Gujarat High Court
Ilaben Rohitkumar Pandya vs Anand Agriculture Universitythrough ... on 8 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10054/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10054 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9357 of 2002
With z
SPECIAL CIVIL APPLICATION NO. 9943 of 2002
With
SPECIAL CIVIL APPLICATION NO. 6730 of 2003
With
SPECIAL CIVIL APPLICATION NO. 6731 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== ILABEN ROHITKUMAR PANDYA....Petitioner(s) Versus ANAND AGRICULTURE UNIVERSITYTHROUGH THE REGISTRAR,ANAND.....Respondent(s) ========================================================== Appearance:
MR IS SUPEHIA, ADVOCATE for the Petitioner(s) No. 1 MS HARSHAL N PANDYA, ADVOCATE for the Petitioner(s) No. 1 MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Page 1 of 17 HC-NIC Page 1 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT Date : 08/08/2016 ORAL COMMON JUDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 All the writ applicants before me are serving with the Gujarat Agricultural University. They seek to challenge the legality and validity of the orders dated 3rd July 2002 and 20th September 2002 respectively passed by the Anand Agricultural University.
3 The facts in brief are as under:
3.1 The writ applicants before me joined the services of the Gujarat Agricultural University as the 'Home Science Worker' in the pay scale of Rs.1200 - 2040/. It appears that all the posts of 'Home Science Worker' were ordered to be abolished. On abolition of the posts, the writ applicants were appointed / absorbed as 'Clerks' in the pay scale of Rs.950 - 1500/. It appears that initially the pay was protected i.e. the pay scale of Rs.1200 - 2040/. The audit department raised an objection and pursuant to the same, the University decided to withdraw the pay protection. It appears that in the first round of litigation, three writ applications were filed being the Special Civil Applications Nos.7642, 7643 and 7648 of 2001. All the said writ applications were disposed of by common judgment and order dated 19th April 2002, which reads as under:
"1. Heard the learned advocates.
2. All these petitions involve identical questions of law and fact and are, therefore, with the consent of the learned advocates, disposed of by Page 2 of 17 HC-NIC Page 2 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT this common order.
3. The petitioners are the employees of the respondent no.1 University. Initially, the petitioners were appointed by the University as Home Science Worker. Since their service were likely to be terminated, the petitioners approached this Court by filing Special Civil Applications Nos.1189/87, 2484/87 and 2580/87. The said writ petitions have been admitted to final hearing and by interim order made on 1st December, 1987, pursuant to the consensus arrived at by the parties, the respondent University was directed to ascertain if posts similar to those occupied by the petitioners prior to the order of termination were available in other scales and to state whether or not it would be possible to absorb the petitioners on these posts or posts immediately subordinate to the one occupied by the petitioners.
4. It appears that pursuant to the said order all the three petitioners have been accommodated on the post of Junior Clerk. However, the petitioners have continued to draw salary of the Home Science Worker.
The auditors appear to have raised objection against the petitioners' drawing pay in the scale higher than the one admissible to the Junior Clerks. Accordingly, the respondent University has issued direction to remove the audit objection. Feeling aggrieved, the petitioners have preferred the present petition.
5. Mr.Patel, the learned advocate appearing for the petitioner has submitted that the petitioners have not been given hearing before the impugned order made by the University and consequent instructions were issued to the concerned Principal. I see no merit in the submission made by Mr. Patel. The Auditors were not supposed to hear the petitioners before raising the objection, nor is the University supposed to give hearing to the petitioners with respect to the question whether or not to remove the audit objection. As it transpires, no action has been taken against the petitioners in spite of the audit objection and the order made by the University.
6. Learned advocate Mr. Chauhan appearing for the University has submitted that no action adverse to the petitioner should be taken unless each of the petitioners has been given an opportunity to showcause against the proposed action and also of hearing, if desired.
