Shri Kartar Chand Barotra and Others vs State of H.P. and Others

V.K. Sharma, J.—The petition has been filed with the following prayers:

(i). That the applicants who were promoted as Head Teachers from the dates cited against each be allowed to continue as such;

(ii). That the applicants'' pay fixed on the date of their promotion as Head Teacher by invoking the provisions of Fundamental Rules may not be reduced; and

(iii). That No. recovery etc. with the eclipsing of the cadre of Head Teachers be effected from the applicants.

In reply, the Respondents have taken the following stand vide para 3:

That the present original application filed by the applicants is not maintainable, because with the revision of new pay scale, which has been revised w.e.f. 1.1.96, the scale of J.B.T. teachers and the Head Teachers is the same i.e. Rs. 4550-7220, which is clear from the Annexure A/5 as annexed by the applicants with the present original application. Therefore, the applicants are not at all entitled to the benefit of FR-22 (I) (a) (1) as awarded to the applicants in the pre-revised salary, for which they were not at all entitled. It is further submitted that the over payment as made to the applicants, by granting, the benefit of FR-22 (I)(a)(1) has to be recovered from them.

The learned Counsel for the Petitioners submits at the very outset that the case of the Petitioners is covered under judgment dated 09.12.2009 rendered by a learned Single Judge of this Court in CWP (T) No. 11135 of 2008, Ravinder Kumar v. State of H.P. and Ors.., text whereof is as under:

The pay of the Petitioner was revised/enhanced vide order dated 23.5.2003 (Annexure A-1). However, the same was withdrawn vide Annexure A-2 dated 14.10.2003. Admittedly the Petitioner has not been heard before the issuance of Annexure A-2. He has been visited with civil and evil consequences. His pay has been reduced. The Petitioner has neither misled nor played any fraud upon the Respondents at the time of granting him revised/enhanced pay. A conscious decision had been taken by the Respondent-State to grant revised/enhanced pay to its employees.

Moreover, the learned Counsel submits that on the basis of impugned order, recoveries are likely to be effected from the salaries of the Petitioner.

Their Lordships of the Hon''ble Supreme Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer:

That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favor of making the amended provisions of FR. 22-C applicable to the Appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the Appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post.

This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was No. reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:

...the fixation of pay under Fundamental Rule 22C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake.

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 Vs. State of Haryana and Others, , Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, ; Union of India (UOI) and Another Vs. M. Bhaskar and Others, ; V. Gangaram Vs. Regional Joint Director and others, ; Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, ; Purshottam Lal Das and Others Vs. The State of Bihar and Others, ; Punjab National Bank and Others Vs. Manjeet Singh and Another, ; and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. .

Undoubtedly, the excess amount that has been paid to the Appellants - teachers was not because of any misrepresentation or fraud on their part and the Appellants also had No. knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the Appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the Appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the Appellants-teachers, we are of the view that No. recovery of the amount that has been paid in excess to the Appellants-teachers should be made.

Learned Counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that No. recovery of the excess amount be made from the Appellant-teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.

Consequently, in view of the definitive law laid down by their Lordships of the Hon''ble Supreme Court, order dated 14.10.2003 (Annexure A-2) is quashed and set aside. The Respondents are restrained from making any recoveries from the Petitioner. However, liberty is reserved to the Respondents to proceed with the matter in accordance with law.

The petition stands disposed of. No. costs.

In view of the above, if on facts the case of the Petitioners is covered under the judgment dated 09.12.2009 referred to hereinabove in CWP (T) No. 11135 of 2008 and the same has attained finality and has been implemented and they are similarly situate, they shall also be treated similarly without any discrimination and benefit of the said judgment shall be extended to them within three months from the date of production of copy of this judgment by the Petitioner before the Respondents/competent authority, after affording an opportunity of being heard to them/their authorized representative, if so desired.

The petition is disposed of in the above terms, so also pending application(s), if any.