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2023 DIGILAW 623 (UTT)

Manoj Kumar v. State of Uttarakhand

2023-11-06

MANOJ K.TIWARI

body2023
JUDGMENT : 1. Since common questions of fact and law are involved in these petitions, therefore, all these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPSS No. 990 of 2018 alone are being considered. 2. Petitioner was appointed as Assistant Teacher in a Primary School run by U.P. Basic Education Board in the year 1999. Upon State Re-organisation, petitioner acquired status of Government Servant in view of provision contained in Section 58 of Uttarakhand School Education Act, 2006. Subsequently, in the year 2008, petitioner was promoted to the post of Assistant Teacher, Government Junior High School w.e.f. 30.01.2008 and he is still continuing as Assistant Teacher, Government Junior High School in District Haridwar. 3. Petitioner is aggrieved by order dated 28.04.2018 issued by Director, Elementary Education, Uttarakhand. By the said order, direction was issued to all the District Education Officers within the State to recover the excess amount paid to petitioner and other similarly situate Teachers, by holding that excess amount was paid to them as salary from the date of their promotion, which however was payable only from 01.04.2009. 4. Petitioner contends that whatever amount was paid to him as salary was payable from the date of his actual promotion to the post of Assistant Teacher, Government Junior High School and no excess amount was paid, which can now be recovered from him. 5. A counter affidavit has been filed by State Authorities. The stand taken in the counter affidavit is that petitioner is entitled to benefit of fitment table in the matter of pay scale only once, however, due to mistake, the said benefit was given twice to him. Relevant extract of counter affidavit, on which reliance has been placed by State Counsel, is extracted below:- “9. …….. It is further submitted that as per the Govt. Order dated 28.11.2017, the benefit of Fitment Table is granted to the employees for revision of their pay from 5th Pay Commission to 6th Pay Commission and the benefit of Fitment Table is granted once only. The petitioner has received the benefit of Fitment Table twice first w.e.f. 01.01.2006 and secondly from the date of promotion and thus, received excess amount due to wrongful fixation of pay. True/correct typed version/copy of the Govt. The petitioner has received the benefit of Fitment Table twice first w.e.f. 01.01.2006 and secondly from the date of promotion and thus, received excess amount due to wrongful fixation of pay. True/correct typed version/copy of the Govt. Order dated 13.02.209 and 28.11.2017 are collectively being annexed as Annexure No. 3 to this affidavit.” 6. From perusal of Government Orders/letters issued by State Government and the authorities of Education Department, it is revealed that petitioners were paid excess amount as salary, however, this Court finds substance in the contention made by learned counsel for petitioner that petitioner was not instrumental in getting excess amount nor did he play fraud upon the Authorities for getting the benefit, as was given to him. 7. From the material brought on record, it is apparent that it was a mistake, though bona fide, on the part of authority of Education Department, due to which an excess amount was paid to petitioner. It is not the case of respondents that petitioner has made any misrepresentation or practiced fraud upon the Authorities for getting the benefit which is now sought to be recovered. 8. Admittedly, petitioners are Group ‘C’ employees of the Education Department and in view of law laid down by Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334 , excess payment, if any, cannot be recovered from them. The principle summarized in the aforesaid judgment is reproduced below:- “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. (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. (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.” 9. Following the law declared by Hon’ble Supreme Court in the aforesaid judgment, this Court has no hesitation in holding that respondents are not entitled to recover the excess amount, which was mistakenly paid to the petitioner, as salary. 10. In such view of the matter, writ petitions are partly allowed and respondents are restrained from making any recovery from petitioners, in terms of the impugned communication(s) issued by Director, Elementary Education.