7. In view of the above statement, the apprehension voiced by the petitioners appears to be illfounded. Mr.Chauhan has, on behalf of the University, assured that the petitioners will be given proper opportunity before any action adverse to the petitioners is taken. No further order is required to be made on these petitions.
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8. The petitions are accordingly disposed of. Notice issued in each of the petitions is discharged. Adinterim relief is vacated. Registry will maintain copy of this order on each of these petitions."
3.2 It appears that the writ applicants were heard and the impugned orders were passed. By the impugned order dated 3rd July 2002, the pay protection came to be cancelled and by the letter dated 20th July 2002, the writ applicants were called upon to refund the excess amount paid to them to the tune of Rs.1,59,916/.
3.3 Hence, the five writ applications.
4 On behalf of the University, an affidavitinreply has been filed inter alia stating as under:
"3 At the outset, I say and submit that the petition is thoroughly misconceived and is neither maintainable nor tenable in law and suffers from suppresio veri and suggestio falsi and deserves to be dismissed in limine, BECAUSE:
(i) The petitioner has no legal and/or statutory right much less fundamental right to claim higher pay scale of higher cadre which the she does not hold.
(ii) The claim of the petitioner for higher pay scale of higher cadre is ex facie frivolous and not tenable in law under the pretext of pay protection.
The respondents have all powers and authority in law to take all necessary policy decisions in the interest of the University and have powers to make, amend or cancel the statutes and also to reconsider its earlier decisions.
(iii) The respondents have right to recover the excess amount illegally, erroneously and knowing fully received by the petitioner contrary to pay rules as held in the case of Chandi Prasad Uniyal and others v/s State of Uttarakhand and others, reported in (2012) 8 SCC 417 para 14.
(iv) The petitioner is not entitled for pay protection of a Home Science worker which was being paid under the Adivasi Utkarsh Yojana for Tribals, which was being fully funded by the ICAR.
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In view of the above facts and circumstances, the petitioner is not entitled for any relief as prayed for in this petition and the petition deserves to be dismissed.
4 I say that the respondent No.1 is a Body Corporate established and constituted under the provisions of Section 3 of the Gujarat Agricultural Universities Act, 2004 for imparting education and development of agricultural science, including animal husbandry and allied sciences in the State of Gujarat and the University by name "Anand Agricultural University". It is Educational Institution fully aided by the State Government. It is engaged in educational activities and imparting education in agricultural and allied sciences and humanity. I say that Indian Council for Agricultural Research (hereinafter referred to as "ICAR") has float a scheme known as "Scheme of Socio Economic Development of Tribals" (Adivasi Utkarsh Yojana for Tribals) in the area of Amirgadh and Danta of Banaskantha District. 100% financial aid for the said scheme was being given by the ICAR. The said scheme was handed over to the erstwhile Gujarat Agricultural University to execute the same, the respondents, therefore, engaged certain workers for implementation of the said scheme.
5 I say that initially the petitioner was engaged as a Home Science Worker under the scheme of Socio Economic Development of Tribals vide order dated 1291980 on purely temporary and adhoc basis in the fixed pay of Rs.300/ per month. Thereafter, by the order dated 12051983, the petitioner was engaged as a Home Science Worker under the said scheme of Socio Economic Development of Tribals on purely, temporary and adhoc basis in the pay scale of Rs.330560/ per month. The appointment was on express condition that if her services are nor required by the University, her services can be terminated without notice and/or on completion of the scheme. Annexed hereto and marked as AnnexureA is a copy of the order dated 12051983. Thereafter, under the said clause, by the order dated 13031989, the services of the petitioner were terminated w.e.f. 1831989. Annexed hereto and marked as AnnexureB is a copy of the termination order passed by this Hon'ble Court, vide order dated 283 1989, the petitioner alongwith other concerned employees were appointed afresh as Junior ClerksTypist in the pay scale of Rs.9501500 on the same terms and conditions. Annex hereto and marked as AnnexureC is a copy of the appointment order dated 28031989. The said appointment was accepted by the petitioner and the petitioner continued to work as a Junior ClerkcumTypist in the pay scale of Junior Clerk. At present, the petitioner is working, as Junior Clerk in the pay scale of Rs.520020200/.
