Nitya Nand Jha v. The State Of Bihar

Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 2 manner during process of sixth pay revision an objection has been raised from the level of Respondent District Accounts Officer (D.A.O.) with regard to non passing of Hindi noting and drafting (H.N.D.) exam by the petitioners and as they have been granted only notional increment and the actual payment has been held to recoverable, whereas till date of issuance of order of promotion the petitioners were posted only Assistant teachers and it would not have been possible for them to appear in H.N.D. examination they passed the year 2011 after promotion and as such they became entitled for all pay and other emoluments in accordance with law.”

3. Learned counsel for the petitioners in support of the aforementioned prayer has submitted that when the promotion to the petitioners in the Headmaster pay-scale was notified only in the year 2009 on 4.2.2009 with retrospective effect, the liability on the part of the petitioners to pass the Hindi Noting and Drafting Examination should not have been fastened from the earlier date of 1.11.1994, 21.5.1995 and 1.11.1994 respectively so as to deprive the petitioners the benefit of annual increments. He has also expanded his submission by taking a plea that virtually all the petitioners will be subjected to huge recovery of the amount already drawn by them for no fault on their part inasmuch as such delayed retrospective promotion to them with retrospective effect Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 3 is only on account of inordinate delay caused by the respondents in finalizing their gradation list and notifying their consequential promotion.

4. Learned counsel for the State, on the other hand, has invited attention of this Court towards paragraph no.8 of the writ petition which reads as follows: “8. That it would not be irrelevant to mention hereby is a provision for Headmaster of Government Schools to pass Hindi Noting and Drafting examination conducted by the Rajbhasa Department of Government of Bihar and in the event of non-passing said examination the concerned Headmaster would not be entitled for increments.”

5. He with reference to the aforesaid statement has submitted that once the petitioners have admitted that there was a requirement for them to pass the Hindi Noting and Drafting Examination, they cannot get away from the adverse consequence set out in the statutory rule relating to passing of Hindi Noting and Drafting Examination.

6. In the considered opinion of this Court, the first apprehension of the petitioners that they are going to be subjected to recovery of the amount which has already been paid to them seems to be misconceived, inasmuch as, there is no document in form of any order on record to show any such recovery was to be Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 4 made from them. On the contrary the representations of the petitioners would go to show that in pursuance of their order of promotion notified with retrospective effect both Headmaster‟s pay scale from different dates in 1994-95 as also in the Senior Headmaster‟s pay scale on completion of 12 years of service with effect from 1.11.2006/ 21.5.2007/ 1.11.2006 when their pay fixation was being made in terms of the Government Resolution No. 630 dated 21.1.2010 their total emoluments were recalculated on the basis of their having not passed Hindi Noting and Drafting Examination. In fact their own representation is a proof of the fact that all they wanted that their increments in such pay fixation should be restored with effect from 1994-95 i.e. their date of promotion on the post of Headmaster. That, however, is simply not permissible in view of the admitted position by them in paragraph no.8 of the writ application that for the post of Headmaster passing of Hindi Noting and Drafting Examination is a condition precedent. The effect of Rule 7 of the Bihar Government Servants (Hindi Examination) Rules, 1968 (hereinafter referred to as „the Rules‟), therefore, had to be given which lays down as follows: ^^7- ftl ljdkjh lsodksa dks nsoukxjh fyfi esa fgUnh i<+us&fy[kus dh ijh{kk ;k nsoukxjh fyfi esa fgUnh fVIi.kh vkSj izk:i.k dh ijh{kk] vFkok nksuksa ijh{kkvksa esa mRrhZ.k gksrk gS mls Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 5 rcrd u rks osru o‘f} nh tk;xh] u leiq"V fd;k tk;sxk] u n{krkjks/k gh ikj djus fn;k tk;sxk] tc rd og visf{kr fgUnh ijh{kk ;k ijh{kkvks a es a mRrhZ.k u gks tk;A**

