Seema Saha And Other vs State of Jharkhand

Pramath Patnaik, J

During the pendency of the writ application, the original petitioner- Shyama Pada Saha died leaving behind his widow and sons, who have been

substituted vide order dated 11.10.2011; hence for the sake of convenience, the deceased petitioner- Shyama Pada Saha shall be referred to as

“original petitionerâ€​.

In the instant writ application, the original petitioner has inter alia prayed for direction upon the respondents not to recover any amount and

downgrade the pay-scale of the petitioner for the purpose of fixation of final pension and further prayer has been made for quashing order dated

06.06.2009 issued from the office of Accountant General, Jharkhand.

The facts, shorn of unnecessary details, as delineated in the writ application is that the original petitioner was appointed as Science Teacher having

qualification of B. Sc. (Hon) and Trained degree on 18.10.1973 in the erstwhile district of Santhal Pargana. By passage of time, he was granted I.Sc.

Trained Scale w.e.f 24.08.1976 and thereafter B.Sc Trained Scale w.e.f 01.05.1980 and further granted senior selection grade from 01.04.1992. It

has further been alleged that during his service tenure, he was transferred to Sahebganj and Pakur district and lastly he retired on 31.12.2006 after

attaining the age of superannuation. It has further been averred that after his retirement, the original petitioner submitted all relevant papers for fixation

of pension and accordingly his pension was fixed at Rs. 10,100/-, which was the last drawn salary of the petitioner. But, ignoring these facts, the pay-

scale of the petitioner was downgraded and order of recovery was passed vide order dated 06.06.2009, as evident from Annexure 1 to the writ

application.

Heard Mr. J.P. Jha, learned senior counsel for the petitioner, Mr. Arbind Kumar, Associate Counsel to learned G.P. II for the respondents-State

and Mr. Sudarshan Srivastava, learned counsel for the Accountant General.

Learned senior counsel for the petitioner submitted with vehemence that pay-scale granted to the petitioner, as stated in the writ application, has

been granted without any misrepresentation or fraud committed by the petitioner and in parity with the qualification vis-Ã -vis in parity with other

similarly situated teachers, as evident from Annexure 2 to the writ application. It has further been submitted that it is settled principle of law as per

Rule 151 of the Jharkhand Pension Rules that the employee is entitled to get pension on the basis of last pay drawn but, in contravention of the said

Rule the impugned order has been passed. Learned senior counsel for the petitioner further submitted that pay-scale granted two-three decades

before the retirement of the original petitioner has been disputed by the respondents after his retirement, which is not permissible in law that too

without affording any opportunity of hearing and without initiating any proceeding.

5. In support of his submission, learned senior counsel for the petitioner referred to the decision rendered in the case of Syed Abdul Qadir & Ors

Vs. State of Bihar & Ors as reported in (2009) 3 SCC 475 and further in the case of Sanjay Kumar Jha & Ors Vs. State of Jharkhand & Ors as

reported in 2017 (4) JBCJ 498 [HC].Â

As against this, learned counsel for the respondents-State submitted that it is not the case where the proceeding has been initiated after theÂ

retirement of the original petitioner rather the authority much before his retirement, on the basis of report submitted by Area Education Officer,

vide order dated 09.11.2006 decided to initiate departmental proceeding against the petitioner in the matter of obtaining excess amount of pay-scale by

the original petitioner. In the enquiry, the enquiry officer in its report dated 22.12.2006 found that promotion and promotional pay-scale as granted to

teachers in between 16.06.1981 to 07.02.1986 has been cancelled by the then District Superintendent of Education, Sahibganj vide memo dated

7.3.1988; as such the B.Sc. Trained scale granted to the petitioner in between the said period stands automatically cancelled. Hence, it cannot be said

that the pay-scale has been downgraded after retirement of the petitioner at best it can be said that the same has been rectified. Keeping, such view

of the matter, the Accountant General, Jharkhand has legally ordered for recovery of Rs. 2,08,052/- from the writ petitioner vide order dated

06.06.2009.

Having heard learned counsel for the parties at length and on perusal of record, it appears that at the fag end of service of the petitioner, the

respondents-authorities initiated a departmental proceeding against the petitioner for wrong fixation of B.Sc. Trained scale on the ground that the scale

granted during period promotion and promotional pay-scale as granted to teachers in between 16.06.1981 to 07.02.1986 has been cancelled by the then

District Superintendent of Education, Sahibganj. Be that as it may be, from the pleadings available on record, it is manifestly clear that in the

departmental proceeding, the petitioner was never afforded with opportunity to defend case and further much after his retirement final order dated

06.06.2009 was passed whereby recovery of amount of Rs. 2,08,052/- was passed by the office of Accountant General.Â

Admittedly, in the case at hand the excess amount, if any, paid to the original petitioner was not because of any misrepresentation or fraud

committed on his part rather to say the whole confusion is because of the inaction and negligence on the part of the respondents-authorities. Hence,

the recovery at this stage, when the original petitioner has retired (now dead) is not permissible. View of this Court gets fortified by the decision

rendered in the case of Syed Abdul Qadir (Supra).

Recovery after retirement has been consistently deprecated by Hon’ble Apex Court. In the case of State of Punjab & Ors Vs. Rafiq Masih

(White Washer) and Others as reported in (2015) 4 SCC 334, the Court at paragraph 18 of the said judgment has been pleased to enumerate the

instances relating to recovery of excess payment without fault of the recipient, which is quoted herein below:

“18. 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 hereinabove, we may, as a

ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i)Â Recovery from the employees belonging to Class III and Class IVÂ service (or Group C and Group D service). (ii) Recovery from the retired

employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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.â€​

From the above proposition of law, as enunciated by Hon’ble Court, the action of the respondents in passing the impugned order dated

06.06.2009, in absence of any misrepresentation or fraud on the part of the petitioner, is not legally sustainable; hence, the same is hereby quashed and

set aside.

Accordingly, the writ petition stands allowed.   Â