Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.12702 OF 2013 =================================================== 1.AJAY KUMAR SINGH SON OF SHINGHALDIP SINGH RESIDENT OF VILLAGE- RAMPUR KHORAN, POLICE STATION- MARHOWRAH, DISTRICT- SARAN 2.KANHIYAJEE SHUKLA SON OF LATE BHRIGUNATH SHUKLA RESIDENT OF VILLAGE- MASTICHOCK P.O.- MASTICHACK, DISTRICT- SARAN (CHAPRA) 3.KRISHNA MOHAN PRASAD SON OF LATE RAMESHWAR PRASAD RESIDENT OF DAULATGANJ, PS- BHAGWAN BAZAR, DISTRICT- SARAN (CHAPRA) 4.SUNITA KUMARI WIFE OF SRI SANJAY KUMAR SINGH RESIDENT OF VILLAGE + P.O. MANIKPUR- EKMA, DISTRICT- SARAN (CHAPRA) 5.VIJYA BHARTI WIFE OF SRI ANAND KUMAR GIRI RESIDENT OF VILLAGE GODNA SHIVPURI, P.O.- SENGARTOLA, DISTRICT- SARAN (CHAPRA) 6.DINESH KUMAR SINGH SON OF LATE RAMESHWAR PRASAD RESIDENT OF VILLAGE- NARHARPUR SARDA RAI KA TOLA, P.O.- NARHARPUR, DISTRICT- SARAN (CHAPRA) 7.PUNYAKAL SINGH SON OF LATE JAMDAR SINGH RESIDENT OF VILLAGE- NAINI, P.O.- NAINI, DISTRICT- SARAN (CHAPRA) 8.BHARAT PRASAD SINHA SON OF SRI SARDA NAND SINHA RESIDENT OF VILLAGE- RAM DHANAW, P.O.- DHANAW, P.S.- BANIYAPUR, DISTRICT- SARAN (CHAPRA) 9.PARMESHWAR SINGH SON OF ANURAG SINGH RESIDENT OF VILLAGE-MASRAKH, P.S.- MASRAKH, DISTRICT- SARAN (CHAPRA) 10.KRISHNA MURARI KESHAR SON OF SRI HUKUMDEO KUMAR CHAUDHARY RESIDENT OF VILLAGE-MANPUR, P.O. ARIRUDH BALSAR, DISTRICT- VAISHALI 11.SAMIR KUMAR SON OF SRI HARISHANKAR SINGH RESIDENT OF VILLAGE- AMAR CHAPRA, P.S.- CHAPRA MUFFASIL, DISTRICT- SARAN (CHAPRA) 12.DHRUVNARAYAN SINGH SON OF LATE DINANATH SINGH RESIDENT OF VILLAGE- NAINI, P.S.- CHAPRA MUFFASIL, DISTRICT- SARAN (CHAPRA) 13.RAJENDRA KUMAR SINGH SON OF LALGOVIND SINGH RESIDENT OF VILLAGE- NAINI, P.S.- CHAPRA MUFFASIL, DISTRICT- SARAN (CHAPRA) 14.GAYATRI KUMARI W/O SRI BHAGWAN SINGH R/O VILLAGE- NARHAT, P.O.- SURWALA, P.S.- GAUTAM BUDH NAGAR, DISTRICT- SIWAN. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 2.THE PRINCIPAL SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3.THE PRINCIPAL SECRETARY, FINANCE DEPARTMENT, Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 2 GOVERNMENT OF BIHAR, PATNA 4.THE DIRECTOR (PRIMARY EDUCATION), DEPARTMENT OF EDUCATION, GOVERNMENT OF BIHAR, PATNA 5.REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, CHAPRA 6.THE DISTRICT EDUCATION OFFICER, DISTRICT SARAN AT CHAPRA 7.THE DISTRICT PROGRAM OFFICER (ESTABLISHMENT), SARAN AT CHAPRA 8.DISTRICT ACCOUNTS OFFICER, SARAN AT CHAPRA 9.TREASURY OFFICER, SARAN AT CHAPRA .... .... RESPONDENT/S =================================================== Appearance : For the Petitioner/s:Mr.Raghvendra Kumar, Adv. For the Respondent/s:Mr. Rajesh Kumar No.2, GP-21 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2/ 09-07-2013 Heard learned counsel for the parties in respect of the following reliefs prayed in this writ application:- (i) For issuance of an appropriate writ in the nature of certiorari for quashing the letter dated 07.11.2012 issued under the signature of Respondent no. 3 and contained in his letter no. 15777/F dated 07.11.2012 (Annexure-3) whereby and where under Respondent No. 3 has been pleased to direct all concerned that the pay str4ucture as contained in Schedule II of the Finance Department Resolution No. 630 dated 21.01.2010 is applicable only in respect of employees appointed after 01.01.2006 and is not applicable for the employees of the State Government appointed before 01.01.2006. By the impugned letter, it has been further directed that if pay scale of any
Legal Reasoning
Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 3 employees has been fixed contrary to the directions issued in the aforesaid letter, it should be forthwith amended and excess payment drawn because of the wrong fixation of salary, be recovered from their salary in two installments. It has been further directed that the salary for the month of December 2012 would be paid only after the aforesaid modification, in the pay fixation and deduction of the excess payment. (ii) For issuance of an appropriate writ in the nature of certiorari for quashing the order dated 12.11.2012 issued under the signature of Respondent no. 3 and contained in his memo no. 15802 dated 12.11.2012 (Annexure-4) whereby and where under the direction contained in memo no. 15777/F dated 07.11.2012 was amended to the extent that the pay structure contained in schedule II of the finance department resolution no. 630 dated 21.01.2010 would be applicable for the employees appointed on 01.01.2006 or thereafter till 21.12.2008 and would not be applicable for the employees appointed since before. (iii) For issuance of an appropriate writ in nature of certiorari for quashing of the part of the finance department resolution no. 630 dated 21.01.2010 whereby and whereunder the pay structure as contained in schedule II of aforesaid resolution is applicable only in respect of employees who appointed after 1.1.2006 Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 4 and not applicable with respect of the employees of State Govt. who were appointed prior to 01.01.2006. (iv) For holding that the finance department resolution no. 630 dated 21.1.2010 is applicable with respect of all employees irrespective of their date of appointment either prior to 1.1.2006 or subsequent to the same. (v) For issuance of an appropriate writ in the nature of mandamus for commanding the directing the Respondent authorities to continue to pay the salary to the writ petitioners in the pay-scale on the basis of fixation done by the competent authority with effect from 01.01.2006 read with schedule-II." In the considered opinion of this Court this case is squarely covered by the order dated 2.7.2013 in C.W.J.C. No. 12077 of 2013 Prem Kumar Shukla and others Vs. State of Bihar and others, wherein it was held as follows:-
