Gauhati High Court
Page No.# 1/25 vs The State Of Assam And 8 Ors on 29 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/25
GAHC010227982014
2025:GAU-AS:6940
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6653/2014
SUKHAMAY DEY
S/O SHRI SUKESH RANJAN DEY SERVING AS STENOGRAPHER GRADE-
I/PRIVATE SECRETARY TO HON'BLE JUDGE, GAUHATI HIGH COURT, R/O
HOUSE NO. 26, SWARAJ PTH, SURAJPUR, GHY-22.
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE SECY. TO THE GOVT. OF ASSAM, JUDICIAL DEPARTMENT,
ASSAM SECRETARIAT, DISPUR, GHY-6.
2:THE GAUHATI HIGH COURT
REP. BY ITS REGISTRAR GENERAL
M.G. ROAD
GHY-1
3:THE LEGAL REMEMBRANCER CUM SECY. TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
ASSAM SECRETARIAT
DISPUR
GHY-6
4:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
M.G. ROAD
GHY-1
5:THE SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
ASSAM SECRETARIAT
DISPUR
GHY-6
Page No.# 2/25
6:THE SECY. TO THE GOVT. OF ASSAM
DEPTT. OF PUBLIC GRIEVANCES AND PENSION
ASSAM SECRETARIAT
DISPUR
GHY-6
7:THE PRINCIPAL ACCOUNTANT GENERAL AandE
ASSAM
MAIDAMGAON
BELTOLA
GHY-28
8:THE DY. REGISTRAR FINANCE
GAUHATI HIGH COURT
M.G. ROAD
GHY-1
9:DELETED VIDE H.C.ORDER DATED 18.12.201
For the Petitioner(s) :Mr. P.D. Nair, Advocate
For the Respondent(s) :Mr. T.R. Gogoi, Govt. Advocate
Mr. H.K. Das, Standing Counsel
Mr. R. Borpujari, Standing Counsel
Mr. R.K. Talukdar, Standing Counsel
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. P.D. Nair, the learned counsel appearing on behalf of the petitioner. Mr. T.R. Gogoi, the learned Government Advocate who appears on behalf of the respondent Nos. 1, 3 and 6; Mr. H.K. Das, the learned Standing Counsel who appears on behalf of the respondent Nos. 2, 4 and 8; Mr. R. Borpujari, the learned Standing Counsel who appears on behalf of the respondent No. 5 and Mr. Page No.# 3/25 R.K. Talukdar, the learned Standing Counsel who appears on behalf of the respondent No. 7.
2. The issue involved in the instant proceedings is, as to whether, the action on the part of the Respondent Authorities to take steps for recovery of an amount of Rs. 10,72,086/- from the salary of the petitioner on the basis of a communication dated 01.08.2014 and another communication dated 27.10.2014 are in accordance with law. The petitioner herein also assails an order dated 12.12.2014 issued by the Registrar General of the Gauhati High Court whereby the representation of the petitioner dated 06.08.2014 was rejected. The petitioner further by way of the instant writ petition has sought for a writ in the nature of mandamus that the petitioner is entitled to fixation of his salary, as on the date of his appointment at Rs. 27,900/-, on the basis of the administrative order dated 15.05.2023.
3. For the purpose of deciding the entitlements of the petitioner and further, as to whether, there should be a recovery as against the petitioner, it is relevant to take note of the brief facts which led to the filing of the instant writ petition.
4. The petitioner herein was selected in the Stenographer Grade-D Recruitment conducted in the year 1989 and was appointed in the Central Bureau of Investigation as a Stenographer Grade- D/Senior Page No.# 4/25 Clerk Steno on 28.06.1990 in the pay scale of Rs. 1200-40-1640-60- 2040/-. Upon completion of 12 (twelve) years of service, the petitioner was granted the higher scale of pay under the Assured Carrier Progression Scheme of the Government of India, fixing his pay at Rs. 5,500/- in the scale of pay of Rs. 5500-175-9000/- w.e.f. June, 2002.
