Uttarakhand High Court
WPSS/491/2020 on 20 June, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
WPSS No. 491 of 2020
WPSS No. 982 of 2020
WPSS No. 997 of 2020
Hon'ble Manoj Kumar Tiwari, J.
Mr. Dinesh Gahtori, learned counsel for the petitioners.
Mr. V.S. Rawat, learned Brief Holder for the State of Uttarakhand.
Heard learned counsel for the parties. Since common questions of law and facts are involved in these writ petitions, therefore, they were heard together and are being decided by a common judgment. However, for the sake of brevity, facts of Writ Petition (S/S) No. 491 of 2020 alone are being considered.
Petitioner is serving as Teacher in a Government Inter College in District Tehri Garhwal. He was initially appointed as a primary school teacher in the year 1985 and in the year 1992 he was promoted as Headmaster, Primary School. Petitioner was granted scale of `4625-6750 as selection grade upon completing 10 years on the post of Headmaster, w.e.f. 16.04.2002. Vide order dated 30.05.2009 passed by Additional Director, Pauri, petitioner was absorbed in the cadre of L.T. Grade Teacher in the pay band of `9300-34800 (Grade Pay `4600/-). Subsequently, pay scale of `15600-39100 (`5400/-) was granted to petitioner w.e.f. 16.04.2014 as promotion pay scale.
Petitioners are aggrieved by order dated 20.12.2018 passed by Additional Director, Secondary Education, Pauri, whereby the benefit of selection grade/promotion pay scale granted to such teachers, who were given said benefit, after adding the services rendered by them in Primary Schools, has been cancelled.
It is contended by learned counsel for the petitioner that petitioner was rightly given selection grade and promotion pay scale, therefore, there was no occasion for respondent no. 3 to cancel the order, whereby such benefit was given to petitioner. He further submits that petitioner holds a Group 'C' post, therefore, in view of law laid down by Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334, excess payment, if any, cannot be recovered from him. He further submits that similar question has been decided by this Court in WPSS No. 1908 of 2019, therefore, the present writ petition also deserves to be decided in terms of the said judgment.
Mr. V.S. Rawat, learned Standing Counsel appearing for State does not dispute the submission made by learned counsel for the petitioners that similar question has been decided in the aforesaid writ petition.
In the impugned order, respondent no. 3 has held that petitioner was wrongly given benefit of selection grade/promotion pay scale and has also ordered for recovery of the excess payment made to petitioners, however, the law laid down by Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334 has not been considered at all. Paragraph no. 18 of the said judgment is reproduced 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).
(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."
Since the impugned order dated 20.12.2018 is absolutely silent as to whether petitioner is entitled to protection of law laid down in the aforesaid judgment, therefore, on this short point alone, the impugned order dated 20.12.2018 is liable to be quashed and is hereby quashed.
The matter is remitted back to respondent no. 3 to re-consider the matter, as per law, within six months from the date of production of certified copy of this order.
Till decision is taken by respondent no. 3, no recovery shall be made from the petitioners.
The writ petitions, are, accordingly disposed of.
(Manoj Kumar Tiwari, J.) 20.06.2022 Aswal