Malikram Jatwar vs State of Madhya Pradesh and Others

Manindra Mohan Shrivastava, J.—By this petition, the petitioner has prayed for issuance of writ in the nature of certiorari to quash the order dated 6.8.1998 (Annexure A-5), and order dated 28.10.1998 (Annexure A-3) as also order dated 9.8.2004 (Annexure A-7). Brief resumption of relevant facts necessary for decision of the petition are that the petitioner was initially appointed as Assistant Teacher in the year 1968. After 20 years of his service, the order was issued on 21.12.1988 by which the petitioner was posted as Head Master with stipulation that those teachers who are posted and working before 1.4.1981 would be entitled to pay-scale of Rs. 925-1500/- and those who have been posted as Head Master after 1.4.1981, their pay in the pay-scale would be notionally fixed w.e.f. 1.4.1981, but, actual benefits would be available with effect from the date of appointment and no arrears prior to the date of appointment would be admissible. After having been appointed and posted as Head Master, the petitioner started drawing salary in the pay-scale of Rs. 925-1500/- w.e.f. the date of his appointment i.e. 20th January, 1989. After about 5 years, another, order was issued on 16,9.1994 (Annexure A-3) by which teachers who were posted and working as Head Master prior to 1.4.1981 were declared as having been appointed as Head Master Middle School. Those teachers who were held entitled to hold to the post of Head Master w.e.f. 1.4.1981 on the basis of their seniority were also included for such benefit, but it was stipulated that remaining Head Master would not be entitled to the pay-scale of Head Master w.e.f. 1.4.1981, but they will be entitled to pay-scale of Rs. 740/- to 1180/- w.e.f. 1.4.1981. As the order dated 16.9.1999 did not include the name of the petitioner, an order was passed on 6.8.1998 by the Dy. Commissioner, Tribal Department that the petitioner would be entitled to fixation of pay of the post of Head Master only from the date of his joining i.e. 20th January, 1989. In compliance of this order, impugned order dated 28.10.1998 was passed by the Principal, altering pay scale on the post of Head Master w.e.f. 20th January, 1989 and directing recovery of Rs. 74,458/- in thirty installments.

Aggrieved by the aforesaid action, petitioner filed original application before the State Administrative Tribunal (for short "the Tribunal") which petition has now been transferred to this Court after abolition of the Tribunal.

Another important event took place during the pendency of this petition, after petitioner retired from service on 31.5.2004. The Joint Director, Pension issued a direction holding that the petitioner was entitled to the pay-scale of the post of Head Master only from 1.4.1997 and not from 20th January, 1989. Therefore, he proposed a further recovery of Rs. 49,127/- paid in excess during the period from 20th January, 1989 to 31st March, 1997. In this manner, another sum of Rs. 49127/- was recovered. Order dated 9.8.2004 (Annexure A-7) is therefore also impugned in this writ petition.

Learned counsel for the petitioner submits that the action of the respondents in directing recovery vide order dated 28.10.1998 of the Principal pursuant to the direction dated 6.8.1998 of Dy. Director is arbitrary, unjust and in violation of principle of natural justice. It was urged that the recovery vide order date 28.10.1998 was occasioned because the respondents altered their policy to grant notional fixation of pay on the post of Head Master after long time. When the petitioner was posted as Head Master vide order dated 21.12.1988 (Annexure A-2), respondents No. 3/Principal directed notional fixation of pay w.e.f. 1.4.1981 and actual pay with effect from the date of resumption of charge on the post of Head Master. But later on, vide order dated 16.9.1994, after about 5 years, a new policy substituted earlier policy that those who are entitled to promotion on the basis of seniority w.e.f. 1.4.1981 alone would be granted pay-scale of the post of Head Master and other Head Master would be granted Rs. 740-1180/- only. Representation made and favourably recommended were not paid any heed to and after 10 years, impugned order dated 28.10.1998 was passed directing recovery. He further submits that in any case, the petitioner was not actually paid salary of the post of Head Master before 20th January, 1989, but only notional fixation w.e.f. 1.4.1981. Therefore, for this reason also, recovery was arbitrary. It is also contended that in any case, recovery of such huge amount from a teacher after such a long time of almost 10 years particularly in the background that it was because of change in the policy rather than any fraud or misrepresentation on the part of petitioner, caused serious and undue hardship. Learned counsel for the petitioner further argued that the hardship was further accumulated at the time of his retirement when it was again held that petitioner was not entitled to pay-scale on the post of Head Master from the date of joining on the post of Head Master but from the subsequent date i.e. 1.4.1997, which too, is highly arbitrary, un-reasonable and unjust because the petitioner actually worked on the post of Head Master. He further submits that all this was done without affording any opportunity of hearing to the petitioner and without disclosing why the petitioner was not entitled to salary on the post on which he worked w.e.f. 20th January, 1989.

