Khalid Hussain vs The State Of Jharkhand
2021 Latest Caselaw 229 Jhar

                                 1                      W.P.(S) No. 3309 of 2017




       IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 3309 of 2017

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1.Khalid Hussain, son of late Manjoor Ahmad, residing at H.No.250, Behind Shiv Mandir, Barinagar, PO and PS Telco, Town Jamshedpur, District Singhbhum East, PIN 831004 (Jharkhand)

2.Shamsuddin, son of late Md. Khaimuddin, residing at H. No.275, Sharma Pot, Barinagar, PO and PS Telco, Town Jamshedpur, District-Singhbhum East PIN 831004 (Jharkhand)

3.Imran Raza, son of late Shaikh Jumman, residing at Barinagar, Near Sabri Chowk, PO and PS Telco, Town Jamshedpur, District Singhbhum East PIN 831004 (Jamshedpur)

4.Khustar Jahan, daughter of late Anwar Azam, residing at H.No.24, Road No.19, Igrah Colony, Opposite J.K.S. College, Azadnagar, PO and PS Mango, Town Jamshedpur, District Singhbhum East, PIN 831020 (Jharkhand)

5.Nasir Hussain, son of late Ali Haider, residing at A Road, H.No.22, Barinagar, PO and PS Telco, Town Jamshedpur, District Singhbhum East, PIN 831004 (Jharkhand) ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Secretary, Higher and Technical Education Department, Government of Jharkhand, Project Bhawan, Dhurwa, PO Dhurwa, PS Jagarnathpur, District Ranchi (Jharkhand)

3.Director, Primary Education, School Education and Literacy Development Department, MDI Building, PO Dhurwa, PS Jagarnathpur, District Ranchi (Jharkhand)

4.Regional Deputy Director of Education, Kolhan Division, Chaibasa, PO and PS Chaibasa, District West Singhbhum (Jharkhand)

5.District Superintendent of Education, East Singhbhum, Jamshedpur, PO and PS Sakchi, Town Jamshedpur, District Singhbhum East (Jharkhand)

6.Regional Education Officer, Jamshedpur, PO and PS Sakchi, Town Jamshedpur, District Singhbhum East (Jharkhand) ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. A.K. Das, Advocate For Resp.-State :- Mr. Munna Lal Yadav, Advocate

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6/18.01.2021 Heard Mr. A.K. Das, the learned counsel for the petitioners

and Mr. Munna Lal Yadav, the learned counsel appearing on behalf of the

respondent State.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioners have preferred this writ petition for

quashing the order dated 05.05.2016 whereby the District

Superintendent of Education, Jamshedpur was directed to recover the

arrears of salary paid to the petitioners for the period 07.03.1994 to

13.09.1995.

