High Court
Case Details
WP(C) 4540/2012 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER
Legal Reasoning
16. The respective dates of granting of ad hoc grants and recognition have been indicated in the chart. The petitioners have rendered fairly long years of servi ce and there is no dispute that the petitioners have rendered more than 15 years of service from the date of providing ad hoc grants to the schools. However, ac cording to the respondents the required 15 years is to be counted from the date of provincialisation of school. There is no such indication in the ROP Rules, 19 83, rather the Rule 11 provides that service for the purpose would mean all the service rendered in the particular post/service, be it officiating/substantive o r in probationary capacity. It is significant to note that it is not only the po st, but the service as well which would count towards 15 years of service. 6. In that case, this Court does not distinguish between an ad hoc service and regular service for the purpose of availing of the extended pay scale. As in dicated earlier, the view taken by the learned Single Judge was traced from a se ries of judgments delivered by this Court in cases of similar nature. Interestin gly, the respondent authorities did not challenge those decisions before the app ellate Court. Consequently, the view taken by this Court in those decisions has attained finality. In my judgment, though the decision in Safior Rahman and othe rs(Supra) was rendered in the context of teachers of provincialised school, the underlying principles therein are, ex proprio vigour, will also apply in this ca se. 7 In the case also, the petitioner was appointed as Secretary, Gaon Pancha yat on 4.11.1963 on ad hoc service. His service came to be regularised on 1.6.19 75. By 1.1.1989, the petitioner had completed 26 years of service inclusive of t he ad hoc service he rendered. He retired from service on 29.2.2004 on attaining the age of superannuation. On the aforesaid undisputed facts on the record, I a m of the view that the contention of the respondent authorities that the service of the petitioner on ad-hoc basis with effect from 4-11-1963 to 1-6-1975 shall have to be taken in account for enabling him to avail of the extended pay scale under the ROP Rules. So determined, the case of the respondents that the petitio ner did not complete 15 years of service in 1989 and, as such, he could not get the extended scale of pay, has no legs to stand upon. The impugned office order is therefore unsustainable in law and is liable to be quashed. 8. Alternatively, the amount involved for recovery is limited to Rs.1,05,338 /-. It is nobody’s case that the excess drawal was not done by the petitioner du e to any misrepresentation or fraud committed by him. This case reminds me of th e decision of the Apex Court in the case of State of Bihar and others Vs. Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117. This is what Apex Court says in paragraph 24 which reads as follows - 24. Considering the fact that there was no allegation of misrepresentation or fr aud, which could be attributed to the respondent and considering the fact that t he appellant had allowed the respondent to work and got works done by him and pa id salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision t hat since the respondent was allowed to work and was paid salary for his work du ring the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the r etiral dues of the respondent. 9. Need I say more? Resultantly, this writ petition succeeds. The impugned of fice order, to the extent of recovering a sum of ‘1,05,338/- from the gratuity o f the petitioner, is hereby quashed. The respondents are, therefore, directed to refund the recovered amount to the petitioner within a period of three (3) mont hs from the date of receipt of this judgment.
Arguments
Having heard Mr. K. Bhuyan, learned counsel appearing for the petitioner and Ms. H.M. Phukan, learned Government Advocate, appearing for the State respondents e xtensively, it becomes clear that the sole question which falls for consideratio n in this writ petition is whether the petitioner is entitled to extended Scale of Pay in terms of Rule 11(1) read with Government clarification letter dated 1. 6.2004. 2. The petitioner was appointed as Secretary of Gaon Panchayat on 4.11.1963 and his service was confirmed on 1.6.1975 whereafter he started receiving a reg ular pay scale. He retired from service on 29.2.2004 on attaining the age of su perannuation. However, long after his retirement, the petitioner received the of fice order dated 26.8.2011 which, among others, deducted a sum of ‘1,05,338/- fr om his gratuity on the ground that this amount constituted the excess drawal mad e by him by way of extended pay scale. 3 The contention of the State respondents is that the petitioner was not e ntitled to any extended pay scale under the ROP 1983 Rules inasmuch as he did no t complete 15 years of his regular service as a Secretary Gaon Panchayat on 1-1- 1989. The respondent authorities contend that the petitioner had not completed 1 5 years of continuous service with effect from 1-6-1975 (date of allowing a regu lar scale of pay) till (cid:28)till the revision of pay with effect from 1-1-1989 (cid:29). The refore, he is not eligible to draw the extended pay scale as per ROP Rules, 1983 as well as 1990. The respondent authorities also went on to the extent saying t hat the petitioner had also drawn on two occasions the extended Scale of Pay as per ROP Rules 1983 without completing 15 years of service twice. The learned Gov ernment Advocate has produced the service book of the petitioner and justified t he impugned office order by contending that the crucial periods for determining the eligibility of the petitioner is between 1.6.1975 and 1.1.1989 when his serv ice was regularised inasmuch as he did not complete 15 years calculated on the b asis of these periods, he is not entitled at all the extended pay scale under an y ROP Rules. Under the circumstances, according to the respondents, the impugned office order had to be issued for recovery by the excess drawal made by the pet itioner. The learned counsel for the petitioner, however, contends that the petit 4. ioner is entitled to get extended scale of pay as per ROP Rules since from the d ate of allowing the pay scale on 1-6-1975 till his retirement on 29.2.2004, he h ad already rendered 28 years 8 months 28 days of service. 5. I have carefully gone through the judgment dated 28.2.2007 passed by the learned Single Judge in the case of Safior Rahman and others Vs. State of Assam and others reported in 2007 (2) GLT 308 upon which heavy reliance has been plac ed by the learned counsel for the petitioner to fortify his submission. That was a case in which the teachers of provincialised school challenged a virtually si milar order passed by the respondent authorities. The relevant portion of the ju dgment is found at para 15 and 6 which reads as follows - 15. Now the said respondents have altogether taken a different plea unlike the e arlier plea raised in the earlier writ proceedings. The plea raised is that the required 15 years of service will have to be counted from the date of provincial isation of the school. This Court having held that the period of 15 years could be counted from the date of receiving the ad hoc grants and the said finding hav ing already attained the finality, such finality attained could not have diluted by Executive fiat as has been sought to be done in the instant case.