5. An advertisement was issued by the Gauhati High Court on 23.05.2008 for filling up of temporary vacant posts of Stenographer Grade-I in the Principal Seat of the Gauhati High Court in the scale of pay of Rs. 5725-175-6600-250-7350-EB-250-8100-325-11025-400- 11825/- per month plus other allowances as admissible in terms of the Rules. The petitioner applied pursuant to the said advertisement along with others and was selected. A Notification in that regard was issued on 26.12.2008. The petitioner resigned from the post of Stenographer-D/ Senior Clerk Steno at Central Bureau of Investigation and thereupon, joined the Gauhati High Court on 09.01.2009. At the time of joining, the petitioner submitted the last pay certificate dated 19.01.2009 showing that the petitioner was enjoying a pay in the pay band of Rs. 12,660/- with Grade Pay of Rs. 4,200/-.
6. Subsequent thereto, the records reveal that the Joint Registrar (Administration) of the Gauhati High Court had put up a note to the Page No.# 5/25 effect that the petitioner was drawing an amount of Rs. 16,860/- in the scale of pay of Rs. 9300-34,800/- plus Grade Pay of Rs. 4,300/-, but the petitioner having been appointed to a post wherein the maximum scale of pay was Rs. 11,825/-, the initial basic pay was fixed at Rs. 11,825/-.
7. At this stage, it is very relevant to take note of that when the petitioner applied to the post of the Stenographer Grade-I in terms with the advertisement dated 23.05.2008, the scale of pay in respect to which the advertisement was issued pertained to the Assam Services (Revision of Pay) Rules, 1998 (ROP, 1998). It is also very pertinent to mention that the petitioner's last pay certificate which was submitted on the date of the joining on 09.01.2009 was the pay, the petitioner was enjoying in terms with the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008).
8. The Assam Services (Revision of Pay) Rules, 2010 (for short, "ROP, 2010) was made by the Governor of Assam and it was extended to all employees of the Gauhati High Court. On the basis of the application of the ROP, 2010, the petitioner's pay was revised to Rs. 22,000/- plus Grade Pay of Rs. 5,900/- (as per the Fitment Table No. 22 of the Rules) i.e. Rs. 27,900/- w.e.f. 09.01.2009. The petitioner thereupon continued to get the benefit of the pay fixation so made in Page No.# 6/25 terms with the initial pay statement dated 28.03.2010.
9. On 18.03.2013, a communication was addressed to the Hon'ble Chief Justice of the Gauhati High Court drawing the attention to the fact that the petitioner was enjoying double benefits inasmuch as the petitioner's pay fixation was done by the Gauhati High Court without taking into consideration that the petitioner had already availed the benefit under the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008).
10. The said aspect upon being brought to the notice of the Hon'ble Chief justice of the Gauhati High Court, an opinion was sought from the Finance Department, Government of Assam as regards the petitioner's pay fixation and the Finance Department, Government of Assam informed the Gauhati High Court that the petitioner's initial pay as on the date of its joining should have been Rs. 19,070/-. The communication dated 09.07.2014, which was issued by the Deputy Secretary to the Government of Assam, Judicial Department to the Deputy Registrar (Finance), Gauhati High Court and taking into account its relevance, the same is reproduced herein under:
"GOVT. OF ASSAM JUDICIAL DEPARTMENT::: JUDICIAL BRANCH No.JDJ.452/2013/4 Dated Dispur, the 9th July, 2014 Page No.# 7/25 From: Shri M.B. Boro, Deputy Secretary to the Govt. of Assam, Judicial Department, Dispur, Guwahati-6 To: The Deputy Registrar (Finance), Gauhati High Court, Guwahati-1 Sub: Fixation of pay in respect of Sri Sukhamay Dey, Stenographer Grade-I, Gauhati High Court, Guwahati-1 Ref: Letter No. HC.VIII-109/1997-5710/AC dated 17-6-2013 Sir, With reference to the subject cited above, I am directed to furnish herewith the observation made by the Finance Department in connection with Fixation of pay in respect of Sri Sukhamay Dey, Stenographer Grade-I, Gauhati High Court, Guwahati-1, as shown below :-
"Finance Deptt. observed that the last pay of Rs. 16,860/- (i.e. PPB Rs.
