Himachal Pradesh High Court
Kuldeep Singh vs State Of H.P. & Others on 3 November, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1694 of 2015 a/w CWPs No.1695 to 1697 of 2015, .
and 1699 to 1704 of 2015.
Reserved on: 27.10.2015 Pronounced on: 3.11.2015
1. CWP No.1694 of 2015:
Kuldeep Singh .....Petitioner
of
Versus
State of H.P. & others ..... Respondents
rt
2. CWP No.1695 of 2015:
Ramakant .....Petitioner
Versus
State of H.P. & others ..... Respondents
3. CWP No.1696 of 2015:
Sunil Kumar Sharma .....Petitioner
Versus
State of H.P. & others ..... Respondents
4. CWP No.1697 of 2015:
Ashwani Kumar .....Petitioner
Versus
State of H.P. & others ..... Respondents
5. CWP No.1699 of 2015:
Narinder Singh .....Petitioner
Versus
State of H.P. & others ..... Respondents
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6. CWP No.1700 of 2015:
.
Meera Thakur .....Petitioner
Versus
State of H.P. & others ..... Respondents
7. CWP No.1701 of 2015:
of
Dharam Pal .....Petitioner
Versus
rt
State of H.P. & others ..... Respondents
8. CWP No.1702 of 2015:
Roshan Lal .....Petitioner
Versus
State of H.P. & others ..... Respondents
9. CWP No.1703 of 2015:
Upinder Singh .....Petitioner
Versus
State of H.P. & others ..... Respondents
10. CWP No.1704 of 2015:
Kamal Singh .....Petitioner
Versus
State of H.P. & others ..... Respondents
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Coram:
.
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Whether approved for reporting? Yes.
For the petitioner(s): Mr.Anuj Nag, Advocate. For the respondents: Mr. V.S. Chauhan, Additional Advocate General, Mr. J.K. Verma, Deputy of Advocate General and Mr.Ramesh Thakur, Assistant Advocate General, for respondents No.1 to 3.
Mr.V.D. Khidta, Advocate, for
rt respondents No.4 to 6.
______________________________________________________________________________ Mansoor Ahmad Mir, Chief Justice Writ petitioners, by the medium of instant writ petitions, have laid challenge to the order, dated 16th February, 2015, made by the Temple Officer, Office of Temple Naina Devi Ji, District Bilaspur, H.P., whereby recovery to the tune of Rs.22.41 lacs has been ordered to be effected from the petitioners. Since the facts, merits and law applicable are similar, therefore, all the writ petitions were heard together and are being disposed of by this common judgment.
2. Facts, necessary for the disposal of the present petitions, are enumerated thus. The petitioners are working as teachers in various disciplines in Shri Shakti Senior Secondary School, being managed by the Temple Trust of Shri Naina Devi Ji, ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...4...
Bilaspur, H.P. It is averred that in the year 1989, 144 privately .
managed government aided schools, including Shri Shakti Senior Secondary School, had filed writ petitions before this Court, being CWP Nos.418 of 1989 and 414 of 1989, praying salary to its teachers at par with the teachers working in the government schools, came of to be granted vide judgment and order, dated 9th September, 1992, with the command that the said teachers were entitled to rt salary and emoluments at par with the teachers in government schools w.e.f. 13th February, 1989, with further command that the Government of Himachal Pradesh and the Management have to satisfy the same in the ratio of 95 : 5, respectively.
3. The State Government, feeling aggrieved, challenged the said decision of this Court before the Apex Court and the Apex Court upheld the said judgment, but modified to the extent that the amount was to be paid w.e.f. 1st April, 1993, instead of 13th February, 1989.
4. Rules were framed by the respondents and made operative w.e.f. 1.1.1997. Thereafter, the scales of the petitioners were revised at par with the scales of their counterparts working in government schools, by the respondents, but w.e.f. 1st January, 2000.
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5. The teachers represented to respondent No.2 i.e. .
Director of Education and the said respondent, in turn, directed respondent No.3 (District Education Officer) to look into the matter.
Thereafter, respondent No.3, after detailed inquiry, reported that the teachers of the School were not being paid salary at par with of the teachers working in government schools, w.e.f. 1.4.1993. It was further recommended by respondent No.3 that since the income rt of the school was not sufficient, therefore, matter for 95% grant-in-
aid be taken up with the Government.
