Allahabad High Court
Brijendra Kumar Tripathi And 12 ... vs State Of U.P. Thru ... on 8 March, 2019
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 17
Case :- SERVICE SINGLE No. - 30794 of 2017
Petitioner :- Brijendra Kumar Tripathi And 12 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Finance Lko. & Ors.
Counsel for Petitioner :- Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C.
With
Case :- SERVICE SINGLE No. - 22175 of 2016
Petitioner :- Ahmed Abbas
Respondent :- State Of U.P. Thru Prin.Secy.Finance Deptt.Govt.Of Up & Ors.
Counsel for Petitioner :- Anand Mani Tripathi
Counsel for Respondent :- C.S.C.
With
Case :- SERVICE SINGLE No. - 20327 of 2016
Petitioner :- Sanjay Kumar Shukla & Ors.
Respondent :- State Of U.P. Thru. Prin. Secy. Finance Deptt. & Ors.
Counsel for Petitioner :- Anand Mani Tripathi
Counsel for Respondent :- C.S.C.
With
Case :- SERVICE SINGLE No. - 24638 of 2016
Petitioner :- Rajesh Kumar
Respondent :- State Of U.P. Thru Prin.Secy.Finance Deptt.Govt.Of Up & Ors.
Counsel for Petitioner :- Anand Mani Tripathi
Counsel for Respondent :- C.S.C.
With
Case :- SERVICE SINGLE No. - 6370 of 2018
Petitioner :- Subedar Chaubey & 6 Ors
Respondent :- State Of U.P Thru Prin Secy Finance Lko & Ors
Counsel for Petitioner :- Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C
With
Case :- SERVICE SINGLE No. - 22185 of 2017
Petitioner :- Chet Ram
Respondent :- State Of U.P. Thru Prin.Secy.Finance Deptt.Lucknow & Ors.
Counsel for Petitioner :- Anand Mani Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the petitioners and Sri Pradeep Kumar Singh, leaned Addl. Chief Standing Counsel for the State of U.P.
In all the writ petitions, which are being decided by this common judgment, the nature of issues involved is the same.
The petitioners being aggrieved by the re-fixation of salary and recovery of amount on account of re-fixation of salary have approached this Court by means of Writ Petitions under consideration.
The re-fixation of salary of the petitioners was carried out by the opposite parties, particularly the Director Internal Audit and Accounts, Lucknow, vide orders dated 11.05.2016, 13.06.2016 and 17.10.2017 and on the direction given therein the consequential orders of recovery were passed.
The relevant brief facts, as borne out from the pleadings in the writ petitions are:-
The petitioners were initially appointed on the post of Junior Accounts Clerk in the Rural Development Department/Opposite Party No.3 between 1985 and 1995.
Based on the recommendation of Pay Committee, with respect to the department of petitioners, in which they were initially appointed i.e. Rural Development Department, the State Government issued the Government Order dated 30.09.2003.
Vide Government Order dated 30.09.2003, the post(s) of Junior Account Clerk(s) in department of Rural Development, in which the petitioners were initially appointed, was declared dying cadre with a provision that Junior Accounts Clerk who are getting the pay-scale of the post of Accounts Clerk i.e. Rs.4000-6000/-, shall be re-designated as Assistant Accountant.
Para 2 of the Government Order dated 30.09.2003 provides merger of the post of Accounts Clerk in the pay-scale of Rs.4000-6000/- with the post of Assistant Accountants in the pay-scale of Rs.4000-6000/- and with further provision that no promotion would be made on the post of Accounts Clerk.
After issuance of Government Order dated 30.09.2003, the Government issued Government Order dated 26.04.2006, based on the recommendation of pay committee, whereby the higher pay-scale was provided to Assistant Accountant.
According to Government Order dated 26.04.2006 the Assistant Accountants in the pay-scale of Rs. 4000-6000/- became entitled to the pay-scale of Rs.4500-7000/- w.e.f. 01.04.2001 and the Accountants in pay-scale of Rs.5000-8000/- became entitled to the pay-scale of Rs.5500-9000/-.
It reveals from the Government Order dated 26.04.2006 that earlier Government Order dated 30.09.2003 was duly considered while issuing the Government Order dated 26.04.2006.
The consequential orders were passed by the competent authority and the petitioners were given the pay scale of Rs.4500-7000/- with effect from 01.04.2001. Consequently the pay-scale of the petitioners were revised in view of the recommendations of 5th pay commission and 6th pay commission.
The State Government took a policy decision to compile the posts of Account Cadre in different department of the State and create a separate department/subordinate account cadre for the entire State and for that purposes, the State Government promulgated Rules under the proviso to Article 309 of the Constitution of India known as Uttar Pradesh Government Department Subordinate Accounts Non-Gazetted Service Rules, 2014 (in short "Rules of 2014).
