Himachal Pradesh High Court
Dharam Dutt Sehgal vs State Of Himachal Pradesh And Ors on 18 August, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWPOA No. 4998 of 2019
Decided on: 18.8.2020
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Dharam Dutt Sehgal ...........Petitioner
Versus
State of Himachal Pradesh and Ors. ..........Respondents
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Mr. Rajinder Dogra and Mr. Rajesh
Verma, Advocates.
For the Respondents : Mr. Ashok Sharma, Advocate General,
with Mr. Sudhir Bhatnagar, Additional
Advocate General.
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Sandeep Sharma, Judge (oral):
Through Video Conferencing Petitioner though was initially appointed as a Music Teacher (C&V) under the Para Teacher Policy on 5.6.2004 on fixed honorarium of Rs. 4,000/- p.m., which later on came to be enhanced from time to time, but his services were subsequently regularized on 3.1.2015 as Music Teacher in terms of the policy decision taken by the respondent to regularize the services of all teachers appointed under the Para Teacher Policy, 2003 (Annexure A-3). Prior to his regularization, petitioner till 31.12.2006 was in receipt of honorarium to the tune of Rs. 4000/-, which was subsequently enhanced to sum of Rs. 7500/-p.m. After 31.3.2010, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 2honorarium was further enhanced to Rs. 13,500 per month as is evident from the communication dated 29.3.2010 (Annexure P-5). After .
regularization of the petitioner as Music Teacher, respondent department initiated recovery proceedings against the petitioner on account of excess payment allegedly made to him w.e.f. 1.1.2006 to 31.12.2014.
2. Perusal of communication dated 24.3.2015 issued by the Principal, Government Girls Senior Secondary School, Nahan as well as recovery schedule annexed therewith reveals that sum of Rs. 3,46,830/-
was paid to the petitioner in excess and as such, vide aforesaid communication, Principal of the aforesaid school intimated the petitioner with regard to recovery proposed to be effected from his salary. Vide aforesaid communication, Principal apprised the petitioner that recovery of the aforesaid amount will be effected from his salary in fifty installments @ Rs.7,000/- p.m. In the aforesaid background, being aggrieved with issuance of aforesaid recovery notice, petitioner approached the Erstwhile HP State Administrative Tribunal by way of OA bearing No. 317 of 2015, praying therein for following main relief:-
"(i) That the impugned recovery notice Annexure A-4 may kindly be quashed and set aside and the respondents may be directed to pay the unpaid amount of honorarium amounting to Rs. 1, 27, 500/-
alongwith interest @ 12% per annum from due date till realization."
::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 3After abolition of the Tribunal, matter now stands transferred to this Court for adjudication.
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2. Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute inter-
se parties that petitioner was initially appointed as Music Teacher (C&V) under the Para Teacher Policy on the fixed honorarium of Rs. 4,000/-, which subsequently came to be enhanced from time to time. Similarly, it is also not in dispute that the petitioner till his regularization on 3.1.2015 continued to work uninterruptedly without any complaint.
3. Respondents with a view to refute the claim as put forth by the petitioner in the petition at hand have stated that as per notification dated 23.3.1989, Music Teacher was to be given scale of Rs. 1200-2100, which was further revised to Rs. 4020-6200 w.e.f. 1.1.1996 and Rs. 5910- 20,200/- (pay band) + Rs. 2400 (grade pay) and as such, petitioner was entitled to salary of Rs. 5910+2400 instead of Rs. 10300 + 3200, hence payment made in excess is recoverable from the petitioner. While admitting that petitioner was appointed as Music Teacher under Para Teacher Policy on fixed honorarium of Rs. 4000/- P.M., which was further enhanced from time to time, respondents have further submitted that in compliance to directions/judgment dated 7.11.2012, issued by this Court in CWP No. 4954 of 2012, Madan Lal and Ors. v. State of HP, whereby ::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 4 direction was issued to give similar pay to the Para Teachers as was being paid to the contract teachers w.e.f. 1.4.2007, Principal of the concerned .
School erroneously allowed the scale, which was applicable to other sub categories of C&V category and as such, amount paid in excess of due and admissible pay scale has been sought to be recovered.
4. However, having perused record, this Court finds that aforesaid plea having been taken by the respondent is not tenable, rather same is contrary to the record. Office order dated 29.3.2010 (Annexure P-5) issued by the Director of Higher Education, Himachal Pradesh itself suggests that petitioner from the date of his initial engagement till his regularization was being paid fixed honorarium and grant of pay scale, if any, pursuant to direction dated 7.11.2012, issued by this Court in CWP No. 494 of 2012, before regularization of the petitioner, was not on his representation, rather such benefit came to be accorded to him pursuant to aforesaid direction issued by this Court in CWP No. 4954 of 2012. Respondents have themselves admitted that Principal of the concerned school allowed the scale, which was applicable to other sub-
categories of C&V category to the applicant. Though this Court having taken note of the admission of the respondents that Principal of the concerned school allowed the scale in question to the petitioner, needs not go into the question whether petitioner was entitled to pay scale of Rs.
::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 510300 + 3200/- or not, but even otherwise perusal of Annexure A-1 i.e. policy regarding Hiring/Engagement of Para Teachers (Lecturer School .