6. Subsequently, due to the inaction on the part of the respondents, one of the teachers i.e. Meera Thakur filed a writ petition before this Court, being CWP No.540 of 2004, titled Meera Thakur vs. State of H.P. and others, and this Court vide order dated 4th May, 2007, held as under:
"Though this Court is prima facie of the opinion that the petitioner is entitled to revised pay scale of Rs.6400-10640 with effect from the years 1993 to 2000, it is desirable if the Committee comprising of the Secretary(Education) and Secretary (Language and Culture) looks into the matter judiciously. Accordingly the Committee comprising of Secretary (Education) and Secretary (Language and Culture) is constituted to resolve the impasse by whom petitioner's salary is to be paid. If in the ultimate analysis the Committee comes to the conclusion that the salary has to ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...6...
be paid for the years 1993 to 2000 on the basis of the grant-
.
in-aid then the State must take immediate step to release the same in favour of the schools to enable it to disburse the same to the petitioner. If the Committee comes to the conclusion that the salary is to be paid by the Management i.e. respondent No.5 in that eventuality also it will be incumbent upon the management to release the necessary of funds immediately in favour of Shakti Senior Secondary School, Naina Devi Ji for its further disbursement to the petitioner. The Committee is directed to take decision within rt a period of three weeks from the receipt of certified copy of this order."
7. Pursuant to the above orders passed by this Court, a Committee comprising of Secretary (Education) and the Secretary (Language and Culture), came to be constituted, which recommended the release of arrears of revised pay w.e.f. 1st April, 1993 only in favour of writ petitioner Meera Thakur. Thereafter, other petitioners preferred writ petitions before this Court, (CWP Nos.1211 to 1214, 1216, 1221, 1222, 1223, 1224 and 1225 of 2007), claiming similar relief as had been granted in the case of Meera Thakur, supra, were disposed of by this Court vide a common judgment, dated 18th March, 2008, with the command that the direction given in the writ petition filed by Meera Thakur (CWP No.540 of 2004) would cover those writ petitions also.
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8. Feeling aggrieved, the respondents preferred Letters .
Patent Appeals, being LPA Nos.32 to 41 of 2008, which appeals came to be dismissed vide order dated 19th November, 2009, by observing as under:
"After careful consideration of the order and looking to the of fact that the order in question dated 18.3.2008 has been passed with the consent of the parties and definite direction has been given for release of the salary to the rt applicants/private respondents from due date by the appellants herein or through the present appeals, the appellants are seeking certain directions to be given for release of the money by the State Government. Such direction, in our considered view cannot be given as the appellants have failed to get the order dated 18.3.2008 either reviewed or modified earlier to the extent for releasing the salary through the Government Agency. We do not find any merit in the appeals. Accordingly, the appeals are dismissed, so also the pending applications."
9. The respondents thereafter filed a review petition, whereby the judgment under review was modified to the extent that the arrears of salary paid by the Management of the School would be recovered from the State Government.
10. Thereafter, respondent No.5, issued the impugned letter dated 16th February, 2015, Annexure P-10, relying on the Office Memorandum dated 15th January, 2002, Annexure P-9, and ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...8...
also on the audit report, directed the petitioners herein to deposit .
the amount as mentioned against their respective names.
11. It is apt to reproduce Annexure P-9 hereunder:
"It has been observed that various claims regarding allowing of higher pay scale, selection grade, special pay and other financial benefits are being preferred by the of employees and such claims are decided by the Hon'ble Tribunals/Courts in favour of applicants with retrospective effect, causing many problems such as payment of arrears, rt step up of pay of senior employees etc. etc. The matter has been examined in consultation with the Law Department in the light of the judgment delivered by Hon'ble Supreme Court of India in case of Jai Devi Gupta vs. State of HP reported in AIR 1998 SC 2819 and it has been decided that as and when any dispute is taken to Court or Tribunal by an employee in respect of his pay scale or selection grade or other allowances, etc., the replying respondent should invariably take a defence on the strength of judgment of Hon'ble Supreme Court in case of Jai Dev Gupta Vs. State of HP reported in AIR 1998 SC 2819 that the arrears/back wages should be restricted for a period of three years only. In case the Hon'ble Tribunal or court do not agree with the defence of the government/department the matter should be agitated before the higher court by way of approximate remedy. This may be brought to the notice of all concerned."::: Downloaded on - 15/04/2017 19:17:36 :::HCHP
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12. The order dated 16th February, 2015, Annexure P-10, is .
the subject matter of instant petitions. This Court, vide order dated 10th March, 2015, stayed the impugned order so far as it pertained to effecting of recovery.
