Dr. Tribhuwan Singh vs Deputy Director Of Education, ...
2017 Latest Caselaw 2691 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 17 							A.F.R.
 

 
Case :- WRIT - A No. - 65654 of 2010
 
Petitioner :- Dr. Tribhuwan Singh
 
Respondent :- Deputy Director Of Education, (Madhyamik) And Others
 
Counsel for Petitioner :- V. Singh
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. The petitioner is a retired Principal of a recognized and aided institution namely Bhartiya Shiksha Mandir Inter College, Varanasi (for short "the institution"). He has instituted this writ proceeding for issuance of a writ of certiorari quashing the order passed by respondent no. 1-Deputy Director of Education (Madhyamik) Vth Region, Varanasi, whereby he has ordered for deduction of Rs. 2,57,709/- from the terminal benefit of the petitioner and has also fixed the petitioner's pension which has adversely entered his pension also. He has further prayed that the amount of Rs. 2,57,709/- which has been deducted from his terminal benefit be returned to him with 10% interest from 01.07.2009 to till the date of his retirement.

2. The essential facts are that the institution is recognized, aided and governed under the provisions of U.P. Intermediate Education Act, 1921. The Government has enlisted it for the financial aid. The affairs of the institution are conducted and managed by a Committee of Management. The Services of the teaching and non-teaching staffs are governed under the provisions of the Uttar Pradesh Intermediate Education Act, 1921.

3. The petitioner was initially appointed as Assistant Teacher on 08.08.1972 in Shri Gandhi Vidyalaya Inter College, Kacchawan, Mirzapur and continued in the said college upto 10.02.1977. On 11.02.1977, he was appointed as Lecturer in Hindi in Rashtriya Inter College, Sherpur Narayanpur, Mirzapur.

4. In 1984, the Secondary Education Service Commission issued an advertisement calling the applications for the post of Principal in various institutions including Shri Krishna Vidyapeeth Uchchatar Madyamik vidyalaya, Chiraiyakot, Azamgarh. The petitioner made an application pursuant to the said advertisement and he was selected to the post of Principal. His name was recommended for the office of the Principal in Shri Krishna Vidyapeeth Uchchatar Madyamik Vidyalaya, Chiraiyakot, Azamgarh where he joined on 25.01.1985.

5. It is stated that he continued in the said institution as Principal. Later, he was transferred from Shri Krishna Vidyapeeth Uchchatar Madyamik Vidyalaya, Chiraiyakot, Azamgarh to Bhartiya Shiksha Mandir Inter College, Varanasi. While he was working on the post of Principal in Shri Krishna Vidyapeeth Uchchatar Madyamik Vidyalaya, Chiraiyakot, Azamgarh, he was getting his fixed salary of selection grade of Lecturer. The said fixation was made in terms of the Government Order, wherein, it is provided that 10% Lecturer on the basis of their seniority will get selection grade. Since the petitioner was the senior most, hence he was given the selection grade on 04.03.1978 and after enforcement of new pay scale from 01.07.1979 his pay was fixed as Rs. 1,000/- as at that time, there was no provision for the increment.

6. On 25.01.1985 at the time of his appointment on the post of Principal, the petitioner was getting fixed salary of Rs. 1000/-, in his previous institution, thus, his salary was fixed in Principal's grade Rs. 770/- to 1600/- at Rs. 1010/-

7. It is stated that in terms of Government Orders dated 07.05.2007 and 28.01.1985, he was given his first increment of Prinsipal's grade on 01.07.1985 and it was continued till 1998.

8. The petitioner has averred that petitioner was getting salary of Rs. 2975/- on 01.01.1995 and he was given one increment on 01.07.1995 then his salary became Rs. 3050/-. After enforcement of new pay scale from 01.01.1996, his salary was fixed at Rs. 3125/-. He was given his first increment on 01.07.1996 and his salary was Rs. 3200/-.

9. It is stated that the petitioner was given State Award in the year 2004, hence he was given two years extension, hence he retired on 30.06.2009 at the age of 64 years.

10. Since, the petitioner was getting Rs. 1,000/- per month in his earlier institution on the post of Lecturer in Rashtriya Inter College, Mirzapur, where he continued till 24.01.1984, his salary was fixed at Rs. 10,10/- in the Principal's Grade Rs. 770/- to 1600/-. The said fixation was made on 25.01.1985. The petitioner continued to draw his salary in terms of the said Government Order upto his retirement.

11. After his retirement, the Committee of Management forwarded his retirement papers to the office of District Inspector of Schools. When the petitioner's terminal benefits were not paid, the petitioner has preferred Writ -A No. 59434 of 2009 before this Court. The Writ petition was disposed of vide order dated 09.11.2009 by issuing a direction upon the District Inspector of Schools for taking appropriate decision within six weeks and releasing the pension of the petitioner.

12. In compliance thereof, the District Inspector of Schools has found that the petitioner's pay fixation made in the year 1985 was not correct as the increment was given to the petitioner six months prior to his entitlement. Hence an order for recovery of excess amount Rs. 2,57,709/-, paid to him from 1985 up to his retirement has been issued. Consequent upon, his pension has also been reduced accordingly. No other ground has been mentioned in the impugned order.

13. A counter affidavit has been filed. A new fact has been mentioned in the counter affidavit that the petitioner has made the cuttings in his service record and due to the said cuttings, the increment was granted six months earlier. The said statement of the fact has been made in para no. 5 of the counter affidavit. In reply thereto, in para 5 of the rejoinder affidavit, the said allegation has been denied.