Cadre), Para Teacher (TGTs) and Para Teachers (C&V) reveals that petitioner falls under the purview of C&V category of teachers, not under the sub-category of any teachers as has been stated by the respondents in their reply. No material worth credence has been made available on record suggestive of the fact that appointment of the petitioner was not made under C&V (Classical and vernacular) teachers and as such, he is entitled to pay scale/pay band of Rs. 10300+3200 and thereafter corresponding enhanced grade pay i.e. Rs.10300+4400/-
5. Leaving everything aside, no material has been adduced on record by the respondents to demonstrate that till his regularization, petitioner was not in receipt of fixed amount of honorarium, which was enhanced from Rs. 7500 to 13500 w.e.f. 31.12.2014. Petitioner in his petition has claimed that under Para Teacher Policy, C&V teachers were being paid honorarium to the tune of Rs. 4000/- per month till 31.12.2006 and thereafter, same was enhanced to Rs. 7500 till 31.3.2020., which was further enhanced to Rs. 13500/- pm till 31.12.2014, but respondents did not pay any enhanced amount to him and as such, he is also entitled to sum of Rs. 1,27,500 w.e.f. 1.1.2006. to 3.3.2010 on account of less honorarium paid to him qua the aforesaid period., but since aforesaid claim of the ::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 6 petitioner is hopelessly time barred, this Court is not inclined to look into the aforesaid aspect of the matter in the instant proceedings.
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6. However, having taken note of the fact that at no point of time, petitioner with a view to have financial benefit misrepresented to the department, order of recovery issued by the respondent after regularization of the petitioner for the amount allegedly paid in excess is not sustainable in the eye of law. Though there is no material available on record suggestive of the fact that before regularization, petitioner was being given regular pay-scale as has been claimed by the respondents in their reply, but even otherwise as per own admission of the respondents, Principal of the concerned School himself erroneously allowed the scale, which was otherwise applicable to the other category of C&V categories.
Since there is/was no fault, if any, of the petitioner as far as grant of pay scale of Rs. 10300 +3200/- is concerned, he cannot be compelled to repay the amount after his regularization. Recovery schedule drawn by the Principal suggests that though w.e.f. 1.1.2006 to 31.3.2010, petitioner was entitled to have honorarium of Rs. 4,000/- p.m., but he was paid Rs.
5,000 w.e.f. 1.4.2010 to 31.12.2014. Similarly, petitioner was entitled to have honorarium of Rs. 1410-2460-1500-2640, but he was paid Rs.
10300+3200 i.e. 13500/- but such calculation rendered on record by the Principal of the concerned School is contrary to the record because as ::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 7 per record, petitioner was initially kept on fixed honorarium of Rs. 4,000/-, which was enhanced to sum of Rs. 7500 w.e.f. 31.12.2006 till 31.3.2010.
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After 31.3.2010, aforesaid sum of Rs. 7500 was further enhanced to Rs.
13500 till 31.12.2014.
7. The Hon'ble Apex Court in case titled State of Punjab vs. Rafiq Masih, (2015)14 Supreme Court Cases 334, has categorically held that recovery from the retired employees or employees, who are due to retire is impermissible, especially when there was no misrepresentation, if any, on the part of the person concerned at the time of claiming benefit in his/her favour. In the case at hand, as has been taken note herein above, at no point of time, petitioner represented or mis-represented for the grant of pay scale of Rs. 10300+3200, rather such benefit was extended to him by the Principal of school concerned in terms of directions contained in judgment dated 7.11.2012, passed by this Court in Madan Lal's case supra.
8. Hon'ble Apex Court in subsequent judgment dated 29.7.2016 passed in case titled High Court of Punjab and Haryana and another versus Jagdev Singh, has further clarified that principle enunciated in Rafiq Masih's Case that recovery from the retired employees or employees, who are due to retire is impermissible cannot be made applicable to the situation where the officer to whom payment ::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 8 was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be .
refunded. In the aforesaid judgment Hon'ble Apex Court has held that if the officer has furnished an undertaking while opting for the revised pay scale, he/she is bound by the undertaking given by him/her. At this stage, it would be relevant to reproduce paras No. 9 to 11 of the aforesaid judgment, which read as under:-
"9. The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.
10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:
"(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 9
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
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(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 rextent, as would far outweigh the equitable balance of the employer's right to recover." (emphasis supplied).
11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking".
9. Careful perusal of aforesaid judgment rendered by the Hon'ble Apex Court clearly suggests that principle laid down by the Hon'ble Apex Court in Rafiq Masih's case supra that recovery from employee belonging to Class-II and Class-IV service (or Group C and ::: Downloaded on - 21/08/2020 20:20:53 :::HCHP 10 Group D service) would be impermissible in law, still holds good. In the subsequent judgment rendered by the Hon'ble Apex Court in High Court .
of Punjab and Haryana v. Jagdev Singh's case (supra), it has been only clarified that recovery from those retired employees or who are due to retire within one year, of the order of recovery shall be permissible who had given undertaking at the time of taking benefit that any payment if found in excess would be liable to adjusted. In the present case, it is not in dispute that petitioner, who is a Class-III employee had not given any undertaking at the time of grant of pay scale of Rs. 10300 +3200/- in his favour that any payment, if found to be in excess would be required to be refunded and as such, recovery notice Annexure A-4 is not sustainable.
10. Consequently, in view of the detailed discussion made herein above as well as law relied upon, present petition is allowed and recovery notice dated 24.3.2015, (Annexure A-4) is set-aside. Amount, if any, received in terms of Annexure A-4 may be refunded forthwith.
Accordingly, present petition is disposed of so also pending application(s), if any.
18th August, 2020 (Sandeep Sharma),
manjit Judge
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