Rajasthan High Court - Jaipur
D.B.Civil Writ Petition No.15422/2009 vs The High Court Of Judicature For ... on 7 April, 2015
Author: Ajay Rastogi
Bench: Ajay Rastogi
1. D.B.Civil Writ Petition No.15422/2009. Gopal Lal Verma & Others. VERSUS The High Court of Judicature for Rajasthan & Another. 2. D.B.Civil Writ Petition No.1007/2010. Suraj Pal. VERSUS The High Court of Judicature for Rajasthan & Another. 07.04.2015. HON'BLE MR.JUSTICE AJAY RASTOGI HON'BLE MR.JUSTICE J.K.RANKA Mr.Nitin Jain, Counsel for petitioners. Mr.A.K.Sharma, Senior Counsel assisted by Mr.V.K.Sharma, Counsel for respondents.
***** Since both the petitions have been filed by the petitioners on similar facts being aggrieved by a common order dt.16.11.2009, both are decided by the present order.
At the outset, it may be noticed that the order impugned dt.16.11.2009 contain the names of nine members of Class-IV, however, seven have approached this court by these two writ petitions and the remaining two members namely Budh Prasad Gurjar & Daya Ram Gurjar, as informed to this court, have not preferred writ petition but it is not disputed that they too are similarly situated.
The petitioners are appointed in the cadre of Class-IV u/R.16 of the Rajasthan High Court Staff Service Rules, 2002. However, such of the members of Class-IV who were appointed on ad-hoc basis prior to 01.01.2006 their services were regularized from the date of joining i.e. 24.01.2009 and consequent thereto the services of the petitioners were also regularized in the cadre of Class-IV from the date of their joining. In fact vide order dt.24.01.2009 two class of persons were regularized (1) those who were appointed prior to 01.01.2006 in the pay-scale; and (2) those who were appointed on or after 01.01.2006 on the fixed remuneration. However, by an office order dt.16.11.2009, the Administration of the High Court arrived to a conclusion that there was some excess payment made to the members of Class-IV and pursuant thereto, initiated recovery proceedings to be recovered in 12 equal installments from each of the member of Class-IV.
However, this court while issuance of notices stayed the operation & effect of the order impugned in CWP No.15422/2009 vide order dt.20.01.2010 and in CWP No.1007/2010 vide order dt.15.02.2010.
It can be noticed that in all there are nine members of Class-IV, however, seven have approached this court and the remaining two, because of their economic conditions, have not come to the shelter of this court but they too are similarly situated. It is not the case of the respondents that there is any misrepresentation or concealment on the part of either of the member of Class-IV in getting the excess payment, allegedly made to each of them.
Counsel for petitioners placed reliance on the judgment of Hon'ble Apex Court in State of Punjab & Others Vs. Rafiq Masih (White Washer) etc. [Civil Appeal No.11527 of 2014] decided on 18.12.2014 while taking note of the earlier view expressed in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. reported in (2012) 8 SCC 417 has observed as follows:-
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 rightly 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.
Indisputably, in the instant case, the present petitioners are members of Class-IV and it is not the case of the respondents that they have either misrepresented or mislead the authorities while benefit of alleged excess payment, if any, was made and keeping in view what has been observed by the Hon'ble Supreme Court (supra), at least recovery from the members of Class-IV is not permissible which is the only question raised for our consideration regarding alleged recovery which is to be made against the members of Class-IV pursuant to order dt.16.11.2009.
In the light of the judgment of the Hon'ble Supreme Court, referred to supra, certainly the action of respondents in making recovery from the members of Class-IV pursuant to the order dt.16.11.2009 is not sustainable in law.
Before we may part with the order, since two of the members of Class-IV namely Budh Prasad Gurjar & Daya Ram Gurjar have not preferred writ petition but indisputably are similarly situated, in our considered view, they are also entitled to the same relief which has been extended to the petitioners under the present order.
Consequently, both the writ petitions stand allowed and the order impugned dt.16.11.2009 is quashed and set aside and it is directed that any recovery, if made from either of the members of Class-IV shall be refunded to each of them and at the same time, similar benefit be also extended to the remaining two Class-IV Employees namely Budh Prasad Gurjar & Daya Ram Gurjar being similarly situated to the present petitioners.
(J.K.RANKA),J. (AJAY RASTOGI),J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, Sr.P.A.