12,660 + Grade pay of Rs. 4200) drawn in the former post under 6 th Pay Commission of Govt. of India may be protected and fixed at the stage of pay Rs. 19,070/- (i.e. PPB Rs. 13,170/- + Grade Pay Rs. 5900 of new post) in the scale of Rs. 12,000 -
40,000 (PB-4) with Grade Pay of Rs. 5,900 i.e. under 6 th Pay Commission of Govt. of Assam on his appointment/ joining as Stenographer Grade-I in the Office of the Registrar General, High Court, Guwahati w.e.f. 09-01-2009 with DNI on 1-7-2010 as per provision of Rule 11 of Assam Services (ROP) Rules, 2010 read with FR-22 (1)(a) (I) subject to the condition that the post involves the assumption of duties and responsibilities is greater importance than that of former post and in consultation with relevant records i.e. Service Book/service Records etc."
Page No.# 8/25 You are, therefore, requested kindly to take necessary steps on the instant matter accordingly.
This has the approval of L.R. & Secy. Judicial Deptt.
Yours faithfully, Sd/- Illegible 9/7/14 Deputy Secretary to the Govt. of Assam, Judicial Department."
11. In view of the said communication so issued, the Deputy Registrar (Finance) (I/C) of the Gauhati High Court issued a communication to the petitioner dated 01.08.2014 stating inter alia that the petitioner has overdrawn in excess of his actual pay and as such, an amount of Rs. 10,72,086/- was the excess amount for the period from 09.01.2009 to 30.06.2014 and requested the petitioner to submit a written consent for recovery/adjustment of the said overdrawn amount at an early date from his salary.
12. The petitioner on receipt of the said communication submitted a representation to the Registrar General of the Gauhati High Court on 06.08.2014 and thereby denied his consent towards recovery.
13. Subsequent thereto, the petitioner filed a writ petition being Page No.# 9/25 WP(C) No. 5458/2014 challenging the said recovery and non- consideration of the representation. This Court, vide an order dated 31.10.2014 disposed of the said writ petition with a direction to the Registrar General, Gauhati High Court to consider and dispose of the representation of the petitioner dated 06.08.2014 within a period of 6 (six) weeks from the date of receipt of the certified copy of the order and till the decision is taken, no recovery shall be made from the salary of the petitioner, whatever salary he has been paid as on date should be continued.
14. Pursuant thereto, the Registrar General of the Gauhati High Court passed an order on 12.12.2014 rejecting the representation of the petitioner and it is under such circumstances, the present proceeding has been filled. It is seen that pursuant to filing of the writ petition, this Court vide an order dated 12.03.2015 directed that no steps for recovery of the amount of Rs. 10,72,086/- should be made from the petitioner. The record reveals that affidavits and counter- affidavits have been filed by all the respondents including the petitioner.
