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Judgment
Sharad Sharma, J
These are the bunch of fifteen Writ Petitions, which has been preferred by the Assistant Teachers who are working with the respondent. The
grievance of the petitioners as agitated in the Writ Petition is against the impugned order dated 09.02.2018 passed by respondent no. 3, Direction of
Education (Basic), Uttarakhand, Nanoorkhera, Dehradun, by virtue of which the recovery of the alleged excess payment, which is said to have been
made to the petitioners as a consequence settlement of scale on the recommendation of 6th Pay Commission, has been sought to be recovered.
The brief facts are that as a consequence of the enforcement of the recommendations of the 6th Pay Commission, the pay scale of the teachers
was revised by virtue of the Government Order No.395 dated 17.10.2008 w.e.f. 01.01.2006. In relation thereto, the benefit accruing as a consequence
of the revision of pay sale was paid to the petitioners. However, subsequently the Government Order No.25 dated 13.02.2009 was issued, it provided
the revision of scale of all teachers of all Government School and recognized aided school. All the teachers who were appointed after 01.01.2006 by
way of a direct recruitment were made to be entitled for the revision of pay scale as a consequence of the enforcement of the recommendation of the
6th Pay Commission. However, later the State Government by another Government Order No.41 dated 13.02.2009 had directed that all those
teachers who were appointed by way of a direct recruitment after 01.01.2006 would not be entitled for the benefit of the revision of pay scale based
on the recommendations of the 6th Pay Commission as enforced by the Government Order 395 dated 17.10.2008. The Assistant Teachers appointed
after 01.01.2006 after coming across the Government Order No.41 dated 13.02.2009 raised an agitation, as due to the Government Order No.41 dated
13.02.2009, they were paid lesser pay scale. Consequently, to remove the pay anomaly of the direct recruits and so as to bring them at par with the
other Assistant Teachers already working, they were made entitled to be paid with the pay band of Rs.9,300-34000/- with the grade pay of Rs.4,600/-
and were provided a basic pay of Rs.17,140/-. Consequently, the Government Order No.74 dated 01.03.2009 was issued and the scale of the direct
recruit Assistant Teachers was fixed including the grade pay.
The case of the petitioners is that the Government Order No.74 dated 01.03.2009 has taken into consideration the Government Order No.395 dated
17.10.2008 and the Government Order No. 41 dated 13.02.2009 for the purposes of grant of extension of benefit of the revision of pay scale on the
recommendation of the 6th Pay Commission.
It is the case of the petitioners that the Director Education has called a meeting on 20.10.2011, wherein it was decided that the teachers who were
appointed/promoted after 01.01.2006 will not be paid the minimum pay scale of Rs.17,140/- and the same was made payable only for the persons who
are directly recruited after 17.10.2008 and these teachers appointed after 17.10.2008 would get the minimum pay scale of Rs.17,140/- As a result
decision of Director, a Committee was constituted and a decision was taken on 20.10.2011 for re-fixation of the salary of the Assistant Teachers as
settled due to the enforcement of the recommendations of the 6th Pay Commission. Consequently, the impugned order dated 09.02.2018 was passed
based on the decision of the Committee dated 20.10.2011, whereby, the direction was issued for recovery of the amount already paid to the teachers
as a consequence of the enforcement of the recommendations made by the Director Education (Basic). Relevant part of Committee’s decision
dated 09.01.2018 is quoted hereunder:
“
/
( -2 0 9300-34800 4200 4600 )
/
01.01.2006 /
2/ -2-2013-9(5)/2009 03.01.2014 2482 07.10.2013
46 26.08.2013
-2, -2 4 -22 /
/
17140/-
0
0 0 0/0 0 00 01.01.2006 / 0
4600/- 0 17140/-
Against the impugned orders, earlier the Writ Petition No. 1243/2013 was preferred before this Court. The said Writ Petition was allowed by the
coordinate Bench of this Court by the judgment dated 16.05.2017. Consequently, the decision of the committee dated 20. 10.2011, which is the basis
of the impugned order dated 9.02.2018 was quashed. While rendering the judgment dated 16.05.2017 the coordinate Bench has placed reliance on the
judgment reported in 2014 (8) SCC 883 i.e. Rafiq Masih’s case. At a later stage, the judgment of the coordinate Bench of this Court was followed
by this Court in another Writ Petition No. 2687/2017. The Writ Petition was also allowed by the judgment dated 18.09.2017 in terms of judgment dated
16.05.2017 rendered in Writ Petition No. 1243/2013.
