Allahabad High Court
Ajay Pal Singh vs State Of U.P. And 2 Others on 17 November, 2017
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 26672 of 2016 Petitioner :- Ajay Pal Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashwani Kumar Mishra Counsel for Respondent :- C.S.C.,Abhishek Mishra,Shiv Nath Singh,Shyam Singh Hon'ble Saumitra Dayal Singh,J.
This writ petition has been filed against the order dated 19.05.2016 passed by the Secretary/Chief Executive Officer, Agra District Cooperative Bank Limited, Agra. By that order the salary payable to the petitioner was redetermined and reduced. It was held that the petitioner is not entitled to the benefit of an earlier order dated 10.05.2012 whereby the petitioner's salary had been fixed at a higher amount in view of the Government Order dated 08.12.2008 read with Government Order dated 17.06.2011.
Before coming to the exact reasons recorded and the submission advanced in that regard, certain facts are necessary to be noted. The petitioner was originally appointed as Cooperative Supervisor on 15.09.1997 by the U.P. Cooperative Institutional Service Board (hereinafter referred to as the Bank) and he was posted on deputation at the Provincial Cooperative Union now known as U.P. Cooperative Provincial Union (P.C.U. in short). He remained in service of the P.C.U. and served at various post from 2001 to 2008, at the District Cooperative Bank Limited, Agra. On 14.07.2008, petitioner was granted appointment on the post of clerk-cum-cashier by the said Bank where he joined on 16.07.2008 and has been working since then.
Under Regulation 10 of the U.P. Cooperative Societies Employees Service Regulations, 1975 (hereinafter referred to as the Regulations), the petitioner was entitled to pay protection. Provision of Regulation 10(iii)(4)(c) that is relevant to the present case is quoted herein below:-
"10.
(i) ................
ii) ...............
(iii) Where permanent employee of a Co-operative Society opts for absorption in the services of another Co-operative Society, such absorption may be granted by the Board on the following terms and conditions, namely:
(1) ..............
(2) .............
(3) .............
(4) The initial pay of the employee in the time-scale attaching to the post under the new Cooperative Society, as on the date of absorption, shall be regulated as follows:
(a) .............
(b) .............
(c) When appointment to the new post is made on the employee's own request and the maximum pay admissible in the time-scale of that post is less than the substantive pay of the employee in respect of the old post, he will draw that maximum as initial pay."
There is no dispute that upon the petitioner being given appointment at the respondent-Bank on 14.07.2008, pay protection under Regulation 10(iii)(4)(c) of the Regulation, was granted to the petitioner. However, on that date neither the Government Order dated 08.12.2008 nor subsequent Government Order dated 17.06.2011 were in existence and therefore the benefits of Sixth Pay Commission was neither claimed nor granted to the petitioner.
It is then stated that by a Government Order dated 08.12.2008, the Government of U.P. first extended the benefit of the Sixth Pay Commission to it's employees w.e.f. 01.01.2006. Thereafter, it was extended to the employees of the Cooperative Societies by another Government Order dated 17.06.2011 on notional basis w.e.f. 01.01.2006 and with actual effect w.e.f. 01.04.2011.
Subsequently, it appears on the petitioner's pursuation, action was taken and an order came to be passed on 10.05.2012 by the General Manager/Deputy Secretary of the P.C.U. by which notional benefit of the Sixth Pay Commission recommendations was declared and given to the petitioner on notional basis w.e.f. 01.01.2006, though the petitioner had long ceased to be it's employee.
Consequently, it appears, another order was passed under the joint signatures of the Section Officer (Administration), Deputy General Manager (Administration) and Secretary/General Manager of the respondent-Bank, in effect extending the benefit of the order dated 10.05.2012 passed by the General Manager/Deputy Secretary (P.C.U.) ostensibly to give revised pay protection to the petitioner with retrospective effect i.e. from the date of his appointment on 14.07.2008.
In this regard, it is further noticed, the actual effect of the said order was given from 01.04.2011. Consequently, petitioner has received certain amounts by way of pay revision which he claims are in accordance with Regulation 10(iii)(4)(c).
Subsequently, on 29.09.2015, under communication issued by the Secretary/Chief Executive Officer, the aforesaid orders dated 15.04/20.05.2013, it was held that the petitioner is not entitled to the benefit given to him under the order dated 10.05.2012 passed by the General Manager (P.C.U.). Also, his revised pay at Rs. 14,100/- per month was cancelled and consequently recovery of Rs. 3,08,545/- was issued against the petitioner.
