Manoj Kumar Gautam vs The State Of Jharkhand
2021 Latest Caselaw 2905 Jhar

                         1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P.(S) No.2199 of 2010
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1. Manoj Kumar Gautam

2. Baliram Lal Karan

3. Shib Kumar Jha

4. Arun Kumar Bhagat

5. Ram Dhani Prasad Singh

6. Kishori Nandan Mishra

7. Samrendra Jha

8. Ashutosh Thakur

9. Raj Kishore Mishra 10 Shiv Bacchan Singh

11.Nand Kishore Sharma

12. Bharat Prasad Singh

13. Shiv Kumar Choudhary

14. Shiv Nath Choudhary

15. Balendra Kumar Sinha ... ... Petitioners Versus

1. The State of Jharkhand

2. The Secretary, Finance Department, Government of Jharkhand, Ranchi.

3. The Deputy Secretary, Finance Department, Government of Jharkhand, Ranchi.

4. The Additional Finance Commissioner-cum-Director, Provident Fund Directorate, Finance Department, Jharkhand, Ranchi.

5. The Deputy Director, Provident Fund Directorate, Jharkhand, Ranchi.

6. The Assistant Director, Provident Fund Directorate, Jharkhand, Ranchi.

7. The District Provident Fund Officer, East Singhbhum, Jamshedpur.

8. The District Provident Fund Officer, Simdega.

9. The District Provident Fund Officer, Ranchi.

10. The District Provident Fund Officer, Dumka.

11. The District Provident Fund Officer, Pakur.

12. The District Provident Fund Officer, Godda.

13. The District Provident Fund Officer, Sahebganj.

14. The District Provident Fund Officer, Koderma.

                                              ...     ... Respondents
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        CORAM         : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                        -------
        For the Petitioners             :Mr. Samavesh Bhanj Deo, Adv.
        For the Res.State               :Mr. S. Garapati, S.C.-III
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                      Through:- Video Conferencing
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12/16.08.2021         Heard learned counsel for the parties through

        V.C.

2. The instant writ application has been preferred

by the petitioners praying therein for quashing the Memo

No. 605 dated 17.03.2010 (Annexure-7) whereby the pay

scale of the petitioners fixed at Rs.5000-8000/- in

pursuance to grant of first ACP benefit has been reduced to

Rs.4500-7000/- without any show-cause notice or any

opportunity of hearing and it was also directed that the

excess payment shall be recovered in one installment.

3. Mr. Samavesh Bhanj Deo, learned counsel for

the petitioners assailed the impugned order primarily on

the ground that the recovery cannot be made from the

petitioners as there was no misrepresentation or fraud on

the part of the petitioners in getting the enhanced pay

scale.

Learned counsel further submits that vide office

order dated 22.08.2006; the benefit of first ACP was

granted to these petitioners in the pay scale of Rs.4500-

7000/-. He further draws attention of this Court towards

the circular dated 18.12.2007 (Annexure-5); whereby an

amendment was incorporated in the earlier circular dated

14.08.2002. Further, vide office order dated 18.12.2007 the

pay scale given in pursuance to Annexure-2 was revised to

Rs.5000-8000/-.

However, all of a sudden without any show-

cause notice and without any opportunity of hearing the

pay scale of the petitioners which was fixed at Rs.5000-

8000/- in pursuance to grant of first ACP has been reduced

Rs.4500-7000/-. He contended that the impugned order is

not sustainable in the eye of law, inasmuch as, no

opportunity of hearing was given to these petitioners and

further the excess payment has also been recovered in one

installment.

He lastly submits that the clerks who are

working in other department i.e. in the office of Civil

Surgeon, Godda, in the office of Regional Education Deputy

Director, Santhal Pargana, Dumka, are kept in the pay

scale of Rs.5000-8000/- in pursuance to the first ACP and

Rs.5500-9000/- in pursuance to the second ACP, as such

the petitioners are also entitled for the second ACP from the

respective dates at Rs.5500-9000/-. He reiterated that in

no case, recovery can be made by the respondent

authorities as no misrepresentation or fraud has been

committed on part of these petitioners.