Parawise reply:
6 With reference to paras 1 to 4 of the petition, I deny the correctness of the averments made therein. I deny that the petitioner is entitled for protection of fundamental rights under Articles 14 and 16 of the Page 5 of 17 HC-NIC Page 5 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT Constitution of India. I say that at present, the petitioner is working as a Junior Clerk under the Anand Agricultural University in the pay scale of Rs.520020200/. I respectfully submit that the petitioner was given the pay of Home Science Workers under the special project for which 100% fund was being given by the ICAR. It is submitted that the petitioner is not entitled for any pay protection as claimed for. The petitioner was appointed as a Junior Clerk and she is being paid the pay scale of Junior Clerk.
7 with reference to paras 5 to 7 of the petition, I deny the correctness of the averments made therein. I say that at present, the petitioner is working as a Junior Clerk and she is being paid the pay scale of Junior Clerk. At this stage, it is relevant to point out that the provisions of Rule 44.1. Rule 44.1 reads as under:
"A retrenched University employee on his reemployment in the University service shall be entitled to draw the same pay as admissible to him immediately prior to his retrenchment if the following conditions are fulfilled: (1) reemployment is on a post carrying identical time scale (2) previous service was continuous for a period not less than three years (3) reemployment is within a period of 12 months from the date of retrenchment."
Admittedly, this rule is not applicable to the petitioner and the Management had erroneously made this rule applicable to the Home Science Workers including the petitioner and pay protection was given to the petitioner and other Home Science Workers. The petitioner was illegally, erroneously and contrary to the pay rules had drawn higher pay scale of higher post which she was not holding. The Audit Department of the petitioner University had rightly raised audit objection that the pay protection given to the petitioner was not in consonance with Rule 44.1 of the Service Rules of the University and observed that the petitioner and other Home Science Workers were erroneously given the benefit of Pay Protection. I say that since the petitioner and other Home Science Workers were not entitled for higher pay scale payable to Home Science Workers and therefore the University by Notification dated 30072001 decided to cancel the pay protection erroneously granted to the petitioner and further decided to recover excess amount paid to the petitioner and other Home Science Workers under the guise of pay protection. Annexed hereto and marked as AnnexureD is a copy of the notification dated 30072001.
8 With reference to paras 8 and 9 of the petition, I deny the correctness of averments made therein. It is true that by the order dated 39072001, the University decided to cancel the pay protection and decided to recover the excess amount paid to the petitioner and other Home Science Workers. Against the said decision the petitioner and other Home Science Workers approached this Hon'ble Court and the petition was Page 6 of 17 HC-NIC Page 6 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT disposed of on making the statements by the University that appropriate orders will be passed after affording reasonable opportunity of being heard. Thereafter, the petitioners were heard and the impugned order was passed by the University on merits and decided to recover the excess amount paid to the petitioner.
9 With reference to contents of paras 10 and 12 of the petition, I deny the correctness of the averments made therein. I deny that the impugned orders are illegal, arbitrary, unreasonable and in violation of fundamental rights of the Articles 14 and 16 of the Constitution of India. I respectfully submit that the pay of the petitoner and other workers were protected illegally on the misrepresentation made by the petitioner and other Home Science Workers. It is submitted that, the petitioner was engaged as Home Science Worker on the scheme floated by the ICAR in the pay scale of Rs.300560 (revised pay scale Rs.1200 - 2040). As stated herein above all expenses were being born from the funds received from the ICAR. Thereafter, her services as Home Science Worker were terminated w.e.f. 1831989. Subsequently, by the order dated 2831989, a fresh appointment was made as a Junior ClerkcumTypist in the pay scale of Rs.9501500 on express condition that she will not claim seniority, any other benefits of her earlier services etc. Under the service jurisprudence, the lower grade employees cannot draw pay scale of higher cadre. Therefore, the petitioner is not entitled for the pay protection as prayed for. Admittedly, the pay protection was granted considering Rule 44.1. of the Service Rules of the University. But this rule is not applicable to the petitioner. Therefore, admittedly, the University has granted pay protection under complete misreading of Rule 44.1 of the Service Rule.
