Union Territory Of Jammu And ... vs Gh. Hassan Shah & Ors
2023 Latest Caselaw 193 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                            CM No. 739/2023
                            LPA No. 24/2023
                            CM No. 740/2023

                                                  Reserved On: 27th of February, 2023
                                                   Pronounced On: 7th of March, 2023




Union Territory of Jammu and Kashmir & Ors.
                                                               ... Appellant(s)
                           Through: -
               Mr Mohammad Rais-ud-Din Ganai, Dy. AG.

                                    V/s

Gh. Hassan Shah & Ors.
                                                            ... Respondent(s)

Through: -

Mr M. A. Beigh, Advocate.

CORAM:

Hon'ble Mr Justice Rajnesh Oswal, Judge Hon'ble Mr Justice Mohan Lal, Judge (JUDGMENT) (Oswal-J):

CM No. 739/2023:

01. This is an application seeking condonation of delay in filing the appeal against the Judgment dated 5th of April, 2022 passed by the learned Writ Court in WP (C) No. 468/2019 filed by the Writ Petitioner/ Respondent No.1 herein.

02. Notice to the Writ Petitioner/ Respondent No.1 only.

03. Notice accepted by Mr M. A. Beigh, learned Advocate, on behalf of the Writ Petitioner/ Respondent No.1.

04. For the reasons mentioned in the application, coupled with the submissions made at the Bar and with no objection from the other side, the LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

instant application is allowed and the delay in filing the appeal against the aforesaid Judgment dated 5th of April, 2022 is condoned.

05. CM disposed of as above.

LPA No. 24/2023; CM No. 740/2023:

06. The Appellants are aggrieved of Judgment dated 5 th of April, 2022 passed by the learned Writ Court in the Writ Petition filed by the Writ Petitioner/ Respondent No.1 herein, being WP (C) No. 468/2019, whereby the learned Writ Court has quashed the Order dated 18 th of December, 2018 issued by the Appellant No.2 herein; by virtue of which the Order dated 5 th of November, 2002 upgrading the pay scale of the Writ Petitioner/ Respondent No.1 herein to Rs.4000-6000 was rescinded ab initio and post facto sanction was granted for his first step in situ promotion from the pay scale of Rs.950-1500 (Pre-Revised) Grade-II to the pay scale of Rs. 4000- 6000, in higher standard pay scales in terms of SRO 14 of 1996 dated 15 th of January, 1996 w.e.f. 1st December, 2005; and held the Writ Petitioner/ Respondent No.1 herein entitled to all post retiral benefits treating him to have retired in the pay scale of Rs. 4000-6000 (Pre-Revised) which was granted to him in terms of Order dated 5th of November, 2002.

07. The Appellants, in this intra Court appeal, have impugned the aforesaid Judgment dated 5th of April, 2022, inter alia, on the ground that the learned Writ Court has not considered the objections filed by the Appellants in their true and correct perspective. It is stated that the Directorate was not competent to issue the Order dated 5th of November, 2002, as such, the said Order was subsequently rescinded by virtue of Order dated 18th of December, 2018 and post-facto sanction was accorded for the first step in situ promotion of the Writ Petitioner/ Respondent No.1 herein from the pay scale of Rs.950-1500 (Pre-Revised) Grade-II to the pay scale of Rs.4000-6000 in higher standard pay scales in terms of SRO 14 of 1996 dated 15th of January, 1996 w.e.f. 1st of December, 2005. Besides, excess amount, if any drawn, after re-fixation of his pay was directed to be worked out and recovered from the incumbent in tune with the rules.

LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

08. Mr Mohammad Rais-ud-Din Ganai, the learned Deputy Additional Advocate General, representing the Appellants, vehemently argued that the learned Writ Court has fallen in grave error of law by not considering the contentions of the Appellants.

09. Mr M. A. Beigh, the learned Counsel appearing on behalf of the Respondent No.1, while supporting the Judgment passed by the learned Writ Court, submitted that the Appellants could not have ordered any recovery from the Writ Petitioner/ Respondent No.1 herein after his retirement from service, more so, when it is not their case, either before the Writ Court or before this Court, that the Writ Petitioner/ Respondent No.1 herein had, in fact, made any misrepresentation for grant of said benefit.