Being aggrieved petitioner filed writ petition being Writ A No. 67564 of 2015 which came to be disposed of by order dated 16.12.2015 to the following observations:-
"In view of the stand so taken by the respondents, the writ petition stands disposed of with the observation that the impugned order dated 29.9.2015 shall be treated as notice to the petitioner, against which petitioner shall submit his reply within a period of two weeks from today, and the reply of the petitioner shall be considered, in accordance with law, by means of a reasoned speaking order, within a period of six weeks, thereafter. Till the matter, as indicated above, is decided finally, no recovery shall be affected from the petitioner and the petitioner shall be entitled for payment of salary, which is due to him."
The petitioner furnished his reply as directed by this Court and after filing of a contempt petition, the impugned order dated 19.05.2016 has been passed whereby it has been again held that the petitioner was not entitled to any benefit of the order dated 10.05.2012.
Learned counsel for the petitioner submits, petitioner was entitled to pay protection under Regulation 10(iii)(4)(c) and insofar as it is not disputed that the benefit of Sixth Pay Commission have been extended to the employees of the Cooperative Societies w.e.f. 01.01.2006 on notional basis.
Second, it has been submitted that the affidavit obtained by the respondent-Bank at the time of issuance of appointment letter in the year 2008 wherein the petitioner had been forced to mention that he would not claim any further amount was unenforcible being contrary to the statutory pay protection granted under Regulation 10(iii)(4)(c).
Third, it has been submitted that the pay revision was granted by the officials of the respondent-Bank and that order having been issued under the joint signatures of the Deputy General Manager (Administration) and Secretary/General Manager of the respondent-Bank, the same did not suffer from any fraud, misrepresentation or collusion on part of the petitioner and in any case, once that order had been passed there remained no occasion for the respondent-Bank to withdraw the same.
Last, it has been submitted by learned counsel for the petitioner, in any case the order directing recovery to be made from the petitioner is contrary to law inasmuch as the petitioner has neither played any fraud nor taken any undue advantage. At best the claim of the petitioner came to be allowed on the basis of communication issued by the General Manager/Deputy Secretary (P.C.U.) and therefore no recoveries can be made from the petitioner.
Responding to the above, Sri Shiv Nath Singh, learned counsel for the respondent-Bank submits, it is true that Regulation 10(iii)(4)(c) is applicable, yet, in view of the fact that the petitioner's service were absorbed or that he was engaged by the respondent-Bank on 14.07.2008, the pay fixation and protection to be granted to him has to be examined with reference to pay that was payable on that date and not that which may become payable in future or subsequently. Elaborating his submission, Sri Singh submits that the language of Regulation 10(iii)(4)(c) is clear and it provides protection of the 'substantive' pay of the employee/petitioner on the old post 'when appointment to the new post is made'. He therefore submits, the question of pay protection and comparison of the substantive pay and the maximum pay admissible in the time scale of the new post is to be made once, that too at the time of grant of appointment to the new post. In this case, it is not disputed that such appointment was made on 14.07.2008.
Then, referring to the Government Order relied upon by the learned counsel for the Bank, it has been shown that the first Government Order came to be issued only on 08.12.2008 that is after the date petitioner had been given appointment by the respondent-Bank and that order also applied only to Government employees and not to the employees of P.C.U. Therefore no benefit can be derived therefrom.
Thereafter, the second Government Order that came to be issued which may be relevant to some extent. It is dated 17.06.2011. It extended the benefit of the Government Order dated 08.12.2008 to cooperative societies with a rider that the said benefit would only be extended to the employees of the cooperative societies on notional basis from 1.1.2006 and that actual benefits would flow only from 1.4.2011.
Therefore, it has been submitted that in the first place the benefit cannot be claimed by the petitioner because he was not an employee of the P.C.U. on 8.12.2008. Then, it has been further submitted, in any case by virtue of the subsequent Government order dated 17.6.2011 such benefit was only extended on substantive basis to the employees of P.C.U. w.e.f. 1.4.2011 on which date again the petitioner was not an employee of the P.C.U. In sum and substance, the submission so advanced by the learned counsel for the respondent is that the petitioner's right to pay protection has to be examined as on the date of his appointment and not on any later date.
As to the second submission advanced by learned counsel for the petitioner that the affidavit of the petitioner was unenforcible, being contrary to the Regulations, learned counsel for the respondents submits that the occasion to apply the principle does not arise in the present case inasmuch as the petitioner had been granted pay protection to which he was legally entitled. The petitioner is not entitled to any benefit under either the Government Order dated 8.12.2008 or 17.6.2011 and it is not the case of the respondents that such benefit though available under the Government Order/s is being denied on account of the petitioner's affidavit. Therefore, the principle invoked by the petitioner is not applicable to the present case.
