Jharkhand High Court
Sukhdeo Prasad Yadav (Aged Near About 71 ... vs The State Of Jharkhand on 17 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
W.P(S) No. 4953 of 2014
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P(S) No. 4953 of 2014
----
Sukhdeo Prasad Yadav (aged near about 71 years) s/o Shri Jivu Yadav, resident of village-Behradih, PO-Chatro, PS-Deori, District-Giridih, Jharkhand ... ... Petitioner Versus
1. The State of Jharkhand
2. The Principal Secretary, Road Construction Department, Government of Jharkhand, Ranchi
3. The Chief Engineer, Central Design Organization, Road Construction Department, Government of Jharkhand, Dhurwa, Ranchi
4. The Executive Engineer, Road Construction Division, Giridih
5. The Principal Accountant General (A&E), Jharkhand, Ranchi
6. The Treasury Officer, Giridih ......... Respondents
-------
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
For the Petitioner : Mr. Prakash Chandra, Advocate For the Respondents : Mr. Aditya Kumar, AC to Sr.SC-I
--------
Order No.17/ Dated 17 February, 2024 th
1. The writ petition is under Article 226 of the Constitution of India filed for the following reliefs:
"A. For making payment of full and final pension from the date of retirement of the petitioner i.e. w.e.f. 31.05.2012 to be fixed on the basis of giving the benefits of revised pay scale Rs.5000/- Rs.8000/- allowed to the petitioner w.e.f. 09.08.1999 (i.e. benefits of A.C.P. issued vide Annexure-2) on the date of retirement i.e. on 31.05.2012, the petitioner was receiving the salary on the basis of revised pay scale of Rs.5000/- Rs.8000/- total in the tune of Rs. 14,290+grade pay Rs.4,200/- total 18,990 including others benefits. B. Payments of due leave encashment.
C. Direct the concerned respondents to confirm the benefits of A.C.P. allowed to the petitioner w.e.f. 09.08.1999 by issuance of memo no. 1606 dated 02.12.2008 (Annexure-2) and thereafter to make payment of difference of due arrears of payments of the benefits of the revised pay scale (benefits W.P(S) No. 4953 of 2014 -2- of A.C.P.) in the tune of Rs.5000/- Rs.8000/- for the period w.e.f. 09.08.1999 up to 31.12.2008.
D. Further prayer of the petitioner is that to quash/set aside the memo no. 551 dated 05.03.2013 (Anenxure-4) issued by the respondents no.4 on the ground and basis that the same has been without notice and giving opportunity to the petitioner and that too after retirement of the petitioner, by the said impugned order the respondent no.4 has reduced the benefits of revised pay scale in the tune of Rs.4000-Rs.6000/- in place of Rs.5000/- Rs.8,000/- allowed to the petitioner and in similar manner this Hon'ble court relying upon the judgment of Hon'ble Supreme court has been pleased to allow the writ petition i.e. W.P. (S) No. 3360 of 2012 on 16.01.2013 (Annexure-6) by quashing the order of concerned respondents in respect of reducing the fixed revised pay scale after retirement and thereafter recovery order issued was also quashed. E. Further prayer Your Lordships be pleased to quash the illegal recovery order (Annexure-13 & here-in and 14 annexed in the IA) by which the amount in the tune of Rs.5,33,150/- (Rupees five lakhs thirty three thousand & one hundred fifty) (i.e. after more than three years from the date of retirement), have been deducted from the arrears of provisional pension + provisional gratuity), and G.P.O. amount of the petitioner's pension amount fixed by the A.G. office by issuance of GPO No. 121543785 dated 20.07.2015 and after quashing the impugned Anenxure-13 & 14, further be pleased to direct the respondents to refund & pay the amount in the tune of Rs. 5,33,150/- (Rs. Five lakhs thirty three thousand & one hundred fifty) with interest @ 12% per annum with heavy cost due to illegally the said amount was deducted/recovered from the arrears of pension after three years of retirement and during pendency of writ and further fixed the pension amount on the basis pay scale of Rs.5000/-to Rs.8000/-."
