Jharkhand High Court
Chandra Bhushan Prasad Verma vs Jharkhand Urja Vikas Nigam Limited ... on 27 July, 2022
Author: S.N. Pathak
Bench: S. N. Pathak
1 W.P.(S) No. 255 of 2021 & analogous cases
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 255 of 2021
Chandra Bhushan Prasad Verma .... .... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited through its Managing Director,
Ranchi.
2. The General Manager (Personnel & Administration), Jharkhand Urja
Vikas Nigam Limited, Ranchi.
3. The Deputy General Manager (Personnel & Administration),
Jharkhand Urja Vikas Nigam Limited, Ranchi.
.... .... Respondents
with
W.P.(S). No. 243 of 2021
1. Hridyanand Choudhary
2. Hemchandra Jha ... ... Petitioners
Versus
1. Jharkhand State Electricity Board through its Chairman, Ranchi.
2. The Managing Director, Jharkhand Urja Utpadan Nigam Limited,
Ranchi.
3. The General Manager, Patratu Power Thermal Station, Ramgarh.
4. The Deputy General Manager, Jharkhand Urja Utpadan Nigam
Limited, Ranchi.
.... .... Respondents
with
W.P.(S). No. 263 of 2021
Jalesh Kumar Sinha .... ... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited through its Managing Director,
Ranchi.
2. The General Manager (Personnel & Administration), Jharkhand Urja
Vikas Nigam Ltd, Ranchi.
3. The Deputy General Manager (Personnel & Administration)
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
.... .... Respondents
with
W.P.(S). No. 282 of 2021
Indradeo Prasad .... ... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited through its Managing Director,
Ranchi.
2. The General Manager (Personnel & Administration), Jharkhand Urja
Vikas Nigam Ltd, Ranchi.
3. The Deputy General Manager (Personnel & Administration)
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
.... .... Respondents
with
W.P.(S). No. 294 of 2021
Braj Mohan Prasad Singh .... ... Petitioner
Versus
2 W.P.(S) No. 255 of 2021 & analogous cases
1. Jharkhand Urja Vikas Nigam Limited through its Managing Director,
Ranchi.
2. The General Manager (Personnel & Administration), Jharkhand Urja
Vikas Nigam Ltd, Ranchi.
3. The Deputy General Manager (Personnel & Administration)
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
.... .... Respondents
with
W.P.(S). No. 302 of 2021
Sukhdeo Narayan Singh .... ... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited through its Managing Director,
Ranchi.
2. The General Manager (Personnel & Administration), Jharkhand Urja
Vikas Nigam Ltd, Ranchi.
3. The Deputy General Manager (Personnel & Administration)
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
.... .... Respondents
with
W.P.(S). No. 316 of 2021
1. Dinesh Prasad Mandal
2. Maheshwar Thakur.
3. Krishna Mahto.
4. Kaushlendra Kumar
5. Sharda Devi
6. Ramlal Ram
7. Deonath Choudhary
8. Lal Babu Singh
9. Pratibha Mandal
10. Madnanand Chakraborty
11. Ram Pravesh Singh
12. Raj Nath Singh
13. Indradeo Mahto
14. Mahesh Mahto
15. Sogra Begum
16. Tapan Krishna Chakraborty
17. Hiralal Prasad
18. Maghu Ram Mahto
19. Vidya Pandey
20. Nemi Mahato
21. Ram Prasad Thakur
22. Sudama Vishwakarma ... .... Petitioners
Versus
1. Jharkhand Urja Vikas Nigam Ltd through its Chairman-cum-
Managing Director, Ranchi.
2. The General Manager (Personnel & General Administration),
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
3. The Deputy General Manager (Personnel & General Administration),
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
4. The Deputy General Manager (Personnel), Jharkhand Urja Vikas
Nigam Ltd, Ranchi.
5. The Jharkhand Urja Utpadan Nigam Ltd, through its Managing
Director, Ranchi.
