Patna High Court
Kedar Nath Sahay vs State Of Bihar And Ors. on 1 September, 2003
Equivalent citations: 2003(3)BLJR2130
Author: Aftab Alam
Bench: Aftab Alam
JUDGMENT Aftab Alam, J.
1. The petitioner retired from service on 31-1-2001 as an Electrician Grade II from the office of Executive Engineer, National Highway, Mechanical Division, Road Construction Department, Nawadah. In course of determination of his retiral dues after his retirement, the office of the Accountant General took the view that the petitioner was wrongly allowed the scale of Rs. 4000-6000 in which he was given his last monthly salary and that lawfully he was entitled to the lower scale of Rs. 3050-4590. The objection raised by the Accountant General's office delayed fixation of pension and its commutation and the final payment of gratuity etc. to the petitioner. In those circumstances he earlier came to this Court in CWJC No. 10319 of 2002 which was disposed of by order, dated 5-12-2002. By that order, the Court directed the respondent authorities to pay to the petitioner his retiral and other dues as admitted by them but in so far as the final determination of pension, gratuity etc. was concerned, the Court directed both the Accountant General and the Executive Engineer to take a decision on the representation filed by the petitioner before them. In pursuance of the Court's direction, the Executive Engineer passed orders, dated 5-12-2002 and 30-11-2002 (Annexure 1 series). The Executive Engineer rejected the petitioner's representation and held that from time to time his pay was wrongly fixed in the higher scales, that he was entitled to payment of his retiral and other dues in the lower scale of pay than what was given to him at the time of his retirement and further that Rs. 81,553 was liable to be deducted from his retrial dues as excess salary paid to him as a result of his pay being wrongly fixed in the higher scales of pay.
2. The order passed by the Accountant General on the petitioner's representation has also come on record along with the counter-affidavit filed on his behalf. This order is in some detail and it presents a complete picture of the petitioner's case.
3. The petitioner held the post of Electrician Grade II in the Road Construction Department (earlier Public Works Department). He joined the service on 1-6-1972 in the scale of Rs. 240-360. This scale was revised by Finance Department resolution No. 10770 of 30-12-1981 (that is, the 4th pay revision with effect from 1-4-1981) and the pay scale of Electrician Grade II in the Irrigation Department / Public Health Engineering Department / Public Works Department was sanctioned at Rs. 535-765.
4. The petitioner was, thus, in the scale of Rs. 535-765 when he, along with some others, was allowed first time bound promotion by office order No. 59 issued by the Superintending Engineer (Mechanical) under his memo No. 950, dated 25-4-1988 (Annexure 4). On the basis of the promotion, he was given the scale of Rs. 580-860 (with effect from 27-3-1987) which was the next higher scale to Rs. 535-765. Upto this stage, the pay of the petitioner was fixed correctly and in the proper scale. Later, by another office order No. 139, issued by the Superintending Engineer (Mechanical) under his Memo No. 1896, dated 28-11-1988, all those who were given the time bound promotion by order, dated 25-4-1988, including the petitioner, were allowed the higher scale of Rs. 680-860 with effect from 27-3-1987, the date from which-they were allowed the scale of Rs. 580-860. The grant of higher scale was made on the basis of the Finance Department Memo No. 3 PAR 01/86-224F, dated 15-1-1987. The Accountant General in his order points out that at that time it was completely over looked that the Finance Department memo, dated 15-1-1987 was only in respect of the post of Electrician Grade II in Irrigation Department and the enhancement of scale for that post was not made for other departments. In the Accountant General's office order it is pointed out that after the 4th pay revision, the scale of Rs. 535-765 was given to the post of Electrician Grade II in Irrigation Department, Public Health Engineering Department and Public Works Department. But on the basis of the report of the Anomaly Removal Committee, the Finance Department in its resolution, dated 5-1-1987 approved the higher scale of Rs. 580-860 with effect from 1-3-1986 for the post of Electrician Grade II only in the Irrigation Department and any other department was not mentioned in the schedule to the resolution in question. The Accountant General has pointed out that the grant of the higher scale of Rs. 860-890 was the basic error committed by office order, dated 28-11-1988 and this error remained undetected and it was carried forward at the time of further pay revisions / promotions etc. As a consequence the petitioner was given the scale of Rs. 4000-6000 instead of Rs. 3050-4590 at the time of his retirement.
