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2017 DIGILAW 400 (ORI)

State of Odisha v. Madhabananda Pradhan

2017-04-13

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition under Articles 226 and 227 of the Constitution of India, preferred by the State of Odisha wherein and where under the order passed by the Odisha Administrative Tribunal, Bhubaneswar dated 31.10.2014 in O.A.No.3483 of 2013, has been assailed on the ground that the Tribunal has quashed the order dated 19.10.2013 by which the authorities have been directed to recover amount from the opposite party no.1 which is alleged to have been paid in excess of his entitlement and directed to fix pension on the basis of the pay scale which he is entitled to. 2. Brief facts of the case is that the applicant/opposite party no.1 having I.A. qualification was initially appointed as Assistant Teacher in Balabhadrapur UGUP School under Nimapara Education District. He was drawing trained Matric scale of pay from the date of appointment and upon introduction of Orissa Revised Scales of Pay Rules, 1989 (ORSP Rules, 1989) his pay was fixed in the scale of payRs.1080-1800/- i.e. trained Matric scale of pay. Since the Trained Matric and untrained Intermediate teachers were in one slab, i.e. in the scale of pay of Rs.840-1240/- which was revised to Rs.1080-1800/- in the ORSP Rules, 1989, pay of the application has been fixed in the scale of pay of Rs.1080-1800/- in the ORSP Rules, 1989. He, in the meantime, has retired from government service on attaining age of superannuation with effect from 31.8.2012. After his retirement, the District Inspector of Schools, Nimapara forwarded the pension papers to the Controller of Accounts, Bhubaneswar vide letter dated 1.5.2013 but the same was returned along with noting that the such pay of the applicant should not have been fixed and due to wrong calculation excess payment made to that effect may be calculated and suggested for recovery from his DCRG. The opposite party no.1 being aggrieved, has approached the Tribunal on the ground that his pay scale has been fixed as per the ORSP Rules,1989 which has duly been adopted by the Education Department of the Government of Orissa vide resolution No.30060 dated 28.7.1991 wherein pay scale of the untrained Intermediate teacher was revised from the scale of pay of Rs.840-1240/- to Rs.1080-1800/- and accordingly he was drawing his salary while he was in service, but arbitrarily and unilaterally the authorities have taken decision that the petitioner has been paid excess to his entitlement and in spite of the pay scale which the post of untrained Intermediate teacher is eligible i.e. pay scale of pay of Rs.975-1860/- he has been given pay scale of pay of Rs.1080-1800/- and in that pretext decision has been taken. The petitioner, State of Odisha, has challenged the order passed by the Tribunal. Learned counsel for the petitioner has placed reliance upon the judgment dated 7.1.2011 passed by Division Bench of this Court in O.J.C.No.12807 of 2001 wherein the authorities have been directed to fix pay scale of the petitioner as Rs.1080-1800/- upon which he was drawing his salary and as such the authorities ought to have been fixed his pension on the basis of the said scale of pay. 3. Learned standing counsel for the School and Mass Education department while assailing the order passed by the Tribunal has submitted that the Tribunal has not taken note of the corrigendum dated 27.8.1992 wherein pay scale of untrained Intermediate teacher has been segregated from the scale of pay of Trained Matric teacher and it has been revised to Rs.975-1660/- but the Tribunal has not taken note of the fact, rather in the order impugned, it has been observed that no specific scale of pay for untrained Intermediate teachers has been carved out in the corrigendum and on the wrong impression the order has been passed justifying the scale of the opposite party no.1 as scale of pay of Rs.1080-1800/-. He further submits that the authorities after knowing this fact, on the basis of the objection raised, the matter was scrutinized and it has been found that the pay of the petitioner has wrongly been fixed after taking into consideration the corrigendum dated 27.8.1992 and accordingly decision has been taken by the authority to recover the said amount and fix pension according to his entitlement. It has been submitted that since the opposite party no.1 has given undertaking at the time of revision of pay scale that in case of excess payment, the same shall have to be returned back, in view thereof there is no objection in the decision taken by the authority while directing recovery of amount. He further submits that when the order passed by this Court in O.J.C.No.12807 of 2001, corrigendum dated 27.8.1992 has not been brought to the notice of the Court and as such the order has been passed and hence the said order is not binding. He submits that the authorities have taken step on the principle that illegality cannot be allowed to be perpetuated and the moment it is known it has to be rectified. He submits that in the ORSP Rules, 2008 provision of recovery of excess amount has been made and in view thereof, recovery has been directed to be made. He has relied upon the judgment dated 29.7.2016 rendered by the Hon’ble Apex Court in Civil Appeal No.3500 of 2006, ( High Court of Punjab & Haryana & others –vs- Jagdev Singh ) wherein it has been laid down that in case undertaking has been given, in that situation if excess amount has been paid, it has to be recovered. In view thereof, the judgment rendered in the case of State of Punjab and others etc. Vs. Rafique Mashih (White Washer etc.) reported in 2015(1) PLJR 261 Supreme Court will not be applicable in the facts and circumstances of the given case. 4. We have heard learned counsel for the parties and perused the materials available on record. 