2. The brief facts of the case as per the pleading made in the instant writ petition is that the writ petitioner claims his entitlement of pay scale in the pay-scale of Rs.5000 - 8000/- W.P(S) No. 4953 of 2014 -3- as per the fixation in consequence of upgradation in pay-scale under Assured Carrer Progression Scheme. The aforesaid amount has been started to be paid but the competent authority, in course of scrutinizing the claim, has found that the petitioner was not actually entitled to get the pay-scale of Rs.5000 - 8000/-, rather, he was entitled during the relevant period the pay-scale of Rs.4000 - 6000/-. Hence, the decision has been taken to refix the pay-scale by virtue of the impugned order as also to recover the excess amount paid due to the said wrong fixation.
3. Mr. Prakash Chandra, the learned counsel appearing for the petitioner, has submitted that there is no fault lies on the part of the petitioner, and, as such the pay-scale which has been fixed at Rs.5000 - 8000/- is to be paid in favour of the writ petitioner by virtue of the fact that due to continuous disbursement of the salary based upon the pay-scale of Rs.5000 - 8000/- he became entitled for the same.
4. The further contention is that even accepting that there is wrong fixation then also the liability cannot be cast upon the petitioner so as to recover the excess amount paid in favour of the writ petitioner on the ground that there is no misrepresentation or fraud committed by the petitioner in getting the pay-scale at Rs.5000 - 8000/-.
5. The respondent-State has appeared and filed the counter-affidavit and disputed the contention so far as it relates to fixation of pay-scale of Rs.5000 - 8000/-, rather, W.P(S) No. 4953 of 2014 -4- according to the stand of the State, the pay-scale which has been fixed at Rs.5000 - 8000/- has still not been decided by the State Government but even during the pendency of the said decision to be taken by the State, the pay-scale of the writ petitioner had been fixed at Rs.5000 - 8000/- but actually it should be Rs.4000 - 6000/-.
6. The competent authority, after coming to know about the aforesaid fact, has recalled the order wherein the petitioner was placed at the pay scale of Rs.5000 - 8000/- and re-fixing the pay-scale of Rs.4000 - 6000/- and in consequence thereto a decision for recovery has also been made after passing the impugned order.
7. The contention has been raised that if illegality has been committed then the same cannot be allowed to extend benefit to the writ petitioner and therefore the impugned order has been passed taking both decisions, i.e., re-fixation of pay- scale of Rs.4000 - 6000/- and making recovery of the excess amount paid to the petitioner, which cannot be said to suffer from an error.
8. This court has heard the learned counsel for the parties and gone across the pleadings filed by the respective parties as available on the record.
9. In this case, two issues are required to be considered:-
(i) Whether merely because the petitioner has been placed in the pay-scale of Rs.5000 - 8000/- without having concurrence of the State Government/the Finance W.P(S) No. 4953 of 2014 -5- Department of the State and merely because the petitioner has been placed at the pay-scale of Rs.5000 -
8000/- can such continuation in the pay-scale confers any right to get the pay-scale of Rs.5000 - 8000/-;
(ii) Whether in absence of any misrepresentation/ fraud on the part of the petitioner can there be any recovery if due to the omission committed by the State the petitioner has been placed at the incorrect pay-scale. Issue No.(i)
10. So far as the issue no.(i) is concerned, the law is well- settled that no financial disbursement under the head of the salary is to be paid to one or the other public servants. The word "entitlement" denotes that the salary will be payable to one or the other public servant if approved by the State Government with due concurrence of the Finance Department of the State.
11. In the instant case, it is admitted that the pay-scale of Rs.5000 - 8000/- in which the petitioner has been placed has not yet been approved by the State Government but in complete ignorance of the said fact the petitioner has been placed at the pay-scale of Rs.5000 - 8000/-. However, when the same having been known to the competent authority, a decision was taken to place the writ petitioner at the pay-scale of Rs.4000 - 6000/- as per entitlement.
12. The learned counsel appearing for the petitioner has not disputed the fact that the pay-scale of Rs.5000 - 8000/-has W.P(S) No. 4953 of 2014 -6- not yet been approved by the State Government, rather, the pay-scale of Rs.4000 - 6000/- is the approved pay-scale.
