Ramesh Pd. Singh v. The State Of Bihar & Ors.

Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 2 2-1741/11)-749/12 dated 5.5.12 passed by Registrar, B.N. Mandal University, Madhepura, Annexure-12. To direct the respondents to pay the salary admissible to the post of Librarian as the petitioner has made in-charge Librarian as per the order contained in Memo no. G-S(79/B) 1273 dated 11.12.2003 and as such he is entitled to be paid his salary in the pay scale as admissible for the post of Librarian i.e. Rs. 6500-10,500/- as the petitioner is discharging this duties on the vacant post of Librarian on officiating basis. To direct the respondents to refund the entire recovered amount with interest to the petitioner if any in the larger interest of justice, fair play and equity and also direct to grant admissible pay scale to be admissible to the post of Librarian. To direct the respondents to give promotion the eligible candidates who acquired qualification as per U.G.C. norms and if discharging his duty on the sanctioned post, then pay the salary as per norms of the State Government vide Order no. 15/D 1-01/09 Part-II Hi.Ed. 2693 dated 27.08.2010." this Court will have no difficulty in holding that the petitioner can get only such pay in the pay scale to which he would be entitled in law on the date the College became constituent. Admittedly, the petitioner was appointed while the College was an affiliated unit and later on this College became a constituent College in the year 1980. The petitioner was working in the College in the Library and since, he was not having any qualification for holding the post of Librarian or Assistant Librarian, he was designated as Library Assistant. Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 3 In fact the post of Library Assistant for which Government had fixed the pay was one of the Assistant Clerk as is evident from the perusal of the counter affidavit enclosing the set of pay scales notified on 5th of October, 1982 by the State Government. Obviosuly, the petitioner therefore, was entitled to the pay scale which was admissible to the Library Assistant as fixed by the State Government. It however appears that somehow when petitioner had passed his examination of the degree course in Library Science in the year 1983 he could get the pay scale of Library Assistant with the qualification of degree in Library Science but then that could not have been allowed by the University because in that case the post had to be upgraded for which the approval of the State Government was necessary. This anomaly in the pay fixation had continued and was ultimately detected by the Government Auditors who had found such pay fixation and payment of higher salary in the pay scale to be impermissible. Consequently, the impugned order came to be passed which reads as follows:- "To Sri Ramesh Prasad Singh Library Assistant/In-charge Librarian, M.L.T. College, Saharsa. Sub: Regarding disposal of representation compliance of the order dated 07.02.2012 passed in Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 4 law. In

28.02.2012 C.W.J.C. No. 2391 of 2012-Ramesh Prasad Singh vs the State of Bihar & Others. Sir, With reference to the subject mentioned above, I am directed to inform you that vide above said order dated 07.02.2012, the authorities of the University have been directed to consider the representation of the petitioner and dispose it of by a speaking order in this connection your accordance with representation considered as per materials available and in accordance with law and the following facts emerged. You were initially appointed as Assistant Librarian in M.H.M. College, Sonbarsa without post. After conversion of the said college in constituent unit, the then L.N. Mithila University, Darbhanga regularized your appointment as Library Assistant as per availability of post vide letter No. 6798-8029 dated 10.05.1984. Your service was transferred to Nehru College Bahadurganj and/or M.L.T. College, Saharsa. Vide University letter No. 97 dated 18.03.2009 the deputation order of Sri Shyamanand Jha, Librarian, R.M. College, Saharsa was cancelled and in absence of the regular Librarian, your were letter No. 16/09 dated directed vide college 24.03.2009 to take over charge of the Librarian from Shyamanand Jha. Earlier and in such circumstances, vide University letter No. 1273 dated 11.12.2003 and for the time being, you were directed to take charge of the College library with the