3 W.P.(S) No. 255 of 2021 & analogous cases
6. The Deputy General Manager (Human Resources), Jharkhand Urja
Utpadan Nigam Ltd, Ranchi.
.... .... Respondents
with
W.P.(S). No. 317 of 2021
Surendra Prasad .... ... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited through its Managing Director,
Ranchi.
2. The General Manager (Personnel & Administration), Jharkhand Urja
Vikas Nigam Ltd, Ranchi.
3. The Deputy General Manager (Personnel & Administration)
Jharkhand Urja Vikas Nigam Ltd, Ranchi.
.... .... Respondents
with
W.P.(S). No. 357 of 2021
1. Ram Anugrah Singh.
2. Jang Bahadur Chowdhary
3. Ramayan Dwedi
4. Amrendra Singh
5. Deo Kumar Lal Das
6. Ram Prasad Singh
7. Krishna Kumar Singh
8. Dhirendra Prasad Singh
9. Ram Sewak Prasad Singh
10. Lal Bihari Singh
11. Bacha Lal Chowdhary
12. Ram Awadhesh Singh
13. Bharat Prasad
14. Ram Ayodhya Singh
15. Ram Lagan Malakar
16. Chitranjan Prasad
17. Md. Akhtar Hussain
18. Md. Saud Ali
19. Subedar Ram
20. Ambika Prasad
21. Birendra Prasad Singh
22. Bindeshwari Choudhary
23. Sudarshan Singh
24. Mithileshwar Prasad
25. Raj Nandan Prasad
26. Basant Kumar
27. Ramkhelawan Sharma
28. Ishwar Chandra Pathak
29. Basudeo Prasad Singh .... .... Petitioners
Versus
1. Jharkhand Urja Vikas Nigam Limited. Ranchi.
2. Chief Managing Director, Jharkhand Urja Vikash Nigam Ltd, Ranchi.
3. Managing Director, Jharkhand Urja Utpadan Nigam Limited, Ranchi.
4. General Manager (Personnel), Jharkhand Urja Vikash Nigam Limited,
Ranchi.
5. Deputy General Manager (Personnel), Jharkhand Urja Utpadan Nigam
Limited, Ranchi.
4 W.P.(S) No. 255 of 2021 & analogous cases
.... .... Respondents
with
W.P.(S). No. 413 of 2021
1. Ram Nandan Prasad Ambasta.
2. Ram Shresth Mahto
3. Arun Kumar ..... .... Petitioners
Versus
1. Jharkhand Urja Vikas Nigam Limited through its General Manager
(P&GA), Ranchi.
2. Jharkhand Urja Upadan Nigam Limited through its Managing
Director, Ranchi.
3. The General Manager (Human Resources), Jharkhand Urja Utpadan
Nigam Limited, Ranchi.
4. Deputy General Manager (Human Resources), Jharkhand Urja
Utpadan Nigam Limited, Ranchi.
.... .... Respondents
with
W.P.(S). No. 574 of 2021
1. Mandip Singh.
2. Amrendra Singh.
3. Sri Bhagwan Kumar Singh
4. Braj Nandan Prasad Singh
5. Ramayan Dwivedi
6. Chandra Bhushan Prasad
7. Fahmida Imam
8. Kapildeo Prasad Sharma
9. Kamta Singh
10. Ram Naresh Prasad Sharma .... .... Petitioners
Versus
1. Managing Director, Jharkhand Urja Utpadhan Nigam Limited, Ranchi.
2. General Manager, Jharkhand Urja Utpadhan Nigam Limited, Ranchi.
3. Deputy General Manager, Jharkhand Urja Utpadhan Nigam Limited,
Ranchi.
4. Director (Personnel), Jharkhand Urja Utpadhan Nigam Limited,
Ranchi.
