Rajasthan High Court - Jaipur
The Learned Single Judge After ... vs State Of Uttarakhand & Ors on 23 November, 2015
Author: Ajay Rastogi
Bench: Ajay Rastogi
In The High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R D.B. Special Appeal (Writ) No.149/2013 D.B. Special Appeal (Writ) No.144/2013 D.B. Special Appeal (Writ) No.150/2013 D.B. Special Appeal (Writ) No.206/2013 D.B. Special Appeal (Writ) No.223/2013 D.B. Special Appeal (Writ) No.224/2013 D.B. Special Appeal (Writ) No.225/2013 D.B. Special Appeal (Writ) No.226/2013 D.B. Special Appeal (Writ) No.227/2013 Date : 23-11-2015 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice J.K. Ranka Mr. Anand Sharma Adv., for petitioners.
Mr. Shyam Arya Additional Advocate General for State.
Instant batch of special appeals has been filed against the self same judgment of the learned Single Judge dt.24-11-2012.
The appellants are members of service of Rajasthan Medical & Health Sub-Ordinate Service Rules,1965 (Rules,1965) and were granted benefit of selection scale in terms of circular of the Government dt.25-1-1992. It appears that they were fixed in the selection scale of 1640-2900 of the post of Senior Non-Medical Supervisor but lateron it revealed that the next promotional post of the employees who are working in the cadre of Non-Medical Supervisor is of Urban Leprosy Worker which was in the pay-scale of Rs.1400-2600/- as there was an apparent error being committed by the authority in granting fixation in the higher pay-scale of 1640-2900 that came to be withdrawn by the authority vide order dt.4-5-2009 and that was challenged by the appellants-writ petitioners by filing their respective writ petitions. It has come on record & admitted that the post of Senior Non-Medical Supervisor is so far not included in the schedule appended to the Rules,1965 and the promotional post in the Schedule appended to the Rules, 1965 is of Urban Leprosy Worker and after the error being pointed out their fixation was revised and all the appellants-writ petitioners were fixed in the pay-scale of 1400-2600 on the post of Urban Leprosy Worker which is the post included in the Schedule appended to the Rules,1965 and their grievance was that the post of Senior Non-Medical Supervisor which may not be included in the Schedule appended to the Rules,1965 but this being indicated in the revised Pay Rules and the state authorities at some point of time has granted promotion to the employees, counsel submits that even if the post of Senior Non-Medical Supervisor is not included in the Schedule appended to the Rules,1965 still promotion has been accorded that makes them entitled for the pay-scale of the post of Senior Non-Medical Supervisor and rightly fixed in such pay-scale of 1640-2900 and the order dt.4-5-2009 withdrawing the pay-scale is not sustainable in the eye of law.
The learned Single Judge after examining the material on record observed that it was indisputably an apparent error committed in making their fixation in the pay-scale of 1640-2900 of the post of Senior Non-Medical Supervisor, not included in the Schedule appended to the Rules,1965 and their fixation in the next promotional post of Urban Leprosy Worker is not disputed by the petitioner.
However, the submission made that at some point of time promotions were offered to the employees to the post of Senior Non-Medical Supervisor and fixation was made accordingly, is of no substance for the reason that under the circular of the State Government dt.25-1-1992 one is entitled to get selection scale on completion of 9-18-27 years of service to the promotional post in the instant case of Urban Leprosy Worker and at least for grant of selection scale one is entitled for the pay-scale of the promotional post included in the Schedule appended to the Rules and such of the persons are entitled for in terms of circular of the State Government dt.25-1-1992 but we are clear in our mind that the post which is not included in the Schedule appended to the Rules,1965 employee cannot get fixation of pay-scale of the post which is not germane to the Rules,1965 and indeed the error being committed by the respondent in granting fixation to the employees of the higher post alike in the present case of Senior Non-Medical Supervisor which is not included in the Schedule appended to the Rules,1965.
In our considered view no error was committed in the decision making process by the State authorities and we would not like to perpetuate the illegality which the State has once committed in granting benefit of selection scale of the post which is not under the scheme of Rules and this what the learned Single Judge also considered in its order impugned.
As regards the recovery pursuant to the order dt.4-5-2009 is concerned, the learned Single Judge taking note of the judgment of the Apex Court in Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors, left it open for the respondent to consider.
As regards recovery is concerned, the Apex Court in Civil Appeal No.11527/2014 (arising out of SLP(C) No.11684 of 2012) (State of Punjab and Ors. Vs. Rafiq Masih (White Washer) etc., decided on 18.12.2014, has laid down certain exceptions and observed in para-12 as under :-
12. 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 decision 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.
After hearing counsel for the parties and taking note of what has been observed by the Apex Court in the judgment referred to supra, we are of the view that since the appellants are retired from service it will not be advisable to open new flood gates as regards recovery pursuant to order dt.4-5-2009 is concerned and to that extent, order of the authority dt.4-5-2009 & also of the learned Single Judge dt.24-11-2012 may not be sustainable in law & that apart, it is not the case of the respondents that there was any misrepresentation on the part of the appellants-writ petitioners in getting their fixation done in the pay-scale of 1640-2900 which was lateron withdrawn vide order dt.4-5-2009..
In our considered view, to the extent of recovery pursuant to order dt.4-5-2009 & order of the learned Single Judge dt.24-11-2012 to the extent of making recovery from the appellants, stands modified and the present batch of appeals in these terms stands disposed of.
(J.K. Ranka), J. (Ajay Rastogi),J. VS/ Certificate - All corrections have been incorporated in the judgment/order being emailed/Vijay Singh Shekhawat/P