5. On these facts the Accountant General has taken the view that the petitioner's retiral and other dues are to be fixed in the lower scale of Rs. 3050-4590 and a refund of excess salary is also to be made from his retiral dues. The same view is reiterated by the Executive Engineer.
6. From the facts stated above, it is manifest and clear that for wrong fixation of his pay in the scale of Rs. 680-890 vide office order, dated 28-11-1988 the petitioner himself was in no way responsible. It was a bona fide error committed by the controlling office and there is not even a whisper of any suppression, misrepresentation of facts or any improper act on the part of the petitioner.
7. In these circumstances, it is well established that the petitioner cannot be penalised for the excess amount paid to him and no recovery can be allowed from his retiral dues. But this is not to say that the same principle would apply for fixing his retiral dues. The protection from recovery is allowed on equitable considerations. Because in cases where excess salary has been paid to a Government employee for a reason not attributable to him, any recovery from the retiral dues after ten, fifteen or twenty years would be patently unjust and unfair and equity would, therefore, weigh heavily in his favour. But the same cannot be said in regard to fixation of retiral dues. The principle of equity cannot be extended for the future even after the mistake or error is detected and equity cannot be made the basis to insist on perpetuating the mistake and directing the authorities to grant retiral dues on a scale of pay which is clearly shown to be wrong and unauthorised.
8. It may be noted here that Mr. Rupak Kumar, counsel appearing for the petitioner submitted that the retiral dues must always be fixed on the basis of the last pay drawn and he also relied upon two decisions in support of his submission. Mr. Kumar first cited the decision in Suresh Choudhary v. State of Bihar and Ors., 1999 (2) PLJR 718. In that case the promotions allowed to the petitioner during his service tenure were cancelled after his retirement, without giving him an opportunity of hearing and on that basis the retiral dues were fixed in the lower scale and deduction was directed from the retiral dues. This Court interferred on the ground that the promotions allowed to the petitioner (in that case) were found to be valid on the basis of an enquiry and were consequently confirmed by the competent authority and the cancellation of the promotions without giving the employee an opportunity of hearing was violative of the principles of natural justice. The facts of the decision are, thus, quite different from those of the case in hand. The promotion given to the present petitioner remains undisturbed. It is only that he was wrongly given a higher scale of pay which was the result of an error by the authority. This is conclusively shown in the order of the Accountant General which was passed after giving due notice to the petitioner and on a consideration of his show cause / representation.
9. Mr. Kumar next relied upon a decision in Gupteshwar Prasad v. State of Bihar and Ors., 1999 (3) PLJR 572. In this decision the basic consideration was about the unfairness and unreasonableness of any recovery on the ground that the pay was wrongly fixed in a higher scale of pay. But it is true that there is a solitary sentenced in para 8 of the decision that the petitioner (of that case) was also entitled to fixation of post retirement benefits on the basis of salary which he, in fact, was drawing on the date of retirement. As noted, this is a solitary sentence in the entire decision without any consideration or discussion and without assigning any reason whatsoever for taking that view. This cannot be held to be the ratio of the decision so as to constitute a binding precedent. I have given above my reasons for holing otherwise.
10. Learned counsel also cited a decision of the Supreme Court in Bhagwan Shukla v. Union of India and Ors., AIR 1994 S.C. 2480 (para 3). In my considered view, the facts in the Supreme Court decision was quite different and that decision is not applicable to this case.
11. For the reasons stated above, the impugned orders in so far as they contain direction for recovery of the excess salary (Rs. 80,553) from the petitioner's retiral dues are quashed. However, it will be open to the authorities to fix the retiral and other dues of the petitioner on the basis of his pay to which he was lawfully entitled at the time of his retirement. It is further directed that the benefit of commutation if a request is made by the petitioner must be allowed treating the request to have been made within one year of his retirement so as no prejudice or disadvantage is caused to him due to the delay in the final settlement of his retiral dues for which he is not responsible in any way.
12. This writ petition is, thus, partly allowed to the extent indicated above. There shall be no order as to costs.