..... ..... Respondents
with
W.P.(S). No. 684 of 2021
1. Arial Bimal Benjamin Raven.
2. Shri Nandan Jha
3. Hari Prasad Sah
4. Ram Dhyan Das
5. Yogeshwar Prasad
6. Birrendra Prasad .... .... Petitioners
Versus
1. Jharkhand Urja Vikas Nigam Limited, Engineering Bhawan, Ranchi
2. Chief Managing Director, Jharkhand Urja Vikash Nigam Ltd, Ranchi.
3. Managing Director, Jharkhand Urja Vikash Nigam Limited, Ranchi.
4. General Manager (Personnel), Jharkhand Urja Vikash Nigam Limited,
Ranchi.
5. Deputy General Manager (Personnel), Jharkhand Urja Vikash Nigam
Limited, Ranchi.
.... .... Respondents
5 W.P.(S) No. 255 of 2021 & analogous cases
with
W.P.(S). No. 1125 of 2021
Ram Deo Prasad Singh .... .... Petitioner
Versus
1. Jharkhand Urja Vidyut Nigam Limited through its Chairman-cum-
Managing Director, Ranchi.
2. The General Manager (Personnel and General Administration),
Jharkhand Urja Vidyut Nigam Limited through its Managing Director,
Ranchi.
3. Jharkhand Urja Utpadan Nigam Limited through its Managing
Director, Ranchi.
4. General Manager (HR), Jharkhand Urja Utpadan Nigam Limited,
Ranchi.
5. Deputy General Manager (HR), Jharkhand Urja Utpadan Nigam
Limited, Ranchi.
.... .... Respondents
----------
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For the Petitioners: Mr. Prabhat Singh, Advocate
Mr. Rajendra Krishna, Advocate
Mr. Chanchal Jain, Advocate
Mr. Sumit Prakash, Advocate
Mr. A.K. Sahani, Advocate
Mr. Pankaj Kumar, Advocate
Ms. Archi Ravi, Advocate
For the Respondents: M/s Mrinal Kanti Roy, Sachin Kumar,
Manoj Kumar & Achyut Keshav, Advs.
----------
CAV On : 24.03.2022 PRONOUNCED ON : 27.07.2022
Dr. S.N.Pathak,J:- Since in all these writ petitions common issue is involved, they are heard together and are being disposed of by this common order.
2. Heard the parties.
3. All these writ petitions have been filed for quashing the Notification contained in Memo No. 584 dated 31.12.2020, whereby promotions granted earlier to the petitioners on the post of Controller/ Head Foreman way back in the year 2008-2012, has been cancelled and decision has been taken to re-fix their pension. Recovery of excess payment on account of promotions has also been sought for.
4. The brief facts leading to these matters are that the petitioners were initially appointed as Operator / Foreman in the permanent establishment of respondent-JUVNL. The petitioners on completion of training course, got certificates and having requisite qualifications were 6 W.P.(S) No. 255 of 2021 & analogous cases promoted to the post of Assistant Controller / Foreman Grade-I. It is the specific case of the petitioners that they were being eligible in all respects further promoted to the post of Controller / Head Foreman. Most of the petitioners were promoted in the year 2008-09 by the Competent Authority of the respondents, whereas some of them were promoted in the year 2012 and 2014. All the petitioners on attaining the age of superannuation, retired from their respective posts. After almost ten years from the date of retirement, all the petitioners were served with a show cause notice, directing them to appear before the Departmental Promotion Committee along with all required documents. The show cause notices were served upon the petitioners in the year 2018. Thereafter, the petitioners appeared and submitted all documents, which are necessary. However, without issuing any second show cause notice, impugned order dated 31.12.2020 reverting back to their earlier posts has been passed and recovery of alleged excess amount has also been sought for. Having no option left, the petitioners have approached this Court for redressal of their grievance. However, during pendency of the writ petitions, the operation, implementation and execution of the impugned order dated 31.12.2020 was stayed.
Submissions of Petitioners.