Against the same cause of action and the same impugned orders a bunch of about eighteen Writ Petitions came for consideration before this Court,
wherein, the challenge was given to the impugned order dated 09.02.2018. The coordinate Bench (constituted by me), by virtue of the judgment dated
20.06.2018, had passed the following order:
“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 o 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.â€
The reason, which has been assigned by this Court while quashing the order dated 09.02.2018, has been contained in the following paragraphs:
“7. The facts and the foundation on the basis of which the impugned action of recovery as made by the impugned order dated 9th February 2018, is
taken against the petitioners is on the order passed by Respondent No.3 (Director of Education (Basic), Uttarakhand, Nanoorkhera, Dehradun) in the
cases of first bunch of Education Department, which is based on resolution dated 9th January, 2018, dealt with the issue of grant of selection
grade/promotional pay-scale on grade pay of Rs.4600/- and consequential fitment as per tabulation to Rs.17140/-.
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 33,4 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) 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) 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 9 years by the Respondents of each writ
petitions in passing the impugned order dated 9th February, 2018 (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 Government Order No.74 dated 1st March, 2009. 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.
The petitioners’ case is that they are appointed substantively as against respective post held by them, in their respective department(s) and
they have been rendering their services regularly for a considerable long time as against their respective year(s)/date of appointment(s), and they are
in service is a fact, which is not disputed in either of the three categories of the departments of the petitioners, where they are working.
As far as the teachers are concerned (belonging to the first category of writ petitions) i.e. the issues in relation to the Education Department, the
petitioners who are the Assistant Teachers (Primary School), they contend that they were appointed on the posts of Assistant Teachers (Primary
School) and later on they have been promoted as Assistant Teacher in Junior High School, in Madhyamic Education i.e. in Junior High Schools, as per
their eligibility on the basis of Rules and were granted the pay-scale of Rs.9300/- to Rs.34800/- with grade pay of Rs.4600/-. Initially, the Assistant
Teachers of Primary School were being paid scale of Rs.4500-7000, this scale was later revised to Rs.6500-10,500 along with corresponding pay
band. The scale of the teachers was revised with the enforcement of the recommendation of the 6th Pay Commission vide Government Order No.395
dated 17.10.2008 w.e.f. 01.01.2006 and Assistant Teachers were made entitled for scale of Rs.9300 to Rs.34,800 with grade pay of Rs.4200/-. The
petitioners’ case is further that the State by Government Order No. 25 dated 13.02.2009 decided that the teachers too would be entitled for the
benefit of Government Order dated 17.10.2008.
According to the petitioners, an anomaly occurred in grant of pay scale and the benefit of the Government Order dated 17.10.2008 as enforced for
Assistant Teachers by Government Order dated 13.02.2009, the benefit of enhanced scale enforced by virtue of two Government Orders were not
being paid to Assistant Teachers who were appointed directly after 01.01.2006 and thus these teachers appointed after 01.01.2006 were getting lesser
scale. The State in order to remove the said anomaly and disparity in pay scale, had issued another Government Order for these teachers to bring
them at par. Hence by Government Order No.41 dated 13.02.2009 the pay scale of Rs.9300 to 34000 carrying pay band of Rs.4600 was enforced
which structured and provided basic pay of Rs.17140/- to the petitioners.
As a result of the enforcement of Government Order No.395 dated 17.10.2008 and Government Order No.41 dated 13.02.2009, the State
ultimately issued Government Order No.74 dated 01.03.2009, by virtue of which the revised scale was paid to all teachers w.e.f. 01.01.2006 as per
the recommendation of 6th Pay Commission. On reading of Government Order dated 01.03.2009, it was resolved to pay scale to all teachers the pay
scale w.e.f. 01.04.2009 as being paid to Central Government Teachers. Thus consequentially the pay scale of Rs.5500-9000 was upgraded to Rs.7450
â€" 11500 and was replaced in pay band of Rs.9300 â€" 34800 (grade pay Rs.4600) with basic pay as Rs.17140/-. Hence the petitioners who are
Assistant Teachers in Junior High School was upgraded Rs.9300 â€" 34800 with grade pay of Rs. 4600 and basic scale as Rs.17140.
In order to assail the illegal action of recovery sought to be made by the respondents on the premise being arbitrary and illegal, petitioners’
case is further that when the recommendations were enforced by Government Order No.74 dated 01.03.2009, the State later had issued a
Government Order No. 302 dated 27.10.2009, which provided that whoever is dissatisfied that their scale was wrongly fixed and were affected due to
the implementation of Government Order’s may object for. This government order intended to clarify any anomaly. Teachers’ case is that no
such clarifactory options were invited from the teachers.
Ultimately State by Government Order No. 693 dated 21.10.2010, made it clear and brought all the Assistant Teachers (Junior School), under a
homogenous class making all of them entitled for the scale as enforced by Government Order No. 74 dated 01.03.2009 and appendix attached thereto.
