Pardeep Kumar & Anr. v. The P.S.E.B., Patiala & Ors.

Order

The petitioners, by filing this writ petition, have laid challenge to the order dated January 16, 2006 (Annexure P-18) and order dated January 17, 2006 (Annexure P-19), vide which benefit of higher pay scale granted to them, on completion of 9 years and 16 years of service was withdrawn.

Heard counsel for the parties. The higher pay scale on completion of 9 years of service was granted to petitioners No. 1 and 2 on June 18, 1991, (Annexure P-2) and August 6, 1991,( Annexure P-3) respectively. Thereafter, on completion of 16 years of service, higher pay scale, as per policy of the respondents, was granted to them on October 9, 1996 and January 6, 1997, ( Annexures P-4 CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -2 and P-5 respectively). They continued to enjoy above said benefit. They were offered promotion from the post of Sub Station Attendant to the post of Junior Engineer vide order dated December 26, 2001 (Annexure P-6). Due to their family circumstances, petitioners failed to join against the promotional post and preferred to forgo their promotion. However, they continued to enjoy the higher pay scales granted to them on completion of 9 years and 16 years of service as stated above. The respondents- authorities , by taking recourse to some instructions, which provides that, in case an employee forgoes his promotion, he shall not be entitled to get promotion for the next three years and also higher pay scales on completion of 9 years and 16 years of service, started proceedings to recover excess amount paid to the petitioners from the date when higher pay scales were granted to them, as mentioned earlier. The order of recovery was passed without any notice. The petitioners came to this Court by filing Civil Writ Petition No. 6702 of 2004, which was disposed of by this Court on May 2, 2005, by passing the following order: “We are disinclined to go into this aspect of matter at this stage but quash the order, annexure P-11 and P-12 on the short ground that they have been made without notice to the petitioners but giving liberty to the respondents to pass fresh order in accordance with law and after notice to the petitioners. In case the petitioners fail before the respondents, they would be at liberty to approach this Court yet again.” Thereafter, the authorities passed the impugned orders dated January 16, 2006, and January 17, 2006, ( Annexures P-18 and P-19 CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -3 respectively) and it was ordered that in view of the petitioners' not availing the promotional opportunity, benefit of higher pay granted to them on completion of 9 years and 16 years of service be withdrawn. It was further ordered that Ist and 2nd time bound promotional scales allowed earlier be with-held from the date of declining promotion i.e., January 18, 2002, and restored from the date, of joining the promotional post of Junior Engineer , i.e., September 12, 2005. In case of petitioner No. 2, it was ordered that the benefit be with-held from the date of blocking promotion, i.e., February 23, 2005, and be restored from the date of joining against the promotional post , i.e., September 12, 2005. Hence this writ petition. In the reply, filed, the respondents have tried to defeat claim of the petitioners by stating as under: “9. Contents of para 9 are matter of record and need no reply. It is, however, submitted that the purpose of the scheme of time bound promotional scale is to confer benefit to an employee who is unable to get promotion due to stagnation. But in cases where an employee himself forgoes promotion, for whatsoever reason, the question of grant of time bound promotional scale does not arise. It is on this basis that the Board has clarified vide letter dated 8.4.2003 Annexure P-11 that an employee who was offered promotion but refused to avail the same, the same shall not be granted/ continued for time bound promotional scale and he would get the said scale on the date of availing promotion.” This Court feels that the stand taken is perfectly unjustified. It CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -4 is not in dispute that on completion of 9 years and 16 years of service, time bound promotional scales were granted to the petitioners in the years 1989 and 1996. They were eligible as per policy and also they did not play any fraud with the respondents to claim above said benefit. It is not in dispute that the relief was given to them as per the parameters set down in the policy meant for grant of time bound promotional scale (Annexure P-1). It is also an admitted fact that after grant of time bound higher pay scale, promotion to the next post was offered to the petitioners in the year 2001, which they refused. Under these circumstances, by taking recourse to some clarification issued in the year 2003 (Annexure P-11) it is not open to the authorities concerned to recover the amount already paid to the petitioners and to stop it for the period, till the time they were promoted. A Full Bench of this Court, while dealing with a similar controversy, in Budh Ram and others v. State of Haryana and others, C.W.P. No. 2799 of 2008, decided on May 22, 2009, has categorically held that in cases in which benefit sought to be recovered was granted, on the basis of some bonafide mistake, committed by the authority granting the same, by wrongly applying or interpreting the provisions contained in the service Rules, Regulation, circular, instructions etc. If the employee concerned is not at fault, then the said benefit cannot be withdrawn. In that regard it was observed as under: “Cases involving recovery of benefits received by the employees on account of misrepresentation or erroneous application of rules, regulations, circulars or instructions issued by the Government have often come up before the Courts including the Apex Court. The consistent view taken as regards the recovery of such benefits erroneously extended to CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -5 the employees without the employee being, in any way, guilty of any fraud, misrepresentation or deception is that such recovery would be unfair inequitable and against justice and good conscience. In Bihar State Electricity Board and another Vs. Bijay Bahadur and another, 2000(10) SCC 99, even when their