5. The fact which is not in dispute that the opposite party no.1 was working as Assistant Teacher having untrained Intermediate Teacher. The State of Odisha has come out with notification dated 5.10.1989 by enforcing revision of pay scale. The Education Department of the Government of Odisha has passed resolution dated 28.6.1991 as contained in Resolution No.30060 which was in consequence upon the ORSP Rules,1989 extending benefit of revision of pay scale to the employees posted in aided non-Government educational institutions w.e.f. 1.5.1989. The Education Department of the Government of Odisha has passed resolution dated 28.6.1991 as contained in Resolution No.30060 which was in consequence upon the ORSP Rules,1989 extending benefit of revision of pay scale to the employees posted in aided non-Government educational institutions w.e.f. 1.5.1989. In the said resolution, the Untrained Intermediate/Trained Matriculate Teacher has been show in the same category having pay scale of Rs.840-1240/- which has been revised to Rs.1080-1800, and accordingly pay of the opposite party no.1 has been fixed in the scale of pay of Rs.1080-1800\-. Government subsequently came out with corrigendum as contained in Order No.40784 dated 27.8.1992 wherein Assistant Teacher having Untrained Intermediate and Trained Matric teacher have been placed in two categories of scale of pay i.e. Untrained Intermediate at the scale of pay of Rs.975-1660/- and Trained Matric teacher at the scale of pay of Rs.1080-1800/-, but the pay scale as provided under corrigendum dated 27.8.1992 has not been carried out with respect to the case of the opposite party no.1 and he was allowed to get his salary on the basis of the pre-corrigendum scale of pay of Rs.1080-1800/- and on that scale of pay he ultimately has been superannuated from service w.e.f. 31.8.2012. When the fixation of pension paper of the opposite party no.1 was sent for sanction, the Controller of Accounts, Bhubaneswar has raised objection regarding scale of pay and fixation of pension and accordingly directed to recover the excess amount alleged to have been paid in his favour, which has been challenged by him before the Tribunal and the Tribunal has quashed the communication dated 19.10.2013 under Annexure-3 on the ground that there cannot be any recovery on the basis of the judgment pronounced by the Hon’ble Apex Court in the case of Chandi Prasad Uniyal and others –vs- State of Uttarakhand in Civil Appeal No.5899 of 2012 and also directed the authorities to fix pension in the light of the pay scale which he was already getting on the date of retirement, which is impugned in the instant writ petition. 6. There is no dispute in the legal proposition that according to the entitlement revision of pay is to be made to an employee and he can get pension on the basis of his entitlement only. 6. There is no dispute in the legal proposition that according to the entitlement revision of pay is to be made to an employee and he can get pension on the basis of his entitlement only. In the given facts of this case, the opposite party no.1 who was working as Assistant Teacher having Untrained Intermediate have been given benefit of ORSP Rules, 1989 and at that time pay scale of untrained Intermediate and Trained Matriculate have been directed to be given same pay scale of pay of Rs.1080-1800/- and accordingly pay scale of the opposite party no.1 has been fixed in the revised pay scale of Rs.1080-1800 and he was drawing his scale of pay. The issue of higher scale of pay of Rs.1080-1800/- has also been approved by this Court in O.J.C.No.12807 of 2001, but subsequently corrigendum dated 27.8.1992 has come wherein Untrained Intermediate teacher has been directed to get revised pay scale of Rs.975-1660/- instead of Rs.1080-1800/- which was the scale of pay of Trained Matric teacher but the corrigendum dated 27.8.1992/- has not been acted upon so far it relates to the opposite party no.1 and he was allowed to get revised scale of pay of Rs.1080-1800/- at the time of superannuation. 