13. From the above, it is crystal clear that the writ of petitioners have earned judgments and orders in writ and appeal proceedings before the High Court and the Apex Court also held rt them entitled to the benefits, as discussed supra, w.e.f. 1st April, 1993. The said judgments have attained finality and accordingly, the writ respondents have complied with the directions contained in the said judgments/orders.
14. While going through the impugned order, Annexure P-
10, it appears that the respondents are in breach of the judgments/orders passed by this Court and the Apex Court from time to time, as discussed above, for the simple reason that the respondents have based the impugned order Annexure P-10 solely on the basis of an audit report and Annexure P-9, letter dated 15th January, 2002, and have recorded that the petitioners are entitled to arrears only for three years, whereas that was not direction of the Apex Court, rather the impugned order runs contrary to the directions passed by the Apex Court. It was obligatory for the respondents to have replied to the audit report explaining as to ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...10...
what were the reasons and under what circumstances the arrears .
were released in favour of the writ petitioners w.e.f. 1st April, 1993.
Without adopting the said course, the respondents passed the impugned orders, which are not in tune with the directions passed by the Apex Court.
of
15. Indisputably, the writ petitioners have not played any active part in making the orders of arrears. The orders were made, at the rt cost of repetition, as per the mandate of the judgments/orders earned by the petitioners.
16. We may make a reference to the decision of the Apex Court in State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc., 2015 AIR SCW 501, wherein the Apex Court has laid parameters and guidelines for effecting recovery from the government employees. It is apt to reproduce paragraphs 9 and 11 as under:
"9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...11...
ostracized section of the society; and extinguish titles, to .
scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State of requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of rt livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. Xxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxx
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
(i). Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, 2009 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...12...
employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in .
cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp1 SCC 18, Shyam Babu Verma v. Union of India, 1994 2 SCC 521, Union of India v. M. Bhaskar, 1996 4 SCC 416, V. Ganga Ram of v. Director, 1997 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, 2006 11 SCC 709, Purshottam Lal Das v. State of Bihar, 2006 11 SCC 492, Punjab National Bank v. Manjeet Singh, 2006 8 SCC 647 and Bihar SEB v. Bijay rt Bahadur, 2000 10 SCC 99."
(Emphasis is ours) First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...13...
dependent on his wages, and if a deduction is to be made .
from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on of the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the rt same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India, 1994 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330- 560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
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It is apparent, that in Shyam Babu Verma's case , the higher .
pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after of five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
(ii). Examining a similar proposition, this Court in Col. B.J. rt Akkara v. Government of India, 2006 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
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A perusal of the aforesaid observations made by this .
Court in Col. B.J. Akkara's case reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in of lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their rt entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
(iii). This Court in Syed Abdul Qadir v. State of Bihar held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...16...
were entitled to. It would not be out of place to mention here that the Finance Department had, in its .
counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the of appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any rt hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
(Emphasis is ours) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case , that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...17...
dwindled (or would substantially be reduced on his .
retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the of recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the rt recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
(iv). Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, 1995 Supp1 SCC 18, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.::: Downloaded on - 15/04/2017 19:17:36 :::HCHP
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5. Admittedly the appellant does not possess the required educational qualifications. Under the .
circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale.
However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot of be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the rt University Grants Commission. The appeal is allowed partly without any order as to costs."
(Emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case , a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done ::: Downloaded on - 15/04/2017 19:17:36 :::HCHP ...19...
because this Court felt that the employees were entitled to .
wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been of required to work against an inferior post."
17. Having glace of the above discussion, we are of the rt considered view that the impugned orders amount to virtually setting aside the judgment of the Apex Court. However, keeping in view the facts of the cases that the respondents have passed the impugned orders after noticing some audit report, we do not want to draw any contempt proceedings against the respondents.
18. In view of the above, all the writ petitions are allowed and the impugned orders are quashed and set aside. Pending CMPs, if any, also stand disposed of.
(Mansoor Ahmad Mir)
Chief Justice
November 3, 2015 (Tarlok Singh Chauhan)
(tilak) Judge
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