Karnataka High Court
Puttaswamy S/O Late Kempaiah vs The State Of Karnataka Represented By ... on 10 July, 2006
Equivalent citations: 2007 (1) AJHAR (NOC) 198 (KAR.) = 2006 (5) AIR KAR R 212, 2006 (5) AIR KAR R 212
Author: Anand Byrareddy
Bench: Anand Byrareddy
ORDER Anand Byrareddy, J.
1. The petitioner was appointed on 3.8.1974 as a Physical Culture Instructor. His salary was fixed as provided by the Circular issued by the Director of Collegiate Education dated 1.1.1975, By an order dated 6.9,1995, the Basic pay of the petitioner as on 31.12.1995 was shown as Rs. 4325/-, . On extension of the University Grants Commission scale from 1.1.1996, the petitioner was promoted to the Selection Grade oil 7.8.1990. As the petitioner had put in five years of service in the cadre of Selection Grade, his pay was fixed at Rs. 14,940/-. He was paid this scale till January, 2005. As was clear from the Government Order of 15.11.1999, that from 1.1.1996, University Grants Commission Scale of pay was extended to teachers, Librarians and Physical Education Directors of Aided Colleges of Education. According to the petitioner, the Government, by an order dated 17.11.1997, had directed that Physical Education Teachers, Director of Physical Culture Instructors working in the First Grade Colleges, to be treated as teachers. As such, the Physical Education Directors working in the First Grade Colleges are to be considered on par with other lecturers. It transpires that upon an audit being conducted in the fifth respondent institution and that in terms of a Circular dated 23.10.2001, the petitioner was held not eligible for fixation of pay in the 1996 revised UGC scale and the excess pay that was paid was directed to be recovered by an order dated 25.2.2005, passed by the fourth respondent. It is this circumstance, which has warranted this petition.
2. The counsel for the petitioner would argue that even assuming that there was an audit objection and it was allegedly discovered that the petitioner had been wrongly paid at a higher scale of pay, there was no opportunity of hearing provided to the petitioner before ordering recovery of money and hence, the action of the respondents would have to be treated as arbitrary and in violation of the principles of natural justice. The counsel would submit that the earlier fixation of pay of the petitioner at Rs. l4940/- is in accordance with the Government Order dated 17.11.1997. And, further, when in the year 19% the revised UGC scale was extended to the Director of Physical Education Selection Grade, by an order dated 15.11.1999, it is not tenable to contend that the petitioner was not entitled to the said scale of pay. The Government order dated 17.11.1997 directing the Director of Physical Education and others, being considered as teachers, it would be discriminatory not to consider the Physical Education Directors on par with Lecturers. The counsel would further submit that even if it is to be considered that there was a wrong fixation of the pay scales, and as it is not at the instance of the petitioner or on a misrepresentation by the petitioner, the same cannot be ordered to be recovered in view of the law laid down by the Supreme Court in the case of P.H. Reddy and Ors. v. NTRB 2002 (6) SUPREME 418 and especially so, when the re-fixation can in feet be justified in favour of the petitioner. It is also pertinent to note that the audit is an on-going process and that when no discrepancies were found for several years, during which time the petitioner has been paid salary at the re-fixed rate and the recovery sought to be ordered on the basis of a circular issued in the year 2001, is a case in point.
3. The State Government has resisted the petition and the Government Advocate would substantiate the statement of objections by contending that the Government Order dated 23.10.2001 has clarified that the Directors of Physical Education, among others named therein, have been extended the revision of UGC pay scale retrospectively from 1.1.1996, withholding all other benefits on the recommendation of the Government of India and including the fixation of pay at Rs. 14940/- on completion of five years in the cadre of SGN Reader, Assistant Professor and until the Government clears the extension of other benefits, they would not be entitled to fixation of pay at Rs. 14,940/-. The order has further clarified that until further orders, the Government order extending benefits therein from the 1996 revision, shall not be granted and it is in this background that the audit department has scrutinised the service register of the petitioner and an amount of Rs. 3,82,121/- was found to have been paid in excess to the petitioner during the period 1.1.1996 to 31.12.2004. Therefore, there is no infirmity or illegality in the order directing review and by way of further additional statement of objections, the State seeks to contend that the proposal to fix the revised pay scale in favour of the petitioner was accepted by the Divisional Joint Director of Collegiate Education in the belief that the request and declaration made by the fifth respondent was correct and in order. However, it was apparent that there was collusion between the petitioner and the fifth respondent, in incorrectly stating that the revised Basic Pay as per the UGC pay scale is at Rs. 14,940/-instead of Rs. 12420/- as provided in the Government order dated 15.11.1999 as at Annexure "G". That in terms of the said Government order dated 15.11.1999, emoluments are provided for as existing on 1.1.1996. The said Government order provides that in case of lecturers selection grade in five years service drawing pay at the 6th stage namely at Rs. 4325/- in the pre-revised pay scale, was to be fixed at Rs. 14940/- under the revised scale of Rs. 12420-18300. This benefit is confined only to Lecturers Selection Grade and not to any other class of employees. The petitioner certainly cannot claim the benefit of the said clause. This error has remained unnoticed and immediately upon discovery of the same in the audit, steps are taken to recover the amounts. Hence, there is no illegality or violation of principles of natural justice in this regard.
4. He would place reliance on a judgment in the case of V. Gangaram v. Regional Joint Director and Ors. which involved a Head Master in a private Aided School and whose pay scale was revised granting advance increments. However, proceedings were initiated to recover the amounts on the footing that he was not entitled to the advance increments. The same having been challenged, the Tribunal had dismissed the petition. The Supreme Court, however, held that the Department was justified in seeking recovery only in respect of a part of the period and that the same could be recovered in instalments without causing any undue hardship to the appellant The counsel would submit that the case would apply on all fours to the present case on hand.
5. By way of reply, the counsel for the petitioner, would point out that the case cited by him is a later judgment decided by a three-Judge bench of the Supreme Court, which categorically lays down, while following the judgment in the case of Director General of Employees State Insurance Corporation v. M.P. John and Ors. and has held that an employee who has received a higher amount on account of erroneous fixation by the authority, could not be asked to repay the excess paid wrongly and hence would submit that the same applies to the case on hand and the petition deserves to be allowed.
6. Having regard to these rival contentions, the respondents not having placed the petitioner on notice before ordering recovery, The impugned order would be clearly in violation of principles of natural justice and further, the fixation of pay being at the instance of the respondents, notwithstanding that a proposal was forwarded by the fifth respondent at the instance of the petitioner and the same having been approved by the respondents, was not a mechanical exercise and it could not be held that it was on account of a misrepresentation or fraud on the part of the petitioner, in collusion with the fifth respondent, that the fixation of pay was approved. And, therefore, in the light of the law as laid down in the P.H. Reddy's case (supra) the respondents would not be justified in seeking to recover the higher amounts, purportedly paid to the petitioner on a possibly erroneous fixation of pay by the authorities.
7. Accordingly, the petition is allowed. The impugned Circular at Annexure "G" and the impugned order at Annexure "H" are quashed. The respondents are also directed to refund the amounts recovered from January, 2005 from the salary of the petitioner and to release all benefits arising out of the 1996 revised pay scale to the petitioner.