7. On the basis of the facts stated herein above, we find that the opposite party no.1 has not made any misrepresentation and it is the Government who, at the initial stage, has fixed pay scale of the opposite party no.1 on the basis of the resolution dated 28.6.1991 but subsequently corrigendum dated 27.8.1992 has not been given effect so far he is concerned. We are of the considered view that since there is no misrepresentation on the part of the opposite party no.1 and he has already retired from service, hence the judgment rendered in the case of State of Punjab and others etc. Vs. Rafique Mashih (White Washer etc.) (supra) will squarely covered his case. We are of the considered view that since there is no misrepresentation on the part of the opposite party no.1 and he has already retired from service, hence the judgment rendered in the case of State of Punjab and others etc. Vs. Rafique Mashih (White Washer etc.) (supra) will squarely covered his case. So far it relates to the contention of the learned counsel for the petitioner-State that in the judgment rendered by the Hon’ble Apex Court in the case of High Court of Punjab & Haryana & others –vs- Jagdev Singh (supra) passed in Civil Appeal No.3500 of 2006 that in case of undertaking having been furnished by an employee, the excess amount will be recovered but that judgment will not be applicable in the facts and circumstances of the case because of Rule 8 of the ORSP Rules,1989 which is being quoted herein below: “Where, in the course of pay fixation under these rules, any amount drawn or received as pay by any Government servant under any rule is found to be in excess of the amount payable to him under these rules, the excess amount so drawn or received, shall not be recoverable from such Government servant and shall be deemed to have been waived.” 8. We, on perusal of the Rule 8 of the ORSP Rules, 1989, have found that in course of fixation of pay if any amount drawn or received as pay by any Government serviant under any rule is found to be in excess of the amount payable to him under these rules, the excess amount so drawn or received, shall not be recoverable from such Government servant and shall be deemed to have been waived. In view of the specific provision provided under the ORSP Rules, 1989 the judgment rendered in Civil Appeal No.3500 dated 2006 will not be applicable. In view of the specific provision provided under the ORSP Rules, 1989 the judgment rendered in Civil Appeal No.3500 dated 2006 will not be applicable. Learned counsel representing the State of Orissa has submitted that in the ORSP Rules,2008, specific provision has been made to recover the excess amount received and in view thereof, order of recovery cannot be said to be illegal, but we are not in agreement with such submission reason being that the opposite party no.1 has been given benefit of revision of pay scale on the basis of ORSP Rules, 1989, hence provision as contained in Rule 8 of ORSP Rules,1989 will be applicable and not ORSP Rules, 2008, since the revision in pay scale by virtue of ORSP Rules,2008 is consequence of revision of pay scale which has been granted in favour of the opposite party no.1 on the basis of the ORSP Rules,1989. Furthermore, provision of the ORSP Rules, 2008 cannot be given retrospective application when other Rule was applicable on the date when pay of the opposite party no.1 has been fixed. 9. We, after taking into consideration this aspect of the matter, are of the conscious view that the Tribunal has rightly passed the order restraining the authorities not to recover excess amount, hence we are not inclined to interfere with the same. 10. Further, part of the order by which the Tribunal has directed to fix pension on the basis of the pay scale which the petitioner was getting at the time of his superannuation, we are not in agreement with the finding reason being that the petitioner was entitled to get pension at the ORSP Rules,1989 which has been given vide resolution dated 28.6.1991 and thereafter the said resolution has been modified vide corrigendum dated 27.8.1992 by which pay scale of the opposite party no.1 having Untrained Intermediate has been reduced from Rs.1080-1800/- to Rs.975-1660/- which is not in dispute, hence scale of the opposite party no.1 be fixed at Rs.975-1660/- and it is settled that any government servant after retirement cannot be allowed get salary which he is not entitled to get. However, the opposite party no.1 has been given higher pay scale as has been discussed above, but that does not mean right has been conferred upon it. This is for the reason that on the wrong notion right cannot be accrued to the party. However, the opposite party no.1 has been given higher pay scale as has been discussed above, but that does not mean right has been conferred upon it. This is for the reason that on the wrong notion right cannot be accrued to the party. Further we, on adopting the principle that illegality cannot be allowed to be perpetuated, are of the conscious view that the petitioner will be entitled to get pension on the basis of his actual entitlement. In view thereof, part of the order directing to fix pension on the basis of the pay scale the opposite party no.1 was getting at the time of superannuation, does not sustainable in the eye of law and accordingly at the time of superannuation, that part of the order is quashed, in consequence, the authorities are directed to proceed in the matter for fixation of final pension of the opposite party no.1 since we have told that the opposite party no.1 was getting provisional pension. The entire exercise shall be completed within 10 weeks from the date of receipt of copy of this order. 11. In the result, the writ application is partly allowed.