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2019 DIGILAW 1939 (RAJ)

Subhash Chand Gupta v. State of Rajasthan

2019-07-11

SANJEEV PRAKASH SHARMA

body2019
ORDER : Sanjeev Prakash Sharma, J. 1. This matter is listed in the 'hearing' category. 2. Counsel for the respondents-State is not ready to argue the case. The matter is pending since 2002 and no purpose would be served to adjourn the matter as this Court finds that Counsel appearing for the respondents is not ready with their briefs nor they have files with them and it is stated by the Counsel that he is struggling to get his files from the Registry. 3. In the said event, this Court cannot wait for the State to arrange their own affairs. 4. Learned Senior Counsel appearing for the petitioner submits that the petitioner who has retired voluntarily has been denied his full gratuity and an amount of Rs. 2,00,000/- has been withheld on account of the impugned orders which he seeks to challenge before this Court. Thus, the petitioner was heard. 5. Counsel for the petitioner submits that the petitioner was posted at the Jail Dispensary, Alwar as a Senior Medical Officer vide order dated 2.9.1998 and continue to perform his duties at the said place till he took voluntary retirement on 01.02.2001. Vide order dated 16.05.1998 non-clinical and non-practising allowance to Medical Officers was allowed at the rate of 20% of the basic pay w.e.f. 1.5.1998 to Officers of the Rajasthan Medical Service (Collegiate Branch) and Rajasthan Medical & Health Services (General Branch). So far as General Branch Officers are concerned, 40 different categories of Medical Health Service Officers were allowed Non-Practicing Allowance (hereinafter referred to as 'NPA'). In the said list at Item No. 34, it is mentioned that Medical Officers posted at Central Jail or District Jail would be entitled for NPA. Accordingly, learned Counsel submits that vide order dated 24.12.1998, the petitioner was granted NPA and continued to receive the same. However, when his pension case was prepared, the Accounts Officer raised objections with regard to grant of NPA to the petitioner as he was holding the post of Senior Medical Officer while as per the order dated 16.05.1998 only the Medical Officer posted at Central Jail or District Jail was entitled for NPA. Learned Senior Counsel further submits that the petitioner who was although promoted on the post of Senior Medical Officer, was posted against the post of Medical Officer in Jail which was a solitary post in the District Jail at Alwar. Learned Senior Counsel further submits that the petitioner who was although promoted on the post of Senior Medical Officer, was posted against the post of Medical Officer in Jail which was a solitary post in the District Jail at Alwar. Thus, factually he was holding the post of Medical Officer in the Central Jail and in view of the order dated 16.05.1998, he was entitled to receive the NPA. He further submits that the recovery from his pension or gratuity could not have been made. The amount of Rs. 1,00,000/- which had been withheld on the basis of his consent ought to be also released, apart from the withholding of the amount of Rs. 1,00,000/- which was withheld from his gratuity. A decision in this regard was ultimately taken by the Additional Director holding that the petitioner was entitled for the NPA, thus he challenged the decision dated 23.4.2002 taken by the Additional Director with regard to non-entitlement of NPA and prays that this amount which has been withheld be released to him. Apart from the above submission, no other arguments have been raised by the Counsel for the petitioner. 6. Reply of the respondents is already on record in which it has been mentioned that the order dated 16.5.1998 specifies the Officers who was entitled to receive NPA and Item No. 34 only mentions Medical Officer posted at Central Jail or District Jail and does not, therefore, include a Senior Medical Officer, hence the petitioner who was holding the post of Senior Medical Officer, even if, posted against the said post at Central Jail would not be entitled to the grant of NPA. The amount of excess payment made to him of Rs. 93,443 was, therefore, liable to be recovered. The impugned order thus is in consonance with the order passed by the Finance Department dated 16.05.1998. 