The State is said to have issued Government Order No. 697 dated 11.09.2013 asking options from all employees of State government, if they have
suffered any loss by the re-fixation of salary. Teachers’ case is that though not sustainable that the Government Order No. 697 dated 11.09.2013
was not communicated to the them.
Identical issues arising from pay fixation as consequence of enforcement of recommendation of 6th Pay Commission arose in Uttar Pradesh. The
State of Uttar Pradesh issued a Government Order No. 2173 dated 09.06.2014 where the said anomaly was considered and resolved after giving
opportunity.
Its not only that the respondents by taking step further for enforcement of recommendation by Government Order No.202 dated 17.10.2017 issued
directions to the competent authorities for making payment of arrears from 01.01.2006 to 31.12.2016. Records show certain writ petition was filed
before this Court; one of them being WPSS No. 2528 of 2017 which was disposed of by the coordinate Bench of this Court on 05.09.2017 with a
direction to decide the representation, based on which a meeting was held on 09.01.2018 and impugned resolution was passed.
It is the case of the petitioners of the Education Department that on the basis of Government Order No.74 dated 1st March, 2009, their pay-scale
was revised to Rs.9300 to Rs.34800, which was carrying a grade pay of Rs.4600 on the basis of the scale promotional order and their minimum pay-
scale was fixed @ Rs.17140/- including grade pay.
It is the case of the petitioners that the said revised pay-scale was made effective as back as in 2009 and benefit accruing from it are paid, the
Director of Education is said to have held a meeting on 20th October, 2011, based on Hon’ble High Courts direction dated 05.09.2017, without any
prior notice to petitioners. Admittedly, when meeting was held for the purposes of re-determining the question of so-called overpayment made as a
consequence of the enforcement of the revised pay fixation, the employees likely to be affected by any decision was required to be noticed and heard,
and admittedly in the meeting thus held by Director of Education on 20th October, 2011, none of the representatives of teachers were called upon to
appear and to attend the meeting nor any such date was fixed or intimated for holding meeting, so as to enable the persons likely to be effected by any
decision to have their say on the issue.
The case of the petitioners is that by virtue of decision taken by the Committee on 20th October, 2011, it was decided by the respondents that the
persons appointed/promoted after 1st January, 2006 they were kept outside the purview of the benefits accruing to the employees by virtue of the
enforcement of the Government Order dated 1st March, 2009. Consequently, it was held that they would not be entitled for the minimum original
salary of pay-scale of Rs.17,140/- as fixed for them. By virtue of the same order and by the decision of the Committee dated 20th October, 2011, it
was directed that all those incumbents who have been appointed after 17th October, 2008 would be entitled for the grant of the minimum original
salary as fixed to Rs.17,140/-. In the cadre as it is enforced in the Education Department, posts of Headmaster and Assistant Teachers (Junior)/ LT
Grade are promotional posts.
The Finance Controller, School Education, Uttarakhand had ultimately taken a decision on 8th November, 2011, on the basis of the
recommendations of the Committee’s decision dated 20th October, 2011, that as per the meeting and the communication given thereto to his office
to proceed to take an action to re-fix the salary and the amount which has already been paid in excess to the incumbents may be recovered back.
Questioning the veracity of the Committee’s decision dated 20th October, 2011 pertaining to the re-fixation of the pay and recovery of the excess
amount allegedly paid to the incumbents, admittedly, based on exclusive decisions of respondents various writ petitions were filed. One of leading writ
petition being (WPSS No.1243 of 2013) which came up for consideration before the coordinate Bench of this Court and the coordinate Bench of this
Court allowed the writ petition on 16.05.2017 and quashed the decision of the Committee dated 20th October, 2011 on the basis of the judgment of the
Hon’ble Apex Court reported in 2014 (8) SCC 883 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer.) While parting with
the judgment, the coordinate Bench of this Court held that a service benefit accruing to an employee by way of a salary or fixation of a scale is a
property and would be falling within the purview of Article 300-A of the Constitution of India. The judgment dated 16.05.2017 passed by the
coordinate Bench of this Court is quoted hereunder:
“Since, common questions of law and facts are involved in the above numbered writ petitions, hence, the same are being taken up together and are
being adjudicated by this common order. However, to maintain clarity, the facts of WPSS No.1243 of 2013 have been taken into consideration.
Petitioners were appointed as Assistant Teachers (LT grade) in the Education Department.
A conscious decision has been taken by the State Government to afford them the benefit of 6th Pay Commission in the year 2006. However,
surprisingly, without issuing the show-cause notice, the recommendation has been withdrawn on 20.10.2011.
