Allahabad High Court
Hansraj Singh And Others vs State Of U.P. And Others on 12 February, 2015
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgement reserved on 04/2/2015
Delivered on 12/2/2015.
Court No. - 59
Case :- WRIT - A No. - 60741 of 2010
Petitioner :- Hansraj Singh And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- M. K. Mishra
Counsel for Respondent :- C. S. C.
With
Case :- WRIT - A No. - 61524 of 2010
Petitioner :- Chandan Singh And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- M. K. Mishra
Counsel for Respondent :- C. S. C.
With
Case :- WRIT - A No. - 66305 of 2010
Petitioner :- Yogendra Kumar And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- M. K. Mishra
Counsel for Respondent :- C. S. C.
And
Case :- WRIT - A No. - 61529 of 2010
Petitioner :- Banarasi Das And Others
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- M. K. Mishra
Counsel for Respondent :- C. S. C.
Hon'ble Yashwant Varma,J.
Heard Shri M.K. Mishra, learned counsel for the petitioners and Shri H.C. Pathak, learned Standing Counsel appearing for the contesting respondents.
The parties are agreed that all these four connected writ petitions involve the same controversy and stem from similar orders of recovery of pay made against the petitioners. Accordingly, and with their consent all these writ petitions are being disposed of by this common judgment.
Arguments have been advanced by the learned counsel for the parties treating Writ Petition No.60741 of 2010, to be the leading writ petition. However, it would be appropriate to briefly notice the facts of each case.
Writ Petition No.60741 of 2010.
All the petitioners are "Tube-well Operators" who were appointed in the Irrigation Department, Government of U.P. on different dates between 1968-1970. Upon successful completion of 14 to 16 years of satisfactory service they were granted promotional pay scale of Rs.1200-2040/- with effect from 01/5/1990. The petitioners subsequently retired from service in 2006-2007. However, during the course of finalization of their pension papers, it appears that the issuance of grant of the pay scale of Rs.1200-2040/- came up for consideration and the respondents took the view that the said promotional pay scale was liable to be granted to them with effect from 10/10/1994. These decisions of the State Government stand embodied in the orders 18/12/2006 and 22/12/2006. It was on the basis of the aforementioned orders that individual orders of recovery of differential pay scales were issued against the petitioners on 05/10/2007.
Writ Petition No.61524 of 2010.
The three petitioners in this writ petition are "Tube-well Operators" who were working in the Irrigation Department and had been similarly granted pay scale of Rs.1200-2040/- with effect from 01/5/1990. These petitioners who were appointed in the years 1969, 1971 and 1976 have since retired upon attaining the age of superannuation in the year 2008 and 2010. Upon the State Government passing the orders dated 18/12/2006 and 22/12/2006, orders of recovery dated 20/12/2008 (against the petitioner nos.1 and 2 herein) and 08/4/2008 (against the petitioner no.3) came to be passed.
Aggrieved by the aforesaid, the present writ petition came to be filed before this Court.
Writ Petition No.66305 of 2010.
Here too, the 15 petitioners are said to be "Tube-well Operators" who had been appointed in the years 1950, 1968, 1969 and 1970. Upon completion of their qualifying service, they were granted the promotional pay scale of Rs.1200-2040/- with effect from 01/5/1990.
They subsequently retired from service in the years 2007, 2008, 2009 and 2010.
Against all these petitioners and consequent to the orders dated 18/10/2006 and 22/12/2006, similar orders of recovery have been passed on 23/8/2007.
Writ Petition No.61529 of 2010.
The petitioners herein were appointed as "Tube-well Operators" in the Irrigation Department of the State of U.P. in the years 1971 and 1976. They too upon completion of 14 to 16 years of satisfactory service were granted the promotional pay scale of Rs.1200-2040/- with effect from 01/5/1990. They have since retired from service in the years 2009, 2010 and 2011. Consequent to the orders dated 18/12/2006 and 22/12/2006 orders of recovery dated 27/12/2007 were issued against the petitioners and which form subject matter of challenge in this writ petition.
The admitted facts as they emerge from the pleadings of the parties are:that the petitioners upon completion of 14 to 16 years of service as "Tube-well Operator" in the Irrigation Department were granted a promotional pay scale of Rs.1200-2040/-. Continuing in service, they were granted revised pay scales and also retired from service in 2006-2007. It appears that with effect from 10/10/1994, the petitioners were drawing Rs.1320/- and with consequential pay revisions they at the time of retirement were earning Rs.5500/-. The pay scale of Rs.1200-2040/- in which the petitioners were drawing Rs.1320/- as on 10/10/1994, was granted to them with effect from 01/5/1990. It thereafter transpires that certain clarifications were received from the State Government with regard to the dates from which the said pay revisions were liable to be granted to the employees. These instructions are contained in the communications of the State Government dated 18/10/2006 and 22/12/2006. Pursuant thereto, all the petitioners were served with orders dated 05/10/2007 (Annexures-1 to 5) to the writ petition. These orders disclose the amounts which the petitioners had drawn and retained at the relevant time and what was actually payable to them as per the directives of the Government. These pay revision orders carried a note that insofar as the retired employees are concerned, the excess payment made to them shall be recovered in one installment. It is at this stage that the petitioners approached this Court.
From the records it transpires that these orders passed in 2007 were assailed before this Court only in 2010 and this Court while entertaining the writ petitions did not grant any interim protection to the petitioners. Consequently, the learned counsel for the petitioners informs, that the excess amounts have been recovered from all the petitioners.
