Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 10964 of 2012 ====================================================== 1. Ram Rekha Ram Paswan S/O Late Ramdeni Ram Paswan R/O Village- Hatta, P.S.- Chenari, District- Rohtas .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary Human Resources Development Department, Govt. Of Bihar, Patna 2. The District Education Officer, Kaimur at Bhabhua 3. The District Programme Officer (Establishment), Kaimur at Bhabhua 4. The Accountant General, Bihar, Patna WITH .... .... Respondent/s Civil Writ Jurisdiction Case No 11081 of 2012 ====================================================== 1. Narad Muni Pandey S/O Late Ram Sakal Pandey Resident Of Village- Akolhi, P.S.- Nuaon, District- Kaimur At Bhabhua .... .... Petitioner/s Versus 1. The State Of Bihar through the Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 2. The District Education Officer, Kaimur at Bhabhua 3. The District Programme Officer (Establishment), Kaimur at Bhabhua 4. The Accountant General, Bihar, Patna .... .... Respondent/s ====================================================== Appearance : (In CWJC No 10964 of 2012) For the Petitioner/s : Mr Rajeev Lochan, Advocate For the S t a t e : Mr Ravindra Kr Choubey, S C 8 For the A G : Mr Amar Nath Singh, Advocate (In CWJC No 11081 of 2012) For the Petitioner/s : Mr Rajeev Lochan, Advocate For the S t a t e : Mr Shashi Bhushan Kr, S C 7 For the A G : Mr Dhanendra Chaubey, Advocate ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 8 29-01-2013 In these two writ petitions, petitioners are Teachers
Legal Reasoning
Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 under the State Government. They challenge the respective orders 2 of recovering/adjustment of Rs 3,74,423/- and Rs 4,07,790/- respectively from their gratuity after their superannuation on the ground that they had not passed Hindi Noting and Drafting Examination. Counter affidavit and rejoinder have been filed. Heard the parties and with their consent, the writ petition is being
Decision
disposed of at this stage itself. It is not in dispute that the petitioners were granted promotion in the year, 2004 as Headmaster with effect from 1982. They joined the respective promoted post in the year, 2005. The financial benefits as a consequence of promotion were to be calculated from the date of promotion but actual financial benefit was to be granted from the date of joining the promoted post. Both of them superannuated in the year, 2009 and 2010 respectively. It is after superannuation when retiral dues were to be paid, upon objection raised by the Accountant General, the aforesaid adjustment/deduction has been ordered. The reason is that the petitioners had not passed the Hindi Noting and Drafting Examination as provided under the Hindi Noting and Drafting Examination Rules, 1968. The said Rules provide that all Government employees (Class IV excluded), who deal with files Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 requiring them to make notes, have to necessarily pass Hindi 3 Noting and Drafting examination held by the Rajbhasa Department which examination is held at least once every year. Those, who did not take the said examination and/or fail, are not entitled to get yearly increment. There are, inter alia, some exceptions. That being that if a person has attempted to clear the said examination several times but fails and attains the age of 50 years or above, he could be exempted provided he sought the exemption. The second is that Teachers are exempted but Headmasters are not exempted. Thus, on promotion, the Headmaster is required to clear the said examination in order to enable him to get the increment. It is the case of the respondents, notwithstanding the aforesaid, petitioners had never even attempted the said examination and, as such, right from the very initial annual pay increment granted, they were not so entitled to it. Thus, all the annual increments granted to the petitioners right through their career was wrong and in contravention of the said Rules. Not only this but the increment granted consequently to the promotion was also wrongly granted. This was allegedly detected when, after superannuation, their service records were sent to the Accountant General for verification and finalization of their retrial dues. Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 4 On the other hand, learned counsel for the petitioners submits that before ordering for such a substantial deduction from retiral dues neither any show cause was issued nor any proceeding initiated and, as such, the said ex parte assessment and decision was not valid. It is further pointed out that the assertion that right from the initial appointment, annual increments could not be given, is not correct inasmuch as petitioners were Teachers who are exempt. The question of taking the examination arises only consequent to the promotion granted to them in 2004 with retrospective effect. It is further submitted that when the promotion was granted in the year, 2004 with retrospective effect, they could not be expected to take the examination retrospectively. Thus, the increment to pay scale granted to them upto 2005 cannot be faulted. The only fault, if any, would be the increment from 2005 onwards. Learned counsel for the petitioners further submits that as they had retired in the year, 2009 or 2010 as the case may be, they were obviously above the age of 55 years when promotions were granted. At this stage, it could not be expected of them to take the said examination. The Rules itself contemplated that people, who had attempted the examination prior to attaining the age of 50 years and failed, could be granted exemption. Thus, in the facts aforesaid, it was a fit case in which Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 exemption ought to be granted. 5 It is further submitted on behalf of the petitioners that they were granted promotion pursuant to orders of this Court in different writ petitions. Promotions were due since 1982. it is only upon direction of this Court that promotions were granted though financial benefits were restricted from the day they joined the promoted post. Thus, they cannot be penalized and that too after superannuation from their retiral dues. Having considered the matter, in my view, the petitioners must succeed. The Apex Court, in the case of Chandi Prasad Uniyal & Others –Versus- State of Uttarakhand & Others (2012) 8 Supreme Court Cases 417, has clearly laid down that if any payment has wrongly been made to an employee then the employer has an absolute right to recover the same as that would be unjust enrichment on part of the employee. But while doing so, the Apex Court itself, in paragraph 15 itself, had clearly noted exceptions. One of the exceptions noted was where the deductions sought to be made is after retirement from the retiral dues. That is the case in the present circumstances. Even otherwise, learned counsel for the petitioners is correct when he submits that the promotions were given in the year, 2004 with retrospective effect from 1982. It could not be expected of a Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 person to take an examination retrospectively. Thus, the annual 6 increment, which accrued, cannot be said to be in violation of the said Rules because it was not possible for the petitioners to take the examination in the year, 1982 or thereafter till promotion orders were issued as Teachers were exempt from the said examination. The occasion to take examination accrued only after promotion orders were issued in the year, 2004. Thus, the annual increment consequently to promotion which accrued to the petitioners from 1982 upto 2005 cannot be faulted. At best, what was wrongly paid was the increment after 2005 upto their retirement. In the supplementary counter affidavit, State has given detailed calculations monthwise of the excess payments. A perusal of the same clearly shows that they have assumed that since 1982, petitioners were not entitled to any increment. Thus, their entitlement was basic scale of Headmaster and all increments granted from 1982 upto 2005 notionally were wrong. It is assumed that in 2005, they having not passed the examination, they would only be entitled to the basic scale of Headmaster and payment received by them consequent to calculation of annual increment since 1982 was bad. In my view, this is wrong. As noted above, it was humanly impossible for the petitioners to take Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 the examination. Prior to 2005, they were Teachers. Teachers 7 were exempted. The promotion, being retrospective, the annual increments could not be denied to them. Thus, the calculation, if any, could at best be made on basis of the pay scale they were entitled to in the year, 2005 taking into account annual increments from 1982 and any excess amount paid thereafter would be unauthorized. It is only to that extent it can be alleged that excess payments were made. But, as noted above, even this, in my view, cannot be recovered after their superannuation. Thus, the deduction and/or adjustment, as ordered to be made, cannot be sustained. However, their pensionary benefits would be calculated on basis of their pay scale as would be in the year 2005 taking into account annual increments and calculating annual increments thereafter. The Accountant General would, thus, be required to recalculate the pension and pensionary benefits which would be consequent to the authority letter/sanction letter issued by the State Government in this regard. The deduction of amount, which is contrary to the orders passed by this Court, must, thus, be refunded to the petitioners to the extent, as indicated above. With this observation and direction, the writ petition stands disposed of. Patna High Court CWJC No.10964 of 2012 (8) dt.29-01-2013 8 It goes without saying that State and the Accountant General would complete all formalities in this regard in accordance with the orders passed by this Court at an early date preferably within two months from today. M.E.H./- (Navaniti Prasad Singh)