Rishi Deo Mishra vs State of Uttarakhand & others

Petitioner was appointed as Junior Lecturer, Subordinate Class II, by the Registrar, Cooperative Societies, Uttar Pradesh and he joined on 25.02.1988. The pay-scale was revised from Rs. 690-1420, in which scale the petitioner was originally appointed, to Rs. 2000-3200 w.e.f. 01.01.1986. According to the petitioner, on the basis of the Fifth Central Pay Commission Report, which was accepted by the State of Uttar Pradesh, the pay-scale of Rs. 2000-3200 was revised to Rs. 6500-10500 w.e.f. 01.01.1996. It is his case that, as he completed 14 years on 25.02.2002, he became eligible to the promotional pay-scale of Rs. 8000-13500. By Annexure No. 9 order dated 07.09.2002, the petitioner was granted promotional pay-scale of Rs. 8000-13500 w.e.f. 24.02.2002. Suffice it to say, by the impugned order dated 10.06.2014 (Annexure No. 1) passed by the Chief Executive Officer, Bhesaj Development Unit, Uttarakhand (respondent No. 2), he cancelled the order of pay fixation dated 20.02.2003 passed by the Additional Registrar, Cooperative Societies and re-fixed the pay of the petitioner. He also passed Annexure No. 2 order dated 12.06.2014, which is also impugned, by which an amount of Rs. 1,93,767/- was sought to be recovered. The petitioner was asked to deposit the said amount, failing which, the amount was to be recovered from his gratuity. It is, accordingly, that the petitioner challenges Annexure Nos. 1 & 2 orders.

We have heard Mr. B.D. Upadhyaya, learned Senior Counsel appearing for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel appearing for the respondents.

In the counter affidavit filed on behalf of respondent Nos. 1 & 2, the stand taken is, inter alia, as follows: "8. That the Screening Committee had examined the personal record of all the employees working as subordinate Class-II for granting the benefit of Second ACP, and during the course of such examination it came into the knowledge that the petitioner along with some other similarly situated persons were given first promotional scale of Rs. 8000- 13500 (as amended 15600-39100, Grade Pay5400) which was against the provisions of the Government Order issued for the time scale. The Government Order dated 12.03.2001, 02.12.2000 and 23.12.1997 provides that all the persons who are holding the posts and have completed 14 years continuous satisfactory service (including 6 years continuous satisfactory service) from the date of granting the benefit of Selection Grade and have been confirmed on such post, be provided next promotional Pay Scale, and such cadre posts, for which there are no promotional posts, be given next Pay Scale.

That all the posts of subordinate Class-II in the department are single post. However, there are 4 posts of Gazetted Class-II existing in the department, but the same have to be filled up by direct recruitment through Public Service Commission. As per the provisions of fitment table as provided in the Government Order dated 23.12.1997 the employees posted as subordinate Class-II were entitled to get next scale of Rs. 7450-11500 (as amended 9300-34100, Grade Pay 4600, but due to the mistake the Pay Scale of Rs. 8000-13500 (as amended 15600-39100, Grade Pay 5400) was sanctioned and granted to the petitioner.

Therefore, the Screening Committee had recommended that the Pay Scale as given to the petitioner of Rs. 8000-13500 (as amended 15600-39100, Grade Pay 5400) be amended as 7450-11500 (as amended 9300-34100, Grade Pay 4600) and after giving the benefit of Second ACP, he may be given the next Grade Pay of Rs. 4800. The copy of GO dated 23.12.1997 and the recommendation of Screening Committee dated 12.05.2014 is being filed herewith and marked as Annexure No. 3 & 4 to this Counter Affidavit."

As far as challenge to Annexure No. 1 order re-fixing the pay is concerned, we would not think that the petitioner has made out a case, as it is obviously by a mistake that the petitioner was given the benefit of the pay-scale of Rs. 8000-13500; whereas, he should have actually been given the pay-scale of Rs. 7450-11500, which was of course subsequently amended.

Be that as it may, learned Senior Counsel appearing for the petitioner would contend that the order for recovery of amount, at this distance of time, is contrary to the principles laid down by the Apex Court in the decision in State of Punjab & others v. Rafiq Masih (White Washer), reported in 2014 (2) UD 576, and also the judgment in Syed Abdul Qadir & others v. State of Bihar & others, reported in (2009) 3 SCC 475.

In the judgment in 2014 (2) UD 576, after the discussion, we find the following conclusions: "12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

(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."

Learned Senior Counsel for the petitioner would, therefore, urge that, since the order for recovery was passed in the year 2014, whereas the petitioner was given the benefit by order dated 07.09.2002 w.e.f. 24.02.2002, the recovery is beyond five years and, therefore, is bad in law. We may also notice in this connection the following discussion by the Apex Court: "First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir''s case (supra) recognised, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee."

In the light of this, since the impugned order for recovery is made beyond five years, we think that the petitioner is entitled to succeed. Accordingly, Annexure No. 2 order, by which recovery is ordered, will stand quashed.

The writ petition is allowed as above. No order as to cost.