1. Amiya Kumar Sharma 2. Sachida Nandan Prasad Singh 3. Kameshwar Nath 4. Bhuwneshwar v. 1. The State of Jharkhand, through its Chief Secretary, Government of Jharkhand, Ranchi 2
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 2319 of 2018 -- 1. Amiya Kumar Sharma 2. Sachida Nandan Prasad Singh 3. Kameshwar Nath 4. Bhuwneshwar Deo 5. Arvind Kumar Indu 6. Gouri Shankar Sahu Versus 1. The State of Jharkhand, through its Chief Secretary, Government of Jharkhand, Ranchi 2. Director, Secondary Education, Government of Jharkhand, Ranchi 3. Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi -- -- Petitioners -- Respondents CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN -- For the Petitioner For the Resp.-State : Mr. Praveen Akhauri, S.C Mines-I : Mr. Ashim Kumar Sahani, Advocate Mr. Sharabhil Ahmed, A.C to S.C.Mines-I -- 12/23.02.2024 The instant writ application has been preferred by the petitioners for praying therein for quashing of the office order issued under Memo No. 480 dated 05.04.2018 (Annexure-6), whereby the respondent no. 3 purported to have modified the pay scales of as many as 70 retired employees including the petitioners with a direction upon the concerned authorities to take appropriate steps for recovery of the alleged excess payment in view of such modification/amendment in the pay scale 2.
Legal Reasoning
At the outset, learned counsel for the petitioners submits that the issue involved in this writ application has already been decided in the case of Kamla Devi & another Vs. The State of Jharkhand & others in W.P.(S) No. 6760 of 2017 with analogous cases vide order dated 01.08.2018. Learned counsel further submits that State of Jharkhand has preferred an appeal against the said order being L.P.A. No. 666 of 2018 and the order passed by the Writ Court has been affirmed. As such, the
Decision
instant case may be disposed of in the line of the judgment passed in the case Kamla Devi & another. 3. Learned counsel for the State fairly admits that the issue decided in the case of Kamla Devi and another has attained its finality; inasmuch as, the L.P.A filed by the State has been dismissed. 2 4. Having regard to the aforesaid submissions of learned counsel for the rival parties and after going through the order passed by the Division Bench in L.P.A. No. 666 of 2018, this Court is of the view that the said order passed by the Division Bench is squarely applicable in the instant application. The relevant paragraphs are quoted herein below: “20. This Court, after considering the submission advanced on behalf of the parties and after going through the material available on record, is of the view that the following issues are required to be considered:- (i) Whether the reliance put by the learned Single Judge in the judgment rendered by the Hon’ble Apex Court in the case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. (supra), will be said to be justified or the reliance ought to have been placed by the learned Single Judge in the judgment rendered by the Hon’ble Apex Court in the case of Chandi Prasad Uniyal & Ors. Vrs. State of Uttarakhand & Ors. (supra). (ii) Whether in absence of any mis-representation on the part of the concerned employee, can an order be passed by the State authority for recovery? (iii) Whether due to mistake/wrong committed by the State functionary, can the State be allowed to suffer by way of financial implication in making excess payment even though, the concerned employee is not entitled for the said benefit. 21. All the three issues are interlinked, therefore, the same are being discussed together hereinafter. 22. The issue of recovery was first dealt with by the Hon’ble Apex Court in the case of Sahib Ram Vrs. State of Haryana & Ors., reported in [(1995) Suppl. (1) SCC 18], wherein, the law has been laid down that if there is no mis-representation on the part of the concerned employee, there cannot be any recovery, for the ready reference, paragraph-5 of the said judgment is being referred as 10 under:- “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” 23. Subsequent to the aforesaid judgment, the issue of recovery again fell for consideration before the Hon’ble Apex Court in the case of Chandi Prasad Uniyal & Ors. Vrs. State of Uttarakhand & Ors. (supra), wherein, the Hon’ble Apex Court has taken contrary view as was taken in the case of Sahib Ram Vrs. State of Haryana & Ors. (supra) on the pretext that the tax payers’ money cannot be allowed to be squandered 3 in this way and if there is any excess payment, it is to be recovered as would appear from paragraph-14 of the said judgment which reads as under:- “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 11 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.” 24. Due to two conflicting views of the same Coram of the Hon’ble Apex Court, then finally, the matter has been referred before the Larger Bench and in this way, the judgment of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. (supra), has come. 25. But the judgment of Rafiq Masih (supra) is also by the same Coram, as was in the case of Sahib Ram and Chandi Prasad Uniyal (supra), as would appear from its text, wherein, initially it was referred before the Larger Bench but the Larger Bench of the Hon’ble Apex Court has been pleased to come to the conclusion that the issue does not require any consideration by the Larger Bench, rather, the issue is to be dealt with by the Bench having the same Coram and accordingly, the judgment of Rafiq Masih (supra) has also been delivered by the same Coram, as was in the case of Sahib 12 Ram and Chandi Prasad Uniyal (supra). 26. But in the case of Rafiq Masih (supra) after dealing upon both the judgments, the Hon’ble Apex Court has been pleased to lay the guidelines as under paragraph-18 holding the recovery to be impermissible by laying down the five criteria therein, for ready reference, paragraph-18 of the said judgment is being referred as under:- “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) (ii) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. 4 (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” 27. It appears from the guidelines referred at paragraph-18(i) to (v) that the specific impermissibility of recovery has been laid down therein and apart from that under criteria no.