14. Learned counsel for the petitioner submits that the impugned order has been passed without giving any opportunity to the petitioner. He further submits that the petitioner was given the increment on 01.07.1985 in terms of Government Order dated 28.01.1985. Now for the first time in counter affidavit vague allegation of cutting have been made against the petitioner, although in the impugned order there is no mention of any such allegation. The petitioner in paragraph no. 26 to the petition has averred that no opportunity was given to the petitioner. The said paragraph has not been denied in the counter affidavit and an evasive reply has been made. In addition to above, a perusal of the impugned order also reveals that no opportunity has been furnished to the petitioner.

15. Learned Standing Counsel has drawn the attention of the Court on para no. 5 to the counter affidavit and has submitted that the revised fixation of the pension has already been done.

16. I have heard the learned counsel for the parties and perused the material available on record.

17. The petitioner is a retired Principal who has completed his 36 years of satisfactory service. After his retirement, it appears that on the basis of audit objection the impugned order has been passed, wherein, there is no allegation of misrepresentation or fraud. For the first time in the counter affidavit in para no. 5, the allegation has been made against the petitioner regarding manipulation in the records but no such ground is mentioned in the impugned order. Moreover from the various communications, which are on the record such as letter of the Deputy Director to District Inspector of Schools dated 19.01.2010 (Annexure No. 11 to the Writ petition), his another letters dated 17.05.2010, 18.05.2010, 27.01.2010, it transpires that there is no allegation of misrepresentation or fraud against the petitioner.

18. For the first time in their proceedings the allegations have been made against the petitioner without disclosing any material. From the record it also appears that the petitioner was paid his provisional pension after 14 months of his retirement when he moved a contempt petition.

19. From the perusal of the impugned order, it is evident that the said allegation has not been even referred by the authority concerned. It is trite that reasons cannot be supplied by affidavits, if no such reasons are recorded in the impugned order.

20. Reference may be made to the judgment of Supreme court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, wherein it has been held that reasons cannot be supplied by way of the affidavits. The relevant para is extracted herein below :-

"8. ...when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out...."

21. In the present case, there is no allegation of any misrepresentation or fraud against the petitioner in the impugned order, hence, the averment made in the counter affidavit which has been vehemently denied by the petitioner in the rejoinder affidavit, cannot be taken into account. There is no dispute that the petitioner had completed the requisite length of service as Lecturer and in terms of the said Government Order, 10% Lecturers are entitled for the selection grade.

22. The only dispute was in respect of the date of grant of the first increment which according to the petitioner, he was entitled for the first increment from 01.07.1985. The record reveals that proceeding against petitioner has been initiated on the basis of State audit objection.

23. The State Government has issued a number of Government Orders and circulars, the reference of which is mentioned in Government Order dated 07.05.2007 (Annesure No. 2 to the Writ Petition), wherein detailed guidelines and procedure for audit department has been issued in respect of detection of erroneous pay fixation. It is emphasized therein that the objections for erroneous pay fixation shall be made in same year of wrong fixation, if any.

(emphasis supplied)

24. It is also provided that the wrong fixation of pay should be brought to the notice of the concerned employee immediately and after furnishing opportunity to him necessary correction and recovery should be made.

25. The government Order dated 07.05.2007 provides a detailed procedure to be adopted in the matter of rectification of error in pay fixation of a retired employee. The relevant part of the Government Order reads as under :-

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27. As mentioned above, the objection in respect of the erroneous pay fixation shall be made in the same year and there should not be any inordinate delay. In the present case the petitioner's pay fixation was made in the year 1985 and his first increment of Principal's grade was sanctioned on 1.7.1985 and he continued till 1998. The impugned order has been issued in the year 2010 after his retirement on 30.6.2009.

28. In the impugned order or in the counter affidavit, no reason has been recorded for the said inordinate delay. For the first time an allegation of fraud has been made against the petitioner without referring any material on the record.

29. The petitioner was given a State award for his excellent service in the year 2004. Against the said teacher the allegation has been made in the counter affidavit without any justifiable ground. As noticed above, in the impugned order there is no reference of any fraud. The said fact has been noted in the preceding paragraphs hence in absence of any justifiable reason for undertaking the exercise to recover the alleged excess amount at this distance of time in my opinion his arbitrary and violative of Article 14 of the Constitution of India. In absence of any valid ground to initiate the present proceeding against the petitioner, no useful purpose would be served to remit the matter to the authority concern to re-open the proceeding after the petitioner has retired.

30. The impugned order is completely contrary to the Government Order dated 7.5.2007 wherein it is provided that any action on the audit objection must be raised within the same year.

31. The Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (Whitewasher), JT 2015 (1) SC 95, wherein the Court has culled out the following principles in the matter of excess amount made to the employee. Relevant paragraph of the judgement is reproduced here-under:

"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."

32. Having due regard to the facts that the petitioner was not given any opportunity before passing the said order and the recovery which has been ordered, is against the law laid down by the Supreme Court. The impugned order dated 01.09.2010 is set aside. The matter is remitted back to the respondent no. 1-Deputy Director of Education to reconsider the matter of the petitioner in the light of observations made herein above. It is made clear that the matter remanded on limited ground about the fixation of the pension of the petitioner which shall be done by the respondent no. 1 after furnishing opportunity to the petitioner within four months from the date of communication of this order.

33. As regards the recovery against the petitioner is concerned, no recovery shall be made in view of the fact that he has retired and has 30 years satisfactory service. His case is squarely covered under the law laid down by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (Whitewasher)(supra).

34. The respondents are directed to refund Rs. 2,57,709/- to the petitioner within three months from the date of communication of this order.

35. With the aforesaid observation, the writ petition is disposed of.

Order Date :- 26.7.2017

sailesh