After coming into force of the Rules of 2014 w.e.f. 07.11.2014 the petitioners became the employee of New Department/Subordinate Accounts Cadre and the appointing authority became the appointing authority provided under the Rules of 2014 i.e. Director Internal Audit and Accounts.
At the time of enforcement of Rules of 2014, the petitioners were getting the pay-scale provided to them, in the department of Rural Development, in the light of G.O. dated 30.09.2003 and 26.04.2006.
The pay-scale earlier provided to the petitioners was just and proper as the same was given keeping in view the provisions of G.O. dated 30.09.2003 and 26.04.2006 and re-fixation of pay has wrongly been carried out vide orders dated 11.05.2016, 13.06.2016 and 17.10.2017. Prior to re-fixation and passing of orders impugned, proper opportunity of hearing was not provided. Recovery is unsustainable as opposite parties provided the pay-scale and there was no misrepresentation or fraud by the petitioners for getting the pay-scale provided. The recovery is impermissible in light of judgment of the Hon'ble Apex Court passed in the case of State of Punjab v. Rafiq Masih; (2015) 4 SCC 334. Thus, orders impugned are liable to be interfered and petitioners are entitled to the reliefs sought.
In the counter affidavit of the opposite party No.2, it has been stated that prior to establishment of the Director of Internal Accounts and Audit, the benefits of the A.C.P. had already been provided to the incumbents of accounts cadre by their respective departments. In order to provide the benefits of A.C.P. to the Assistant Accountants, a meeting of screening committee held on 04.12.2015, and while considering the matters of admissibility of the benefits of the A.C.P. a question has arisen that the grant of designation of Assistant Accountant and pay scale of Rs.4500-7000 w.e.f. 30.09.2003 under the provisions of paragraph 1(1) of Government order dated 30.09.2003 to those Junior Accounts Clerk who have been provided the pay scale of Rs.4000-6000 under the time scale arrangement prior to 30.09.2003 will be treated as promotion or up-gradation, as such, it was decided to proceed in the matter after getting necessary clarification/direction from the State Government. In pursuance to the recommendation of the screening committee, vide letter No. Aa.Le.Pa.- 1984/4308/Gra.Vil/margadarshan/2015-16 dated 11.01.2016, the opposite party No.2 sought direction from the State Government and in pursuance thereto, the Finance (Services) Section-1, Finance Department, Government of U.P. issued the letter No. S.E.-66/Dus-16-Aa-9/2015, dated 11.03.2016 on the point of sanction and grant of the benefits "Assured Career Progression" (ACP) to the incumbents of the post of "Junior Account Clerks" (which was declared as Dying Cadre) in the different departments of Government clarifying the position of the Junior Account Clerk vis-a-vis admissibility, sanction and grant of the A.C.P. to them, and issued certain guidelines to the said affect.
The screening committee considered the matter of the grant of further benefits of ACP in accordance with the direction/guidelines as aforesaid and found that in certain cases the ACP has incorrectly been provided to the incumbents in contravention of the aforesaid guidelines as well as Government orders and thereafter, recommended to rectify the incorrect pay fixation in accordance with the paragraph 2(iii) of the Government Order No. Sa-3-278/Dus-7-101(6), dated 07.05.2007 and adjust the excess amount paid to the incumbent on account of incorrect fixation.
In the light of above, the opposite party No.2 passed the orders dated 11.05.2016, 13.06.2016 and 17.10.2017. By the orders dated 11.05.2016, 13.06.2016 and 17.10.2017 the pay of the petitioners were re-fixed and the said orders also provides for recovery / adjustment of the excess amount paid.
The main orders under issue are office orders dated 11.05.2016, 13.06.2016 and 17.10.2017 and other orders under challenge in the writ petitions are consequential orders to the orders dated 11.05.2016, 13.06.2016 and 17.10.2017.
In the above backdrop of the cases, the questions before this Court are that (i) whether the re-fixation carried out by the department vide order dated 11.05.2016, 13.06.2017 and 17.10.2017, without providing the opportunity of hearing to the petitioners, is justified, (ii) whether the pecuniary benefits provided by the Government/Employer can be recovered from the employees and (iii) whether highly belated re-fixation of pay is just.
In the writ petitions, the petitioners have taken the grounds to the effect that the pay-scale provided pursuant to G.O. dated 26.04.2003 was just and proper. Re-fixation has been carried out without any notice and without providing proper opportunity of hearing. The orders of fixation of pay are against the principle of natural justice. In regard to the orders of recovery, the petitioners have stated in the writ petition that prior to passing the orders of recovery, proper opportunity of hearing was not provided to the petitioners and recovery of alleged excess amount is not permissible in view of Law laid down by the Hon'ble Apex Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334.