5. Learned counsel appearing for the petitioners submit that the impugned order, whereby promotions given earlier to the petitioners have been cancelled, is not sustainable in the eyes of law, inasmuch as, before taking such a harsh decision of cancellation of promotion, no second show cause notice has ever been issued. Learned counsel submits that no recovery can be made from the pension and gratuity of the employees after retirement, if the excess payment, so paid was not on account of misrepresentation of the concerned employees. Admittedly, there is no misrepresentation on the part of the petitioners in getting promotions. Learned counsel further submits that it is not open for the respondents to raise the question of legality and propriety of promotion after a long gap of 12 years from the date of promotion. Learned counsel assiduously submits that the issue cannot be reopened with reference to the legality of promotion given to the employee when they were in service at a belated stage nor the authorities can recover any amount in absence of any proceeding under Rule 7 W.P.(S) No. 255 of 2021 & analogous cases 43(b) of the Jharkhand Pension Rules. Learned counsel further submits that after more than twelve years from the date of promotion, that too after retirement of the petitioners, recovery from pension would cause great prejudice to them. Learned counsel adds that before recovery or adjustment of any amount from the pension, the retired employees, like the petitioners, must be given opportunity of hearing to state as to why the amount be not recovered from their pension and in that event, the petitioners would have to state that such recovery or adjustment is uncalled for or barred by limitation and in absence thereof, the order passed by the respondents violating the principles of natural justice is null and void. Accordingly, learned counsel submits that it is well settled that after retirement, promotion granted earlier cannot be revised/reversed either when the employees are at the verge of retirement or already retired. In the present case, the promotion granted to them has been reversed after almost twelve years from the date of promotion, which is illegal and arbitrary and as such, the same is liable to be quashed and set aside by this Court.
6. Learned counsel placing heavy reliance upon the decision of the Hon'ble Supreme Court in the case of Kusheswar Nath Pandey Vs. State of Bihar & Ors, reported in (2013) 12 SCC 580, submits that even in the case of granting time bound promotion which was given much before 11 years from the date of recovery, the Hon'ble Supreme Court held that the approach of the Department is unjustified.
7. It has further been argued by learned counsel for the petitioners that their names were duly recommended by the respondents for promotion though the DPC was not held for granting promotion and also because of the fact that in due course of time, petitioners retired and as such there was no occasion to hold DPC after retirement and as such, the same cannot be said to be granted illegally or dehors the rules.
8. To strengthen their arguments, learned counsel further places reliance upon the decisions of this Court in the cases of W.P.(S) No. 4193 of 2017 (Bibhuti Prasad Singh Vs. The State of Jharkhand & Ors), W.P.(S) No. 2747 of 2013 (Dwarika Nath Pandey & Ors. Vs. The State of Jharkhand & Ors.), Laxman Prasad Gupta Vs. State of Jharkhand, reported in 2007 (4) JLJR 459, W.P.(S) No. 505 of 2018 (Ram Lagan Ram & Ors. Vs. The State of Jharkhand & Ors.) and Smt. Normi Topno Vs. The State of Jharkhand & 8 W.P.(S) No. 255 of 2021 & analogous cases Ors, reported in 2008 (1) JCR 381 Jhr, and State of Punjab vs. Rafiq Masih (whitewasher) & Ors., reported in (2015) 4 SCC 334.
Submissions of Respondents
9. At the very outset, learned counsel appearing for the respondents raises objection on the maintainability of writ petitions, as in all these writ petitions, petitioners have not challenged the original order dated 17.11.2020, which has been brought on record as Annexure-M to the counter affidavit in W.P.(S) No. 255 of 2021, rather, they have only challenged the communicational order dated 31.12.2020.
