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2025 DIGILAW 1044 (GAU)

Tamuli Takoh v. State of Arunachal Pradesh

2025-06-16

ROBIN PHUKAN

body2025
JUDGMENT : ROBIN PHUKAN, J. Heard Mr. T.T. Tara, learned counsel for the petitioner and Mr. S. Tapin, learned Senior Government Advocate, Arunachal Pradesh for the respondents. 2. This petition, under Article 226 of the Constitution of India, is directed against the deduction order No. PHED-1/EZ/11/09, dated 16.05.2024, issued by the Chief Engineer (E/Z), Public Health Engineering Department and Water Supply Department (PHED and WSD hereinafter, respectively), Namsai. 3. It is to be noted here that vide impugned order dated 16.05.2024, the Chief Engineer (E/Z), PHED and WSD, Namsai, the respondent No. 3 had directed to deduct an amount of Rs. 4,33,138/- from the cash equivalent to leave salary of the petitioner herein, on the recommendation of the Director of Audit and Pension, Government of Arunachal Pradesh, Naharlagun, respondent No. 5. 4. The respondent Nos. 2, 3 & 4 have filed their affidavit-in- opposition in this case, wherein a stand has been taken that the petitioner was appointed as Assistant Engineer on 05.02.1991, under Public Works Department and later on, he was absorbed under the PHED on 19.06.1996. It is also stated that as per the CPWD Manual Vol-I, Chapter – 4, Paragraph 13 (a) (i) (ii) (iii) (b) (c) (d) (i) (ii) (iii) & (iv), provides that effect of Examination Test on increments in respect of Executive Engineer, Assistant Engineer & Junior Engineer, wherein they must have passed the Department Examination within the period of 2 years and if they paid to pass the examination within the period of 2 years, then they will neither earn increments nor will be promoted to circle charge and they will also be liable to be reverted if they fail to pass the examination within 5 years after the appointment as Executive Engineer. The aforementioned CPWD was adopted by the PHED w.e.f. 19.07.2000, in to to and thereafter, the Finance Department, Government of Arunachal Pradesh had also outlined the aforesaid criteria in the letter dated 22.10.2010, and confirmed that the Departmental Examination for Junior Engineer, Assistant Engineer and Executive Engineer is compulsory for granting annual increments. 4.1. The aforementioned CPWD was adopted by the PHED w.e.f. 19.07.2000, in to to and thereafter, the Finance Department, Government of Arunachal Pradesh had also outlined the aforesaid criteria in the letter dated 22.10.2010, and confirmed that the Departmental Examination for Junior Engineer, Assistant Engineer and Executive Engineer is compulsory for granting annual increments. 4.1. It is also stated that any amount paid/received without authority of law can always be recovered, barring few exceptions of extreme hardships, but not as a matter of right and therefore, claim made by the petitioner for waiving of recovery, citing the provisions of O.M. dated 02.03.2016, would not be in order, in case, where the pay fixations have not been verified by Directorate of Audit and Pension being the competent authority under the Government of Arunachal Pradesh for vetting of pay fixations and as such, the claim of the petitioner is also impermissible. Under such circumstances, it is contended to dismiss the petition. 5. The petitioner herein had filed his reply to the affidavit in opposition of the respondent authorities. He denied the statement and averments so made in the affidavit in opposition. It is stated that the PHED & WSD of Government of Arunachal Pradesh had adopted the CPWD Manual vide order dated PHE/Sectt-15/97/237-46, dated 19.07.2000, which clearly mentioned about passing of departmental Accounts Examination by Junior Engineer and Assistant Engineers. Nowhere in the said order, passing of departmental examination by the Executive Engineer is mentioned. 5.1. It is also stated that there is also provision for exemption from passing of the departmental accounts examination who have reached 57 years having good service record and the petitioner had already reached 57 years when the respondent had found that the petitioner did not pass the said examination. 5.2. It is also stated that the petitioner had filed one RTI application seeking information of any modification of the order dated PHE/Sectt-15/97/237-46, dated 19.07.2000, and in reply dated 24.07.2024, vide Annexure-I, the Under Secretary, PHED & WSD had informed that no modification was made. 6. Mr. Tara, learned counsel for the petitioner submits that the petitioner was serving as the Superintending Engineer in PHED & WSD of Government of Arunachal Pradesh and he retired from service on 30.04.2023. Thereafter, vide order dated 16.05.2024, the respondent No. 3 had directed to deduct an amount of Rs. 6. Mr. Tara, learned counsel for the petitioner submits that the petitioner was serving as the Superintending Engineer in PHED & WSD of Government of Arunachal Pradesh and he retired from service on 30.04.2023. Thereafter, vide order dated 16.05.2024, the respondent No. 3 had directed to deduct an amount of Rs. 4,33,138/- from the cash equivalent of the sanctioned leave salary, while authorizing a payment of Rs. 23,48,680/- on the basis of the recommendation of the respondent No. 5. Mr. Tara further submits that the action arises from the alleged erroneous fixation of the basic pay and excess payments disbursed