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2024 DIGILAW 757 (ALL)

Munni Devi v. State of U. P.

2024-03-11

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. The petitioner, Smt. Munni Devi's deceased husband, Malkhan Singh, was a Class-IV employee with the District Rural Development Agency (for short, 'the DRDA') and last posted under the Project Director, DRDA, Budaun. He carried the designation of a Patra Vahak. He retired from service upon attaining the age of superannuation on 31.12.2012. Admittedly, the DRDA was a registered society, registered under the Societies Registration Act, 1860 (for short, 'the Act of 1860'). The DRDA was established under the aegis of the Government of India and the State Government as a professional agency to implement and carry out poverty alleviation schemes and programmes of the Ministry of Rural Development. The DRDA, no doubt, was a society entirely controlled and managed by the State with funds shared between the Government of India and the State Government in the percentage of 75 and 25. It would function under the control of the Zila Parishad and in the absence of the Zila Parishad, under the control of the District Magistrate. Later on, the control of the society passed on to the Chief Development Officer of the district, who would function as its ex officio President. 2. Though, entirely an enterprise of the State, but in character being a society essentially, registered under the Act of 1860, no rules were framed governing service conditions of its employees. These were, therefore, governed by a circular issued by the State Government on 17.3.1994. 3. According to the petitioner, salaries of the employees of the DRDA were revised in terms of the Sixth Pay Commission vide Government Order dated 29.7.2010 w.e.f. 1.1.2006. It is pointed out by the petitioner that the said Government Order granted revised pay scales with effect from 29.7.2010, but regarding the entitlement of arrears from 1.1.2006 to 28.7.2010, the decision was deferred to a later date. 4. The first count of the petitioner's claim in the present petition is that arrears of her husband's salary, to which she is now entitled, have not been revised with effect from 1.1.2006, but 28.7.2010. She is entitled to the said arrears, which have been denied to her without assignment of reason. 5. 4. The first count of the petitioner's claim in the present petition is that arrears of her husband's salary, to which she is now entitled, have not been revised with effect from 1.1.2006, but 28.7.2010. She is entitled to the said arrears, which have been denied to her without assignment of reason. 5. It is the petitioner's case regarding this part of her claim in the writ petition that the Government Order dated 29.7.2010 made provision for revised pay with effect from 1.1.2006, but the benefit thereof has been granted with effect from 29.7.2010. In short, the petitioner claims arrears due to her husband on account of pay revision in terms of the Government Order dated 29.7.2010. In a slightly discordant stand, it is then said by the petitioner that the Government Order dated 29.7.2010 had made provision about a decision regarding payment of arrears to be separately made, and by a separate order dated 4.5.2011, an illegal, unjust and improper decision was taken by the Government not to pay arrears on account of the aforesaid revision with effect from 1.1.2006. Still later, the State Government took a decision to merge the DRDA with the Department of Rural Development vide Government Order dated 18.7.2016. 6. The petitioner's case further is that while alive, her husband made repeated representations to the respondents to pay arrears of his revised pay, pension and to refund the sum of money deducted from his contributory provident fund (for short, 'the CPF') illegally. It appears that the direction regarding refund sought in his representations by the petitioner's husband while alive was with regard to arrears of revised pay/emoluments that were given to him under the Government Order dated 29.7.2010, construing it in the manner that the entitlement to receive arrears in terms of the said order was there. Later on, since the said entitlement to arrears was negatived by the State Government, payment of arrears made with effect from 1.1.2006, understanding the Government Order dated 29.7.2010 that way, were directed to be recovered. These were in fact recovered from the CPF payable to the petitioner's husband. While alive, the petitioner's husband, the petitioner asserts, claimed refund of this deduction from his CPF and now the petitioner claims refund of deductions made from her husband's CPF, which is the other relief claimed in the writ petition, or so to speak the second count. 7. These were in fact recovered from the CPF payable to the petitioner's husband. While alive, the petitioner's husband, the petitioner asserts, claimed refund of this deduction from his CPF and now the petitioner claims refund of deductions made from her husband's CPF, which is the other relief claimed in the writ petition, or so to speak the second count. 