13. The law is well-settled that if any illegality has been committed and merely because the illegality has been allowed to continue for years together, the said illegality cannot be legalized.
14. This is on the principle that if any illegality has been committed in its inception, due to subsequent development, the aforesaid illegality cannot be said to be legalized. Reference in this regard may be made to the judgment of Hon'ble Apex Court rendered in the case of Ritesh Tewari and Another v. State of Uttar Pradesh and Others [(2010) 10 SCC 677] wherein at paragraph 32 the Hon'ble Apex Court has held as under:-
"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."
15. The further legal position is that if any illegality has been committed the same needs to be rectified the moment it comes to the notice of the competent authority so that the illegality which has been committed be not allowed to continue further, reference in this regard may be made to the W.P(S) No. 4953 of 2014 -7- judgment rendered by Hon'ble Apex Court in the case of State of Orissa and Anr. vs. Mamata Mohanty, (2011) 3 SCC 436, wherein the Hon'ble Apex Court has been pleased to hold that if any illegality has been committed, the same is to be rectified the moment it came to the notice of the authorities and if such exercise would not be resorted, it will amount to perpetuating the illegality, for ready reference, the relevant paragraph of the judgment is being referred hereunder as :-
"56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh, Yogesh Kumar v. Govt. of NCT of Delhi, Anand Buttons Ltd. v. State of Haryana, K.K. Bhalla v. State of M.P., Krishan Bhatt v. State of J&K, Upendra Narayan Singh and Union of India v. Kartick Chandra Mondal.)
57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji v. State of A.P. observed as under: (SCC p. 551, para 12).
"12. ... '2. ... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v.
Delameter at p. 18:W.P(S) No. 4953 of 2014 -8-
"a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".
16. The Hon'ble Apex Court in the case of Union of India & Anr. v. Narendra Singh, (2008) 2 SCC 750, wherein at paragraph 32 it has been laid down, which reads hereunder as:
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules."
17. Further, the Article 14 does not envisage negative equality which has already been rendered by the Hon'ble Apex Court in State of Bihar & Ors. Vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306, wherein at paragraph-30 it has been laid down hereunder as:-
"The concept of equality as envisaged under Art. 14 of the Constitution of India is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment W.P(S) No. 4953 of 2014 -9- passed in favour of one individual does not entitle others to claim similar benefits."
18. Further, in the case of Basawaraj & Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, wherein at paragraph 8, which reads hereunder as:-
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."
19. This Court, on the basis of the aforesaid legal position and coming back to the factual aspects, is of the view that when the fact regarding the entitlement of the writ petitioner to place him at the pay-scale of Rs.5000 - 8000/- is not W.P(S) No. 4953 of 2014
- 10 -
available then placing the petitioner in the said pay-scale will be said to be wrongly placed.
20. Accordingly, the decision so far as placing the writ petitioner at the pay-scale of Rs.4000 - 6000/- as per the decision taken by the authority cannot be said to suffer from an error on the principle that no public servant or the pensioner gets pension on the basis of the last pay drawn contrary to his entitlement.
21. Accordingly, the Issue No.(i) is answered against the writ petitioner.
Issue No.(ii)
22. So far as issue no.(ii) is concerned which pertains to the recovery part, in this regard also the law is well-settled, as per the judgment rendered by the Hon'ble Supreme Court in "State of Punjab and Others v. Rafiq Masih (White Washer) & Others reported in (2015) 4 SCC 334 particularly at para- 18 of the following five parameters have been fixed which is quoted below:
"18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).W.P(S) No. 4953 of 2014
- 11 -
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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."
23. Herein admittedly, the entire exercise has been taken after the superannuation of the writ petitioner from service, and since the petitioner was a Class-III employee and hence he will fall under the aforesaid judgment as per which the recovery is to be restricted.