15. Taking into account that the entire actions which have been taken for recovery is based on the instructions of the Finance Department, Government of Assam (respondent No. 5), it is very Page No.# 10/25 relevant to take note of the affidavit-in-opposition filed by the respondent No. 5. It was the stand taken by the respondent No. 5 in the affidavit-in-opposition that the petitioner had joined on 09.01.2009 as a Stenographer Grade-I in the Office of the Registrar, Gauhati High Court raising the basic pay of Rs. 16,860/- (P.B. 12,660/-
+ Grade Pay of Rs. 4,200/-) under the 6th Central Pay Commission adopted by the Central Government and accordingly the pay of the petitioner has been fixed at the maximum stage of the pay of Rs. 11,825/- in the pre-revised pay scale of Rs. 5725- Rs. 11,825/- under the provision of Rule F.R. 22 (I) (a) (3) read with F.R. 15. It was further mentioned that as the petitioner's pay as on 09.01.2009, excluding the grade pay was Rs. 12,660/- and applying the increment at a rate of 3% on Rs. 16860/- (12,660+ Grade Pay of Rs. 4200/-), the annual increment was Rs. 510/- and, therefore, the petitioner's initial pay as on the date of the joining should have been Rs. 13,170/- and adding the same to the Grade Pay of the new post of Rs. 5,900/-, the petitioner's initial total pay should have been Rs. 19,070/-.
16. In the backdrop of the above pleadings, the question which has arisen for consideration before this Court is, as to whether, a case for recovery has been made out against the petitioner and further, as to whether, this Court can issue a mandamus as has been sought for, for fixation of the pay of the petitioner as was done on the basis of the Page No.# 11/25 Administrative order dated 15.05.2010.
17. I have heard the learned counsels appearing on behalf of the parties and have also perused the materials on record.
18. Before deciding the said controversy raised in the instant proceedings, this Court finds it very pertinent to take note of the communication dated 11.07.2012 i.e. Annexure-P/10 enclosed by the petitioner to the writ petition. The contents of the said communication being relevant are reproduced herein under:
"GOVERNMENT OF INDIA CENTRAL BUREAU OF INVESTIGATION ANTI-CORRUPTION BRANCH NARANGI, GUWAHATI OFFICE ORDER NO. /75/2012 Dated:11/07/2012 In pursuance of the Govt. of India, Ministry of Finance Department of Expenditure, New Delhi vide O.M. dated 19th March, 2012 under Memo No. 10/02/2011.EIII/A granting one increment to Government employees who were due to get their annual increment between February to June during 2006 in the pre-revised pay scale as a onetime measure and thereafter will get the next increment in the revised pay structure on 01.07.2006 as per Rule 10 of CCS (RP) Rules, 2008 the pay of Shri Sukhamay Dey, SCS in the Pay scale of Rs. 9300-34800/- + G.P. Rs. 4200/- is hereby fixed as per CCS (RP) Rules, 2008 as under:
Page No.# 12/25 1 Pre-revised scale(s) of pay applicable for Rs. 5500-175-9000/-
the Post 2 Basic pay (including stagnation increments, Rs. 6025/-
if any as on respective increment month in 2005 (has to be between February-June)
3. Basic pay (allowing one increment at old Rs. 6200/-
rate) as on 01.01.2006 Rs. 6025 + 175= Rs. 6200/-
4. Revised pay band and grade corresponding Rs.9300/- to Rs. 34800/- + to the pre-revised scale shown at Sl.No.1 GP Rs. 4200/- above 5 Pay in the revised pay band/scale in which Rs. 11540/-+4200/-
is to be fixed as per the fitment table 6 Date of next increment (Rules 9 & 10) and Rs. 16220/- (PB Rs. 12020/-
01-07-2006 pay after grant of increment + GP Rs. 4200/-) Fixation of pay for the subsequent years are as follows:
2 Pay as on 01-07-2007 (on annual increment) Rs. 12510/- + GP: Rs.
4200/- (16710/-) 3 Pay as on 01-07-2008 (on annual increment) Rs. 13020/- + GP: Rs.
4200/- (17220/-) Page No.# 13/25 Consequent upon his appointment for the post of Stenographer Grade-I in the Principal Seat of Gauhati High Court, he has been relieved from this organisation on 09.01.2009 (AN) on technical resignation.
The fixation is subject to the final verification of Internal/MHA audit.
This order superseded all the earlier order(s) in this regard.
