Ramanuj Singh v. State of U.P. &
Case Details
Court No. - 36 Case :- WRIT - A No. - 19682 of 2022 Petitioner :- Ramanuj Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Pramod Kumar Sinha Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J. 1. Heard Sri P.K. Sinha, learned counsel for the petitioner and Sri Vibhav Ojha, learned Standing Counsel for the State- respondents. 2. Present writ petition has been filed to challenge the orders dated 01.06.2022 and 19.07.2022 issued by the Deputy Director of Education (Secondary) Vth Division, Varanasi. By those orders, the said authority has rejected the representation made by the petitioner dated 24.01.2021. Thus, the authority has refused to revise the pension payable to the petitioner proportionate to one increment of pay claimed to have been granted to the petitioner in the year 2010. 3. Undisputedly, the petitioner was appointed Assistant Teacher CT Grade, on 04.02.1978. He retired from service upon attaining the age of superannuation, on 31.03.2016 from the post of Principal at Government Inter College. Initially, he was paid all retiral dues and pension computed on the basis of last pay drawn. Later, on 20.05.2019, an order came to be passed, seeking recovery of excess amount paid to the petitioner (by way of retiral dues) being Rs. 1,19,086/-.
Legal Reasoning
4. At that stage, the petitioner challenged the above order dated 20.05.2019 by filing Writ - A No. 16018 of 2019 (Ramanuj
Decision
Singh Vs. State of U.P. & 4 Ors.). It was disposed of, vide order dated 01.09.2021 by the following order : "Heard learned counsel for petitioner and learned Standing Counsel for State and perused the record. The present petition has been filed challenging the order dated 20.5.2019 whereby an amount of Rs. 1,19,086/- have been recovered from the retiral dues of the petitioner mainly on the ground that excess amount has been paid to the petitioner on account of alleged illegal fixation of pay. The main contention of the counsel for petitioner is that the petitioner had retired on 31st March, 2016, and the order has been passed three years after the date of retirement. He has placed reliance on the judgement of Supreme Court in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc. (2014) 0 Supreme (SC) 909, wherein the Supreme Court has issued the following guidelines. "12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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." The case of the petitioner is squarely covered in terms of paragraph 12(ii) and paragraph 12 (iii). In the light of the said judgement of the Supreme Court, there is no hesitation in holding that the order dated 20.5.2019, detaining an amount of Rs. 1,19,086/- from the retiral benefits of the petitioner is clearly contrary to the mandate of the Supreme Court judgement and is accordingly set aside. The respondents are directed to pay to the petitioner the amount of Rs. 1,19,086/- unauthorisedly deducted by means of the order dated 20.5.2019. The said amount shall be paid to the petitioner within a period of four months from the service of the copy of the order on the respondent no. 4. The petition stands disposed of with aforesaid observation." 5. There is no dispute between the parties, the above order has been given effect to. The recovery of Rs. 1,19,086/- has been reversed inasmuch as that payment has been made to the petitioner. However, it is a fact, pension of the petitioner was computed without accounting for the disputed increment in salary for the year 2010. After the above decision of this court, the petitioner raised a claim to include the said increment for the purpose of computing his last pay drawn and consequential revision of his pension. Presently, his upward revision of pension has been declined. 6. Perusal of the representation dated 24.01.2022 makes it plain, the claim made by the petitioner for upward revision of his pension is based solely on the circumstance - this Court had set aside the earlier order dated 20.05.2019 and provided for payment of amount Rs. 1,19,086/- wrongly recovered from the petitioner. No other or independent ground or reasoning was set up by the petitioner, at that stage. No independent ground was set up by the petitioner as may have allowed the authority to grant that relief. 7. Learned counsel for the petitioner would submit, once the order providing for recovery of Rs. 1,19,086/- had been quashed by this Court and the recovered amount required to be repaid to the petitioner, consequentially, the petitioner was entitled to benefit of upward revision of his pension as that excess amount was paid to the petitioner by including the increment of 2010. 8. In that regard, further reliance has been placed on Government Order dated 16.01.2007 that provides - for the purpose of computation of pension, the payment of salary made for the period 34 months prior to the retirement alone may be considered. Since the increment was granted to the petitioner in the year 2010 (more than six years before the petitioner retired), the pension of the petitioner ought to have been fixed accordingly. 9. Third, it has been submitted, no reason has been given to reject the claim of the petitioner. He has also placed reliance on a Division Bench of this Court in State of U.P. & Ors. Vs. Bhim Sen Sharma & Anr., 2017 (4) ADJ 768. 10. Learned Standing Counsel has opposed the writ petition. He would submit, in absence of any entitlement shown to exist viz- a-viz the increment granted to the petitioner in the year 2010, there is no legal infirmity in the impugned order. 11. Having heard learned counsel for the parties and having perused the record, in the first place, the disputed increment to salary (claimed to have been earned in the year 2010), is not shown to have been granted to the petitioner. The petitioner having retired in the year 2016, more than six years have passed since then. 12. Seen in that context, the petitioner had earlier approached this Court in Writ - A No. 16018 of 2019 (Ramanuj Singh Vs. State of U.P. & 4 Ors.). At that stage, the only grievance voiced by the petitioner was against the order dated 20.05.2019, whereby the amount recovered from the petitioner by way of excess payment made (towards retiral dues). No claim was made by the petitioner, at that stage, to claim entitlement of the benefit of one increment to the salary claimed to have been earned in the year 2010. 