7. The third count on which the petitioner claims relief is the payment of family pension. The petitioner claims family pension on the reasoning that after merger of the DRDA with the Department of Rural Development, employees have been offered the new pension scheme, ignoring their past services. This is said to be an arbitrary act on the respondents' part to deprive benefit of pension to the petitioner's deceased husband and family pension to her, because the new pension scheme is applicable to employees appointed on or after 1.4.2005. The Government Order dated 18.7.2016, absorbing employees of the DRDA, like the petitioner's husband, in Government service, but offering them the new pension scheme, ignoring their past services with the DRDA, is an act that is arbitrary, illegal, and, therefore, violative of Articles 14 and 16 of the Constitution. 8. It is the petitioner's further case that after merger of the DRDA with the relative Government Department, there is no relationship of employer and employee between her deceased husband and the DRDA. He would be treated as an employee of the Government. It is the petitioner's case that the DRDA, once merged with the Department of Rural Development Government of U.P., its employees are entitled to the same benefits as those available to Government servants. The further case is that upon merger, the past services in the DRDA cannot be discounted and the petitioner's husband treated to be a fresh appointee, appointed after 1.4.2005, to whom the new pension scheme would be applicable. 9. In the counter-affidavit filed on behalf of respondent Nos. 2, 3 and 4 jointly, the petitioner's case has been refuted on all counts. It is pleaded that though salary was revised for the petitioner's husband with effect from 1.1.2006 vide Government Order dated 29.7.2010, but the question of arrears of salary with effect from 1.1.2006 payable in terms of the revised pay scale was indicated to be deferred for decision at a subsequent date. It is pleaded that though salary was revised for the petitioner's husband with effect from 1.1.2006 vide Government Order dated 29.7.2010, but the question of arrears of salary with effect from 1.1.2006 payable in terms of the revised pay scale was indicated to be deferred for decision at a subsequent date. The relevant decision was taken in terms of the Government Order dated 4.5.2011, where the Government denied payment of arrears with effect from 1.1.2006, on the basis of the revised salary, finding no justification for it. It is also pleaded that arrears of salary on a misreading and misinterpretation of the Government Order dated 29.7.2010 were paid to the petitioner's late husband. Noticing this unlawful payment, a direction was issued by the Commissioner, Rural Development, vide memo dated 19.3.2013, to issue notice to the concerned employees of the DRDA, who had illegally obtained benefit of arrears of salary since 1.1.2006, asking them to refund the arrears as aforesaid, failing which a recovery certificate would be issued against them. It is pleaded further that pursuant to the said direction, the Chief Development Officer issued a notice dated 17.4.2013 to the petitioner's husband, asking him to pay back a sum of Rs. 70,212/-. 10. The further stand is that since the petitioner's husband had been paid salary in excess to his entitlement to the tune of Rs. 70,212/- while in service, it was recovered from his CPF, adjusting the excess sum paid and the balance of Rs. 2,45,863/-, being remitted to him in terms of an order of the Chief Development Officer dated 9.5.2013. About the entitlement of the petitioner's husband to receive pension, and, a fortiori the petitioner's entitlement to receive family pension, it is said in paragraph No. 12 of the counter-affidavit that the new pension scheme is applicable to those who have been appointed after 1.4.2005. It is further on said that employees/officers of the DRDA have been merged into the Rural Development Department of the Government, and, after the merger, treated to be on deputation in the Rural Development Department. The posts held by them have been treated a dying cadre. They have been asked to furnish an undertaking to include them in the New Pension Scheme, 2005, with no benefit with retrospective effect upon the merger of their cadre in Government service. The posts held by them have been treated a dying cadre. They have been asked to furnish an undertaking to include them in the New Pension Scheme, 2005, with no benefit with retrospective effect upon the merger of their cadre in Government service. An option was given to these employees that if these conditions were not acceptable, they would remain in the service of the DRDA. 11. It is averred in paragraph No. 12 that 995 directly recruited employees/officers of the DRDA have been merged into the service of the Rural Development Department as evident from the Government Order dated 18.7.2016, by which this merger has been brought about. It has particularly been averred in paragraph No. 12 of the counter-affidavit that the petitioner's husband having retired from service on 31.12.2012, that is to say, much before the merger of the DRDA (with the Rural Development Department), there is no right with the petitioner to claim benefit of the aforesaid Government Order. The merger would not affect rights of the petitioner's husband, and, a fortiori the petitioner. The petitioner's husband must be treated to have retired as an employee of the DRDA; not an employee of the Government in the Department of Rural Development. 