Head of Branch CBI: ACB: Guwahati No. DPGWH2012/3868-70/E/47/97-2011 Dated:11/07/2012"
19. From the above quoted contents of the communication dated 11.07.2012, it would be seen that the petitioner was initially appointed in the Central Bureau of Investigation in the pre-revised scale of pay of Rs. 5500-175-9000/-. Further, it appears that on account of stagnation increment, the petitioner's basic pay was Rs. 6,025/-. Interestingly, the basic pay of the petitioner as on 01.01.2006 along with one increment at the old rate was Rs. 6,200/-. It is relevant to take note of that both the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) as well as the Assam Services (Revision of Pay) Rules, 2010 (ROP, 2010)came into effect w.e.f. 01.01.2006, but the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) was notified vide a Notification dated 29.08.2008 and on Page No.# 14/25 the basis thereof, the petitioner's salary was brought within the ambit of the revised pay band and Grade of Rs. 9,300-Rs. 34,800/- + GP Rs. 4,200/-. It further appears from the above quoted document that taking into account the increments, the petitioner's pay was to be fixed at Rs. 11,540/- + 4200/-. It is further seen that there were further fixation of the pay of the petitioner from time to time on account of increment. Relevant herein to take note of is that the petitioner's pay as on 01.07.2008 was Rs. 13,020/- + GP Rs. 4,200/- which comes to Rs. 17,220/-.
20. The above quoted document makes it clear that the petitioner at the time of appointment to the post of Stenographer Grade-I had already taken the benefit under the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) and knew it very well that he could not have availed the double benefit.
21. The Assam Services (Revision of Pay) Rules, 2010 (ROP, 2010) was notified on 22.01.2010, though given effect from 01.01.2006.
Therefore, the initial pay fixation of the petitioner in terms with the Assam Services (Revision of Pay) Rules, 2010 (ROP, 2010), was required to be fixed taking into account that the petitioner had already got the benefit of the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008. However, the Gauhati High Court Page No.# 15/25 did not take into consideration that the petitioner's scale of pay which he was enjoying, was on account of the benefits under the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) and on the basis of that, the petitioner's total pay was fixed at Rs. 27,919/-. This on the face of it was an error on the part of the Gauhati High Court.
22. Be that as it may, on the basis of a complaint received, an inquiry was made with the Finance Department of the Government of Assam and it was informed that the petitioner was not entitled to the double benefit both under the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) as well as the Assam Services (Revision of Pay) Rules, 2010 (ROP, 2010).
23. This Court at this stage finds it relevant to take note of the calculation provided by the Finance Department, Government of Assam in its affidavit-in-opposition at Paragraph No. 6 wherefrom it would reveal why the Finance Department arrived at that the petitioner's initial pay was required to be fixed at Rs. 19,070/-. Taking into account the relevance, Paragraph No. 6 of the affidavit-in- opposition filed by the Finance Department, Government of Assam is reproduced herein under:
"6. That as regards to the statements made in paragraph 14 of the writ Page No.# 16/25 Petition, the deponent most humbly begs to state that since the incumbent concerned, the petitioner has joined on 09.01.2009 as Stenographer Grade-I in the office of Registrar Gauhati High Court raising the basic pay of Rs. 16860 (PB Rs. 12660/- + Grade Pay of Rs. 4200/-) under the Sixth Central Pay Commission adopted by Central Government and accordingly the pay of the petitioner has been fixed at the maximum stage of pay Rs. 11825/- in the pre-revised pay scale of Rs. 5725- Rs. 11825/- under the provision of F.R. 22 (I) (a) (3) read with F.R. 15.