13. Contrary to that, the petitioner specifically pleaded, any excess amount that may have been paid towards retiral dues (Rs. 1,19,086/-) was on account of conduct offered by the respondents and not due to any contributory or collusive action on part of the petitioner. It is on such fact, the Court found the submissions advanced by learned counsel for the petitioner to be covered by paragraph 12(ii) and 12(iii) of the decision of the Supreme Court in State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., (2015) 4 SCC 334. 14. It was neither claimed by the petitioner nor it was held by this Court, the petitioner was originally entitled in law to receive amount of Rs. 1,19,086/-. Only because there was no conduct offered by the petitioner as may have contributed to the mistake of State in paying that excess amount to the petitioner, he was protected from the recovery sought to be made. It is also not in dispute, that the above order of the Court has attained finality. 15. Only after that, the petitioner appears to have first raised the instant claim by filing the representation dated 24.01.2022. Even in that representation, no fact disclosure was made as has been now set up - as to original entitlement of the petitioner to the increment of his salary in the year 2010. 16. The entire claim raised, was based on the recovery of Rs. 1,19,086/- reversed. Therefore, the petitioner claimed entitlement to revision of salary and therefore pension. 17. It is also not the case of the petitioner, the excess amount Rs. 1,19,086/- was paid out to the petitioner by way of salary payment. True nature of that amount is not disclosed in the writ petition. On query, learned counsel for the petitioner states, the said amount was towards post retiral dues. In the still earlier litigation instituted by the petitioner in Writ – A No. 39577 of 2016 (Ramanuj Singh Vs. State of U.P. & 4 Ors.), that amount was described by the petitioner as post retiral dues. 18. Plainly, the petitioner has not been able to establish, the amount of Rs. 1,19,086/- was salary dues of the petitioner. He described the same as post retiral dues, either by way of gratuity payment or provident fund or any amount that may have become due to the petitioner after or upon his retirement. 19. The consequence of the above is, there is no presumption available to be drawn in the facts of the present case that the amount of Rs. 1,19,086/- was salary payment paid out to the petitioner. It is also not his case that the petitioner ever received higher salary upon inclusion of the disputed increment amount. It has to be inferred, the petitioner's last drawn salary did not include such amount. 20. Further, it is too late in the day for the petitioner to set up any fresh claim to the revision of his pension. Having approached this court on earlier occasions without that prayer, it is too late and clearly impermissible in law to the petitioner to raise that issue now. In any case, in absence of any entitlement shown to have been earned, viz-a-viz disputed increment amount, he may not be granted any relief in exercise of writ jurisdiction. 21. Merely because the authority failed to record cogent finding, cannot automatically result in an order of remand, unless the petitioner establishes the existence of his legal right. Unless that claim is prima facie, tenable, the writ Court may not offer assistance of the kind sought or prayed by the petitioner. A heavy burden rests on the petitioner seeking exercise of discretionary jurisdiction to first establish his legal entitlement or right or claim. Only then, the issue of compliance of rules of natural justice may be enforced against the State respondents. 22. Reliance placed on Government Order dated 16.01.2007 is misconceived. In the first place, the said Government Order is to ensure timely payment and computation of pension. Second, the petitioner has not shown to have received any salary upto the date of his retirement that may have included the disputed increment. Therefore, the issue of examining the last paid salary for the period 34 months plainly does not work to the benefit of the petitioner. Third, it is not his case, higher pension was ever paid after his retirement. 23. On the contrary, the petitioner has sought revision of his pension for the first time by means of the representation dated 24.01.2022. Even though the petitioner filed the earlier writ petition (as is now being claimed), he never sought adjudication of that claim. Therefore, for all practical purpose, almost six years after his retirement, the claim for revision of his pension, is belated and also unfounded. 24. For that reason, the decision of the Division Bench protected excess pension that may have been determined and paid out on a principle akin to the principle laid down by the Supreme Court in State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra). It is wholly distinguished. In absence of any higher payment ever earned by the petitioner, no protection may be sought. The principle being invoked is a principle of protection not of attack. It has to be confined to protect any error in payment of higher pension. However, no extension may ever be offered thereto, to allow the petitioner to claim a higher amount because a higher amount of retiral dues had been protected as a result of the earlier litigation. 25. For all reasons noted above, present writ petition lacks merit and is accordingly dismissed. No order as to cost. Order Date :- 29.11.2022 Abhilash Digitally signed by ABHILASH SINGH Date: 2022.12.01 13:44:22 IST Reason: Location: High Court of Judicature at Allahabad