12. In the personal affidavit filed on behalf of the Chief Development Officer, Chairman, DRDA, Budaun, in answer to this Court's order dated 6.7.2023, almost the same stand is taken about the part relating to recovery of the excess payment made to the petitioner's husband. It is, in addition, averred in paragraph No. 7 of the affidavit that so far as the question of payment of arrears of salary is concerned, that issue is engaging the attention of this Court in a batch of writ petitions, where the leading petition is Writ-A No. 6855 of 2021, Ravindra Kumar v. State of U.P. and others. About the entitlement to receive pension or family pension, the same stand is reiterated as that in the counter-affidavit. 13. Heard Mr. A.B. Singh, learned Counsel for the petitioner and Ms. Monika Arya, learned Additional Chief Standing Counsel on behalf of the respondents. 14. So far as the claim of the petitioner about her husband's entitlement to receive arrears of the revised pay w.e.f. 1.1.2006 is concerned, the said benefit has been denied by the Government vide Government Order dated 4.5.2011. A.B. Singh, learned Counsel for the petitioner and Ms. Monika Arya, learned Additional Chief Standing Counsel on behalf of the respondents. 14. So far as the claim of the petitioner about her husband's entitlement to receive arrears of the revised pay w.e.f. 1.1.2006 is concerned, the said benefit has been denied by the Government vide Government Order dated 4.5.2011. Though, the decision has been criticized as arbitrary and illegal by the petitioner, the benefit has been denied by a Government Order, to which no formal challenge has been laid in this writ petition. If a challenge were indeed laid to the validity of the Government Order, the petition would be differently framed and perhaps required to be heard by a Division Bench. In the absence of a formal challenge being laid to the Government Order dated 4.5.2011, the petitioner cannot be granted relief of provision of arrears of salary revised with effect from 1.1.2006. So far as the other issue regarding recovery of the sum of money paid on account of arrears with effect from 1.1.1986 to the petitioner's husband is concerned, it must be noticed that the stand of the respondents themselves is that the payment was made on a 'misreading' and 'misinterpretation' of the Government Order dated 29.7.2010. Therefore, whatever was paid to the petitioner's husband towards arrears on account of revision of salary with effect from 1.1.2006, is in no way attributable to an act on the employee's part. 15. The petitioner's husband was a Class-IV employee and the recovery of the excess money paid was made from his post retiral benefit, to wit, his CPF. The issue, if recovery of emoluments paid in excess of entitlement can be recovered from certain classes of employees, in a case where the concerned employees are not themselves responsible for extension of the inadmissible benefit granted to them, fell for consideration of the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 , where it has been held: “15........... A perusal of the aforesaid observations made by this Court in B.J. Akkara case [B.J. Akkara v. Government of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from the employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that the employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e. Class III and Class IV-sometimes denoted as Group C and Group D) of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.” 16............ Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744, that recovery of excess payments, made from the employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation.” 16. The same principle was followed by the Supreme Court in Thomas Daniel v. State of Kerala and others, 2022 SCC Online SC 536. In the opinion of this Court, therefore, the act of the respondents in recovering a sum of Rs. 70,212/- from the CPF due to the petitioner's late husband is illegal and cannot be sustained. 