Amit Kumar Tiwari & others vs State of Uttarakhand & Others

SHARAD SHARMA, J. (ORAL)

These bunch cases has been preferred by Ayurvedic Pharmacists whereby they have raised a grievance against the impugned order under

challenge, whereby, as a consequence of their upgradation of the scale by the order dated 04.08.2014 issued on the basis of the recommendations of

the finance department by the letter No. 150/XXVII(7)40(24)/2014 dated 28.07.2014 has been sought to be recalled and by the impugned order dated

13.11.2017 they have been made disentitled for the payment of their upgraded scale and consequent thereto by the order dated 21.04.2018 the amount

thus paid to them by way of a revision of scale made by the order dated 04.08.2014 had been sought to be recovered.

Briefly put the case of the petitioners is that the State Government on their own volition and based on the letter No. 150/XXVII(7)40/2014 dated

28.07.2014 issued by Finance Department had upgraded the scale of the petitioners from 5,200-20,200 with the grade pay of 2800/- after completion

of two years of service it was upgraded to the non functional pay scale of 9,300-34,800 with the grade pay of 4200/-. As a consequence thereto the

said scale was paid to them.

The contention of the petitioners is that the respondent unilaterally by virtue of the impugned order dated 13.11.2017 had directed that in view of the

Government Order No. 202 XXVII(7)30(7)/2016 dated 17.10.2017, it has sought to amended decision of Finance Department enforcing the

recommendation of 7th Pay Commission, and as a consequence thereto the amount thus remitted to the petitioners had been sought to be recovered

back. The contention of the petitioners is further that the State Government by the decision dated 07.09.2016 has issued a Government Order by virtue

of which the pay scale and the assured career progression scheme was clarified and made payable to them. Their contention is that by the

Government Order dated 07.09.2016 it was clarified that the upgradation thus made payable by the said Government Order would be paid to those

employees who were drawing lesser pay scale than the employees who are getting the upper grade as determined by the Government Order dated

07.09.2016. But it would not disturb the higher scale of employees. Consequently, the petitioners filed the Writ Petitions and have sought the relief in

the Writ Petition to the following effect:

“(i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 13.11.2017 (Annexure

No.3) and 21.04.2018 (Annexure No. 4), passed by the respondents, by which while taking the right of the petitioner to receive the amended/upgraded

pay scale, the recovery order has been passed.

(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to recover said amount of money which

upgraded/amended the pay scale of the petitioner (Vide order dated 04.08.2014 Annexure no. 1) and has been given to the petitioner.

(ii) Issue any writ, rule, order or direction which this Hon’ble court may deem fit and proper under the circumstances of the case.

(iv) Award cost to the petitioner.â€​

Except in Writ Petition No. 2691/2018 where the relief i.e. relief no. 1 sought is for quashing the order dated 07.04.2018 in place of order dated

21.04.2018.

An identical issue has been dealt by this Court against the same impugned orders and a judgment has been rendered in the bunch of Writ Petitions

out of which the leading writ petition being Writ Petition No. 562/2018 (S/S), was decided by this Court on 20.06.2018. The fact of the case being

similar in nature has been pleaded by the petitioner in paragraph 15 of the Writ Petition. The matter was taken up on 07.08.2018 and the Standing

Counsel was granted time to verify the fact as to whether the relief sought and the issue agitated in these bunch of Writ Petitions happens to be

identical or not. After verification of the aforesaid fact, the learned Standing Counsel admits that issue as raised has been settled by this Court on

20.06.2018 and the cases squarely covers the controversy hence, these Writ Petitions may be decided in terms of the judgment dated 20.06.2018,

which is quoted hereunder:

The case of the petitioners, is that the amount sought to be recovered by the impugned order dated 9th February, 2018 (and by such different

impugned orders in other bunch of writ petitions) runs contrary to the principles of law laid down by His Lordships of Hon’ble Apex Court in the

case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, which has laid down the following broader

principles which are required to be strictly adhered with and the factors which are to be considered and followed before resorting to the procedure

permissible under law for recovery of an amount already paid to an employee bonafidely by the employer, without there being any influence,

misrepresentation or fraud exercised by the employee.

