Anurag Tripathi vs The State Of Jharkhand on 29 January, 2019

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Jharkhand High Court

Anurag Tripathi vs The State Of Jharkhand on 29 January, 2019

Since the aforementioned writ applications [W.P. (S) No. 4840 of 2013 with W.P. (S) No. 636 of 2014] involve common questions of law, therefore, the said writ applications have been heard analogously and with the consent of the respective counsels, are being disposed of by this common order.

2. The petitioners in W.P. (S) No. 4840 of 2013, have inter alia, prayed for the following reliefs:-

(i) For quashing of the letter No. dated 20.06.2013, issued by the Director, Higher Education, Govt. of Jharkhand, Ranchi;

(ii) For a direction upon the concerned respondents not to act pursuant to the said Notification and pay the monthly salary of the petitioners (Assistant Professors), taking into consideration the incentives i.e. the increments, which the petitioners have already been awarded pursuant to University Grant Commission Norms;

(iii) For direction upon the concerned respondents not to take any step in future for recovery of any amount from the salary of the petitioners pursuant to the said notification dated 20.06.2013;

(iv) Further for directing the concerned respondents to immediately and forthwith confirm the services of the petitioners after completion of one year from their respective joining and also thereafter, grant the benefit of Academic Grade pay to the petitioners and also pay the arrears of the same.

3. In W.P. (S) No. 636 of 2014, the petitioners have, inter alia, prayed for the following reliefs :-

(i) To quash/set aside the decision contained in Letter No. 943, dated 20.06.2013, issued by the Director, Higher Education, Govt. of Jharkhand, Ranchi (Respondent No. 2);

(ii) To hold and declare that the respondent no. 2 has no power and jurisdiction to withhold the Ph. D. increments, which were admissible to the petitioners by virtue of recommendation of the Fifth Pay Revision Committee Report and the Sixth Pay Revision Committee report in the light of the U.G.C. Regulation dated 30th June, 2010;

(iii) To quash/set aside the decision of respondent no. 3 contained in Letter dated 24.08.2013, which was issued in pursuance of the decision of the Government dated 20.6.2013 and

(iv) For stay of both the impugned decisions as contained in letter no. 943, dated 20.6.2013 and the letter dated 24.8.2013 during the pendency of the writ petition.

4. Heard Mr. Manoj Tandon, learned counsel for the petitioners, Mr.Abhay Prakash, learned A.C. to A.A.G. appearing for the Respondents- State, Mr. Anoop Kumar Mehta, learned counsel for the Respondent- Ranchi University as well as Mr. (Dr.) Ashok Kumar Singh, learned counsel for the Respondent-Nilamber-Pitamber University.

5. Shorn of unnecessary details, the facts, as has been disclosed in the writ applications are that the 5th Pay Revision is admissible with effect from 1.1.996 and the Sixth Pay Revision is payable with effect from 01.01.2006. It has been averred that the petitioners were appointed as Lecturers in different Colleges of Ranchi University (now Nilamber- Pitamber University in the year 2008. The Nilamber-Pitamber University came in effect after bifurcation from Ranchi University with effect from 4 16.01.2009. The petitioner no. 1 (Dr. Ravi Shanker) and petitioner No. 15 (Dr. Mrityunjay Kumar) had been granted benefits of 5th PRC in the form of four increments with effect from 16.1.2009 and this was given because they were having degree of Ph. D. prior to the date of appointment and similar notifications were issued for other petitioners. It has been further averred that the Regulations has been framed by the University Grants Commission on 30.06.2010 and as per Clause 9, there were five non- compounded advance increments admissible to Ph. D. holders and two non-compounded advance increments were admissible to M. Phil degree holders. It has been further averred that the Jharkhand Government issued Resolution No. 1188 on 20.11.2010, whereby the University Grants Commission Regulations were adopted in toto except the age of retirement and the grant of Ph. D. increments as above by the University was approved by the Jharkhand Government on 8.6.2011. It has been further averred that the impugned decision dated 20.6.2013 was taken and the Ph. D/M.Phill increment/increments were ordered to be stopped with immediate effect by the Government of Jharkhand. The University also issued letter to all the colleges to stop Ph. D/M. Phil increments immediately with effect from 24.08.2013. It has been further stated that the petitioners received 5th and 6th PRC increments up to the month of September, 2013. Being aggrieved by both the impugned decisions as contained in letter no. 943, dated 20.6.2013 and the letter dated 24.8.2013, the petitioners left with no alternative and efficacious remedy, have been constrained to knock the doors of this Court under Articles 226 of the Constitution of India for redressal of their grievances.