10 With reference to contents of para 13 of the petition, I deny the correctness of the averments made therein. I respectfully submit that the respondent University is an autonomous body constituted established under the provisions of the Act and having its own service rules and the conditions of service of the employees of the University are being governed under the said Service Rules of the University. It is pertinent to note that the provisions of the Bombay Civil Services Rules are not applicable to the employees of the University. There is no reduction in the pay scale, but the petitioner was regularly appointed as a Junior Clerk and she has been placed in the pay scale of Junior Clerk. The statements and averments made in para 13 are incorrect and illfounded and I deny the same. I reiterate and submit that the provisions of the BCSR Rules are not applicable to the petitioner for the purpose of pay protection. I deny that the reduction in pay is otherwise then as a disciplinary measure. I further deny that Note 1 of Rule 41(ii) of the BCSR Rules would be available to the petitioner until she reaches the figure of Rs.1350/ in the pay scale of Rs.9501500/. The petitioner has been wrongly given the pay protection. I further submit that the principle of Government circular dated 0905 Page 7 of 17 HC-NIC Page 7 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT 1989 is not applicable to the petitioner."
5 Thus, the stance of the University appears to be that on the abolition of the posts of Home Science Worker, the absorption of the writ applicants on the posts of Junior Clerk was a fresh appointment, and therefore, they were entitled to receive the pay scale attached to the posts of Junior Clerk. The University also seeks to effect recovery of the excess amount paid at the time when the pay was protected.
6 Ms. Pandya, the learned counsel appearing for the writ applicants submitted that the impugned orders are erroneous and contrary to law. According to her, Rule 41 of the Bombay Civil Services Rules 1959 would apply. If Rule 41 is made applicable, then her clients are entitled to the pay protection. Ms. Pandya further submitted that assuming for the moment that if her clients are not entitled to the pay protection, then the decision to effect recovery of the excess amount from each of the writ applicants is not justified. In support of her submissions, strong reliance has been placed on the recent pronouncement of the Supreme Court in the case of State of Punjab and others v. Rafiq Masih [(2015) 4 SCC 334].
7 On the other hand, all the writ applications have been vehemently opposed by Mr. D.G. Chauhan, the learned counsel appearing for the University. According to Mr. Chauhan, Rule 41 of the Bombay Civil Services Rules 1959 is not applicable and the writ applicants are governed by Rule 44.1 by the Service Rules framed by the University.
8 Mr. Chauhan submits that it is permissible for his client to even effect recovery, because the writ applicants were otherwise not entitled to receive the salary of the posts of Home Science Worker after being Page 8 of 17 HC-NIC Page 8 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT appointed on the posts of Clerk.
9 In such circumstances referred to above, Mr. Chauhan prays that there being no merit in any of the writ applications, those may be rejected.
10 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the University committed any error in passing the impugned orders.
11 Let me consider the principal argument canvassed on behalf of the writ applicants as regards the applicability of Rule 41 of the Bombay Civil Services Rules 1959. Rule 41 of the B.C.S.R. reads as under:
"41. Save as provided in Rule 42, the initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay is regulated as follows:
(a) If he hold s a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had lien not been suspended under Rule -19.
