Amrit Lal Thakur and Others vs The State of Himachal Pradesh and Others

V.K. Sharma, J.—The petition has been filed on the following prayers vide para 7 (i) to (iii):

i) That the impugned order dt. 22-10-2003 already placed at Annex A/1 may kindly be quashed and set aside which being arbitrary, illegal, ultravires, malafide and discriminatory in as much as the same has been passed against the applicants without affording an opportunity of �being heard� whereby the applicants subjected to recurring financial loss and mental agony and financial harassment and the same is not sustainable in the eye of law and the initial pay of Rs. 6400/- p.m. which was given to them in view of Govt. letters dt: 23-05-2003 and dt. 02-08-2003 already placed at Annex. A/2 and A/3 is restored.

ii) That inconsequence to prayer (i) above, the Respondents may please further be directed to pay all the arrears accrued there from with interest at the rate of 18% per annum thereon till final payment of the same.

iii) That the Respondents may be directed to refund the amount, if any, recovered from the applicants.

In reply, the following stand has been taken on behalf of the Respondents vide para 3:

That the present original application filed by the applicants is not maintainable, because the applicants were appointed on contract basis which was renewed every year. As per the term No. 5 of the contract agreement entered by the applicants with the Respondent state i.e. Principal, Distt. Institute of Educational Training, Lahaul & Spiti, clearly provides that the Govt. shall pay the Lecturer so long as the Lecturer is in service and actually performs his duties, monthly honorarium equal to the basic pay @. 1800/-plus other allowances as admissible thereon the date of appointment and interim relief + HRA and CA. and this term/condition of the contract agreement have been accepted by the applicants as correct before signing the same. If the term/condition of the contract agreement were not acceptable to the applicants then they should have refused to sign the same, therefore, the applicants by their own act and conduct are estopped to claim the revised scale of Rs. 6400/- + other allowances which has been granted to the applicants by the Respondent No. 4 i.e. Principal, District Institute of Education and Training, Tandi District Lahaul & Spiti. Apart from this the Respondents further state that the applicants have nowhere challenged the contract agreement in the present O.A. vide which they have been appointed on contract basis in the pay @ Rs. 1800/- + other allowances. It is further stated that the revised scale was released to the applicants erroneously without resorting to the codal formalities i.e. without obtaining the necessary sanction from the Finance Department. As the revised pay scale was released to the applicants contrary to provisions of H.P. Civil Services (Revised Pay) Rules-1998 and was also released without prior concurrence of the Finance Department. Therefore, the applicant has no right to challenge the Annexure-A/1 as annexed by the applicants with the present original application. Hence the present original application deserves to be dismissed.

The learned Counsel for the Petitioners submits at the very outset that the case of the Petitioners is covered under judgment dated 2.12.2009, rendered by a learned Single Judge of this Court in CWP(T) No. 10860/2008, Inder Singh v. State of Himachal Pradesh and Ors. text whereof is as under:

The pay of the Petitioner was revised/enhanced vide order dated 23.5.2003 (Annexure A-1). However, the same was withdrawn vide Annexure A-2 dated 14.10.2003. Admittedly, the Petitioner has not been heard before the issuance of Annexure A 2. He has been visited with civil and evil consequences. His pay has been reduced. The Petitioner has neither misled nor played any fraud upon the Respondents at the time of granting him revised/enhanced pay. A conscious decision had been taken by the Respondent-State to grant revised/enhanced pay to its employees.

Moreover, the learned Counsel submits that on the basis of impugned order, recoveries are likely to be effected from the salaries of the Petitioner.

Their Lordships of the Hon''ble Supreme Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer:

That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the Appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the Appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post.

This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:

...the fixation of pay under fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake.

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. See Sahib Ram Vs. State of Haryana and Others, , Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, ; Union of India (UOI) and Another Vs. M. Bhaskar and Others, ; V. Gangaram Vs. Regional Joint Director and others, ; Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, ; Purshottam Lal Das and Others Vs. The State of Bihar and Others, ; Punjab National Bank and Others Vs. Manjeet Singh and Another, ; and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. .

Undoubtedly, the excess amount that has been paid to the Appellants - 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 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 Appellants-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 hardship to the Appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the Appellants-teachers should be made.

Learned Counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the Appellant-teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.

Consequently, in view of the definitive law laid down by their Lordships of the Hon''ble Supreme Court, order dated 14.10.2003 (Annexure A-2) is queahed and set aside. The Respondents are restrained from making any recoveries from the Petitioner. However, liberty is reserved to the Respondents to proceed with the matter in accordance with law.

The petition stands disposed of. No costs.

In view of the above, if on facts, the case of the Petitioners is covered under the judgment referred to hereinabove in CWP (T) No. 10806 of 2008, Inder Singh v. State of Himachal Pradesh and Ors. and the same has attained finality and has been implemented and the Petitioners are similarly situate, they shall also be treated similarly without any discrimination and benefit of the said judgment along with consequential benefits, if any, shall be extended to them within three months from the date of production of copy of this judgment.

The petition stands disposed of, so also pending application(s), if any.