As to the third submission advanced by learned counsel for the petitioner, Sri S.N. Singh submits that a wrong determination of the pay had been made by the communication dated 15.4.2013/20.5.2013 and further in view of the fact that the basis for that communication being the communication dated 10.5.2012 issued by the General Manager/Deputy Secretary (P.C.U.) that was wholly unenforcible in law, the respondent bank is within its rights to make the correction.
Last, learned counsel for the respondent bank states while partial recovery of the amount has been made, in so far as it stands established that the petitioner is not entitled to the amounts that had been paid to him, the recoveries are a necessary consequence and therefore they may be allowed to stand as the petitioner has clearly managed to receive higher pay to which he was not entitled.
While, it is the fact that the impugned order has been passed clearly on the reasoning that the petitioner had obtained undue advantage on account of collusion with unnamed bank employees contrary to the terms and conditions of his appointment letter dated 14.7.2008 and his own affidavit submitted in pursuance thereto, however, in view of the argument advanced in the present proceedings it also appears that a pure legal question has arisen as to whether the benefit of the subsequent Government Orders dated 8.12.2008 and 17.6.2011 could be claimed by the petitioner by invoking Regulation 10(iii)(4)(c) after the date of his appointment in the respondent cooperative society/bank. Learned counsel for the parties have advanced submission on this question also.
As to the reasons given in the impugned order, suffice is to say that the said reasoning is wholly unacceptable inasmuch as not fact has been disclosed in the order to establish the allegation of collusion of the petitioner. In any case raising of the claim by the petitioner was his legal right and even in service matters an employee is entitled to raise such a claim in respect of payment of salary. Merely, because the claim has been subsequently found to be bogus, it cannot be readily inferred that the claim was allowed, by practicing collusion.
Also, to me no useful purpose would be served in remanding the matter at this stage, in view of the substantive arguments advanced as to the legal aspect of the matter noted above. In respect of the entitlement claimed by the petitioner, it is seen that there is no dispute that the petitioner was earlier an employee of the P.C.U. and had been serving on deputation with the respondent bank since 2001. On his own application made in that regard petitioner's case for appointment was considered by the respondent bank.
At that stage, the bank was aware of Regulation 10(iii)(4)(c) and admittedly it was also aware of pay protection being applicable to the pay that became payable to the petitioner by the bank. To give effect to Regulation 10(iii)(4)(c) two facts were required to be known. First the maximum pay in the time scale attaching to the new post was to be known. Then such pay was required to be compared with the substantive pay of the employee on his old post. The Regulation postulates such comparison to be made at time when appointment to the new post is made.
Thus, the comparison had to be made of facts i.e. the maximum pay in time scale on the new post as may be in place on that day with the substantive pay being paid to the concerned employee on that day. If the substantive pay is found to be more in such comparison, then the employee is to be paid the highest of time scale irrespective of all other factors. If however, the substantive pay is found to be lower or equal in comparison, then no adjustment or benefit is to be given because there is no loss of pay.
Therefore, for the purpose of a comparison to be made to work Regulation 10(iii)(4)(c) only such substantive pay could only have been considered that which was admissible or payable to the petitioner on the date when the bank considered the application of the petitioner for appointment. The future was uncertain and unknown and the petitioner had no rights therein. It could not be accounted for especially in absence of any statutory indication to that effect.
Basically then, the pay protection sought to be granted under the aforesaid regulation is only to restrict the loss of pay to an employee on account of lower pay-scale being applicable to the new post. The Regulation does not provide that in any case the pay-scale admissible to the employees under the new post would be equal to that he was receiving on the old post but only that in case it is lower than he may have been receiving on the old post, then he would be entitled to the highest/maximum pay admissible in the time scale on the new post. Looked at from this angle also, the Regulation has to be applied only on the date when an appointment is granted. Once the appointment has been granted, the employee's services are to be governed by the Rules and Regulations of the new service to which he has been appointed and old loses its relevance.