(i) when appointment to the new post involves assumption of duties or responsibilities of greater importance (as interpreted for such purposes of Rule 56) than those attaching to such permanent post, he will draw as initial pay the stage of the timescale above his substantive pay in respect of the permanent post;
(ii) when appointment to the new post does not involve such assumption, he will draw an initial pay the stage of the timescale which is equal to his substantive pay in respect of the permanent post, or if there is no such stage, the stage next below that pay, plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the timescale of the permanent post, or for the period after which an increment is earned in the timescale of the new post, whichever is less. But if the minimum pay of the Page 9 of 17 HC-NIC Page 9 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT timescale of the new post is higher than his substantive pay in respect of the permanent post, he will draw that minimum as initial pay;
(iii) when appointment to the post is made on his own request under Rule 22(a) and the maximum pay in the timescale of that post is less than his substantive pay in respect of the old post he will draw that maximum as initial pay."
12 It is not in dispute that the writ applicants are all employees of the University. The University has its own Service Rules which the employees are governed. Rule 44.1 of the Rules applicable to the writ applicants reads as under:
"A retrenched University employee on his reemployment in the University service shall be entitled to draw the same pay as admissible to him immediately prior to his retrenchment if the following conditions are fulfilled: (1) reemployment is on a post carrying identical time scale (2) previous service was continuous for a period not less than three years (3) reemployment is within a period of 12 months from the date of retrenchment."
13 Thus, a retrenched University employee, on his reemployment in the University service, can claim pay protection i.e. the same pay as admissible to him immediately prior to his retrenchment, subject to the condition that his reemployment is on a post carrying an identical time scale of pay. In my view, the conditions essentially for the application of Rule 44.1 are not fulfilled. The case of the writ applicants is not of reemployment. On the abolition of all the posts of Home Science Worker, their appointments on the posts of Clerk were fresh appointments. Once the appointments are treated as fresh appointments, they would be entitled to receive the pay scale of that particular post.
14 To the aforesaid extent, the stance of the University appears to be just and proper and no interference is warranted.
15 The second question that arises for my consideration is whether
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the recovery of the excess amount is justified in the facts and circumstances of the case. This issue is no longer res integra in the view of the recent pronouncement of the Supreme Court in Rafiq Masih (supra). I may quote the observations of the Supreme Court as contained in paras 10 to 18 as under:
"10. In view of the aforestated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
12. Reference may first of all be made to the decision in Syed Abdul Qadir vs. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"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 Page 11 of 17 HC-NIC Page 11 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT the amount paid in excess.See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99." (emphasis is ours)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
14. In this context, reference may also be made to the decision rendered by this Court in Shram Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs Page 12 of 17 HC-NIC Page 12 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT 330560 but as they have received the scale of Rs 330560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the payscale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India (2006) 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery 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 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."
(emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of Page 13 of 17 HC-NIC Page 13 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., ClassIII and ClassIV sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"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 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 is ours) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid Page 14 of 17 HC-NIC Page 14 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220550 to which the appellant was entitled became Rs 7001600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 7001600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.7001600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or Page 15 of 17 HC-NIC Page 15 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
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 ClassIII and ClassIV 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."
16 I take notice of the fact that at a point of time, it is the University Page 16 of 17 HC-NIC Page 16 of 17 Created On Wed Aug 10 03:30:26 IST 2016 C/SCA/10054/2002 JUDGMENT itself who had taken the decision to protect the pay rightly or wrongly. It is only when the audit department raised an objection in that regard then it is realized that the writ applicants are not entitled to the pay protection. If that be so, then it is difficult to impute something to the writ applicants so far as the excess salary is concerned. In my view, the recovery, as excess, is not justified.
17 In view of the above, all the writ applications succeed in part. The impugned order dated 3rd July 2002 is not disturbed. All the writ applications fail to that extent. However, all the impugned orders so far as the recovery part is concerned are hereby ordered to be quashed. There shall be no recovery from any of the writ applicants.
18 With the above, all the writ applications stand disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 17 of 17 HC-NIC Page 17 of 17 Created On Wed Aug 10 03:30:26 IST 2016