In support of his submissions reliance has been placed on the judgments of the Supreme Court in the cases of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , Purshottam Lal Das and Others Vs. The State of Bihar and Others, State of Bihar and Others Vs. Pandey Jagdishwar Prasad, and Sahib Ram Vs. State of Haryana and Others,

Per contra, learned counsel for the State submitted that the decision to grant notional pay fixation in the pay of Head Master w.e.f. 1.4.1981 was wrongly and erroneously taken vide order dated 21.12.1988. In the year 1994, when number of Head Masters, who were posted and worked as such by virtue of order dated 21.12.1988, were declared as Head Master, it was decided that only those would be entitled to the pay-scale of Head Master w.e.f. 1.4.1981. He further submits that as the petitioner was not declared Head Master vide order dated 16.9.1994 and was not entitled to be posted as Head Master w.e.f. 1.4.1981 on the basis of his seniority, it was rightly decided that the petitioner and all such Head Master would be entitled to pay-scale of Rs. 740-1180/- w.e.f. 1.4.1981. In this backdrop, direction was issued by the Dy. Director on 6.8.1998 to make recovery of excess payment leading to issuance of impugned order dated 28.10.1998 of the Principal. As far as recovery at the time of retirement from the gratuity is concerned, learned State counsel submits that the petitioner attained qualification for the post of Head Master as on 1.4.1997 though he was holding the post of Head Master w.e.f. 20th January, 1989. Therefore, the Joint Director, Pension held that the petitioner was entitled to get monetary benefit of the post of Head Master only w.e.f. 1.4.1998 and not from 20th January 1989 which resulted in further recovery. It is also submitted that on the basis of seniority also, the petitioner was entitled to be promoted as Head Master only in the month of April, 1997, but was wrongly promoted vide order dated 21.12.1988. Therefore, recovery of Rs. 39,445/- was made from the gratuity payable to the petitioner upon his retirement.

I have considered the rival submissions made by counsel for the parties and perused the records.

From order dated 21.12.1988 passed by the Dy. Director, Tribal Development, it is revealed that large number of senior Upper Division Teacher who were discharging their duties on the post of Head Master were posted as Head Master pursuant to policy decision dated 22.4.1985 of the State Govt. and consequent direction issued on 21.5.1985 by the Commissioner Tribal Development Bhopal. In this order, it was clearly stipulated that those teachers who are working prior to 1.4.1981 would be entitled to the pay-scale of Rs. 925-1500/-. It was also stipulated that those teachers who have been posted as Head Master after 1.4.1981, their pay would be fixed w.e.f. 1.4.1981 but on the basis of "no work no pay", they will not be entitled to payment of any arrears prior to the date of joining. The order also stated that the pay fixation would not be treated as promotion and the employee, therefore, will not be entitled to benefit of F.R. - 22 D. Therefore, the aforesaid order clearly reflected a policy decision to benefit Upper Division Teacher depending upon the date of their working as Head Master. A conscious decision was taken to the effect that those who have been posted as Head Master after 1.4.1981 would also be entitled to pay fixation in the pay of the post of Head Master w.e.f. 1.4.1981. This pay fixation would be notional in nature and actual benefits of pay would be admissible only from the date of joining. This decision was not only made applicable to the petitioner, but large number of teachers were benefited by the said order. The order clearly records that it is being passed in compliance of instructions of the Govt. and the Director. This clearly shows that at the time when order was passed, it was based on a conscious decision to grant benefit in a particular manner and as the petitioner joined on 20th January, 1989, which fact is not disputed, the petitioner was granted pay on the post of Head Master only w.e.f. 20th January, 1989.