10. Heard and perused the records.

11. The brief facts of the case are that the Writ Petitioner/ Respondent No.1 herein retired from the service of Appellants on attaining the age of superannuation as Dharat Mahaldar on 31st of May, 2018, after rendering 37 years of service. He was drawing salary in the pay scale of Rs. 4000-6000 granted to him in terms of Order bearing No. DLB/Estt/491 of 2002 dated 5th of November, 2002. After superannuation of the Writ Petitioner/ Respondent No.1 herein, his pension case was forwarded by Appellant No.3 to Respondent No.2 herein. The Respondent No.2 herein raised some objections with regard to the release of grade of Rs.4000-6000 in favour of the Writ Petitioner/ Respondent No.1 herein and returned the case back to the Appellant No.2. Thereafter, the Appellant No.2 issued Order No. DULB/A/2416/1259 of 2018 dated 18th of December, 2018, whereby the Order dated 5th of November, 2002 in respect of grant of pay scale of Rs.4000-6000 to the Writ Petitioner/ Respondent No.1 herein was rescinded and the Appellant No.3 herein was directed to recover the excess amount drawn by the Writ Petitioner/ Respondent No.1 herein from his gratuity, leave salary, etc. As soon as the Writ Petitioner/ Respondent No.1 herein came to know about the aforesaid position, he, immediately, approached the Appellant No.2 with the request not to give effect to the LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

Order dated 18th of December, 2018 as the same was issued after the Writ Petitioner/ Respondent No.1 herein retired in the month of May, 2018. Since, the Appellants did not consider the said request of the Writ Petitioner/ Respondent No.1 herein, he was constrained to file a Writ Petition challenging the Order dated 18th of December, 2018 and also prayed for the issuance of direction to the Appellants and Respondent Nos. 2 and 3 to fix his pension case on the basis of last pay drawn by him in the grade of Rs.4000-6000 in terms of Order dated 5th of November, 2002 and further to release all other consequential benefits in the form of leave salary, gratuity, etc., in his favour, including the withheld amount of Rs.2,45,088/-.

12. In the Writ Petition, it was contended by the Writ Petitioner/ Respondent No.1 herein that he was appointed in the Appellant-Department as a Daily Wager way back in the year 1981 and was, subsequently, on 4th of February, 1982, regularized on the post of Dharat Mahaldar carrying the pay scale of Rs.345-465 (Pre-Revised), which was further upgraded to the pay scale of 750-940 (Pre-Revised). Thereafter, the aforesaid post was further upgraded as Dharat Mahaldar, Grade-I carrying the pay scale of Rs.775-1025 (Pre-Revised). Again, the post of Dharat Mahaldar, Grade I was upgraded to Dharat Mahaldar, Grade-II with pay scale of Rs.950-1500. In terms of Order No. DLB/Estt/447 of 1996 dated 14th of November, 1996, the Writ Petitioner/ Respondent No.1 was placed in the upgraded pay scale of Rs.950-1500 (Pre-Revised), whereafter the Writ Petitioner and his other 17 colleagues were upgraded to the pay scale of Rs.4000-6000 in terms of Order No. DLB/Estt/491 of 2002 dated 5th of November, 2002 (wrongly mentioned as 5th of November, 2001). It was further stated that the Writ Petitioner/ Respondent No.1 herein, accordingly, retired from service upon reaching the age of superannuation on 31st of May, 2018 and on the said date, he was drawing salary in the grade of Rs.4000-6000. It was urged before the Writ Court that the Order impugned has been passed at the back of the Writ Petitioner/ Respondent No.1 herein and that once the Writ Petitioner/ Respondent No.1 herein had attained the age of superannuation, no order of recovery could have been passed against him.

LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

13. The Appellants filed their Response before the Writ Court, stating therein that the Order dated 5th of November, 2002 was cancelled after proper examination and the undue benefit granted in favour of the Writ Petitioner/ Respondent No.1 herein was ordered to be recovered in light of the audit observations and Government instructions.

14. The learned Writ Court, vide Judgment dated 5th of April, 2022, allowed the aforesaid Writ Petition, thereby setting aside the Order dated 18th of December, 2018 issued by the Appellant No.2 herein and held the Writ Petitioner/ Respondent No.1 herein entitled to all post retiral benefits treating him to have retired in the pay scale of Rs.4000-6000 (Pre- Revised) which was granted to him in terms of Order dated 5 th of November, 2002.