specific direction and condition that it should not be treated any kind of Promotion/appointment, i.e., any benefit on account of such charge should not be permissible. The College letter dated 24.03.2009 does not provide you any kind of benefit for the same. Thus, any kind of claim for taking over charge of the College Library is not admissible. As regards your claim, as stated in your representation dated 18.07.2011 in the provisional entitlement of pay dated 02.06.2000 issued from the level of State Govt., your pay was fixed in the scale of pay of Rs. 1200-1800 and with 1st Time Bound Promotion in the scale of pay of Rs. 1320-2040, states as lower scales of pay, this is to inform you that as Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 5 etc., 2693 revision yourselves

27.08.2010 lower scales of sanction pay/pay provided u/s-35(2) of Universities Act, the State Government is empowered University/College employees. Scale of pay etc. has been revised by the State Govt. from time to time vide letter No. 881 & 882 dated 02.06.1982 (w.e.f. 01.04.1981), letter No. 841 dated 13.04.1991 (w.e.f. 01.01.1986/01.03.1989), vide letter No. 1972 dated 12.10.2004 (w.e.f. 01.01.1996/01.04.1997) and letter (w.e.f No. 01.01.2006/01.04.2007). You, admitted in your above said application that you were appointed on 26.07.1980 in the scale of pay of Rs. 220-315, which was the pay, by the time, admissible to you as Library Assistant-a post in the cadre of lower division clerk. The scale of pay of Rs. 220-315 was revised by the State Govt. w.e.f. 01.04.1981 as the scale of Rs. 535-765/580-860. Thereafter and accordingly, pay was revised in the scale of Rs. 1200- 1800 (w.e.f. 01.01.86/01.03.89)Rs. 1320/2040 as per first Time Bound Promotion and Rs. 4000-6000/4500- 7000 with the conditions laid down. Thus, entitlement of pay dated 02.06.2000 issued by the State Govt. was in accordance with law. The stated scale of pay of Rs. T.B.P., 1400-2600 or 1500-2750 with 1st provisionally allowed to you by the University and your claim for the scale of pay of Rs. 1500-2700 and 1640-2900 as per 1st T.B.P., are not admissible as per revision of pay approved by the State Govt. Any amount, thus paid in excess, is required to be that you are recovered/adjusted. Your claim possessing higher qualifications and claim for higher scale of pay is beyond the provisions. For different posts there were/are different scales of pay and scale of pay for the particular post, against which an employee was/is appointed was/is only admissible; irrespective of possessing higher qualifications. Thus, the provisions entitlement of pay fixed at the State Govt. level was/is as per provisions and your claim for higher scale is not admissible. facts, your On representation was are being disposed of compliance of the order dated 07.02.2012 passed in C.W.J.C No. 2391 of 2012 and this is by way of for the above face of Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 6 your information. Yours faithfully Registrar 05.05.12 As would be evident, the authorities have considered all aspect of the matter and have come to a conclusion that the petitioner would not be entitled for the pay scale of the post of Library Assistant which has two riders namely, one which was available to the degree or diploma holders in the subject of Library Science and secondly, who had no such degree or diploma. This subtle distinction in fact has been maintained by the State Government all along as is also apparent from the latest pay revision schedule annexed by the petitioner by way of Annexure-14, wherein, it has been shown that Library Assistant having diploma in Library Science would be entitled to grade pay of Rs. 2800/- but those who did not possess the same will be entitled for the grade pay of Rs. 1900/-. The submission of learned counsel for the petitioner that since, the petitioner had acquired the qualification and he became automatically entitled for the higher pay scale has to be only noted for its being rejected. A person can be Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 7 appointed or absorbed on the post as per the order of the employer. In the present case the University is the employer but the sanction of the post for the same has to be made by the State Government under Section-35 of the Bihar State Universities Act. The services of the petitioner were taken over in the constituent College w.e.f., 1980 when he was not having the qualification and