17. This spares for consideration the third count of relief, which is about the petitioner's entitlement to receive family pension. The respondents have disputed the petitioner's husband's entitlement to receive pension at all, and, a fortiori the petitioner's entitlement to receive family pension after his demise. It is not in dispute that the petitioner's husband retired from service on 31.12.2012 and died on 16.6.2020. He was never sanctioned retirement pension during his lifetime. The petitioner seeks to establish her husband's right to receive pension and her own about family pension, on foot of a subsequent merger of the DRDA in the Department of Rural Development in terms of the Government Order dated 18.7.2016. The issue, if the conditions carried in said Government Order, which employees of the DRDA are required to adhere to before being accepted into the Department of Rural Development, are arbitrary or otherwise unconstitutional or illegal, and if so, to be quashed, does not arise in this case at all. The issue, if the conditions carried in said Government Order, which employees of the DRDA are required to adhere to before being accepted into the Department of Rural Development, are arbitrary or otherwise unconstitutional or illegal, and if so, to be quashed, does not arise in this case at all. The reason is that the petitioner's husband admittedly retired much before the merger of the DRDA with the Department of Rural Development and the absorption on deputation of the DRDA employees into Government service, subject to conditions. On the date when the petitioner's husband retired, he was an employee of the DRDA. There was no merger on that day, which came much later in terms of the Government Order dated 18.7.2016. Therefore, the petitioner's husband cannot be regarded a Government servant entitled to retirement pension in accordance with service rules applicable to Government servants, appointed before 1.4.2005. 18. The learned Counsel for the petitioner, in order to advance his submission, that the petitioner's husband, though not a Government servant but an employee of the DRDA, would yet be entitled to be governed by service rules applicable to Government servants, has placed reliance upon a Full Bench decision of this Court in Km. Kalyani Mehrotra v. State of U.P. through Principal Secretary, Rural Development, Lucknow and others, 2021(4) ADJ 397 (FB). There were two questions, that were referred to the Full Bench under orders of a learned Judge of this Court, which read: “(i) Whether in view of the provisions of Government Order dated 17.3.1994, particularly clause 9 thereof, the provisions of the Rules of 1974 would be application upon the employees of DRDA? (ii) Whether the judgment of Division Bench in State of U.P. v. Ajeet Kumar Shahi, 2015 (9) ADJ 594 (DB), requires reconsideration in light of the Government Orders dated 17.3.1994 and 18.7.2016? 19. None of these questions relate to the issue, if an employee of the DRDA would generally be governed in the matters of his service by rules applicable to Government servants. Rather, the very limited question was, if the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 (for short, 'the Rules of 1974'), would apply to employees of the DRDA. This question was answered in the affirmative by the Full Bench based on an interpretation of the Government Order dated 17.3.1994 and clause 2(9) of the Rules of 1974. This question was answered in the affirmative by the Full Bench based on an interpretation of the Government Order dated 17.3.1994 and clause 2(9) of the Rules of 1974. The Full Bench never laid down for a principle or as a carte blanche that employees of the DRDA, in all matters governing their service conditions, would be governed by service rules applicable to a Government servant, employed by the State Government. Rather, their Lordships of the Full Bench perhaps mindful of the possible controversy, that may arise from the very limited principle laid down there, observed: “54. The said submission of the learned State Counsel at the very outset is clearly misconceived. By extending the benefit of 1974 Rules upon employees of the DRDA, it cannot be said by any stretch of imagination that it would confer the status of Government employees upon them. Incorporation of the said Rules by reference merely amounts to providing the benefit of a beneficial legislation. As such, extending the benefit of compassionate appointment under the 1974 Rules upon the employees of the DRDA would only have the effect of providing the said beneficial benefit and not granting them the status of Government servants.” 20. The submission advanced by the learned Counsel for the petitioner founded on the principle laid down by the Full Bench in Km. Kalyani Mehrotra does not advance the petitioner's cause to claim for herself a family pension. 21. To our understanding, the petitioner is not entitled to receipt of family pension, just as her husband was not entitled to a retirement pension. The conditions of service of the DRDA never provided for it. 22. In view of what has been said above, this petition deserves to succeed in part. 23. The writ petition is allowed in part. A mandamus is issued to the respondents to refund the sum of Rs. 70,212/- to the petitioner, deducted from her husband's CPF, within a month of the date of this judgment. The other relief regarding payment of arrears of emoluments with effect from 1.1.2006 and working out of other benefits on that basis, claimed for herself by the petitioner, on account of her deceased's husband's services, is rejected. Likewise, the petitioner's claim for sanction and payment of family pension is also rejected. 24. Looking to the partial success that this writ petition has met with, there shall be no order as to costs.