In brief, counsel for the petitioners submitted that the petitioners were initially appointed on the post of Junior Accounts Clerk and subsequently under the Rules some petitioners were promoted as Accounts Clerk. After completing requisite length of service, the pay scale of Rs.4000-6000 was provided to the petitioners as per G.Os. carried on the grant of pay-scale. The post of Accounts Clerk was merged with the post of Assistant Accountant vide Para-2 of the Government Order dated 30.09.2003 and there was no change in the pay scale of the petitioners but only change was that their nomenclature was changed from the post of Accounts Clerk to the post of Assistant Accountant. Subsequently, the pay scale of Rs.4500-7000 was provided to the petitioners, as provided in the Government Order dated 26.04.2006 (in which the reference of the Government Order dated 30.9.2003 has been made). There was no illegality or irregularity in granting scale of Rs.4500-7000 w.e.f. 1.4.2001to the petitioners.
Counsel for the petitioner further submitted that re-fixation of pay has been carried out by the opposite parties and thereafter, orders of recovery have been issued without providing opportunity of hearing to the petitioner and thus, the action of the opposite parties is hit by principle of natural justice and fair play. The re-fixation of pay is affecting the pay/salary of the petitioners, which has been carried out after lapse of several year, which is not permissible, and as such opportunity of hearing ought to have been given to the petitioners before passing the orders dated 11.05.2016, 13.06.2016 and 17.10.2017 and consequential orders of recovery. There was no misrepresentation or fraud by the petitioners as such, recovery is not permissible. The recovery is also not permissible in view of Law laid down by the Hon'ble Apex Court in the case of Rafiq Masih's case. The opposite parties while re-fixation of pay have ignored the fact that earlier period of service cannot be ignored for grant of benefit of ACP (Assured Career Progression) Scheme.
Per contra, learned Standing Counsel submitted that fixation of pay vide orders dated 11.05.2016, 13.06.2016 and 17.10.2017 is just and proper as is based on the guidelines issued vide letter dated 11.03.2016 by the Government. Further submitted that in the matter of fixation of pay there is no requirement to follow the principles of natural justice. There is no illegality in passing the orders of fixation of pay dated 11.05.2016, 13.06.2016 and 17.10.2017 as well as orders of recovery of excess amount paid to the petitioners.
Considered the pleadings on record and submissions made by the counsel for the parties.
It is settled principle that even administrative order which involve civil consequences must be passed after following the principle of natural justice and providing opportunity of hearing and the orders which have been passed against settled principle and are unsustainable. The basic idea of observing principles of natural justice is to secure justice or to put in another way to prevent miscarriage of justice.
Further any order either passed by court/tribunal or authority, which leads to civil consequences must be passed after giving an opportunity of hearing and the procedure adopted must be just, fair, reasonable, unarbitrary and impartial.
A seven-Judges' Bench of the Hon'ble Apex Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597) has held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 of the Constitution. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic, otherwise they would cease to be reasonable. The procedure prescribed must be just fair and reasonable, even though there is no specific provision in a statute or rules, made thereunder, for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action in-volving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done hut manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of the natural justice.
In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (AIR 1978 SC 851), the Apex Court reiterated the same view.
In the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : (AIR 2005 SC 2090); Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668 : (AIR 2007 SC 2276); and Devdutt v. Union of India, 2008 (3) ESC 433 (SC) : ((2008) 8 SCC 725 : AIR 2008 SC 2513).
In the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another A.I.R. 1975 SC 266; Raghunath Thakur v. State of Bihar and others A.I.R. 1989 SC 620; and Gronsons Pharmaceuticals (P) Ltd. v. State of Uttar Pradesh and others A.I.R. 2001 SC 3707 and the decisions of the Division Bench of this Court in Smt Rajni Chauhan v. State of U.P and others 2010 (6) AWC 5762 (All.) also it has been held that an order which leads to civil consequences cannot be passed without affording an opportunity of hearing and the same must be passed in conformity of principles of natural justice.
On the issue of providing the opportunity of hearing, this Court considered the averments made in the writ petition, counter affidavit as well as main orders under issue dated 11.05.2016, 13.06.2017 and 17.10.2017 as well as consequential orders of recovery of excess amount paid to the petitioners.