therefore, his pay was fixed as to the Library Assistant without giving him the pay scale of professional Librarian. Therefore, unless the Government had upgraded and sanctioned the post of Library Assistant with its pay scale, the University on its own could not have made such payment of salary to the petitioner. It is this aspect of the matter which got detected in course of audit by the auditors of the State Government who had found the petitioner ineligible for payment of higher salary. The submission of learned counsel for the petitioner that there was no misrepresentation and/or any on the part of the petitioner and thus he cannot be subjected to any recovery has to be only noted for its being rejected inasmuch as this very issue with regard to the payment of excess amount and its recovery was gone into at length by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 8 Uttarakhand & Ors. reported in 2012(8) SCC 417 wherein after considering all the earlier judgments including the case of Syed Abdul Quadir Vs. State of Bihar reported in 2009(3)SCC 475, it was held as follows:- various referred “13. We are not convinced that this Court judgments hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying in the administrative hierarchy. lower posts

14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 9 such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.” ’ From reading of the aforementioned judgment of Apex Court it would be clear that there is no concept of retaining public money if one is not entitled to it. The Apex Court after in fact considering its earlier judgments on this aspect had clarified that only when the person was a retired employee such recovery could not be made. In the present case the petitioner however is still continuing in service and therefore, as per the judgment of the Apex Court in the case of Chandi Prasad Uniyal (supra) he cannot be spared even in the matter of recovery. The last submission of learned counsel for the petitioner that the petitioner is still being asked to work on a higher post has to be again appreciated in the light of the rider given in service as is manifest from the communication of the Registrar contained in Annexure-13, relevant portion whereof reads as follows:- "lsok esa] izHkkjh iz/kkukpk;Z] ,e0 ,y0 Vh0 dkWyst] lgjlkA %& Jh jes’k izlkn flag] iqLrdky; lgk;d dks iqLrdk/;{k ds izHkkj Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 10 fn;s tkus ds laca/k esaA egk’k;] mi;qZDr fo"k;d jkT;iky lfpoky; ds i=kad& 2942@jk-l-…1‰ fnukad%& 29-09-2003 ,oa vkids i=kad izks-& 163@03 fnukad& 21-11-2003 ij funs’kkuqlkj] lE;d fopkjksijkUr Jh jes’k izlkn flag] iqLrdky; lgk;d …Lohd‘r in‰ dks rRdky iqLrdk/;{k dk izHkkj fn;k tkrk gSA ;g izHkkj fdlh izdkj dh izksUufr@fu;qfDr ugha ekuh tk;sxhA fo’oklHkktu g0@& dqylfpo Kkikad% (G-S (79/B) 1273 / fnukad& 11-12-03- izfrfyfi vxzlkfjr%& lwpukFkZ ,oa vko’;d dk;kZFkZA" It would thus become clear that the mere assignment of work on the post of Library Asistant or Assistant Librarian would not make the petitioner entitled for its pay scale in view of the aforesaid specific order passed by the Registrar of the University. Thus for the reasons indicated above this Court in the facts and circumstances of this case is not inclined to grant any of the relief to the petitioner as prayed him in this writ application. Before parting with this Court, however, will direct the Registrar of the University to send the case history of the petitioner to the State Government for consideration as to whether if there is already a sanctioned post of Library Assistant and the petitioner's services were also absorbed against the aforesaid post the time of the College becoming Patna High Court CWJC No.20626 of 2012 (5) dt.24-10-2013 11 constituent unit can the petitioner be given the benefit of higher pay scale at least prospectively, inasmuch as, he has the qualification on the basis of which the Government has prescribed the two different pay scales on the post of Assistant Librarian. In the event such a proposal of the University finds favour with the State Government, the petitioner's pay scale may be upgraded in the pay scale of Library Assistant on the basis of his qualification as mentioned in the latest pay revision order prospectively from the date of issuance of such order, without payment of any arrears of salary to him. With the aforesaid observation and direction, this writ application is disposed of. Ranjan/- (Mihir Kumar Jha, J)