10. On merits, learned counsel for the respondents vehemently opposes the contentions advanced by learned counsel for the petitioners and submits that there is no illegality or infirmity in the impugned orders, as the petitioners were given promotion to the post of Controller/ Head Foreman without following the prescribed norms and without recommendation of DPC. Learned counsel submits that DPC is the only authority to judge the suitability of officers for promotion and without examining the suitability/ eligibility, the petitioners were given promotion on higher post. Learned counsel demonstrates the fact that as per Rules, the matter of promotion are to be first placed before the DPC, in which, the Committee recommends for promotion in view of total sanctioned post as per reservation roster, desired educational qualification, total approved posts, vacant post, annual confidential report, vigilance report/ cleanliness certificate and on the basis of seniority. Thereafter, the approval of competent authority are obtained and they are given effect to. Learned counsel submits that in the case of the petitioners, all these procedures were not followed. It was due to mistake on the part of the Department, promotions were given to the petitioners. Learned counsel submits that when said mistake came to light in a meeting of Board of Directors, it was corrected after issuing notice, calling upon the petitioners to show cause why the mistake should not be corrected, and after taking all procedural steps, the impugned order was passed.
11. Learned counsel placing much reliance upon the decision of the Hon'ble Supreme Court in the cases of Union of India Vs. Narendra Singh, reported in (2008) 2 SCC 750 and High Court of Punjab and Haryana Vs. Jagdeo Singh, reported in (2016) 14 SCC 267 submits that once the mistake was committed on the part of the Department and the 9 W.P.(S) No. 255 of 2021 & analogous cases employee was promoted, though he was not eligible and qualified, the Department can always correct that mistake by following due process of law. Learned counsel further submits that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake, though it may cause hardship to the employees, but a Court of law cannot ignore statutory Rules.
12. Placing reliance on the aforesaid judgment, learned counsel for the respondents submits that the Department has rightly passed the impugned order, reverting them back to earlier post and ordered for consequential recovery.
Findings of the Court.
13. Be that as it may, having heard learned counsel for the parties across the Bar, I find that admittedly the pay scale of petitioners were revised pursuant to promotion order issued vide different notifications in the year 2008, 2009, 2012 and 2014 respectively. However, as promotion itself was found to be illegal, dehorse the Rules, it prompted the respondents to take a decision for recovery of the amount and re-fixation of the pension also by issuance of the impugned order dated 31.12.2020 by which pay scale of the petitioners were revised and reduced with effect from the date of their promotions, and in consequence thereof, necessary corrections in the pay scale was made. Aggrieved thereof, the petitioners have knocked door of this Court assailing the impugned orders of cancellation of promotion and re-fixation of salary/pension.
14. Before delving deep into the matter and considering aspects of recovery and pay fixation, following issues are framed which are to be decided by this Court:
(a) Whether the respondents can recover the amount from the petitioners after 10-12 years of retirement, without adhering to the procedures prescribed in the Pension Rules?
(b) Whether promotion granted earlier prior to the retirement, not confirmed by the DPC, can be cancelled by the respondents as it was not granted following the legal procedures?
(c) Whether mere recommendation for promotion can be considered to be promotion in the eyes of law and cannot be cancelled after retirement, when found to be illegal?10 W.P.(S) No. 255 of 2021 & analogous cases
(d) Whether pension of the petitioners upon finding promotion granted earlier to be illegal should be fixed as per the last pay drawn on the promoted post or as per the last pay drawn on post they were holding prior to their promotion?
15. The contention of learned counsel for the petitioners that there cannot be any order of recovery after 10-12 years of retirement, is fully justified in view of settled propositions of law that recovery cannot be permissible after retirement if there is no misrepresentation on the part of the employees. Any order visiting with civil and evil consequences, cannot be issued in complete violation of the principles of natural justice as without issuance of any show-cause notice and without adhering to the legal procedures, the order of recovery is non est in the eyes of law. The contention of the petitioners find strength from the Judgments of Hon'ble Apex Court in the case of State of Punjab vs. Rafiq Masih (whitewasher) & Ors (supra).
16. The issue is no more res integra as earlier also the Hon'ble Apex Court in the case of Shyam Babu Verma & Ors. Vs. Union of India & Ors, reported in (1994) 2 SCC 521, has held that act shall only be just and proper not to recover any excess amount already paid to the petitioner due to no fault of theirs. The same issue was reiterated in the case of Sahib Ram Vs. State of Haryana. Further, the Hon'ble Apex Court in the case of Sayed Abdul Qadir & Ors Vs. State of Bihar & Ors., repported in (2009) 3 SCC 475 and in the case of Chandi Prasad Uniyal Vs. State of Uttrakhand & Ors., reported in (2012) 8 SCC 417, the same view was reiterated by the Hon'ble Supreme Court.