6. Learned counsel for the petitioners has strenuously urged that the impugned decisions were taken unilaterally without issuance of even show cause notice and hence violative of the principles of natural justice and the vested and accrued rights cannot be taken away in the manner as has been done by the impugned decisions. Learned counsel further submits that the Ph. D/M. Phil increments were granted and the same were approved also by the Respondent-State without any objection and therefore, the State cannot take U-turn after two years from the date of approval of the fixations of pay of the petitioners. Learned counsel further 5 submits that the impugned decisions are violative of Articles 14 and 300- A of the Constitution of India. Learned counsel for the petitioners further submits that the recovery which has been sought for to be made on the audit objection cannot be legally permissible without adhering due process of law. In this respect, learned counsel for the petitioner has referred to the decision reported in (2003) 11 SCC 465 at paragraph no.18, (2009) 3 SCC 475 at paragraph nos.58, 59 & 60, (2006) 9 SCC 630 and reported in (2015) 4 SCC 334 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) And Others.

7. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent-University, wherein, it has been, inter alia, submitted that in view of the Government decision, the benefits have been stopped.

8. Repudiating the contentions made in the writ application, a counter affidavit has been filed on behalf of the Respondent-State. In the counter affidavit, it has been, inter alia, submitted that vide Resolution No. 1188, dated 20.11.2010, the State has not granted Ph. D. incentives to the teachers of the Universities. It has been submitted that even vide letter No. 26, dated 8.1.2011, the Ph. D. incentives have not been granted to the teachers. It has been further submitted that there was no need to issue any show cause notice before taking these two decisions. It has been further submitted that LPA No. 45/2011 and its analogous cases, which related to enhancement of age of retirement were allowed by setting aside the impugned judgment of learned Single Judge in W.P. (S) No. 363 of 2010. In the case of Jagdish Prasad Sharma Vs. the State of Bihar & Ors. reported in (2013) 8 SCC 633, the Hon'ble Apex Court held that the State is free to adopt the UGC Scheme or not, but, however, once the UGC Scheme is adopted, all the terms and conditions of the UGC regulations have to be followed in composite form. The State is thus bound to accept the whole UGC Regulations including the provisions relating to Ph.D/M.Phil increments.

9. As against this, at the very outset, learned counsel for the Respondents-State submitted that there was no need to issue any show cause notice before taking the impugned two decisions.

10. After hearing the learned counsel for the respective parties and on perusal of the records, this Court is of the considered view that the petitioners have been able to make out a case for interference due to the following facts, reasons and judicial pronouncements : -

(i) The Respondent-State in the counter affidavit has themselves admitted that there was no need to issue any show cause notice before taking the two impugned decisions, which is not permissible in the eyes of law.

(ii) In the case of Jagdish Prasad Sharma and Ors.-Vs.-The State of Bihar & Ors. reported in (2013) 8 SCC 633, the Hon'ble Apex Court held that the State is free to adopt the UGC Scheme or not, but, however, once the UGC Scheme is adopted, all the terms and conditions of the UGC regulations have to be followed in composite form. The State is thus bound to accept the whole UGC Regulations including the provisions relating to Ph.D/M.Phil increments.

(iii) In the facts of the present case, the decision rendered by the Full Bench of this Court in the case of Smt. Normi Topno Vs. The State of Jharkhand & Others, reported in 2007 (4) JLJR 466 is applicable to the case of the petitioners. In the aforesaid decision, it has been held by the Full Bench of this Court that once the monetary benefits is already paid to the employee and there is no allegation of misrepresentation or fraud, the amount cannot be recovered. Similar view has been taken by this Court in case of Amar Nath Singh Vs. State of Bihar and others, reported in 2004 (2) JCR 342 (Jhr).

Recently, The Hon'ble Apex Court reported in (2015) 4 SCC 334 in the case of State of Punjab And Others Vs. Rafiq Masih (white washer) And Others relying on various judgment including judgment rendered in the case of Chandi Prasad Uniyal And Others Vs. State of Uttarakhand And Others reported in (2012) 8 SCC 417 has been pleased to hold in paragraph 18 of Rafiq Masih (white washer) case (supra) as under:-

"18. (i) 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 7 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."

11. In view of the reasons stated in foregoing paragraphs and as cumulative effect of the aforesaid reasons and judicial pronouncement and as a logical sequitur to the aforesaid reasons the impugned orders in respective writ applications are quashed and set aside.

12. Resultantly, both writ applications [W.P. (S) No. 4840 of 2013 with W.P. (S) No. 636 of 2014] stand allowed.

13. Consequently, I.A. No. 3243 of 2017 and I.A. No. 8083 of 2013 also stand disposed of.

(Pramath Patnaik, J.) APK

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