In this connection the calculation of pay of the petitioner has given below:-
Pay on 09-01-2009 (excluding Grade Pay) =Rs 12660/-
Add 3% increment on Rs. 16860/- as benefit of
promotion/appointment. =Rs. 510/-
Total = Rs. 13170/-
Add. Grade pay of new post (pay in PB Rs. 13170/-+ New Grade Pay of Rs. 5900/-) = Rs. 5900/-
Total + Rs. 19070/-
(Rupees Nineteen thousand seventy only)"
24. At this stage, this Court however finds it relevant to again take note of the communication dated 11.07.2012 wherein it is seen that the pay of the petitioner as on 01.07.2008 on annual increment was Rs. 13,020/- + Grade Pay of Rs. 4,200/- i.e. Rs. 17,220/-. It is the opinion of this Court that the petitioner's initial pay ought to have been taken at Rs. 13,020/- taking into account the provisions of F.R. Page No.# 17/25 22 (I) (a) (3) read with F.R. 15 of the Government of Assam for the purpose of calculations. It is the further opinion of this Court that if Rs. 13,020/- was taken instead of Rs. 12,660/-, the initial pay of the petitioner would certainly be different to that arrived at by the Finance Department. Applying the same method of calculation as mentioned in Paragraph No. 6 of the affidavit-in-opposition filed by the Finance Department, the initial pay of the petitioner should have been as follows:
Pay on 09.01.2009 (excluding grade pay)- Rs.13,020/-
Add 3% increment on Rs. 17,220/- as benefit of promotion /appointment.- + Rs. 517/-
Rs. 13,537/-
Add Grade Pay of the new post
(pay in P.B. Rs. 13,170/- +
New Grade Pay of Rs. 5,900/-)- + Rs. 5,900/-
Rs. 19,437/-
Therefore, the petitioner's initial pay ought to have been Rs. 19,437/- and not Rs. 27,919/-.
25. From the above analysis, it is seen that the petitioner was enjoying a higher scale of pay on the basis of double benefit.
Page No.# 18/25 Consequently, the amount which have been sought to be recovered cannot be said to be illegal. Be that as it may, the amount sought to be recovered would change taking into account that both the Gauhati High Court and the Finance Department, Government of Assam have taken into consideration Rs. 19,070/- as the initial pay which ought to have been Rs. 19,437/-, taking into account the analysis made hereinabove. Therefore, the Gauhati High Court had to carry out the necessary calculation, as to what, would be the amount recoverable from the petitioner.
26. The above analysis sets at rest that certain amounts are recoverable from the petitioner. The question however arises, as to whether, this Court should interfere with the action of recovery, taking into account the submission made by the learned counsel for the petitioner that it was on account of wrong fixation by the authorities that the petitioner had received the excess payment and there was no involvement of the petitioner which led to the wrong fixation of pay. In that regard, the learned counsel referred to the following judgments of the Supreme Court i.e. the case of Syed Abdul Qadir & Others Vs. State of Bihar and Others reported in (2009) 3 SCC 475 and Col. (Retd.) B.J. Akkara Vs. Government of India & Others reported in (2006) 11 SCC 709.
Page No.# 19/25
27. Let this Court take into consideration the judgment so referred to by the learned counsel appearing on behalf of the petitioner and whether, the said judgment can be applied to the present facts. A perusal of the judgment in the case of Syed Abdul Qadir (supra) would show that the Supreme Court have held that recovery of excess payment of the emoluments/allowances is not permissible if, a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employer and; b) if such excess payment was made by the employer by applying a wrong principle or for calculating the pay/allowances or on the basis of a particular interpretation of the Rule or Order which is subsequently found to be erroneous. It is very relevant to take note of that in the said case, the Finance Department had admitted that the excess payment made was on account of wrong interpretation of the Rule that was applicable to them, for which, the appellants therein could not be held responsible.