Lordships recorded a finding that the employee did not possess the requisite qualification for the benefit granted to him and was not, therefore, entitled to any relaxation of the Rules held that it would be against the concept of fairness, equity, justice and good conscience to recover the amount received by him in consequence of the benefit granted to him. Concurring with the observations made by their Lordships in Sahib Ram's case (supra), the Court observed:- “We do record our concurrence with the observations of this Court in Sahib Ram case (supra) and come to the conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go-by. As such the actions initiated for recovery cannot be sustained under any circumstances.” In Sahib Ram's case (supra) , referred to earlier, also the CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -6 employee did not possess the requisite qualification but had received the salary on revised scales. Their Lordships, however, held that the benefit flowing to the employee was not on account of any misrepresentation but on account of legal construction made for which the employee cannot be found fault with. The Court observed:- “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 revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit ofd 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 the 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.” To the same effect is the decision of Purshottam Lal Das vs. the State of Bihar, 2007(1) RSJ 151, where basic health workers Class- III employees were promoted to Class-II posts against the rules. Even the Committee which accorded promotion was not properly constituted nor was the reservation policy followed. Relief against recovery had been denied on the CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -7 ground that those who granted it had committed a grave irregularity in doing so. The Court, however, directed that while the order of reversion could not be faulted, there could be no recovery of the amounts already paid to the employees during the period they held the promotional posts. Reference may also be made to Union of India and another etc. etc. vs. M. Bhaskar and others etc. etc. 1996(3) RSJ 205, where too the Apex Court declined permission to recover the amount already paid to the employee on the ground that the same would cause hardship. In P.H. Reddy vs. N.T.R.D., 2002 (2) SCT 987, the court was dealing with a case where the salary of a defence pensioner was revised on re-employment against a civil post erroneously and a direction to recover the excess amount issued. The Supreme Court while upholding the correction of the error by the authorities declared that the demand for reimbursement of the excess amount could not be sustained. To the same effect are the decisions of the Supreme Court in Babulal Jain vs. State of M.P. And Others, 2007(3) SCT 134 and State of Haryana and another Vs. Partap Singh and others, 2007(1) RSJ 6 and the decisions of the Division Bench of this Court in Sudarshan Kumar Sood and others Vs. Bhakra Beas Management Board, Chandigarh and others, 2003(1) RSJ 308, Ajit Singh Vs. Managing Director, PEPSU Road Transport Corpn. and another, 2007(3) RSJ 83 and Union Territory Chandigarh Administration and others Vs. CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -8 Sudesh Rathore and others, 2004(1) RSJ 523. It is in the light of the above pronouncement, no longer open to the authorities granting the benefits, no matter erroneously, to contend that even when the employee concerned was not at fault and was not in any way responsible for the mistake committed by the authorities, they are entitled to recover the benefit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because if the employee is not responsible for the erroneous grant of benefit to him/ her, it would induce in him the belief that the same was indeed due and payable. Acting on that belief the employee would, as any other person placed in his position arrange his affairs accordingly which he may not have done if he had known that the benefit being granted to him is likely to be withdrawn at any subsequent point of time on what may be then said to be the correct interpretation and application of rules. Having induced that belief in the employee and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inequitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct interpretation of the rules, such a benefit was not due. It does not require much imagination to say that additional money benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -9 not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them. The decisions of the Supreme Court in Smt. Sujata Vedachalam, Comptroller and Auditor General of India and Mafatlal Industries Ltd. Case (supra) have in our view no application to the situations with which we are dealing in the present reference. Mafatlal Industries' case (supra) dealt with refund of excess duty recovered on erroneous misapplication of statutory provisions and not with the recovery of monetary benefits received by an employee. The entire perspective in that case was in our view different from what is being examined by us in these cases. Sujata Vedachalam's case (supra) no doubt dealt with erroneous fixation of pay but the CIVIL WRIT PETITION NO. 2597 OF 2006 (O&M) -10 question whether recovery of the amount already paid would cause any injustice, inequity or hardship was never argued before their Lordships. It is also evident from the reading of the order that the kind attention of their Lordships was not drawn to the decisions of the Supreme Court in Sahib Ram's case and Bihar State Electricity Board's case (supra) which are directly on that point. The decision in Comptroller and Auditor General of India's case (supra) does not even deal with the question of recovery of excess amount received by an employee and does not, therefore, lend any help to the respondents.” In this case also, the petitioners were not at fault in getting the benefit of higher pay scale. In view of ratio of judgment of the Full Bench in Budh Ram's case (supra), this writ petition filed by the petitioners deserved to be accepted. Accordingly, the writ petition is allowed and impugned orders Annexures P-18 and P-19 are set aside. Parties to bear their own costs. July 1, 2009. DKC ( Jasbir Singh ) Judge