4. Mr. Sreenu Garapati, learned counsel for the

respondent-State submits that it is apparent from the

provision as laid down in para-2 (3) of the Resolution

issued under Memo No.5207 dated 14.08.2002 of Finance

Department, Government of Jharkhand, the pay scale of

Rs.4500-7000/- and Rs.5000-8000/- is admissible for the

first and second ACP respectively to the clerical staff of GPF

Directorate and District Provident Fund Offices and since

there was a discrepancy committed by the respondents;

this mistake was corrected and the first ACP given in the

pay scale of Rs.5000-8000/- was amended to Rs.4500-

7000/-.

He further submits that even in the office order

whereby the pay scale of Rs.5000-8000 was sanctioned for

first ACP it was clearly mentioned that on being found any

discrepancy in future; order will be amended and excess

amount paid will be recovered; as such the recovery which

was made is not against the provision of law and earlier

pay scale was rectified in accordance with para-2(3) of the

resolution memo No.5207 dated 14.08.2002 issued by the

Finance Department.

He lastly submits that the post of the petitioners

are State Cadre post and not Mufassil Cadre post; as such

the mistake which was committed by the department was

rectified by the amendment and pay scale was reduced

from Rs.5000-8000 to Rs.4500-7000/-.

5. Having heard learned counsel for the parties and

after going through the documents available on record and

the averments made in the respective affidavits it is clear

that as per the provision laid down in para-2 (3) of the

resolution issued vide Memo No.5207 dated 14.08.2002 of

the Finance Department, Government of Jharkhand; the

pay scale of Rs.4500-7000/- and Rs.5000-8000/- is

admissible for the first and second ACP respectively to the

clerical staff of GPF Directorate and District Provident Fund

Offices. The contention of the respondent counsel that the

petitioners' post is not mufassil post rather it is State cadre

post has not been denied by the petitioners. It further

appears from record that when the first ACP was given to

these petitioners; it was clearly mentioned that if upon any

discrepancy found in future, the order can be amended and

recovery can be made. Thus, there is no infirmity in the

impugned order.

6. Now, the law is well settled that if a wrong

fixation has been made by the respondent State, the same

can be rectified at any stage. Here the petitioners have not

challenged the notification of the Government. Admittedly,

in the instant case, granting of first ACP at the higher scale

was a mistake committed by the department though the

petitioners were not eligible but since the mistake came

into notice by the competent authority subsequently; it was

corrected. The Hon'ble Apex Court in catena of judgments

has held that mistakes are mistake and that can also be

corrected by following due process of law.

However, so far as recovery of the excess amount

is concerned; from record it transpires that there was no

representation or fraud committed by these petitioners in

procuring the monetary benefit of higher pay scale and

getting the higher pay scale was not at their instance;

rather it was a mistake on the part of the respondents.

Thus, the recovery of the excess amount is bad.

7. Accordingly, the rectification in the Pay Scale of

these petitioners is upheld. However, the recovery which

was already made cannot be sustained in the eye of law. As

stated hereinabove, the respondents can very well rectify

the mistake which they have committed but in any view of

the matter, they cannot recover the amount already paid to

the petitioners.

8. Consequently, the instant writ application is

partly allowed. The impugned order dated 17.03.2010

(Annexure-7) is modified to the extent that part of the order

whereby it has been indicated that recovery of excess

amount shall be made in one installment; is quashed and

set aside. The respondent No.4, in consultant with

respondent No.5, is directed to refund the recovered

amount to all those petitioners from whom recovery has

been made; within a period of three months from the date

of receipt/production of a copy of this order.

9. It is made clear that if the said amount will not

be paid within the aforesaid stipulated period then interest

will accrue on the amount from the date of recovery till the

date of payment @ 6% simple interest per annum.

(Deepak Roshan, J.) Fahim/-