Rajasthan High Court - Jaipur
Abdul Sattar Gauri And Ors vs State And Ors on 8 September, 2016
Author: Anupinder Singh Grewal
Bench: Anupinder Singh Grewal
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
S.B. Civil Writ Petition No.1831/2007
1. Abdul Sattar Gauri Son of Shri Abdul Razak, aged 54 years,
resident of Kashif Villa, Behind P.A. House, Guru Nanak
Colony, Bundi.
2. Satyanarayan Gupta son of Shri Jamnalal, aged 55 years,
resident of Rajat Garh Colony, Bundi.
3. Bhanwar Lal Choudhary, Son of Shri Ram Niwas, aged 56
years, resident of Gram and Post Bhneda, District Bundi.
4. Prakash Chand Jain son of Shri Kesri Lal Jain, aged about 55
years, resident of 402, Rajat Garh Colony, Bundi.
5. Sheikh Moinuddin Chishti son of Mohasanuddin, aged 55
years, resident of Kagji Devra Brahmpuri, Bari Bazar, Bundi.
Petitioners
versus
1. State of Rajasthan through the Director, Secondary Education,
Bikaner.
2. The Secretary, Finance Department, Secretariat Jaipur.
3. The Deputy Director (Secondary), Education Department,
Kota.
4. The District Education Officer, Secondary Education, Bundi.
5. The Principal, Government Nutan Secondary School, Chaugan
Gate, Bundi.
6. The Principal, Government Higher Secondary School, Dablana,
District Bundi.
7. The Principal, Government Higher Secondary School, Namana,
District Bundi.
8. The Principal, Government Higher Secondary School, Pach ki
Bawdi, District Bundi.
Date of Order : 08.09.2016
HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Mr. Jai Prakash Poswal on behalf of
Mr. Sudarshan Laddha, counsel for petitioner.
Mr. Kushal Singh on behalf of
Mr. Sanjay Kumar Sharma, G.C. for respondents.
The petitioners are challenging the order dated 19.02.2007 whereby the amount paid to them in excess is sought to be recovered.
2
The petitioners, who were working as Senior Teachers, were granted selection scale of 7500-12000 with effect from year 2000- 2001. The respondents, vide impugned order dated 19.02.2007, are seeking to recover the amount excess paid to the petitioners on the ground that the pay scale has been erroneously granted to them with effect from 2000-2001 instead of 2003-2004.
It deserves to be noticed that the coordinate Bench of this Court, vide order dated 16.03.2007, had stayed the operation of the impugned order.
It has been held by the Supreme Court in the case of State of Punjab vs. Rafiq Masih [2015(4) SCC 334] that it is permissible for the employer to effect recovery in case excess or over-payment has been made to the employee but five exceptions have been carved out wherein the recovery would be impermissible in law. The relevant part of the judgment is reproduced hereunder:
"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 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, 3 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.
19. We are informed by the learned Counsel representing the Appellant-State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.
20. The appeals are disposed of in the above terms." Indisputably, the petitioners, who were working as Senior Teachers, had been granted this pay scale in the year 2000-2001 while the impugned order of recovery was passed in the year 2007. Therefore, the case of the petitioners would squarely fall at least in category (iii) as they had drawn this pay scale for over a period of five years. In the meantime the petitioners have also retired from service.
Consequently, I have no hesitation to hold that the impugned order 19.02.2007 (Annexure-6) is unsustainable in law. In the result, the petition is allowed and the order dated 19.02.2007 is set aside.
(ANUPINDER SINGH GREWAL),J.
Asheesh Kr. Ydav Jr. PA 39