The petitioners should have been issued at least a show-cause notice before the benefit granted to the petitioner has been withdrawn unilaterally.
There is violation of principles of natural justice. The salary is a property within a meaning of Article 300A of the Constitution of India. No persons
can be deprived the same, save in accordance with law.
Accordingly, the writ petitions are allowed. Impugned annexure dated 20.10.2011 is quashed and set-aside.
However, liberty is reserved to the respondents to proceed with the matter strictly, in accordance with law, but while deciding the issue, the State shall
take into consideration the judgment rendered by their Lordships of the Hon’ble Supreme Court in 2014 (8) SCC 883.â€
Hence the same cannot be directed to be withdrawn in an ex parte manner unilaterally in violation of principles of natural justice as being property
under Article 300-A, nobody could be deprived his property (i.e. the salary herein), save in accordance with law. The said judgment was followed at a
later stage by me in other writ petitions. Relevant part of the judgment in one of the writ petition being Writ Petition (S/S) No.2687 of 2017 is quoted
hereunder:
“In the writ petition, the name of the petitioner nos. 9 and 17 will stand deleted, and the writ petition will not be treated as to be filed on their behalf,
as they have not signed their Vakalatnama.
However, it would be open for the petitioner nos. 9 and 17 to file afresh writ petition, if so advised.
The Registry cannot take the liberty to give reports according to their choice, contradictory reports in same nature of writ petition. They are being
cautioned for future.
In writ petition No.2679 of 2017 as decided today, the cause title of the respondent No. 3 has been identically described as that of the present writ
petition which has been listed today by way of supplementary fresh list, wherein the Registry as reported in all the cases that the address of
respondent no.3 is incomplete. Report of the Registry cannot be in contradiction, to the detriment of the litigants, filing the writ petition on the same
cause of action.
Since the issue in the writ petition already stands concluded by the judgment rendered by the Coordinate Bench of this Court in WPSS No.1243 of
2013 and WPSS No.1555 of 2013 as decided on 16.05.2017, based on the judgment passed by Hon’ble Apex Court reported in 2014 (8) SCC 883
which has been subsequently followed by this Court too in WPSS No.2679 of 2017 by the judgment rendered on 18.09.2017.
This writ petition too, is allowed in terms of the judgment rendered on 16.05.2017 in WPSS No.1243 of 2013 and WPSS No.1555 of 2013.â€
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.
It is based on the decision of the Committee dated 20th October, 2011, the direction of the Finance Controller as referred above, the order dated
9th January, 2018 has been passed by the competent authority in each set of above writ petitions, wherein the direction has been issued to recover the
amount from the incumbents.
The case of the petitioner is that the decision of the Samiti as enforced on 9th January, 2018 and directing to recover the excess amount paid as
consequence of re-fixation of the pay-scale to the incumbents from their future salary or from any arrears or retrial dues payable to the them could
only be done in the light of the reference to the parameters as laid by the judgment rendered in Rafiq Masih’s case (supra).
The contention of the petitioner is that the fitment table which has been annexed with the Government Order dated 1st March, 2009, as at the
relevant time petitioners were getting the total minimum salary of Rs.44,900 and based on that the minimum total salary payable has been fixed at
Rs.58,900 w.e.f. 1st January, 2017 and henceforth the fixation made happens to be just and proper and ought not to be recovered in the manner it has
been done by the impugned order dated 9th February, 2018. What has been said above, one aspect which is quite apparent is that as a matter of fact
by decision taken by the respondent, admittedly for the revised pay-scale stood settled by the decision of the respondent themselves in favour of the
petitioners, it is further revealed from the scrutiny of the decision of the Committee dated 20th October, 2011 and subsequent orders passed thereto on
the basis of which the recovery has been sought to be made apart from being belated is bad because the payment of the revised pay-scale was made
in the year 2009 and the decision of the Committee was taken on 20th October, 2011 and based on it, the recovery has been now sought to be made in
2018 i.e. almost after 9 years of its actual payment being made to the petitioners. This act of recovery at a belated stage is contrary to the directives
issued by the Hon’ble Apex Court in Rafiq Mashih’s case (Supra).
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 20th October, 2011 or even to say since 2009 when the revised scale was paid to
the petitioner i.e. the decision of the Committee or till passing of the impugned order dated 9th February, 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 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 9th
February, 2018 (and such other impugned orders passed in bunch of other writ petitions) 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.â€
Since, in this bunch of Writ Petitions also the identical issue is involved, hence, these Writ Petitions are also allowed in terms of the judgment
rendered by this Court on 20.06.2018.
However, there would be no order as to cost.