The contention of the petitioners is that in the judgment of Rafiq Masih’s case (Supra), the Hon’ble Apex Court in its para 18, their

Lordships have drawn some wider principles which are required to be followed for recovery of the amount already paid to an employee taking into

consideration the hardship which will befall on the employee from whom the recovery is being sought to be made at a belated stage in particular these

employees belonging to lower strata without there being any fault on their part, and that too from those employees belonging to category sustaining

themselves with limited means. The wider principles as laid down have been as under:-

(i)  Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ services).

(ii)Â Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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)Â 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.

The contention of the learned counsel for the petitioners is that the action taken after about lapse of 4 years by the Respondents of each writ

petitions in passing the impugned order dated 13.11.2017 (and such other orders in other bunch of writ petitions) making an effort to recover an

amount allegedly paid in excess at the time of pay fixation, settled on the basis of letter of Finance Department-150XXVII(7)(40)(24)/2014 dated

28.07.2014. In compliance thereto the scale was upgraded by respondent by the order dated 04.08.2014. Its case of the respondents that as a result of

an excess fixation of salary as a consequence of the enforcement of the recommendation of the 7th Pay Commission, the recovery was aimed to be

made as the petitioners were illegally benefited by the wrongful decision of the authorities cause loss to state exchequer.

It is the case of the petitioner of this bunch that the State Government by the Government Order No. 136 dated 7th September, 2016 further

clarified the position regarding the fixation of the upgraded pay scale as payable, and the benefits of the Assured Career Progression Scheme, as

would be admissible to the pharmacists. On scrutiny of the Government Order, it is specifically stated that up-gradation/amendment in the pay scale of

the employees getting the pay-scale as admissible to any post would be payable with the pay scale as per the pay table mentioned in the Government

Order No. 41 dated 13.02.2009. Ultimately, as a consequence of the enforcement of the Government Order No. 41 dated 13.02.2009, the upgraded

pay scale was made effective by the Government Order dated 4th August, 2017 and the petitioners were paid the upgraded pay-scale.

It is the contention of the petitioners that by the impugned order dated 13th November, 2017, the respondents without given any show-cause notice

or without giving any opportunity of hearing to the petitioner, withdrew the benefit of the upgraded/amended grade pay. The impugned order dated

13th November, 2017 as a matter of fact was passed after partial amendment of the Government Order No. 202 dated 17th September, 2017. The

grievance of the petitioner was that on scrutiny of the Government Order dated 13th November, 2017 to be read with the consequential order passed

by the District Ayurvedic and Unani Officer on 21st March, 2018, whereby he has recommended for the recovery of the amount which was

purportedly contended that it was wrongly paid as a consequence of the revision of the pay scale. This order too does not speak about or reflected

that the petitioners were heard and it is also the case of the petitioner that in a step forward for compliance of the order dated 21st March, 2018 the

respondents proceeded to recover the amount in the month of March, 2018. Petitioners raised their grievances initially by filing a representation dated

6th April, 2018 and when no decision was taken, they were constrained to file the writ petition benign WPSS No. 1745 of 2012. The coordinate Bench

of this Court vide its judgment dated 18th March, 2018 had allowed the writ petition after considering the impact of Rafiq Masih’s case (Supra).

Despite the judgment dated 18th March, 2018, the respondents proceeded to pass impugned order dated 7th April, 2018 directing to recover the

amount as quantified in the order in case of each petitioners.

Precisely, the petitioners’ contention apart from the fact that the action of the respondents was violative of principles of natural justice had

reiterated almost all the grounds which were agitated by the teachers of the Education Department and regard effect of Rafiq Masih’s case

(Supra).