17. The reliance placed by the respondents in the case of High Court of Punjab and Haryana Vs. Jagdish Singh, (2016) 14 SCC 267 and that of Union of India Vs. Narendra Singh, (2008) 2 SCC 750 , does not weigh and as such not acceptable to this Court as not applicable in the facts and circumstances of the case.
18. Before placing any reliance on the Judgment of the Hon'ble Apex Court, it has to be seen and examined whether the said Judgment is applicable or not? The Hon'ble Apex Court in the case of Dr. Subramaniam Swamy Vs. State of Tamil Nadu & Ors, reported in (2014) 5 SCC 75 has held in paragraph-47, which reads as under:-
11 W.P.(S) No. 255 of 2021 & analogous cases"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
19. In the case of High Court of Punjab and Haryana Vs. Jagdeo Singh (supra), Their Lordship quashed the order of the High Court and set aside the Judgment on the ground that the respondents were justified in recovering the amount as the petitioner, a Judicial Officer, had given an undertaking to refund the amount, if it was found to be illegally given and petitioner being not entitled.
20. The case in hand is covered by the Judgment of Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (supra). Para- 18 of the said Judgment is fully applicable, as far as recovery part is concerned, as petitioners are grade three employees and cannot be subjected to civil consequences by passing order of recovery. Without affording any opportunity of hearing and as also because they have retired long back, the amount cannot be recovered from their retiral benefits and pension. The action of the respondents in passing orders for recovery is nullity in the eyes of law and fit to be quashed and set aside and the same is hereby quashed and set aside.
The issue regarding recovery is answered accordingly.
21. Regarding the issue of pay / pension revision as per last pay drawn on the post, the petitioners were holding prior to promotion, this Court is of the considered view that it is open for the respondent authorities to rectify the mistake at any stage, as and when it comes to their notice. Illegality or irregularity cannot be allowed to be perpetuated indefinitely. The Hon'ble Supreme Court in the case of Baswaraj & Anr. Vs. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 at para- 16, has observed as under:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of 12 W.P.(S) No. 255 of 2021 & analogous cases individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible".
22. The reliance placed by the petitioners in the case of Normi Topno Vs. State of Jharkhand is also of no help to them, as in the said case, the recovery was made after twenty years from the retiral benefits without cancelling the promotion order. Here, in the instant case, the facts are completely different as the pay fixation has been done after cancellation of promotion holding it to be dehors the Rules. Mere recommendation for promotion does not give a right to the petitioners for promotion. Merely by recommendation, right does not flow to the petitioners for claiming promotion and as such the respondents were justified in reduction of the pay scale and fixation of pension as per last pay drawn on the post they were holding prior to promotion and not as per last drawn after promotion since promotion was held to be illegal and dehors the rules.
Issue nos. (b), (c) and (d) are answered accordingly.
23. However, this Court is of the view that in the light of settled propositions of law that no recovery can be made after retirement in case of 3rd and 4th Grade employees, which finds strength from paragraph-18 of the Judgment passed by Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Mashi (supra). Para-18 of the said Judgment reads 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 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
13 W.P.(S) No. 255 of 2021 & analogous cases
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."
24. As a sequitur to the aforesaid rules, guidelines and judicial pronouncements, all these writ petitions are partly allowed, as far as recovery part is concerned, but the action of the respondents in refixation of final pension in accordance with law holding the promotions to be illegal is justified. Needless to say, if the amount has already been recovered, the same shall be refunded to the petitioners. However, if the amount has not been recovered, no recovery shall be made from the retiral benefits of the petitioners.
25. With the aforesaid observations and directions, all these writ petitions stand disposed of.
(Dr. S.N. Pathak, J.) R.Kr