(v), the Court has been conferred with the power to make a balance as to whether, the recovery can be made or not by assessing the loss to be iniquitous or harsh and if the Court will come to the conclusion that if recovery will not be made, it will again against the interest of the State in comparison to the litigant concerned but if the financial implication upon the concerned employee is more in comparison to that of the State then the State will have an option not to make recovery. 28. It is, thus, evident that such guideline was not available either in the case of Sahib Ram (supra) or in the case of Chandi Prasad Uniyal (supra), as has been laid down by the Hon’ble Apex in the case of Rafiq Masih (supra). 29. Here, the admitted fact is that the writ petitioners were holding the post of Clerk which is Class-III post. The writ petitioners, while were in service had been extended with the benefit of upgradation although the said upgradation was contrary to their entitlement since, the post of Clerk was not having its hierarchy in the cadre and 14 hence, in view of the resolution no.5207/F dated 14.08.2002, the writ petitioners were entitled for upgradation in pay scale on the basis of Schedule-I of the resolution. 30. However, herein, the writ petitioners have not challenged the part of the order so far as it relates to their entitlement but they have challenged the recovery part on the ground that such order of recovery was taken and as such, as per the guidelines given as under paragraph-18(i) of the judgment of Rafiq Masih (supra), such recovery is not permissible. 31. The learned Single Judge has appreciated the aforesaid fact and by considering the fact that the writ petitioners were holding Class-III post and the decision of recovery was taken and hence, following the guidelines as laid down under paragraph-18(i) of the judgment of Rafiq Masih (supra), the part of the order, by which, the recovery was directed to be made, has been quashed and set aside. 32. This Court, after going through the order passed by the learned Single Judge and on consideration of the ratio laid down by the Hon’ble Apex Court in the case of Rafiq Masih (supra), wherein, under the guidelines as formulated at paragraph-18, the recovery has been held to be impermissible and if in such circumstances, the learned Single Judge has come to the conclusion that the recovery is impermissible, therefore, is of the view that the same cannot be said to suffer from an error. 5 33. Accordingly, the order passed by the learned Single Judge is having no error. 34. But the question remains that the State is concern, since he is relying upon the judgment rendered by the Hon’ble Apex Court in the case of Chandi Prasad Uniyal & Ors. Vrs. State of Uttarakhand & Ors. (supra), wherein, the consideration was given regarding the tax payers money, the aforesaid fact cannot be ignored. 35. The excess amount has been paid from the State Exchequer and the moment the excess amount has been paid to anybody, the State Exchequer is to be overburdened. 36. Admittedly, in the State Exchequer, the tax payers money are there and the State/its functionaries are its custodian to safeguard the interest of the State and while doing so, it is incumbent upon the authority, who are in the helm of the affairs to take a conscious decision so as the interest of the State so far as it relates to financial implication, be protected. 37. The Judgment is there of the Hon’ble Apex Court on the pretext that if there is fault lies on the part of the State, then why the recovery will be allowed to be made from the concerned employees if they are coming in the category as laid down under paragraph- 18 of the judgment of Rafiq Masih (supra), meaning thereby, if there is no mis- representation on the part of the concerned employee, why to make recovery but the fact remains that why the State Exchequer is allowed to be overburdened and what is the duty of the custodian of the State Exchequer who is to take decision, then why not the liability is to be casted upon the concerned authority, who are taking such decision. 38. There is no dispute in the present case also regarding calculation etc., rather, the case herein is that the pay scale which was granted by way of upgradation is against the entitlement, since, the post of Clerk was having no hierarchical post. 39. The policy decision of the State, as per the resolution dated 14.08.2002, making reference of the pay scale where the hierarchy of the post is not available and consciously annexure has been appended so as to avoid any type of confusion. 40. Here, the respondents have come to the conclusion that the post of Clerk was having no hierarchy but even then, the pay scale attached to the higher post was given to the writ petitioners by way of upgradation, then question is that why the policy decision which contains the details of pay scale attached at Annexure-1 has not been considered by the authority. 41. The authority concerned who has extended such benefit, was having responsibility to decide the issue regarding entitlement based upon the policy decision dated 14.08.2002 which contains the details of the pay scale in absence of any hierarchy of the particular post. But even then, in complete ignorance of the same, the benefit of upgradation was given presuming the post of Clerk having to be hierarchical post. 42. However, subsequently, it has come to the notice of the authority that the illegality has been committed, therefore, they have taken decision to recover the amount so disbursed, which according to our considered view, cannot be said to be proper reason being 17 that the fault which has been committed on the part of the concerned authority, in extending the monetary benefit exceeding the entitlement, who are the custodian of the public money, then why no action has been taken against such authority. If the concerned authority will take decision strictly in accordance with the policy decision, there is no question of squandering or mis-utilization of public money.” 6 5. In view of the aforesaid judgment, the office order issued under Memo No. 480 dated 05.04.2018 (Annexure-6) is hereby quashed and set aside and the respondents are directed not to recover any amount from the salary of pension of the petitioners and if at all any amount has already been recovered, the same shall be refunded to the petitioners at the earliest preferably within a period of six weeks from the date of receipt/production of a copy of this order. 6. Accordingly, this writ application stands disposed of. (Deepak Roshan, J.) Jk