24. This Court, after discussing the fact on merit and taking into consideration the fact that the Co-ordinate Bench of this Court has already decided the identical issue vide order dated 07.02.2023 in LPA No. 142 of 2018 and analogous cases, as would appear from paragraphs 36 to 38 which read as under:
"36. From the materials on record, it appears that this was the understanding within the Department of Agriculture and Sugarcane Development, Government of Jharkhand that the government employees who were working on the post of Inspector/Weight & Measure are entitled for the W.P(S) No. 4953 of 2014
- 12 -
pay-scale of Rs.6500-10500/- as 1st ACP and the pay-scale of Rs.10000- 15200/- on grant of 2nd ACP and, accordingly, such benefits were accorded to the respondents. This becomes so apparent on a glance at the order dated 20th March 2007 which contains the recommendation of the Committee constituted by the Government of Jharkhand in compliance of the order passed by this Court in W.P.(S) No. 2128 of 2005 title "Kedar Nath Choubey and others v. State of Jharkhand and others".
Moreover, in a country like India with a written Constitution and which professes its undying allegiance to the Rule of Law it is necessary that the rights of the parties which have concretised on account of efflux of time should not be tinkered with lightly by the State authorities. An administrative decision if taken on a mistake of fact can be corrected, but then, it is not every mistake which can be permitted to be corrected in the garb of a mistake committed in the past. Though, Mr. Jai Prakash, the learned Additional Advocate General has contended that without concurrence of the Department of Finance the aforesaid ACP benefits were granted to the respondents, it is not in dispute that the decision as contained in the Notification dated 20th March 2007 has been implemented by the State of Jharkhand. Seven years thereafter, the State of Jharkhand has issued the Notification No. 263 dated 22nd January 2014 which has seriously affected the respondents. It is also admitted at bar that all the respondents except a few have by now superannuated from service. Even otherwise, keeping in mind the judgment in "State of Punjab v. Rafiq Masih (whitewasher)" (2015) 4 SCC 334 the order passed by the writ Court that no recovery shall be made from the respondents and if any recovery has been LPA No. 142 of 2018 with batch matters made the amount shall be refunded to the respondents does not call for any interference by this Court.
W.P(S) No. 4953 of 2014
- 13 -
37. Having regard to the aforesaid facts and circumstances in the case, the writ Court's order as contained in paragraph no.12 of the order dated 22nd January 2014 that the writ petitioners are entitled for the pay-scale of Rs.6500-10500/- on account of grant of 1st ACP and the pay-scale of Rs.10000-15200/- by way of 2nd ACP also does not call for any interference by this Court. However, it is made clear that we have accorded our concurrence to the writ Court's order dated 18th December 2017 in the peculiar facts and circumstances of the case.
38. Accordingly, these Letters Patent Appeals are dismissed."
25. This Court, based upon the aforesaid legal premise, is of the view that since there is no allegation of misrepresentation/commission of fraud by the petitioner in getting the pay-scale of Rs.5000 - 8000/-, and further the petitioner being the Class-III employee as also retired from service and thereafter the impugned order for recovery has been passed. Hence, the part of the order by which a direction for recovery has been made cannot be said to be justified.
26. Accordingly, the part of the order dated 20th July 2015 pertaining to the recovery of the amount to the tune of Rs.5,33,150/- is hereby quashed and set-aside.
27. In consequence thereof, the amount already recovered, is to be refunded in favour of the petitioner within a period of two months from the receipt of a copy of this order.
28. Accordingly, the Issue No.(ii) is answered in favour of the writ petitioner
29. The learned counsel appearing for the petitioner submits that the amount of leave encashment of the petitioner has not W.P(S) No. 4953 of 2014
- 14 -
been paid and for that a specific prayer as prayer no.1(B) has been made.
30. In the counter-affidavit although has been filed but there is no response with respect to the amount to be paid to the petitioner under the head of the leave encashment. Therefore, this court is of the view that an appropriate direction is to be passed upon the competent authority so far as it relates to the disbursement of leave encashment amount is concerned.
31. The Respondent No.2 i.e. the Principal Secretary, Road Construction Department, Government of Jharkhand to ensure payment of leave encashment, if not paid, within a period of two months from the date of receipt of copy of this order.
32. With the aforesaid directions and observations, this writ petition stands partly allowed and accordingly disposed of.
(Sujit Narayan Prasad, J.) sudhir/A.F.R