It appears from the averments made in the counter affidavit filed in the writ petitions and main orders dated 11.05.2016, 13.06.2016 and 17.10.2017, under issue, as well as consequential order of recovery of excess amount paid to the petitioners that the opposite parties have not provided the opportunity of hearing to the petitioners to place their case/defence in support of their fixation of pay by the erstwhile Rural Development Department and being so as well as keeping in view the facts of the case in hand that the pecuniary benefits earlier provided to the petitioners have been affected and serious pre-judice has been caused to the petitioners by the orders dated 11.05.2016, 13.06.2017 and 17.10.2017 as well as consequential orders of recovery of excess amount paid to the petitioners and the principle that an order which involves civil consequence must be passed after following principles of natural justice and after affording opportunity of hearing, this Court feels that orders dated 11.05.2016, 13.06.2016 and 17.10.2017 are unsustainable being violative to Article 14 of the Constitution of India as have been passed without providing opportunity of hearing to the petitioners and are against the principle of natural justice and fair play and as such, liable to be interfered by this Court.
At this stage, it is to point out that the order dated 11.05.2016 has not been challenged in the writ petitions but the same is on record as Annexure No. CA-3 to the writ petition No. 22175 (SS) of 2016 and the same has been held to be violative to Article 14 of the Constitution of India.
In the case of State of Orissa v. Mamta Mohanty reported in 2011 AIR SCW 1332, in paras 41 and 42, the Hon'ble Apex Court has observed as under:-
"41. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, are filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. There may be certain such orders/circulars which are violative of the mandatory provisions of the Constitution of India. While dealing with such a situation, this Court in Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors., AIR 1997 SC 1446 : (1997 AIR SCW 126) came across with an illegal order passed by the statutory authority violating the provisions of Articles 14 and 16 of the Constitution. This Court simply brushed aside the same without placing any reliance on it observing as under:
"The said order was not challenged in the writ petition as it had not come to the notice of the appellants. It has been filed in this Court along with the counter affidavit..... This order is also deserved to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents......"
42. The whole exercise done by the State authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to."
Considering the aforesaid and in the facts and circumstances of the case, this Court is of the view that this Court can interfere in the order dated 11.05.2016.
On the issue recovery of amount, if fixation has wrongly been carried out by the employer, the Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Rafiz Masih (White Washer) decided on 18.12.2014 subsequently relied upon and clarified in the case of State of Punjab Vs. Jagdev Singh reported in 2017 Volume 14 SCC 267 has held as under :-
"10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:
"In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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." (emphasis supplied).
11 The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.
12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.
13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs."
Admittedly, the petitioners are Class-III employee and the pecuniary benefits were provided to the petitioners by the employer i.e. State Government and in the pleadings, State Government has not mentioned that for getting the pecuniary benefits, the petitioners have misrepresented the department or played fraud with the department. The pecuniary benefits were provided to the petitioners pursuant to G.O. dated 26.04.2006 and orders of recovery of excess amount have been passed in the year 2016-17 i.e. after lapse of about 10 years from providing the pecuniary benefits.
In the facts of the case, the principles settled by the Hon'ble Apex Court in the case of Rafiq Masih would apply. Thus, orders of recovery of excess amount are unsustainable.
In addition to above, the basis of consequential orders of recovery of excess amount are the orders dated 11.05.2016, 13.06.2016 and 17.10.2017 and this Court has already held that the orders dated 11.05.2016, 13.06.2016 and 17.10.2017 are unsustainable for want of providing opportunity of hearing prior to passing the orders and in view of the same as well as in view of maxim "Sublato Fundamento Cadit Opus" (a foundation being removed, the superstructure falls) the impugned orders of recovery of excess amount paid to the petitioners are liable to interfered/set aside/quashed by this Court.
One more aspect of the case, though not pleaded, that whether the re-fixation of pay at belated stage is permissible.
On the above aspect as well as on the validity of fixation of pay by the Rural Development Department, this court is not recording any observation/finding as this Court is interfering in the impugned orders broadly on the ground that orders are in violation of principles of natural justice and Law laid down by the Hon'ble Apex Court and is of the view that matter be remitted to the Authorities.
It would be open for the petitioners to take all the available pleas in support of their case and the competent authority is expected to consider the same with reasons.
In the facts of the case and in view of the law laid down by the Hon'ble Apex Court, as mentioned above, this Court is of the view that no recovery is permissible under the law from the petitioners.
For the reasons and findings recorded hereinabove, the writ petitions are allowed in following terms.
(i) The order(s) dated 11.05.2016, 13.06.2016 and 17.10.2017, whereby the pay of the petitioners has been re-fixed and consequential orders of recovery are hereby quashed.
(ii) The opposite parties are restrained from recovering the amount from the petitioners, which has not been recovered till date.
(iii) Opposite parties are directed to refund the amount, already recovered from the petitioners.
(iv) Opposite parties are directed to re-consider and decide the issue of re-fixation of the pay after affording proper opportunity of hearing to the petitioners.
(v) Till the decision, the petitioners would be entitled to the pay, which they are getting at present.
(vi) Entire exercise be completed within six months from the date of receipt of certified copy of this judgment.
Order Date :- 8.3.2019
Ravi Kant