following the petitioner’s retirement and the aforesaid action of the respondent authorities is contravention of the Office Memorandums (O.M. herein after) dated 02.03.2016 and 03.10.2022, as well as the legal principles established by the Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq Masih (White Washer) , reported in (2015) 4 SCC 334 , wherein it is stated that recoveries imposed by employers on retired employees or those who are due to retire within one year of the recovery order are impermissible under the law. Mr. Tara further submits that the present petitioner is also similarly situated and as such, aforementioned proposition of law is applicable in the present case also. 6.1. Mr. Tara further submits that the present petitioner was promoted to Executive Engineer on 25.09.2000, and there is no record of passing out of departmental accounts examination, but he had regularly been granted periodical increment beyond 2 years, which is contravention to the Central Public Works Department Manual (CPWD Manual hereinafter) Vol–1, which provides that to earn periodical increment, departmental examination must be passed within the period of two years from the date of appointment or promotion, failing to which no future increment is admissible. 6.2. Mr. Tara referring to a representation dated 27.03.2023, Annexure – 4, at page No. 21 of the petition, submits that the petitioner had requested the Chief Engineer for exemption of passing the Departmental Accounts Examination, in view of the O.M. No. 23/01/A/2016-EC (Vol-II), dated 28.08.2019, but, the said representation was rejected by the authority vide letter dated 25.01.2024. 6.3. Referring to Annexure-1 of the affidavit in reply of the petitioner, Mr. 6.3. Referring to Annexure-1 of the affidavit in reply of the petitioner, Mr. Tara submits that as per said note recovery of excess salary drawn by the petitioner does not arise in case of Executive Engineer for the period w.e.f. 01.10.2002 to 01.06.2011 till the promotion of the petitioner to the post of Superintending Engineer on 22.06.2001. It is also stated in the said reply that there is provision for exemption from passing departmental accounts examination who has reached 57 years as per Govt. Order dated 21.01.2019, No. AR-123/2018 and the petitioner had already attained the age of 57 years and will be retiring on superannuation on 30.04.2023, No. AR-123/2018. 6.4. Referring to Annexure-3, a letter dated 05.08.2021 of Assistant Auditor for Director of Audit and Pension, Mr. Tara submits that in case of one Chief Engineer, namely Tagong Ketan of PHE & WS, it was stated that passing departmental accounts examination for AE/EE had been made mandatory w.e.f. 10.08.2001 vide order No. RWD/Sectt./11/2000 and since the officer was promoted as Executive Engineer before the cut-off date, passing departmental accounts examination and recovery of excess drawal does not arise, and the present petitioner is also similarly situated and as such, he is also entitled to similar treatment. Under such circumstances, Mr. Tara has contended to allow this petition. 6.5. Mr. Tara has referred following decisions in support of his submission:- (i) High Court of Punjab and Haryana and Others vs. Jagdev Singh , reported in (2016) 14 SCC 267 (ii) Jogeswar Sahoo and Others vs. The District Judge, Cuttack and Others , reported in 2025 LiveLaw (SC) 396 7. Per-contra, Mr. Tapin, learned Senior Government Advocate for the respondent authorities supports the impugned order and submits that the decision of Hon’ble Supreme Court in the case of Rafiq Masih (Supra) , is not applicable in the present case. The proposition laid down in the said case relates to Group C & D employees and in the present case, the petitioner had retired as Superintending Engineer. Mr. Tapin further submits that in view of the CPWD Manual, at Clause No. 14(1) Note (4), every Executive Engineer and Assistant Engineer (including displaced Engineers from Pakistan now employed in the Department) shall have to pass the Departmental Examination, irrespective of age and length of service. 7.1 . Mr. Mr. Tapin further submits that in view of the CPWD Manual, at Clause No. 14(1) Note (4), every Executive Engineer and Assistant Engineer (including displaced Engineers from Pakistan now employed in the Department) shall have to pass the Departmental Examination, irrespective of age and length of service. 7.1 . Mr. Tapin, referring to Note 4 of the CPWD Manual Clause 14(I), submits that the engineers/officers promoted from one grade to another, will not be allowed to draw the increments in the scale of the pay of the posts, to which they are promoted until and unless they have passed the departmental examination prescribed for the grades from which they are promoted and in the case in hand, the petitioner, admittedly, had not passed the aforementioned examination and as such, the Chief Engineer has rightly deducted the sum of Rs. 4,33,138/-, which was given to him out of mistake. 7.2. Mr. Tapin also submits that the O.M.s, which the petitioner has relied upon, are not applicable in the case of the present petitioner. Mr. Tapin also submits that in connection with several cases, Hon’ble Supreme Court has allowed the deduction which was unduly given to the employees. 