State of Jharkhand and Others vs Akshayar Ojha

Pramath Patnaik, J.—The aforesaid Letters Patent Appeal has been filed questioning the legality and propriety of the judgment/order dated 8-1-2013 passed in W.P. (S) No. 3566 of 2003 wherein the learned single Judge has been pleased to allow the writ petition filed by the writ petitioner-respondent herein (hereinafter referred to as the ''writ petitioner''). The facts, as delineated and described in the writ application, in a nutshell, are that:

"The writ petitioner was appointed in the year 1973 against vacant and sanctioned post of ''Mistry'' in the work charged establishment in the district of Chatra. Subsequently, the writ petitioner has been promoted to the post of Pipe-Line Inspector in the year 1981. In the year 1987, the writ petitioner has been temporarily promoted to the post of Correspondence Clerk vide order as contained in Office Order No. 82 dated 15-7-1987 and has also been granted pay-scale of Correspondence Clerk. Thereafter, the writ petitioner was given extension on the above post with pay-scale from time to time by different orders and finally vide Order No. 75 dated 20-6-1989, the writ petitioner''s promotion was extended till further orders. Accordingly, the respondents/appellants utilised the services of the writ petitioner as Correspondence Clerk and also the salaries of that post used to be granted with all increments and revisions. A gradation list of Correspondence Clerk working in Hazaribagh Circle has been prepared by the respondent/appellant No. 4 and circulated vide Memo No. 372 dated 19-4-1990, in which, the writ petitioner''s name appeared at serial No. 28. According to the writ petitioner, persons whose name appears from serial Nos. 31 to 37 in the said gradation list are junior to him and they have been promoted to the post of Correspondence Clerk in regular establishment, while he has been discriminated. Again in the year 1995, a tentative gradation list has been prepared and objections were invited by the persons concerned vide Memo No. 110 dated 11-5-1995, accordingly, the writ petitioner filed his objection regarding his inclusion of name in the cadre of Pipe Line Inspector. Again a gradation list was prepared and circulated vide Memo No. 293 dated 20-6-2001, in which the writ petitioner has been kept in the cadre of Correspondence Clerk. But suddenly, to the utter surprise and consternation of the writ petitioner, impugned memo No. 195 dated 5-3-2003 was issued giving direction for removal of the writ petitioner from the cadre of Correspondence Clerk and for recovery of excess amount, without issuing any show-cause or seeking any explanation from the writ petitioner. The petitioner filed representation before the respondent/appellant No. 4 dated 17-1-2003 for quashing the impugned order, which was rejected vide letter dated 18-6-2003."

In the aforesaid backdrop, the writ petitioner filed the writ petition, being W.P. (S) No. 3566 of 2003, praying therein for quashing the order as contained in memo No. 195 dated 5-3-2003 under the signature of appellant No. 4 as also the order as contained in memo No. 548 dated 18-6-2003 issued under the signature of appellant No. 3, whereby temporary promotion given to the writ petitioner in the year 1987 has been withdrawn and direction has been issued for recovery of excess payment; and also for declaration that temporary promotion given to the writ petitioner vide Office Order No. 82 dated 15-7-1987 and continued till date by subsequent orders of extension has become regular due to long continuance in the said post for about 17 years, which was allowed by order/judgment dated 8-1-2013 by the learned single Judge in W.P. (S) No. 3566 of 2003.

Being aggrieved by the order dated 8-1-2013 passed in W.P. (S) No. 3566 of 2003 passed by the learned single Judge, the appellants-State has preferred the present Letters Patent Appeal.

Heard learned counsel appearing for the appellants-State and perused the record.

Learned counsel for the appellants-State by referring to counter-affidavit filed in the writ application submitted that the writ petitioner was appointed in the year 1973 as Mistry in the work charged establishment in Chatra District and subsequently promoted to the post of Pipeline Inspector. Further in the order, as contained in Annexure 1, it has been stated that although the petitioner was allowed to work as Correspondence Clerk by the order of Superintending Engineer of the concerned circle but he has not been taken in the regular establishment since this arrangement was continued by giving extension from time to time. When it was detected that his name has been included erroneously in the gradation list, the same has been rectified by the order contained at Annexures-5 and 7 by the appellants-State. According to appellants-State, persons named at serial Nos. 31 to 37 of gradation list (Annexure 3) are those who were promoted from Class-IV to Class-III in the work charged department in the year 1981 and there was no occasion to promote him in regular establishment as Clerk. When the gradation list was finalized in the year 1995, no objection was received from him, subsequently on detection of the mistake that the petitioner was in work charged establishment could not be included in the gradation list in regular establishment, impugned orders have been issued. The post of Pipeline Inspector is field staff post and there is no Rule for promotion from work charged to regular establishment for the post of correspondence clerk. Accordingly, the respondents have stated that the petitioner is not entitled to be compared to the post of clerk in Grade-El in regular establishment, since promotion is granted only after passing written test. Lastly, the respondents have submitted that order at Annexure 1 was simply an arrangement and no regular promotion was granted to the writ petitioner to the post of correspondence clerk.