It, however, appears that later on, respondents changed their decision and decided that those teachers who were not entitled to be posted as Head Master on the basis of seniority, w.e.f. 1.4.1981, they would not be entitled to the post of Head Master. This decision was taken 5 years after the petitioner had been fixed in the pay-scale of Head Master, notionally w.e.f. 1.4.1981 and actually paid salary w.e.f. 20th January, 1989. The order dated 16.9.1994 (Annexure A-3), in terms, only applied prospectively and there was nothing to show that any recovery would be made. As late as on 6.8.1998, the Dy. Director passed an order on 6.8.1998, purportedly in continuation of order dated 21.12.1988, but, in effect, contrary to the same, directing fixation of pay on the post of Head Master w.e.f. 20th January, 1989. On the basis of this, Principal of the school altered pay fixation of the petitioner and directed recovery of Rs. 74458/- vide impugned order dated 28.10.1998. This happened because on account of notional fixation w.e.f. 1.4.1981, the petitioner''s pay on the date of his joining dated 20th January, 1989 was fixed in the pay-scale of Head Master at a higher stage. But later on, due to change in the pay-scale, the pay on the post of Head Master was fixed w.e.f. 20th January, 1989, obviously at the basic of the pay scale. It was on this basis that the respondents ordered recovery of huge amount of Rs. 74458/- after almost 10 years of the date on which pay was granted to the petitioner. It would thus appear that the recovery resulted on account of alteration in pay scale of the petitioner from time to time. Respondents could not place on record any material to show that there was some other order of the Govt. contrary to the order dated 21.12.1988, due to which, it could be said that it was well within the knowledge of the petitioner that he is not entitled to the pay at which he was fixed upon his posting as Head Master. On the contrary, order dated 21.12.1988 shows that notional fixation w.e.f. 1.4.1981 was granted as a matter of policy to ameliorate grievance of Upper Division Teacher who were waiting for promotion since long. Moreover, there is no material from which it can be gathered that such grant of pay to the petitioner was result of any fraud or misrepresentation on his part.

The second dent was caused to the petitioner, a teacher, at the verge of his retirement when the Joint Director, Pension went a step ahead to hold that though the petitioner was posted and worked as Head Master on 20 January, 1989, he was not entitled to the pay-scale of Head Master because he was not qualified. To say the least, this decision of the respondents apart from being in violation of principle of natural justice was highly unjust, oppressive resulting in grave hardship. Once the petitioner started discharging the duties on the post of Head Master w.e.f. 20th January, 1989 and was paid salary for the post, duties of which he discharged, telling him at the verge of his retirement in the year 2004 that he was not entitled to that payment till 1.4.1997, is most arbitrary. By this action, the respondents again held that the petitioner was paid in excess resulting in deduction of a further amount of Rs. 39,445/-.

The petitioner was a teacher getting meager salary on the post of Head Master of a middle school. His pay was fixed on the basis of a policy decision reflected from order dated 21.12.1988. The respondents, however, later on, altered their earlier policy decision now to say that only those who were entitled to be posted as Head Master as on 1.4.1981 on the basis of seniority alone would be granted notional benefits of fixation of pay on the post of Head Master on 1.4.1981. It was this change of decision on the part of respondents and nothing else, much less any fraud or misrepresentation or violation of statutory rule, which resulted in recovery of huge amount of Rs. 74,458/-. The recovery was ordered against the petitioner after almost 10 years. In the meantime, the petitioner was paid salary which he is presumed to have utilized for up keep of his family.

Learned counsel for the respondents could not point out to this Court as to which was that qualification which the petitioner was not possessed of for holding the post of Head Master. Even if it were assumed that the petitioner was not holding that qualification as on 21.12.1988, the respondents did post the petitioner on the post of Head Master in substantive capacity and also fixed his pay in the pay-scale of Head Master with open eyes. Having taken the work of Head Master from the petitioner by virtue of his posting as Head Master vide order dated 21.12.1988, it is too late and rather unjust for the respondents to tell the petitioner, that too at the verge of retirement that what he received from w.e.f. 20th January, 1989 was not admissible to him till 1.4.1997. It took 15 years for the respondents to detect that petitioner was wrongly paid higher pay. It is worth noting that the petitioner was drawing salary on the post of Head Master of Middle School which could not be said to be a post carrying high pay-scale. As a Head Master whatever was received by the petitioner must have been spent and used for up-keeping of is family, bread and butter. Therefore, the decision of the respondents to deduct further amount of Rs. 39445/- from the gratuity, to say the least, is unduly harsh and unjust causing severe hardship to the petitioner and aiding to the one which he suffered by way of deduction of Rs. 74,458/-

The legal position in this regard is too well established in plethora of decisions of the Supreme Court. In the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others, he Supreme Court after survey of catena of decisions starting from the case of Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, propounded as below. 57. 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 v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur.

It is worth mentioning that the petitioner therein was also a teacher subjected to recovery on the ground of excess payment.

In a recent decision, in the case of Chandi Prasad Uniyal (supra), the above legal position as propounded in the case of Syed Abdul Qadir (supra) has been reiterated though explaining its earlier judgment to remove doubt in the following words 8. We are of the considered view, after going through the various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.

It was further held-

We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.