7.3. In support of his submission, Mr. Tapin has referred following decsions:- (i) Chandi Prasad Uniyal and Others vs. State of Uttarakhand and Others , reported in (2012) 8 SCC 417 (ii) Rafiq Masih (Supra) (iii) Jagdev Singh (Supra) ; and (iv) Jogeswar Sahoo (Supra) 8. In reply, Mr. Tara, learned counsel for the petitioner, submits that the notifications, so relied upon by the respondent authorities were issued only after 1 month from the retirement of the present petitioner and therefore, the same is not applicable in the present case. 9. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 16.05.2024 (Annexure No. 6) and also perused the decisions referred by learned counsel for both the parties. 10. The basic facts of the present case are not in dispute. The petitioner was appointed as Assistant Engineer in the year 1989, on adhoc basis in PHED & WSD. Thereafter he was given the permanent position on 23.01.1991 and he was regularized on 16.01.1997. He was promoted to Executive Engineer on adhoc basis on 25.09.2000 and formally regularized on 22.06.2001. The basic facts of the present case are not in dispute. The petitioner was appointed as Assistant Engineer in the year 1989, on adhoc basis in PHED & WSD. Thereafter he was given the permanent position on 23.01.1991 and he was regularized on 16.01.1997. He was promoted to Executive Engineer on adhoc basis on 25.09.2000 and formally regularized on 22.06.2001. He was promoted to Superintending Engineer on 30.05.2011 and regularized on 11.12.2015. He had retired on superannuation on 28.04.2023, as Superintending Engineer of PHED & WSD. Further it appears from the Annexure No.1 of the petition that there is no Vigilance Case pending against him. Said annexure was issued by the Deputy Secretary (Vigilance), Government of Arunachal Pradesh, Itanagar on 02.12.2022. It also appears from the Annexure No. 4 that the petitioner had filed one representation on 27.03.2023, in view of the O.M. dated 08.08.2019, and dismissal of the same was communicated to the petitioner vide letter dated 25.01.2024. 10.1. Further, O.M. dated 02.03.2016, issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, reveals that the said O.M. was issued in view of the decision of Hon’ble Supreme Court in the case Rafiq Masih (Supra) , under the following situations:- (i) Recovery from employees belonging to Class- II 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. (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 cases, 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. 10.2. (v) In any other cases, 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. 10.2. Again, the O.M. dated 03.10.2022, issued by the Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, it is stated as under:- (i) Ministries/Departments/Offices may exercise extreme caution and take suitable measures while handling pay fixation of their employees as also in other cases involving payments so as to ensure that such lapses/mistakes do not occur; (ii) Pay fixation orders issued due to grant of MACP/ACP/financial up gradation/increment/ promotion etc. may necessarily be audited by the internal audit and/or the Pay & Accounts Office concerned within 3 months of issuing such orders; and (iii) In cases where the employee is due to retire within next 4 years, audit of previous pay fixation orders shall be done on priority. 10.3. Admittedly, the present petitioner had retired from service as Superintending Engineer of PHED & WSD of Government of Arunachal Pradesh and though his case appears to be not covered by the point No. (i) of the O.M. dated 02.03.2016, yet, it appears that the point No. (ii) of the said O.M. covers his case, which provides that recovery from retired employees, or employees who are due to retire within one year, of the order of recovery, by the employer would be impermissible. It is to be noted here that the O.M. was issued pursuant to the decision of Hon’ble Supreme Court in the case of Rafiq Masih (Supra). 11. Though Mr. Tapin, learned Senior Government Advocate for the respondent authorities tries to distinguish the decision laid down in the case of Rafiq Masih (Supra) , yet, his submission left this court unimpressed. Out of the five proposition laid down in the case of Rafiq Masih (Supra) , the point No. (ii) i.e. Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery, will definitely applicable in the present case and Mr. Tara, the learned counsel for the petitioner has rightly pointed this out at the time of hearing. Tara, the learned counsel for the petitioner has rightly pointed this out at the time of hearing. Regard in this context can be had from the decision of Hon’ble Supreme Court in the case of Jagdev Singh (supra) , wherein it has been held as under:- " 11. The principle enunciated in Proposition ( ii ) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. 12. Though Hon’ble Supreme Court has refused to extend the benefit in the aforesaid case, yet, the same is due to different reason i.e. the petitioner, who was a Civil Judge, had given undertaking that he would refund the excess amount paid. Notably, in the present case, no such undertaking was given by the present petitioner. 13. There is no dispute that the petitioner has to pass the departmental examinations in view of the CPWD Manual as provided in Clause 14(1) Note (1) & (4) and also in view of the order dated 19.07.2000, passed by the Commissioner & Secretary to the Government of Arunachal Pradesh, Department of PHE and WS, Itanagar, which provides that the effects of departmental examination on increments in respect of AE’s/JE’s will be regulated under the provision of Para 13(c)(d)(i)(ii)(iii) & (iv) and note there on of CPWD Manual. 