Ramchandra Kurup vs State of C.G. and Others

Satish K. Agnihotri, J.—Challenge in this batch of petitions namely W.P. (S) Nos. 3849, 3298, 3302, 3303, 3305, 3306, 3339, 3364, 3365, 3369, 3371, 3426 and 3663 of 2009 is to the order dated 8-6-2009 (Annexure P-l), whereby the representations of the petitioners have been rejected and the order dated 8-6-2009 [Annexure P-l6 in W.P. (S) No. 3302/2009], whereby the orders, granting benefit of increments, in respect of Assistant Grade-Ill, who have not passed Hindi Typewriting Examination, have been cancelled.

Indisputable facts, in nutshell, in this batch of writ petitions [W.P. (S) Nos. 3849, 3298,3302,3303, 3305,3306,3339,3364,3365,3369,3371,3426 and 3663 of 2009] are that the petitioners were appointed on the post of Assistant Grade III subject to the condition that they would be entitled to annual increments only after passing of the Hindi Typewriting test. Subsequently, the petitioners passed the Hindi Typewriting test and submitted certificates, accordingly they were allowed the annual increments from the date of submission of the certificate, not from the date of his appointment.

Some of the similarly situated employees moved the State Administrative Tribunal (for short "the Tribunal"), according to the petitioners, in the matter of Malayadeen Verma and Ors. v. Slate of M.P. 1991 MPST 379, the Tribunal passed the order that the applicants are entitled for grant of annual increments from the date of their initial appointment. In B.L. Goyal v. State of M.P. and Ors. O.A. No. 1981/1999, the Tribunal, by order dated 29-10-1999, directed the respondents/State to examine the case of the applicant in the light of the ratio of the case of Malayadeen Verma (supra), and if on such examination the case of the applicant is found to be similar, the benefit of grant of increments be extended to them.

Pursuant to the order dated 29-10-1999, passed in B.L. Goyal (supra), the Engineer-in-Chief, Water Resources Department, directed the Chief Engineers by order dated 12-12- 2000 that in the light of the decision of the Tribunal all the similarly situated Assistant Grade-Ill, who have passed the Hindi Typewriting test would be entitled to annual increments after one years of their initial appointment.

Thereafter, the petitioners filed writ petitions before this Court which were disposed of reserving liberty to the petitioners to file a representation before the concerned authorities and the concerned authorities were directed to consider and decide the representation on its own merits, in accordance with law.

In the meantime, by orders dated 27-11-2006, 23-7-2008 and 15-2-2007, respectively, the petitioners were allowed benefit of annual increments after one year of their initial date of appointment.

The petitioners have filed these writ petitions, being aggrieved by the action of the respondent/Authority, as their representations have been rejected by the impugned order dated 8-6-2009 (Annexure P-l). On the same day, other impugned order dated 8-6-2009 [Annexure P-16 in W.P. (S) No. 3302/2009] was passed, whereunder and whereby the orders dated 27-11-2006, 23-7- 2008 and 15-2-2007, granting benefit of increments to the petitioners were cancelled.

Learned Counsel appearing for the petitioners submits that the respondents cannot take a stand, contrary to the judicial dictum, as aforestated. The petitioners are similarly situated employees and they are entitled to the benefit granted in the matter of Malayadeen Verma (supra), B.L. Goyal (supra), and several others. Learned Counsel further submits that there is no fault on the part of the petitioners. They have not made any misrepresentation and the annual increments have been granted to them in accordance with the orders passed by the Competent Authority, that too in compliance of the judicial pronouncement by the State Administrative Tribunal in the matters of similarly situated employees.

The impugned order dated 8-6-2009, withdrawing benefit of annual increments, granted earlier, on the basis of the administrative instructions is bad in law, illegal and contrary to the judicial pronouncements. The reason assigned for recovery is not sustainable, as there was no fault on the part of the petitioners. The respondents cannot recover the amount, already paid to the petitioners, for no fault of the employees, who has not made any misrepresentation or misled to the employer.

Learned Counsel appearing for the respondents/State submits that the State Government has extended the benefit of annual increments only to those persons who approached the Tribuna1/Court. The Tribunal has not passed a general order to grant benefit to all the similarly situated persons. Thus, the impugned orders are just and proper.

Having heard learned Counsel appearing for the parties and having perused the pleadings and documents appended thereto, the question arises for consideration before this Court is, as to whether once benefit of annual increments was granted to the petitioners, for no fault of theirs, may be by judicial order, can be withdrawn subsequently by executive instructions. The Supreme Court while considering the identical issue observed that a judicial decision cannot be directly overruled or reversed, even by the Legislature. The executive instructions, in no way, can reverse or override a judicial decision. In the present case, the petitioners were granted benefit pursuant to the orders passed by the Tribunal.

It is well settled that even Legislature cannot directly overrule, reverse or override the judicial pronouncements. In the present case, the State Government by statutory instructions has attempted to set at naught the judicial order passed by the Tribunal in Malayadeen Verma (supra), B.L. Goyal (supra).

There is no dispute that the orders passed by the Tribunal have attained finality, as no challenge was made by the respondent-Authorities thereafter.

The Supreme Court in A. Manjula Bhashini and Others Vs. The Managing Director, A.P. Women''s Cooperative Finance Corporation Ltd. and Another, , has held as under:

It is also well settled that the Legislature cannot by bare declaration, without anything more, directly overrule, reverse or override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based. Such law can also be given retrospective effect with a deeming date or with effect from a particular date. The question whether the Legislature possesses the power to enact law apparently affecting pre-existing judgment or amend the existing law which has already been interpreted by the Court in a particular manner, has been considered in several cases.

The respondent-Authorities have not followed the principles of natural justice and the impugned action has been taken without affording an opportunity of hearing to the petitioners. The practice of passing order, involving civil consequences, without show-cause notice or without affording an opportunity, is condemned.

The question of withdrawal of benefits, without affording an opportunity of hearing is no longer res integra. The Supreme Court in the matter of Sahib Ram Vs. State of Haryana and Others, , in Para 5 held, as under:

However, it is not on account of any misrepresentation made by the appellant that the benefit of 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 Supreme Court in the matter of P. Tulsi Das and Others Vs. Govt. of A.P. and Others, , observed that the benefit accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Articles 14 and 16 of the Constitution of India being arbitrary, unreasonable and expropriatory.

In an identical issue, as to whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice, the Supreme Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, , having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, observed 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. 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.

A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely, (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment. In the case on hand, the aforestated three conditions are not available to the employer to pass the impugned orders dated 8-6-2009 [Annexure P-16 in W.P. (S) No. 3302/2009].

In view of the foregoing, the impugned orders dated 8-6-2009 (Annexure P-l), whereby the representations of the petitioners have been cancelled as well as the orders of recovery dated 8-6-2009 [Annexure P-16 in W.P. (S) No. 3302/2009], in respect of the petitioners are quashed. No recovery of payment of annual increments to the petitioners can be made pursuant to the impugned orders. If the amount has already been recovered, the petitioners are entitled to the said amount with interest at the rate of 6% per annum. No order as to costs.

The petitions are allowed to the above extent. No order as to costs.