4. The petitioners have been appointed in Telco Urdu Middle

School, Jamshedpur which is a Government aided minority school, on the

vacant sanctioned post. The approval of their services by the State

Government is there and that is why the petitioners were being paid the

salary from the State Government from the initial date of appointment. In

the year 1994 certain dispute cropped up in the managing committee of

the said school for the removal of the Headmaser of the school and one

fact of the managing committee of the school had put a lock in the said

building and the building was unauthorizedly closed with effect from

07.03.1994. The then Regional Education Officer, Jamshdpur intervened

in the matter and looking into the interest of the teachers, he vide letter

dated 09.03.1994 directed the teachers and Headmaster of the school to

mark their attendance in his office for the said period. The said letter

dated 09.03.1994 is annexed as Annexure-1 to the writ petition. In view

of the said direction, the petitioners marked their attendance in the office

of the Regional Education Officer, Jamshedpur. The school reopened after

13.09.1995. The Regional Education Officer, Jamshedpur vide letter

dated 20.07.1996 had recommended for payment of salary of the

teachers of the said school for the period 07.03.1994 to 13.09.1995, as

contained in Annexure-2. The petitioners repeatedly requested for

payment of the aforesaid recommended amount. The petitioners were

granted senior selection grade on completion of 12 years of service by

order dated 02.03.2005, 12.03.2005 and 05.10.2005, respectively. The

order by the Regional Education Officer, Jamshedpur was issued for

cancellation of grant of senior selection grade to the employees of Telco

Urdu Middle School. The District Superintendent of Education, East

Singhbhum, Jamshedpur directed the said officer to make an enquiry in

this regard. The Regional Education Officer, Jamshedpur vide letter dated

18.10.2006 submitted report the that employees of the said school

including the present petitioners are entitled to receive their salary for

the period 07.03.1994 to 13.09.1995 and thereafter they will also be

entitled to the benefits of senior pay scale. The attendance of the

petitioners were already verfied. Some of the teachers in the meantime

had moved before this Court in C.W.J.C. No.3744 of 2000 seeking release

of the arrears of salary for the period March, 1994 to 13.09.1995. The

said writ petition was dismissed by order dated 16.12.2002. The

Headmaster of the school had separately moved before this Court in

C.W.J.C. No.161 of 2000 which was disposed of in favour of the petitioner

of that case. Thereafter, the District Superintendent of Education,

Jamshedpur directed for release of the salary for the said period vide

letter no.1186 dated 29.05.2007, contained in Annexure-7. The

petitioners were paid the arrears of salary for the period 07.03.1994 to

13.09.1995, however, by letter dated 05.05.2016, the District

Superintendent of Education, East Singhbhum, Jamshdpur directed to

recover the amount of Rs.19,68,951/- which was disbursed to the

teachers of Telco Urdu Middle School, Jamshedpur on the ground of

dismissal of C.W.J.C. No.3744 of 2000. Aggrieved with this, the

petitioners have moved before this Court by way of filing this writ

petition.

5. Mr. A.K. Das, the learned counsel for the petitioners submits

that there is no fraud on the part of the petitioners. The officer

concerned has directed the petitioners to mark the attendance thereafter

the Government at its own has decided to pay the salary in question and

the salary in question has been paid and on the strength of the order of

this Court in C.W.J.C. No.3744 of 2000 the impugned order has been

passed. He submits that the C.W.J.C. No.3744 of 2000 was dismissed on

the ground of delay and laches. He submits that the impugned order has

been passed on 05.05.2016 and thereafter the petitioners immediately

filed the writ petition on 16.06.2017. He submits that the application of

the said judgment has erroneously done by the resondent authorities.

6. Per contra, Mr. Munnal Lal Yadav, the learned counsel

appearing on behalf of the respondent State submits that for that period,

the petitioners have not worked and that is why there is no illegality in

the impugned order. He submits that the petitioner has been paid salary

on the basis of the attendance only without having worked for that

period. He submits that the identical matter being C.W.J.C No.3744 of

2000 was dismissed by this Court and that is why the impugned order

has been issued. He accepts this position that the petitioners have been

paid the salary for the said period as stated in paragraph no.14 of the

counter affidavit.

7. Having heard the learned counsel for the parties, the Court

has gone through the materials on record. It is admitted position that the

Regional Education Officer asked the petitioners to mark their attendance

in his office and pursuant thereto they have marked their attendance.

Annexure -3 series is the document which suggest about grant of senior

selection grade which is dated 12.03.2005. Thus, this order has been

passed in the year 2005 wherein one of the document suggest that the

petitioners are also entitled for the salary and thereafter the enhanced

amount in view of such selection grade meaning thereby the amount in

question was paid much earlier. There is no fault on behalf of the

petitioners for receiving the salary for that period. The petitioners have

not suppressed anything. The Government at its own decided to pay the

salary for the said period and equity demands that such order at this

stage is very harsh which cannot sustain in the eye of law. The recovery

is also said to be after a long period. The Hon'ble Supreme Court in the

case of 'State of Punjab and Others v. Rafiq Masih' reported in (2015) 4

SC 334 has considered the case of 'Syed Abdul Kadir v. State of Bihar' in

paragraph no.12 of the said judgment and in 'Syed Abdul Kadir' case

interpretation has been made by the Supreme Court in paragraph no.13

in case of 'State of Punjab and Others v. Rafiq Masih', which is quoted

hereinbelow:

"13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir case recognised, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous,

or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee."

8. The order of the C.W.J.C. No.3744 of 2000 is not applicable

in the facts and circumstances of the present case. That case was

dismissed by this Court on the ground of delay and laches whereas in the

present case, the impugnd order has been passed in the year 2016 and

thereafter the petitioners have moved before this Court and filed the writ

petition on 16.05.2017.

9. As a cumulative effect of the above discussion, the

impugned order will not sustain in the eye of law.

10. Accordingly, the impugned order dated 05.05.2016 is

quashed. The writ petition stands allowed and disposed of.

11. I.A., if any, also stands disposed of.

( Sanjay Kumar Dwivedi, J) SI/,