the judgment dated 20.05.1997 vide Annexure-5 to the Writ petition there is absolutely no doubt or debate that the petitioners are entitled to the benefits of past services with regard to payment of salary as well as seniority and other benefits since the petitioners were appointed prior to existing vacancies i.e. from 01.01.1992. (II) In the instant case the alleged excess payment has been made due to misrepresentation or fraud on the part of the petitioner instead' the payment has been made bona fide pursuant to the order passed by this Court as well as the authorities. (II) In the instant case the alleged excess payment has been made due to misrepresentation or fraud on the part of the petitioner instead' the payment has been made bona fide pursuant to the order passed by this Court as well as the authorities. The Hon'ble Apex Court in case of Syed Abdul Qadir and others v. State of Bihar and others, reported in 2010 (1) JCR 97 (SC) : JT 2009 (1) SC 385 while considering an identical issue about cases where excess/over payment has been made but the same is not due to misrepresentation or any fraud but instead of being a case of pure arid simple mistake, held that such amount cannot be recovered. In the instant case the admitted position remains that petitioners have neither made any misrepresentation or fraud and the excess payment has been made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule which is subsequently found to be erroneous. (III) The issue in question as to whether recovery order vide Annexure-13 to the writ petition, being punitive in nature ought to have been issued without following rules of principles of natural justice. The Hon'ble Apex Court in case of State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in 2015 (1) JCR 369 (SC): (2015) 4 SCC 334 has been pleased to enumerate the instances relating to recovery of excess payment without fault of the recipient. In para 18 of the said judgment the Hon'ble Apex Court have been pleased : "18. 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 hereinabove, 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. (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." (IV). Moreover, the present writ petition is covered by the decision rendered in W.P. (S) No. 1481 of 2003 and batch of cases, wherein this Court has been pleased to quash the audit report dated 04.10.2002 for demand of recovery, basing on which the impugned order Annexure-13 series has been issued. 7. In view of the reasons stated in the foregoing paragraphs, impugned order vide Annexure-13 is quashed and set aside and the writ petition stands allowed. Petitions allowed.