7. From the earlier pay fixation statement of petitioner no.1 dated 25.8.2007 it would appear that the petitioner was shown to be Headmaster drawing his salary in the pay scale of Rs.2000-3500 and his basic pay was Rs.2240/- i.e. he had got benefit of four increments in the Headmaster‟s pay scale. That was simply not permissible in view of the aforementioned Rule 7 of the 1968 Rules, inasmuch as his basic pay in the Headmaster‟s pay scale was to remain static till he could have passed the Hindi Noting and Drafting Examination. Thus, his pay fixation under his own orders in capacity of Headmaster of the School was itself erroneous and it has to be kept in mind that no one else was the Headmaster but petitioner no.1 himself was the Headmaster. Therefore, if petitioner no.1 had fixed his own salary in the revised pay scale of Rs.6500-10500 which came into force on 8.2.1999 no one else but he alone has to be blamed as he himself had ignored the statutory Rules. It is infact this error which has been sought to be corrected by the competent authority in the next pay fixation statement which was made in terms of the State Government Resolution contained in Memo No. 630 dated 21.1.2010 revising Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 6 pay scale with effect from 1.1.2006 wherein the petitioners‟ pay scale of Headmaster of Rs.6500-10500 was revised to pay scale of Rs.9300-34800. Since the petitioners had wrongly got the benefit of increment in the Headmaster pay scale despite his not passing Hindi Noting and Drafting Examination the same was disallowed by the competent authority by fixing his basic pay of Rs.17,270/- in place of Rs.21,360/-. This was wholly permissible inasmuch as the District Accounts Officer had made it clear that this amount of Rs.17,270/- will be payable to him with effect from 29.5.2011, the date on which he had passed Hindi Noting and Drafting Examination.

8. A bare look of Rule 8 of the aforementioned 1968 Rules will also fully support the view taken by the District Accounts Officer which reads as follows: ^^8- osru&o‘f} dh jksd lap;kRed ugha gksxkA lEc} ljdkjh lsod visf{kr ijh{kk ;k ijh{kkvksa esa mRrh.kZ gks tkus ds ckn] ftl vfUre ijh{kk esa og lfEefyr vkSj mRrhZ.k gqvk gks] ml ijh{kk dh rkjh[k ds ckn iM+usokys rkjh[k ls dkyeku ds fu;e&6 ds v/khu mudh osru o‘f} …;k‰ jksd nh x;h ugha gksrh] jksdh x;h osru o‘f} ds cdk;s dk Hkqxrku ugha fd;k tk;sxkA**

9. Thus, it would become apparent that whatever has been done is only by way of recalculation of the salary of the petitioner in terms of pay fixation order and the statutory Rules. Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 7 By this recalculation the petitioner‟s emoluments while he was continuing in service as on 29.5.2011 was refixed to which he was entitled. In view of above this Court does not find any error in pay fixation statement of the petitioners or restoring of the increments in the Headmaster‟s pay scale from the date they had passed Hindi Noting and Drafting Examination. As a matter of fact though there is no proof of any recovery from the petitioners while they were already continuing in service on account of such fixation and restoration of increment with effect from the date of passing of the Hindi Noting and Drafting Examination i.e. 29.5.2011 but even if it may involve any amount of recovery on account of excess pay drawn by the petitioners they cannot escape it as was explained by the Apex Court in the case of Chandi Prasad Uniyal & ors. vs. State of Uttarakhand & ors., reported in (2012) 8 SCC 417, wherein after considering all its earlier judgments including the case of Syed Abdul Quadir vs. State of Bihar, reported in (2009)3 SCC 475, it was held as follows: “13. We are not convinced that this Court in various judgments referred to 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 Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 8 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 lower posts in the administrative hierarchy.

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 see why the concept of fraud or misrepresentation is being brought 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 the 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 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 Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 9 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.”

