Allahabad High Court
Ram Dularey Prasad vs State Of U.P. & Others on 27 January, 2011
Bench: Sunil Ambwani, Jayashree Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 29
CIVIL MISC. WRIT PETITION NO. 23474 OF 2010
Ram Dularey Prasad vs State of U.P. and others
Hon'ble Sunil Ambwani, J.
Hon'ble Mrs. Jayashree Tiwari, J.
We have heard Shri C.B. Gupta, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents.
The petitioner is challenging the order dated 11.3.2011 by which the second promotional pay scale allowed to him on 29.8.2003 has been cancelled, and the consequential recovery of the difference of pay is to be made from the petitioner's retiral dues. He has also prayed for quashing the order dated 25.3.2001 passed by the Additional Director, (Treasury and Pension)-respondent no. 6, and for directions to respondents to make the payment of pension in the grade of Rs.8000-275-13500, as per letter dated 29.8.2003. He has also prayed for payment of gratuity on the aforesaid pay scale and the revision of the payment of retiral dues.
The petitioner was appointed as Assistant Agriculture Inspector-a Class III post in the Department of Agriculture, Government of U.P., on 17.8.1968. He received his first promotion as Assistant Development Officer (Agriculture)-Class II post on 30.5.1978, and was given first promotional pay scale on 19.3.1995, on completing 16 years of service, and retired as Additional Sub Divisional Agriculture Extension Officer-Class-I, on attaining the age of superannuation on 31.12.2009.
Learned counsel for the petitioner has relied upon the Government Order dated 3.9.2001 providing for second promotional pay scale on completing 24 years of service on a post to be filled up by the direct recruitment, even if one promotion was given to a Government servant within 24 years. The Government Order clarified that the second promotional pay scale in such a case will be admissible on completing 24 years of service.
The object of the promotional pay scale is to avoid stagnation in service. Where a government servant does not get promotions in his service career, he was entitled to first promotion on completing 14 years and second on completion of 24 years. This Court has been consistently following the principle of recovery of excess payments on wrong fixation of pay, from retiral dues laid down by the Supreme Court in Comptroller & Auditor General of India Vs. Farid Sattar, (2004) 4 SCC 13; Union of India Vs. Sujatha Vedachalam (Smt.) & Anr., 2000 SCC (L&S) 882 and Syed Abdul Qadir & Ors. Vs. State of Bihar, (2009) 3 SCC 475 (paras 58 and 59). In these cases it was held that if the excess amount paid as a result of wrong interpretation of rule without any misrepresentation or fraud played by the petitioner, such payment during the service of the employee should not be recovered from him. In Syed Abdul Qadir (supra) the Supreme Court held:-
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.
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 made3 was the result of wrong interpretation of the Rule that was 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 tot he 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."
Learned Standing counsel has relied upon a judgment in Registrar Co-operative Society Haryana vs. Israil Khan, (2010) 1 SCC 440. In para-6 the Supreme Court held as follows:-
"6. There is no `principle' that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled:
"(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous."
In Col (Retd.) B.J. Akkara v. Govt of India [2006 (11) SCC 709] this Court explained the reason for extending such concession thus:
"Such relief, restraining recovery back of excess payment is 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 received 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."
(emphasis supplied) What is important is recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment."
In the present case, we find that the petitioner had received two promotions in his service career. He joined as Class III employee in 1968 and was promoted as Class II employee in the year 1978. He thereafter retired as Class-I employee. The date of his promotion in Class-I, has not been given in the pleadings of writ petition. His order of retirement shows that he retired as Class-I employee on 31.12.2009, and the impugned order shows that he was promoted in Class-I on 10.1.2005.
As found above, the petitioner was wrongly given the second promotional pay scale in the year 2003. He was not entitled to it under the Government order dated 3.9.2001. The order of grant of second promotional pay scale on 19.3.2003, was cancelled on 11.3.2010, as on that date w.e.f. 30.5.1978 (when he was promoted in Class-II), he had completed 24 years of service on promotional post, and not on the post of direct recruitment. The second promotional pay scale according to Government Order dated 3.9.2001, was not admissible on promotional post. Para 2 (a) and (b) of Government Order dated 3.9.2001, substituted by para-2 of the Government Order dated 8.3.1995; 2.12.2000; and 10.4.2001, is quite clear. There was no ambiguity or doubt in interpreting the principle. The grant of second promotional pay scale was cancelled by a specific order, and the pay was re-fixed. The excess payment was made on the promotional pay scale given illegally to which the petitioner was not entitled.
The writ petition is dismissed.
Dt.27.1.2011 RKP/