Also, clearly, on 14.7.2008 when the appointment was made, the benefit of the Sixth Pay Commission had neither been made applicable to the employees of the Government of U.P. and in any case they had not been made applicable to any extent to the employees of the cooperative societies. It also cannot be lost sight of that the benefit of Sixth Pay Commission when extended to the employees of P.C.U. was made specifically applicable on actual basis w.e.f. 1.4.2011. The fact that the pay scale on the old post of the petitioner was revised much subsequent to 14.7.2008, it could not be relied upon by the petitioner for the solitary reason that after his appointment on 14.7.2008, he lost all his rights to receive emoluments on the old post. The same being not receivable by the petitioner, he could not seek it's application viz-a-viz Regulation 10(iii)(4)(c) by artificially claiming it to be his substantive pay as he never became entitled to receive it.
I also find that in the case of Basudev Pati Vs. State of Orissa and Another reported in (1997) 3 SCC 632, the petitioner had earlier been working on the post of Lecturer but had later been declared successful in the competitive examination and thus selected to the Orissa Administrative Services on 06.12.1996. Initially, the pay scale on the old post and the new post to which the petitioner had been selected was the same. Subsequently, the University Grants Commission revised the pay scale applicable on the post of Lecturer (old post) w.e.f. 01.01.1974. In this background the petitioner sought pay protection after being selected on the post of Orissa Administrative Service and further claimed upgraded fitment in the pay scale. The claim was rejected by the High Court. Upon appeal the Supreme Court negatived the claim and held as below:-
"The service as a Lecturer is entirely different from the service of the Orissa Administrative Service. Merely because he happened to work earlier as a Lecture and in the same pay scale which was subsequently revised, he cannot be permitted to have the benefit of U.G.C. scale in the Administrative Service and fitment in the pay-scale on that basis. That would create imbalance and gross infraction and distortion and would result in flood of claims of similarly situated persons under Article 39(d) of the Constitution. Under these circumstances, such a course cannot be permitted to be adopted."
Again, in the case of M. Raja Vs. Ceeri Educational Society Pilani and Another reported in (2006) 12 SCC 636, the petitioner (in that case) claimed revised pay scale by way of pay protection. The petitioner was Trained Graduate Teacher at Atomic Energy Central School in Rajasthan. On 30.04.1997, he joined the service of the respondent-society against promise of pay protection. Thereafter, the recommendation of the Fifth Pay Commission was enforced on 01.01.1996 and were applied by the respondent-society w.e.f. 01.07.1999. In this background the petitioner in that case claimed that in view of the pay protection granted to him, his pay should be revised. The said claim was negatived. In that context, the Supreme Court had held as below:-
"13. ...........However, the offer of appointment cannot be read so as to extend such benefits in regard to the applicability of the recommendations of the Fifth Central Pay Commission which would come in force in future. The respondents in that sense are right in contending that their being no commitment in that behalf, the question of being bound by the purported commitment did not arise. Revision of pay took place subsequently. It was, therefore, a subsequent development."
Therefore, it does not appeal to reason that the petitioner could in any situation claim benefit of the subsequent Government Orders.
Then, as to the terms and conditions of the affidavit tendered by the petitioner, it is seen that while it is a settled principle and while it may be arguable if the terms and conditions of the service of the petitioner could be altered to his detriment if they are contrary to the Regulation, in view of my opinion that the Regulation 10(iii)(4)(c) has been correctly applied in the case of the petitioner, the argument based on the the terms and conditions of the affidavit clearly does not survive.
As to the submission advanced by learned counsel for the petitioner that the bank having granted benefit it could not have been withdrawn, such an argument cannot be accepted for the reason that in the matter of pay fixation, a wrong fixation cannot survive merely because it has once been granted. As discussed above, the petitioner was clearly not entitled to a higher pay which he received for some time. Therefore, the argument advanced in this regard is clearly misconceived.
Last, as to the argument advanced by learned counsel for the petitioner that the respondents cannot recover the excess payments made to him, in this regard in the case of State Of Punjab & Ors Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 the Supreme Court has held as below:-
"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, 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"
Thus as to the recovery of the excess amount, it is seen that the amount had been paid to the petitioner not on account of any fraud, collusion or misrepresentation by the petitioner but on account of his claim being considered and allowed by the bank. That being an action of the bank it is not open to the bank to turn around and seek recovery of that amount from the petitioner as such payment can never be said to have been received by the petitioner for any reason other than authorization made by the bank itself. However, in view of the fact that some recoveries have already been made in pursuance of the impugned order, by way of monthly deduction from the salary being paid out to the petitioner, it is provided that no further recovery shall be made from the petitioner in pursuance of the impugned order. However, recoveries that may have already been made may also be not reversed inasmuch as on merits it has been found that the petitioner was not entitled for that amount.
The writ petition is partly allowed. No order as to costs.
Order Date :- 17.11.2017 A. Singh