10. As may be found the exception carved out in the case of Chandi Prasad Uniyal (supra) would not apply to the facts of the case of the petitioners inasmuch as such revision of pay scale has been made on 15.6.2012 while the petitioners were continuing in service.

11. The pay-fixation of the petitioners pursuant to the order of promotion, however, had to abide by the statutory rules providing the consequence of non-passing of the Hindi Noting and Drafting Examination. The petitioners cannot get the best of the both worlds. However, as they have been given retrospective promotion on the post of Headmaster from different dates in 1994/1995 and got the pay-fixation in the higher pay-scale from the retrospective effect, they will also have to be abide by the consequence of not passing the Hindi Noting and Drafting Examination till the date they have do so. It is true that all the petitioners have now passed the Hindi Noting and Drafting Examination in the year 2011 before their retirement in the year

2012. In that view of the matter, when the petitioners‟ increment from the date of passing of the Hindi Noting and Drafting Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 10 Examination have also been restored to them, this Court would not find any merit in this writ application so far it relates to the grievance with regard to pay-fixation and non-grant of increment on account of non-passing of the Hindi Noting and Drafting Examination.

12. Before parting with this Court, however, would clarify that since the petitioners have not given their date of promotion in the graduate trained pay scale in this writ application in which they will be deemed to be continuing till the date of regular promotion on the post of Headmaster, the next promotional post, their pay drawn by them in capacity of graduate trained pay scale as on 4.3.2009, the date on which their retrospective promotion on the post of Headmaster was made making them liable to have also passed the Hindi Noting and Drafting Examination, shall not be reduced. To explain it further if the petitioners were drawing, for the sake of example, a sum of Rs.2100/- in the graduate trained scale of pay as on 5.3.2009 and their retrospective promotion on the post of Headmaster with effect from different dates in 1994-95 would have the effect of placing them in the higher pay scale of Rs.2000-3500, their basic salary as per Rule 78 of the Bihar Service Code shall not be less than Rs.2100/- but on the other hand, if they were drawing lesser Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 11 salary in the graduate trained pay scale, they on their promotion in the Headmaster‟s pay scale of Rs.2000-3520 would remain confined to and their basic pay will remain static to Rs.2000/- only. In fact that seems to have been done while re-fixing the pay or salary of petitioner no.1 in the pay fixation statement of petitioner no.1, Annexures 2 series, under the orders of the District Accounts Officer dated 15.6.2012. If the pay fixation statement of the petitioners as per example of petitioner no.1 at page 18 of the writ application is any indication, the petitioners in fact are only found to have been entitled for lesser amount in course of pay fixation as against what they had claimed. That will not be a case of recovery from them rather they may not be entitled for higher amount of arrears as per their own expectations on account of retrospective promotion.

13. Thus, the only thing which can be observed in favour of the petitioners is that the respondent District Accounts Officer, Saharsa will recalculate the salary of the petitioners right from the stage of their first appointment as a teacher and re- determine their entitlement initially in the Matric trained pay scale, followed by their promotion in the graduate trained pay scale and then Headmaster‟s pay scale and finally in the Senior Headmaster‟s pay scale on the basis of their respective order of Patna High Court CWJC No.1521 of 2013 (2) dt.24-06-2013 12 promotion. In doing so the District Accounts Officer will strictly abide by the provisions of the Rules relating to passing of Hindi Noting and Drafting Examination as extracted above as also Rule 78 of the Bihar Service Code. If in course of such exercise which must be completed within a period of three months from today any further amount beyond what has been already fixed by the District Accounts Officer in his order dated 15.6.2012 at page 20 in the case of the petitioner no.1 is found payable, such amount may be paid to the petitioners but if no such amount is found payable the District Accounts Officer, Saharsa will communicate his decision to the petitioners within a period of six months from the date of receipt of this order.

14. With the aforementioned observations and directions, this writ application is disposed of. Rishi/- (Mihir Kumar Jha, J)