28. In the instant case, the materials on record would show that the petitioner was very well aware that he had already taken the benefits under the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) and on that basis his last pay drawn was Rs. 13,020/- + Rs. 4,200/- = Rs. 17,220/- as on 01.07.2008. At the time of fixation of his salary, he ought to have informed the Gauhati High Court about the fact that he had already availed the benefit of the Central Civil Page No.# 20/25 Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008). The Gauhati High Court on a misconception without taking into account that the petitioner had already taken benefit under the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008) had fixed the initial pay. It is also very relevant at this stage to take note of why the Gauhati High Court as well as the Finance Department, Government of Assam had taken the petitioner's salary all along at Rs. 12,660 + Rs. 4,200/- = Rs. 16,860/- and not Rs. 13,020/- + Rs. 4,200/- = Rs. 17,220/-, as would appear in all pleadings and communications. The logical answer to the same appears to be that the communication dated 11.07.2012 was never placed at the time of Pay Fixation. The communication dated 11.07.2012, the details of which had been quoted above would clearly show that the petitioner's salary of Rs. 13,020/- + Rs. 4,200/- was on account of the revised pay applying the Central Civil Services (Revised Pay) Rules, 2008 (CCS(RP) Rules, 2008). Further, it is beyond comprehension, as to why, the petitioner who is a Stenographer Grade-I, was not aware that he had been given the double benefit. Under such circumstances, it is not the case where there is a wrong interpretation of the Rule, but a case where the petitioner did not apprise the authorities that he was given a double benefit.
Furthermore, in the instant case, the materials on record show Page No.# 21/25 that the petitioner availing the double benefit came into light in the year 2012, on the basis of an inquiry being made, and the petitioner thereupon was immediately informed in the year 2013. The petitioner has been litigating thereafter and for the last 12 (twelve) years and have stalled the recovery.
29. The second judgment so referred to is in the case of Col. (Retd.) B.J. Akkara (supra). It is relevant to take note of that the said case before the Supreme Court were of the pensioners and as such, the said judgment cannot be applied to facts of this case.
30. This Court finds it relevant at this stage to take note of a judgment of the Supreme Court in the case of Chandi Prasad Uniyal & Others Vs. State of Uttarakhand & Others reported in (2012) 8 SCC 417 wherein the Supreme Court dealt with the above noted two judgments of the Supreme Court and opined when recovery can be permitted. Paragraph Nos. 11 to 14 of the said judgment are reproduced herein below:
"11. We may in this respect refer to the judgment of a two-Judge Bench of this Court in Col. B.J. Akkara case where this Court after referring to Shyam Babu Verma case, Sahib Ram case and a few other decisions held as follows: (Col. B.J. Akkara case, SCC pp. 728-29, para 28) "28. Such relief, restraining recovery back of excess payment, is Page No.# 22/25 granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
12. Later, a three-Judge Bench in Syed Abdul Qadir case, after referring to Shyam Babu Verma, Col. B.J. Akkara, etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case, SCC pp. 491-92, para 59) "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was Page No.# 23/25 applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
(emphasis added) We may point out that in Syed Abdul Qadir case such a direction was given keeping in view the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.
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 Page No.# 24/25 fraud or misrepresentation is being brought in such situations. The question to be 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."
31. The learned counsel appearing on behalf of the petitioner submitted that the petitioner had another three and a half years left in his service and as such, it would cause extreme hardships to the petitioner, if the recovery is permitted now. In the opinion of this Court, the petitioner had stalled the recovery and had been enjoying the stay for the last 12 (twelve) years by litigating. Under such circumstances, the question of extreme hardship does not arise.
32. Consequently, this Court finds no ground to interfere with the recovery sought to be made, save and except, that the recovery amount would change taking into account the observations made herein above.
Page No.# 25/25
33. Accordingly, the instant writ petition stands disposed of with the following observations and directions:
(i) The instant writ petition is devoid of any merits, for which, it stands dismissed.
(ii) This Court directs the respondent Nos. 4 and 8 to re-
compute the actual recovery in view of the observations made herein above and thereupon shall be at liberty to take such steps as is required by law.
(iii) This Court is not inclined to interfere with the steps for recovery made against the petitioner, however, subject to the observations made in clause (ii) herein above.
(iv) Interim order(s) stands vacated.
JUDGE Comparing Assistant