7. I have considered the submissions and reply filed by the respondents and find that the petitioner had been promoted as a Senior Medical Officer by order dated 2.09.1998 and was posted at the Jail Dispensary at Alwar. The circular/order dated 16.5.1998 identifies the post on which NPA can be granted and mentions the post of Medical Officer posted at Central Jail or District Jail. The circular/order dated 16.5.1998 identifies the post on which NPA can be granted and mentions the post of Medical Officer posted at Central Jail or District Jail. So far as Senior Medical Officers are concerned, there are only two categories of Senior Medical Officers mentioned in the said list who have been held entitled to receive NPA namely Senior Medical Officer posted in ESI Scheme and Senior Medical Officer posted at Mobile Medical Unit at Item No. 22 and 40 therein. Thus, the post of Senior Medical Officer as such in the Rajasthan Medical Health Service, General Branch has not been included in the said list for grant of NPA. 8. Contention of learned Counsel for the petitioner that the petitioner was posted against the post of Medical Officer in the Jail and would thus be entitled to be given the benefit of NPA under the orders dated 16.05.1998 is found to be incorrect. A Medical Officer who is posted in the jail would only be entitled for NPA. If there is a person who was holding the post of Senior Medical Officer and posted against a lower post, it would not entitle him for the allowances which are available to a lower post obviously because he is already holding a higher post and would be claiming of allowances and benefits which are attached to the post on which he has been promoted. Thus viewed, the petitioner could not have been granted the benefit of NPA. 9. A look at the order whereby the petitioner was granted NPA dated 24.12.1998 goes to show that the concerned Superintendent (Jails) who has issued the order mentions the petitioner as a Medical Officer and treating him as Medical Officer. He has released the NPA, whereas the petitioner admittedly was holding the post of Senior Medical Officer and was also drawing pay scale of Senior Medical Officer. 10. In view thereof, objections raised by the Accounts Officer of wrongly releasing of NPA to the petitioner is found to be in order and the order passed by the Additional Director dated 23.4.2002 does not call for any interference. Petitioner has himself agreed to withhold an amount of Rs. 1,00,000/- from his pension and retiral benefits. Since the respondents as per their reply have mentioned that the excess amount is to the sum of Rs. Petitioner has himself agreed to withhold an amount of Rs. 1,00,000/- from his pension and retiral benefits. Since the respondents as per their reply have mentioned that the excess amount is to the sum of Rs. 93,443/- alone, there was no occasion for the respondents to withhold the remaining amount of Rs. 1,00,000/- from the gratuity of the petitioner. A total amount of Rs. 93,443/- was, therefore, required to be withheld from the pension and retiral benefits. Thus, only an amount of Rs. 93,443/- shall be recovered as excess payment and the remaining amount which the respondents may have withheld either from pension and gratuity shall be released. It is noticed that vide GPO order dated 02.08.2003 an amount of Rs. 1,00,000/- has been withheld from the gratuity, the same shall be thus released to the petitioner and it is made clear that only an amount of Rs. 93,443/- shall be recovered. 11. With the said observation, the writ petition is disposed of. 12. After the dictation of the aforesaid, learned Senior Counsel submits that no recovery is required to be made as the petitioner had retired. In support of his submission, he has relied upon the judgment of Supreme Court reported in (2015) 4 SCC 334 -State Of Punjab & Ors. vs. Rafiq Masih. 13. I have considered the submission of the learned Senior Counsel. In Rafiq Masih judgment (cited supra), the Apex Court has observed in para 18 as under:- "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 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 employees belonging to Class-Ill and Class-IV service (or Group 'C and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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." 14. The present case is distinguishable from the case as cited above. In the said case, the Supreme Court was examining cases where persons retired on attaining superannuation age whereas the petitioner in the present case is a doctor who has taken voluntary retirement and at the stage of voluntary retirement, the petitioner cannot claim parity with those who had been superannuated. It is settled law that at the time of voluntary retirement, if the same is accepted, the authorities shall have to see if there are any dues as against the concerned person and the same have to be deducted from the amount which may be released on account of voluntary retirement. 15. In view thereof, the submission of learned Senior Counsel that the amount should not be withheld or recovered is not made out. 16. The writ petition is accordingly disposed of.