Apparently, this Court is also of a considered view that a recovery of the amount from the salary already paid bonafidely to the incumbents by

making deduction or recovery has a serious consequence, more particularly, when it is intended to be made against the lower cadre of employees who

have limited financial resources to sustain themselves, because major part of their earning is used for sustaining themselves and their families and they

are hardly able to make any savings or when it intends to be made against a retired employee who too sustains on the reduced remuneration. This

Court also is of the view that even if in those circumstances where the excess payment of the salary has been made wrongfully to an employee, in

that eventuality also, the authorities cannot sit for a long period or for an indefinite period and then at a later stage wake up from the deep slumber and

take an action belatedly for recovering the amount, because, the belated recovery too has a severe consequence on the employees. Hence, the

Hon’ble Apex Court has postulated that if at all a recovery is intended to be made, it should be at least before 5 years period from the date when

actual payment was made. The Hon’ble Apex Court has also laid down that since the recovery if made from an employee would be iniquitous,

harsh and arbitrary it would outweigh the balance of the employer’s right to recover.

As already observed above that salary constitutes to be a property within the meaning under Article 300A of the Constitution of India. If there

happens to be any bleakest situation where it has been wrongfully paid and if at all if it is required to be recovered, in that eventuality, it could only be

in accordance with procedure provided under law. Meaning thereby, it cannot be recovered by a unilateral act or decision taken by the respondent

without the participation of the persons against whom the excess payment is alleged to have been made and from whom the recovery is being sought

to be made. On scrutiny of any of the communications ever since 04.08.2014 when the revised scale was paid to the petitioner by the decision of the

Director or till passing of the impugned order dated 13.11.2017 and 21.04.2018, none of the orders reflect that at any stage or point of time, the

petitioners were given prior notice and they were called upon by notice duly served, to participate in the proceedings to enable them to have their save

in the proceedings because any proceedings drawn for recovery of the amount will have ultimate bearing on the rights of the petitioners deprivation of

salary earned by them which has been held to be a property.

At this stage, this Court, in view of analogy and logic assigned above, is of the considered view and feels it appropriate to point out that it would be

apt to clear that while this Court is deciding these bunch of writ petitions, it may not be construed that as if this is an adjudication on the merits of claim

for the revised pay-scale or entitlement of the petitioners to get revised scale, as has been paid to them or the liability of the respondents to pay revised

pay-scale as per the law applicable. It is only an adjudication from limited view point that since a right was conferred and settled by way of payment

of the revised pay-scale w.e.f. 04.08.2014 in favour of the petitioners by a voluntary act of authorities, without any influence or misrepresentation or

fraud exercised by the petitioners or by misleading or distortion of facts or law, its recovery should have been made if at all permissible under law it

would be only after giving an opportunity of hearing to the petitioners which has not been admittedly provided to the petitioners. As such the impugned

order dated 13.11.2017 and 21.04.2018 do not satisfy the test of reasonableness and violates the principles of natural justice and not equivotus because

any action taken of recovering the amount will obviously have a civil consequence, hence it ought to have been made only after providing an

opportunity of hearing which lacks in the present case.

On that limited score only all these writ petitions would stand allowed. All the impugned orders passed in each set of writ petitions (as detailed

above) would stand quashed. However, this will not preclude or prejudice the rights of the respondents to take a fresh action on the same facts and

conditions, but only after providing an opportunity of hearing to the petitioners and after recourse as permissible under law by adopting the parameters

laid down by Hon’ble Apex Court in Rafiq Masih’s case (Supra). During the period in which the respondents take an action in pursuance to

today’s judgment, the recovery as sought to be made would be kept in abeyance unless determined afresh, after providing an opportunity to the

petitioners. However there is one more clarification required to be made at this juncture that the recovery as sought to be made would be exclusively

dependent upon the decision which has to be taken by the respondents after providing an opportunity to the petitioners in pursuance of today’s

order. Respondents are also directed that till the time they take a decision the orders pertaining to the recovery and reduction of pay scale too would

be kept in abeyance.

Subject to the above observations, writ petitions stand disposed of.