14. But, as pointed out by Mr. Tara, learned counsel for the petitioner, the aforesaid notifications are not applicable in the case of the present petitioner, inasmuch as the post of Executive Engineer is not included in the aforementioned order. There appears to be substance in the submission of Mr. Tara and it is fact that there is no mention about the post of Executive Engineer in the aforementioned order. 15. There appears to be substance in the submission of Mr. Tara and it is fact that there is no mention about the post of Executive Engineer in the aforementioned order. 15. Further, from the Annexure-1 of the affidavit in reply of the petitioner, recovery of excess salary drawn by the petitioner does not arise in case of Executive Engineer for the period w.e.f. 01.10.2002 to 01.06.2011 till the promotion of the petitioner to the post of Superintending Engineer on 22.06.2001 and also there is provision for exemption from passing departmental accounts examination who has reached 57 years as per Govt. Order dated 21.01.2019 No. AR- 123/2018. And it appears that the petitioner had already attained the age of 57 years when the department had informed him about the requirement of passing departmental accounts examination. 16. It also appears that Annexure-3, a letter dated 05.08.2021 of Assistant Auditor for Director of Audit and Pension in case of one Chief Engineer, namely Tagong Ketan of PHE & WS, it was stated that passing departmental accounts examination for AE/EE had been made mandatory w.e.f. 10.08.2001 vide order No. RWD/Sectt./ 11/2000 and since the officer was promoted as Executive Engineer before the cut-off date, passing departmental accounts examination and recovery of excess drawal does not arise. If the date of passing departmental accounts examination for AE/EE was made mandatory w.e.f. 10.08.2001, vide order No. RWD/Sectt./11/2000, then the present petitioner is also entitled to same benefit since he was promoted to the post of Executive Engineer on adhoc basis 25.09.2000 before the order No. RWD/Sectt./11/2000, dated 10.08.2001. Being similarly situated, the petitioner is also entitled to similar treatment. 17. To recapitulate on the following grounds the impugned order is liable to be interfered with:- (i) The PHED & WSD of Government of Arunachal Pradesh had adopted the CPWD Manual vide order dated PHE/Sectt-15/97/237-46, dated 19.07.2000. Nowhere in the said order the requirement of passing of departmental examination by the Executive Engineer is mentioned. (ii) As per Annexure-3, a letter dated 05.08.2021 of Assistant Auditor for Director of Audit and Pension, passing departmental accounts examination for AE/EE had been made mandatory w.e.f. 10.08.2001 vide order No. RWD/Sectt./ 11/2000. (iii) The petitioner was promoted as Executive Engineer on 25.09.2000, before the cut-off date, passing departmental accounts examination, i.e. 10.08.2001. (ii) As per Annexure-3, a letter dated 05.08.2021 of Assistant Auditor for Director of Audit and Pension, passing departmental accounts examination for AE/EE had been made mandatory w.e.f. 10.08.2001 vide order No. RWD/Sectt./ 11/2000. (iii) The petitioner was promoted as Executive Engineer on 25.09.2000, before the cut-off date, passing departmental accounts examination, i.e. 10.08.2001. (iv) In case of one Chief Engineer, namely Tagong Ketan of PHE & WS, it was stated that exemption from passing the departmental accounts examination was granted and the present petitioner is also similarly situated and as such he cannot be denied the benefit. (v) In view of Govt. Order dated 21.01.2019, No. AR-123/2018, there is provision for exemption from passing departmental accounts examination by those officers who has reached 57 years, and the present petitioner had already attained the age of 57 years, when the respondent authority had communicated him about the requirement. (vi) The petitioner had retired on superannuation on 30.04.2023, and as such in view of the ratio laid down in the case of Rafiq Masih (Supra) , and in view of the O.M. dated 02.03.2016, issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training, in point No.(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery, the respondent authority is not entitled to recover the amount. 18. In the result, this petition stands allowed. The impugned order No. PHED-1/EZ/11/09, dated 16.05.2024, issued by the Chief Engineer (E/Z), PHED & WSD, Namsai, by which it was directed to deduct an amount of Rs. 4,33,138/- from the cash equivalent to leave salary of the petitioner herein, on the recommendation of the Director of Audit and Pension, Government of Arunachal Pradesh, Naharlagun, respondent No. 5, stands set aside and quashed being arbitrary and illegal. The respondent authorities are directed to release the aforesaid sum to the petitioner within a period of four weeks from the date of receipt of certified copy of this order. It is further provided that the amount shall carry interest @ 9% per annum in the event of failing to release the same within the aforesaid period of four weeks. 19. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within one week from today. The parties have to bear their own costs.