Jharkhand High Court
Mahendra Prasad Singh vs State Of Jharkhand & Ors on 13 February, 2009
Author: R.R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
W.P.(S) No.5632 of 2007
Mahendra Prasad Singh................. Petitioner
VERSUS
State of Jharkhand and others....... .Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : M/s. Prashant Pallav and Shiv Prasad Mehta
For the Respondents: Mr. K.K.Jhunjhunwalla
Reserved on 4.2.2009 Pronounced on 13.2.2009
5. 13.2.09. It is the case of the petitioner that he joined as Assistant Teacher on 7.5.1974 on untrained scale at Primary School, Chalna in the District of Jamtara. Thereafter on completion of the training, the petitioner was given matric trained scale. In course of time, the petitioner was given I.A trained scale under memo no. 9065-9304 dated 19.11.1987 issued by District Superintendent of Education, Sahibganj with effect from 1.4.1981 and was drawing salary on the said scale but when the petitioner was transferred from the district of Pakur to Sahibganj, District Superintendent of Education, Pakur wrote a letter to the District Education Officer, Sahibganj stating therein that the petitioner on account of being paid salary on I.A. trained scale with effect from 1.4.1981 wrongly has drawn in excess to the extent of Rs.3,06,913/- which was sought to be recovered, which order according to learned counsel appearing for the petitioner is quite illegal as the petitioner was never given scale of I.A. trained with effect from 1.4.1981 on the misrepresentation of the petitioner as the scale was given by the authority on his own and not on account of any misrepresentation on the part of the petitioner and as such, the order of recovery of the said amount at the fag end of his career is illegal and that apart, petitioner was not paid salary since June, 2006. 2 It be stated that during the pendency of this writ petition, petitioner died and as such widow of the petitioner has been substituted and in this situation it was submitted that the same cannot be recovered from the heir of the deceased employee.
A counter affidavit has been filed on behalf of the District Superintendent of Education, Sahibganj, respondent no.4 stating therein that the then District Superintendent of Education, Sahibganj without complying the procedure of promotion and without obtaining any permission from the Finance Department of the Government had illegally granted promotion on the I.A. trained scale to the petitioner and others which the petitioner was not entitled to get, in view of the provision as contained in Rule 58 of the Jharkhand Service Code read with Financial Rule 74 and as such, the amount which has been drawn in excess under the illegal order is recoverable.
Having heard learned counsel appearing for the parities and taking into consideration the statement made in the writ petition as also in the counter affidavit, it does appear that the petitioner was given I.A trained scale by the then District Superintendent of Education, Sahibganj without there being any misrepresentation on the part of the petitioner and the petitioner went on drawing salary on the said scale but at the fag end of the career of the petitioner, the authority came forward with the case that the petitioner has drawn salary in excess on the basis of I.A. trained scale which had wrongly been given to him but in spite of that, the authorities are not entitled to recover the amount said to have been drawn in excess in view of the ratio laid down in a case of Sahib Ram Vs. State of Haryana and others [ 1995 Supp. (1) SCC 18] wherein the Hon'ble apex Court has held as under: 3
" Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to 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 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 University Grants Commission. The appeal is allowed partly without any order as to costs."
The said principle has recently been reiterated by the Hon'ble Supreme Court rendered in a case of Syed Abdul Qadir & Ors. vs. State of Bihar & Ors [JT 2009 (1) SC 385] which reads as under:
" This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 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 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."
In the instant case nothing has been pointed out that the petitioner had had knowledge that the payment received was in excess of what he is entitled to and admittedly the petitioner was allowed to draw salary on the basis of I.A. trained scale for quite a longer period and only at the fag end of the career of the 4 petitioner, the matter relating to withdrawal of the excess amount was raised and under that situation, the authority is not entitled to recover the amount said to have been drawn in excess by the deceased petitioner. Otherwise also on account of the fact that the petitioner died during the pendency of the writ petition, recovery of the alleged excess amount cannot be made from the legal representative of the deceased employee in view of the decision laid down by the Full Bench of this court in a case of Mostt. Sumitra Devi vs. State of Jharkhand through the Chief Engineer, Road Construction and others [2008 (1) BLJ 26].
In view of the settled principle, as indicated above, this writ petition is allowed directing the respondent not to recover excess amount said to have been drawn by the deceased employee from the widow of the petitioner and further to pay the salary of the petitioner as has been claimed for the period from June, 2006 to onword within a period of four months from the date of receipt/production of a copy of this order.
( R.R. Prasad, J.) ND/