On perusal of the impugned order as contained in Memo No. 195 dated 5-3-2003, Annexure-5, issued by appellant No. 4-Superintending Engineer, Water Supply and Sanitation Circle, Hazaribagh and also the order contained in Annexure-7 in memo No. 548 dated 18.06.2003 issued by the Regional Chief Engineer, Drinking Water and Sanitation Department, Ranchi relating to withdrawal of temporary promotion after lapse of 16 years and for recovery of excess payment, we are of the view that the learned Single Judge has taken correct decision in the matter.

Moreover, it has been held by the Full Bench of this Court in the case of Laxman Prasad Gupta Vs. The State of Jharkhand and Others, (2008) 3 JCR 655 , especially at paragraphs 13, 14 and 15, which are reproduced hereinbelow:

"13. On the basis of the above facts, it is contended by the petitioner''s counsel that before the order of recovery or before adjustment of the amount, if an opportunity had been given to the petitioner, he would have proved through the records that the time bound promotion which was given to him was correct.

Admittedly, no amount/excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence. Admittedly, without giving opportunity to the petitioner to defend his case, a decision has been taken for recovery behind the back mechanically.

The Supreme Court in Sahib Ram''s Case has specifically held that unless the excess amount was paid due to any misrepresentation made by the employee, the amount paid cannot be recovered from the employee. It is also settled law that any order causing prejudice to a person cannot be passed without giving an opportunity of being heard."

On the same issue, it has been held by Hon''ble the Supreme Court in the case of Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, (2007) 207 ELT 3 : (2006) 9 JT 125 : (2006) 10 SCALE 206 : (2006) 11 SCC 709 : (2007) 1 SCC(L&S) 529 : (2006) 7 SCR 58 Supp : (2007) 2 SLJ 8 : (2008) 11 STR 305 , especially at paragraphs 27, 28, 29 and 30, as under:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram Vs. State of Haryana and Others, (1995) 1 JT 24 : (1995) 1 SCC 18 Supp : (1994) 3 SCR 674 Supp : (1995) 1 SLJ 151 ; Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram Vs. Regional Joint Director and others, AIR 1997 SC 2776 : (1997) 5 JT 385 : (1997) 4 SCALE 92 : (1997) 6 SCC 139 : (1997) SCC(L&S) 1652 : (1997) 3 SCR 1043 : (1997) AIRSCW 2754 : (1997) 4 Supreme 446 :

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) 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.

Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.

A faint attempt was made by the learned Additional Solicitor General appearing for the respondents to contend that all such wrong payments could be recovered and at best the pensioners may be entitled to time or installments to avoid hardship. No doubt in Union of India and Others Vs. Smt. Sujatha Vedachalam and Another, AIR 2000 SC 2709 : (2000) 86 FLR 83 : (2000) 6 JT 217 : (2000) 3 SCALE 238 : (2000) 9 SCC 187 : (2000) SCC(L&S) 882 : (2000) AIRSCW 4635 : (2000) AIRSCW 2887 : (2000) 8 Supreme 455 : (2000) 4 Supreme 709 this Court did not bar the recovery of excess pay, but directed recovery in easy installments. The said decision does not lay down a principle that relief from recovery should not be granted in regard to emoluments wrongly paid in excess, or that only relief in such cases is grant of installments. A direction to recover the excess payment in installments or a direction not to recover excess payment, is made as a consequential direction, after the main issue relating to the validity of the order refixing or reducing the pay/allowance/pension is decided. In some cases, the petitioners may merely seek quashing of the order refixing the pay and may not seek any consequential relief. In some cases, the petitioners may make a supplementary prayer seeking installments in regard to refund of the excess payment if the validity of the order refixing the pay is upheld. In some other cases, the petitioners may pray that such excess payments should not be recovered. The grant of consequential relief would, therefore, depend upon the consequential prayer made. If the consequential prayer was not for waiving the excess payment but only for installments, the court would obviously consider only the prayer for installments. If any decision which upholds the refixation of pay/pension does not contain any consequential direction not to recover the excess payment already made or contains a consequential direction to recover the excess payment in installments, it is not thereby laying down any proposition of law but is merely issuing consequential direction in exercise of judicial discretion, depending upon the prayer for consequential relief or absence of prayer for consequential relief as the case may be, and the facts and circumstances of the case. Many a time, the prayer for installments or waiver of recovery of excess is made not in the pleadings but during arguments or when the order is dictated upholding the order revising or refixating the pay/pension. Therefore, the decision in Sujatha Vedachalam will not come in the way of relief being granted to the pensioners in regard to the recovery of excess payments."