15. It is, thus an admitted fact that the Writ Petitioner/ Respondent No.1 herein retired from the service after attaining the age of superannuation on 31st of May, 2018. The Writ Petitioner/ Respondent No.1 herein has retired as Dharat Mahaldar which, as per the learned Deputy Advocate General appearing for the Appellants, is equivalent to Class-III post of Junior Assistant. The issue that arises for the consideration of this Court is as to whether the Appellants can effect recovery from the Writ Petitioner/ Respondent No.1 herein on account of having granted/ drawn higher pay grade erroneously, that too after he retired from service. It is pertinent to mention here that it is not the case of the Appellants that the Writ Petitioner/ Respondent No.1 herein has either misrepresented or committed fraud with the Appellants that prompted the Appellants to grant him the higher pay grade.

16. Law on the subject is well settled.

17. In 'Sahib Ram v. State of Haryana; 1995 Supp (1) SCC 18', the Hon'ble Supreme Court restrained recovery of payment of excess amount paid on account of wrong interpretation of order and it was held as under:

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

18. The Apex Court, again, in 'Syed Abdul Qadir v. State of Bihar & Others; 2009 (3) SCC 475', has held as under:

"28. 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.

29. .......... 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.

30. 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 appellants - 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 appellants-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 LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

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."

19. In 'State of Punjab v. Rafiq Masih; (2015) 4 SCC 334', the Apex Court has held as under:

"10. In view of the afore-stated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.

.....

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) Recovery from the employees belonging to Class III and Class IV 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, LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

and has been paid accordingly, even though he should have rightfully been required to work against an inferior post; and

(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'."

20. In its latest decision rendered in case titled 'Thomas Daniel v. State of Kerala & Others', bearing Civil Appeal No. 7115 of 2010; decided on 2nd of May, 2022, while reiterating its earlier pronouncements, the Hon'ble Apex Court has observed as under:

"Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General."

21. Thus, from the above position of law laid down by the Apex Court, it is evident that if the benefits have been derived by the employee by mis-representation or fraud, then the employer can order the recovery of the same from the employee concerned. It is also evident that the Apex Court has held that, even in cases not specifically covered by its Judgment, if the Court comes to the conclusion that recovery from the employee would be iniquitous or harsh or arbitrary, the same can be stopped by the Court. Accordingly, having regard to the above enunciated legal position and in view of the facts and circumstances of the case in hand, this Court is of the considered opinion that no recovery can be ordered from the Writ Petitioner/ Respondent No.1 herein by the Appellants.

22. Further, it is evident that the Writ Petitioner/ Respondent No.1 herein was granted the benefit of first upgradation after a lapse of more than 12 years as he was regularized on 4th of February, 1982. The post of Dharat Mahaldar was further upgraded to Dharat Mahaldar Grade-I and, subsequently, to Dharat Mahaldar, Grade II and, accordingly, the Writ LPA No. 24/2023 CM Nos. 739/2023; & 740/2023

Petitioner/ Respondent No.1 herein, along with 17 other similarly situated employees, were placed on the post of Dharat Mahaldar, Grade II carrying the pay scale of Rs.4000-6000 in terms of Order dated 5th of November, 2002 and it is not forthcoming from the record as to how the Order dated 5 th of November, 2002 was not in consonance with law so as to prompt the Appellant No.2 to rescind the same by virtue of Order dated 18th of December, 2018, more particularly when the said exercise was undertaken to remove stagnation. The Appellants, in their response before the Writ Court, have simply stated that the case of the Writ Petitioner/ Respondent No.1 herein was considered and the unauthorized upgradation Order dated 5th of November, 2022 was cancelled vide Order dated 18th of December, 2018. The Appellants, by virtue of Order dated 18th of December, 2018, have, however, granted post-facto sanction for first step in-situ promotion to the Writ Petitioner/ Respondent No.1 herein in the pay scale of Rs.4000- 6000, the pay scale wherein he retired from service on reaching the age of superannuation on 31st of May, 2018.

23. In light of the above facts and circumstances, it would be highly iniquitous and harsh to effect recovery of excess amount from the Writ Petitioner/ Respondent No.1 herein, when he has already retired from service on reaching the age of superannuation. Viewed thus, we do not find any reason whatsoever to show indulgence to interfere with the Judgment passed by the learned Writ Court. The present appeal is, thus, found to be without any merit. The same is, accordingly, dismissed, along with the connected CM(s).

24. There shall, however, be no order as to costs.

                             (Mohan Lal)                     (Rajnesh Oswal)
                               Judge                              Judge
SRINAGAR
March 7th, 2023
"TAHIR"
           i. Whether the Judgment is reportable?                Yes/ No.