Legal Reasoning
Mr. S.B.K. Mangalam, learned counsel for the petitioners, in support of the aforementioned prayer, has submitted that the revised pay-scale of the petitioners all earlier drawing pay in the pay-scale of Rs. 5500-9000 was fixed in the pay-scale of Rs. 9300-34800 as per Schedule-II of the Government Resolution dated 21.1.2010 and as such, when they have also drawn their salary in the aforesaid revised pay-scale, they cannot be subjected to any recovery of Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 5 the amount already paid to them on the basis of such pay fixation. He has further submitted that out of the fifteen petitioners, the petitioner no.3 has already superannuated from service and as such, any recovery from him will cause undue hardship. Learned counsel for the State on the other hand has submitted that the resolution of the government dated 21.1.2010 in very categorical terms lays down as to who would be given the benefit of revised pay-scale and in what manner. According to him, Schedule-II will not be applicable in the case of the petitioners. He has, therefore, submitted that the relief sought by the petitioners in this writ application would not be admissible to them. In the considered opinion of this Court, once it is not in doubt that the petitioners are not the new entrants in service, they would not be governed by the revision made as per Schedule-II of the government resolution dated 21.1.2010 (Annexure-1). The relevant part of the government resolution reads as follows:- “2. The State Government has given careful consideration to the recommendations of the Pay Committee, alongwith the recommendations of three member Committee constituted vide Resolution no.12203 dated 23-12- 2009 to scrutinize the Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 6 recommendations of the Pay Committee, in respect of the State Government employees and have decided to accept the running Pay Bands and Grade Pay based new revised pay structure. Schedule I contains the normal replacement revised pay structure and Schedule II contains the entry pay structure for the new entrants who have been appointed on/or after 01.01.2006. Department wise and post wise existing pay scales and revised scales of pay of the Gazetted and Non-gazetted posts, under the State Government, are at Schedule III.” As would be evident, there are three schedules to the aforementioned resolution but, the petitioners were given the benefit of Schedule-II which was applicable only to such government servants who had entered in service on or after 1.1.2006. Admittedly, the petitioners will not be governed by the schedule as all of them were appointed prior to 1.1.2006. It is here that Schedule-I and Schedule-III assumes significance, inasmuch as, Schedule-I lays down normal replacement revised pay structure and the employees drawing the salary in the pay-scale of Rs. 5500-9000 were given the replacement pay-scale of Rs. 9300-34800. Schedule-III contains the post wise existing pay-scales and revised scales Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 7 of pay wherein the persons in the pay-scale of 5500-9000 have been placed under PB-2 with the grade pay of 4600. In view of the above, it would be absolutely clear that the pay-fixation of the petitioners made by the Headmaster and/or District Education Officer was absolutely in teeth of the Government decision contained in resolution of the Finance Department dated 21.1.2010. Once this aspect is admitted that the petitioners will not be governed by Schedule-II of the aforesaid government resolution, there would be no difficulty in holding that whatever pay-fixation was made in their case was by way of excess payment and the said amount could have been recovered from them. The 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 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:- “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 Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 8 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 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 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 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 Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 9 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 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.” At this stage, Mr. Mangalam points out that at least the petitioner no.3 will fall in the category of the exception carved out in Syed Abdul Quadir case (supra) which has also been approved in the case of the Chandi Prasad Uniyal (supra) and, therefore, at least no recovery can be made from the petitioner no.3. Following the ratio in the case of Chandi Prasad Uniyal (supra), it is, Patna High Court CWJC No.12702 of 2013 (2) dt.09-07-2013 10 therefore, held that recovery in the case of the petitioner no.3 shall not be made but from rest of the petitioners, any excess amount paid on account of wrong pay- fixation must be made within a period of three months from today. Mr. Bindhyachal Singh learned counsel for the petitioners at this stage has fairly submitted that none of the petitioners have retired from service in the case. In that view of the matter it is held that all the petitioners will be liable for recovery of excess amount drawn by them on account of wrong pay fixation. That being so, this application is wholly misconceived and is, accordingly dismissed. Ranjan (Mihir Kumar Jha, J)