Dealing with the same issue, the Hon''ble Apex Court in the case of Purshottam Lal Das and Others Vs. The State of Bihar and Others, (2006) 12 JT 581 : (2006) 10 SCALE 89 : (2006) 11 SCC 492 : (2007) 1 SCC(L&S) 508 : (2006) 7 SCR 51 Supp : (2007) 2 SLJ 68 , held at paragraphs 7, 10 and 11, as under:

"7. So far as the recovery is concerned, in the normal course if the promotion/appointment is void ab initio, a mere fact that the employee had worked in the post concerned for long cannot be a ground for not directing recovery. The cases relied upon by the learned counsel for the State were rendered in a different backdrop. In those cases, the appellants were guilty of producing forged certificates or the appointments had been secured on non-permissible grounds. In that background, this Court held that recovery is permissible. On the contrary, the fact situation of the present case bears some similarity to Sahib Ram Vs. State of Haryana and Others, (1995) 1 JT 24 : (1995) 1 SCC 18 Supp : (1994) 3 SCR 674 Supp : (1995) 1 SLJ 151 , Bihar SEB v. Bijay Bhadur and The State of Karnataka and Another Vs. Mangalore University Non-Teaching Employees Association and Others, AIR 2002 SC 1223 : (2002) 93 FLR 657 : (2002) 2 JT 419 : (2002) LabIC 965 : (2002) 2 LLJ 820 : (2002) 2 SCALE 367 : (2002) 3 SCC 302 : (2002) 2 SCR 121 : (2002) 2 SLJ 403 : (2002) AIRSCW 1010 : (2002) 2 Supreme 252 .

The High Court itself noted that the appellants deserve sympathy as for no fault of theirs, recoveries were directed when admittedly they worked in the promotional posts. But relief was denied on the ground that those who granted (sic) had committed gross irregularities.

While, therefore, not accepting the challenge to the orders of reversion on the peculiar circumstances noticed, we direct that no recovery shall be made from the amounts already paid in respect of the promotional posts. However, no arrears or other financial benefits shall be granted in respect of the period concerned."

It has been held by Hon''ble the Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others, (2009) 1 JT 385 : (2009) 1 SCALE 36 : (2009) 3 SCC 475 : (2009) 1 SCC(L&S) 744 : (2009) 3 SLJ 38 , especially at paragraphs 57, 58, 59, 60 and 61, as under:

"57. 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.

Undoubtedly, the excess amount that has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant 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.

In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22-C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment."

It has been held by Hon''ble the Supreme Court in the case of Paras Nath Singh Vs. State of Bihar and Others, (2009) 121 FLR 934 : (2009) 5 JT 538 : (2009) 6 SCALE 157 : (2009) 6 SCC 314 : (2009) 2 SCC(L&S) 198 : (2009) 6 SCR 791 : (2009) 4 SLR 708 , especially at paragraphs 4 and 5, as under:--

"4. Having heard the learned counsel for the parties and considering the fact that the State authorities had allowed the appellant to work for about 10 years and paid the salary at the enhanced rate, in which the appellant had no role to play except that he had given an undertaking to the authorities that in the event his first time-bound promotion was cancelled, in that case, he would be bound to refund the same.

Having considered the fact that the appellant was only a Class IV employee in the State of Bihar and almost an illiterate person and did not know the implication of giving such undertaking and in the absence of any fraud and misrepresentation attributed to the appellant and the amount being not so excessive, in particular Rs. 1,01,529.50, out of which, certain amount has already been recovered from the salary of the appellant by the State authorities, we are of the view that a lenient view should be taken and the amount already paid by the State authorities to the appellant shall not be recovered. However, whatever amount that has already been recovered, shall not be paid back to the appellant."

In view of the aforesaid decisions, where there is no allegation of any misrepresentation or misconduct committed by the petitioner for getting the temporary promotion in the relevant year, the excess amount, if any, cannot be ordered to be recovered.

After giving our anxious consideration to the factual as well as the legal aspects, the documentary evidences, the decisions rendered by the learned single Judge is legally sustainable, which warrants no interference by this Court. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned single Judge in dismissing the writ petition. We therefore, uphold the decision rendered by the learned single Judge in W.P. (S) No. 3566 of 2003 dated 8th January, 2013.

There is no substance in this Letters Patent Appeal and hence, the same is hereby, dismissed.