Learned counsel for the petitioners has submitted that the excess amount which is sought to be recovered from the petitioners is an action which is clearly arbitrary, inasmuch as the pay revision is sought to be affected after more than 17 years. Elaborating his submissions, learned counsel for the petitioners submitted that the petitioners had been granted the benefit of Pay Band of Rs.1200-2040 with effect from 01/5/1990, and it was this decision which was sought to be reviewed by the orders dated 05/10/2007. He further submitted that the respondents nowhere contended that the said excess payments came to be made to the petitioners by virtue of concealment of any material facts and or any misrepresentation by them. He therefore, submitted, that the impugned orders of recovery were clearly arbitrary and are accordingly liable to be quashed by this Court.
Learned Standing Counsel while opposing these writ petitions has contended that the pay revisions came to be made pursuant to the clarifications received from the Statement Government and that therefore, the petitioners cannot be permitted to retain the excess amount. He further submitted that the petitioners do not dispute the correctness of the clarifications issued by the State Government and at least no such ground has been taken in the writ petition which may cloud the validity of the clarifications issued by the State Government.
In response to the above submissions, advanced on behalf of the State Government, the learned counsel for the petitioners while reiterating his submissions further urged that the action of the respondents was not only arbitrary, but was also discriminatory. He submitted that the recoveries sought to be made from the petitioners was confined to employees posted only in six Districts out of the 71 Districts of the State of U.P. He further submitted that the State Government had taken no steps for recovery from the pay or pensionary benefits of the employees who had retired prior to 23/8/2007. These pleas of discrimination have been specifically taken in paragraphs 21 and 22 of the writ petition and the only traverse which the State Government has averred is that the discrepancies in grant of pay scales came to light only in the course of test checking in some districts and that accordingly it cannot be stated that the provisions of Articles 14 and 16 of the Constitution of India had not been violated.
The vexed question of recovery from the pay or pensionary benefits of employees has engaged the attention of not just this Court, but also the Apex Court from time to time. Following a long line of decision rendered by the Apex Court a Bench of this Court in Dr. Gopalji Mishra Vs. State of U.P. & Ors (2004) 2 ESC, 791 was pleased to hold as follows in paragraph 20:
"20. So far as the payment of excess amount, which the petitioner was not entitled is concerned, as there has been no misrepresentation or fraud on the part of the petitioner, he cannot be asked to refund the same. More so, petitioner might have spent the same considering his own money. Recovery thereof would cause great financial hardship to the petitioner. In such circumstances, recovery should not be permitted. [Vide Shyam Babu Verma and Ors. v. Union of India and Ors., (1994) 2 SCC 521 ; Sahib Ram v. State of Haryana and Ors., 1995 Suppl (1) SCC 18 and V. Gangaram v. Regional Joint Director and Ors., AIR 1997 SC 2776]".
The basic proposition laid down in the above decision has been consistently followed by this Court and again reiterated in Dr. Avinash Chand Goel Vs. State of U.P. & Ors, 2011 (5) ESC 3035. Following was laid down in paragraph 7:
"7. In the present case the established principle of law, that a person cannot be asked to repay the amount, which was not due to him, but has been paid to him without any misappropriation or fraud, is squarely applicable. In this case the petitioner had protested even to the alleged wrong fixation of the pay. He has given details of his entitlement for the correctness of the applicability of the pay scale and the benefits to be drawn by him under the orders of the Supreme Court in Chandra Prakash's case in, which not only the seniority but consequential benefits were also allowed to be given to those medical officers who were to be given promotions. In such case, the principle of law 'no work no pay' will not be applicable."
There is perhaps no need to burden this judgement with reference to further precedents, but in order to complete the sequence, it would be apposite to note that the seeming contradictions on certain judgments rendered by the Apex Court in this regard, led to a reference being made to a 3 Judges' Bench of the Supreme Court of India in State of Punjab & Ors. Vs. Rafiq Masih (White Washer) etc and the judgment handed down by the said Bench which stands reported in 2014 (8) SCC 883 in paragraph 13 held as under:
"13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same rounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgements and the latter judgement."
Upon the reference being so returned, the main matter [Civil Appeal No. 11527 of 2014 State of Punjab and others -v- Rafiq Masih (Whitewasher) decided on 18.12.2014] came up for consideration before the Hon'ble Supreme Court of India again when the Court after taking note of all its earlier judgments handed down in this regard was pleased to record its conclusions in paragraph 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 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 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."
If there were possibility of any doubt being entertained with regard to the basic proposition with respect to recovery of amounts paid by mistake to employees, the same has been accorded a quietus by the above pronouncement of the Apex Court.
A perusal of the broad proposition laid down in the aforesaid judgment of the Apex Court establishes that the case of the petitioners would clearly fall within the categories (i), (ii) and (iii).
Consequently, the impugned orders of recovery dated 05/10/2007, passed in Writ Petition No.60741 of 2010, impugned orders dated 20/12/2008 and 08/4/2008, passed in Writ Petition No.61524 of 2010, impugned order dated 23/8/2007, passed in Writ Petition No.66305 of 2010, and impugned order dated 27/12/2007 passed in Writ Petition No.61529 of 2010 cannot be sustained and are liable to be quashed.
Accordingly, and in view of the above, all these writ petitions stand allowed.
All the impugned orders dated 05/10/2007, 20/12/2008 and 08/4/2008, 23/8/2007, and 27/12/2007, made against the petitioners shall stand quashed. The petitioners shall be entitled to the refund of sums recovered from them pursuant to the aforesaid orders.
Order Date :- 12.2.2015 SB