Orissa High Court

Bhakta Charan Mishra vs State Of Orissa And Ors on 21 December, 2022

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                    WPC(OAC) No.1106 of 2008

         Bhakta Charan Mishra                  ....             Petitioner
                                                    Mr. J. Rath, Sr. Adv.
                                                              along with
                                                    Mr. D.N. Rath, Adv.
                                    -versus-
         State of Orissa and Ors.           ....     Opposite Parties
                                           Mr. Debasis Mohapatra, SC
                                                 (for S & ME Deptt.)

                  CORAM:
                  DR. JUSTICE S.K. PANIGRAHI

Order                             ORDER
No.                              21.12.2022
05.

        1. This matter is taken up through hybrid arrangement.

        2. In this Writ Petition, the Petitioner has made a prayer to

          quash the order dated 31.03.2008 passed by the

          Opposite Party No.2/Director, Secondary Education,

          Orissa, Bhubaneswar. The petition calls into question

          the action of Opposite Party No.2 in directing for

          recovery of excess amount from the salary of the

          Petitioner as his pay scale was revised erroneously for

          the second time under 1981 ORSP Rules. The Petitioner

          has further prayed for a direction from this Court to the

          Opposite Parties to fix his pay in the senior S.E.S. cadre

          (Headmaster) with effect from 01.01.2008 as per the
                                   // 2 //




       exercise of option suitably in the scale of pay of Rs.5700-

       9900/- and taking into account the last pay drawn by

       him in Junior SES cadre at Rs.8000/- as on 01.01.2008.

I.     Facts

of the case:

3. The Petitioner being a Science Graduate, was appointed

as a Science Teacher by the erstwhile Managing

Committee of Menda High School, in the Sub- Division

of Sonepur, which was earlier in Bolangir District and

now in the district of Sonepur. The school in question

was an aided educational institution within the meaning

of Section 3 (b) of the Orissa Education Act, 1969

(hereinafter referred to as "the Act" for brevity) and was

under the Direct Payment Scheme of the State

Government when the Petitioner was appointed.

4. In the staffing pattern prescribed by the State

Government, the post held by the Petitioner was a

Trained Graduate Post. But, as the Petitioner was an

untrained candidate at the time of appointment, he was

given untrained scale of pay, which was equivalent to

trained intermediate scale of pay. The Petitioner

acquired his B.Ed. qualification in August, 1979 and

thereby he was eligible to draw the Trained Graduate

Scale of Pay, since the Petitioner was appointed against

a Trained Graduate Post.

// 3 //

5. The Petitioner was also extended the Trained Graduate

Scale of pay by the Government with effect from

14.08.1980, though the Petitioner was entitled the same

on the date when he acquired the training qualification.

Therefore, the Petitioner requested the authority to

extend such scale of pay in his favour with effect from

the date he acquired the training qualification.

However, since the request made by the Petitioner for

release of trained graduate scale of pay with effect from

August, 1979 was not approved by the Competent

Authority. Aggrieved thereby, the Petitioner

approached this Court by way of Writ Petition vide

O.J.C. No. 2070 of 1991, which was decided by this

Court in favour of the Petitioner vide order dated

29.07.1991, giving a direction to the Opposite Parties to

release the Trained Graduate Scale of pay in favour of

the Petitioner w.e.f. 18.08.1979 when the Petitioner

acquired such qualification.

6. Accordingly, the Petitioner's pay had been fixed. But,

surprisingly, the Petitioner vide letter No.17747 dated

31.03.2008 was communicated by the Opposite Party

No.2 that the pay of the Petitioner in the Trained

Graduate Scale (Junior SES) has been wrongly fixed and

the Petitioner was paid higher salary than he was // 4 //

entitled to and thereby a direction was issued to refix

the pay of the Petitioner in a lesser scale of pay directing

to recover the excess payment made to the Petitioner

from his salary.

II. Submissions on behalf of the Petitioner:

7. Learned counsel for the Petitioner submitted that prior

to the aforesaid order passed by this Court, since the

Petitioner was continuing as a valid and lawfully

appointed Science Teacher of the school in question and

the appointment of the Petitioner was duly approved by

the Competent Authority, the Petitioner was paid his

salary component under the Direct Payment Scheme, in

accordance with Rule-9 of the Orissa Education

(Recruitment and Conditions of Service of Teachers and

Members of the Staff of Aided Educational Institutions)

Rules, 1974 made under Section 27 of the Act. The

Petitioner was also receiving his salary directly from the

State Government at par with the scale of pay received

by his counter parts in the other Government

establishments. It is pertinent to mention here that when

the Petitioner was so appointed, Pay Revision Scale of

Pay, 1974 was in force. Accordingly, the Petitioner was

paid his salary in the untrained graduate scale of pay,

i.e. @ Rs.320/- per month in the scale of pay of Rs.320-

// 5 //

500/-. The Petitioner's pay was fixed by the Opposite

Party Nos.2 and 3 in the trained graduate scale of pay,

i.e. Rs.400-620 with effect from 14.08.1980.

8. While the Petitioner was so continuing, the scale of pay

extended in favour of the employees of the aided

educational institutions of the Government were revised

from time to time by the State Government in

accordance with different Pay Revision Rules, such as

1981 Pay Revision Rules, 1985 Pay Revision Rules, 1989

Pay Revision Rules and 1998 Pay Revision Rules and

was given with effect from 01.01.1996. The 1981 Pay

Revision Rules, 1985 Pay Revision Rules and 1989 Pay

Revision Rules and the fixations of the pay of the

Petitioner therefore were made prior to the order dated

29.07.1991 passed by this Court in O.J.C. No.2070 of

1991. The pay of the Petitioner was, however, fixed in

accordance with 1981 Pay Revision Rules, which carried

the pay of the Trained Graduate Assistant Teacher, in

the scale of pay of Rs.410-840/-. The Petitioner gave his

option for such pay fixation with effect from 14.08.1981,

although 1981 Pay Revision Rules came into force with

effect from 01.01.1981. Accordingly, the pay of the

Petitioner was fixed in accordance with the option

exercised by the Petitioner at Rs.425/- in the scale of pay // 6 //

of Rs.410-840/- with effect from 14.08.1981. In other

words, the Petitioner continued to receive in the old

scale of pay as per his own option, i.e. in the scale of pay

of Rs.400-620/- till 13.08.1981 and in the scale of pay of

Rs.410-840/- with effect from 14.08.1981. In so far as the

Pay Revision Rules 1985 and 1989 are concerned, the

Petitioner opted to come over to such time scale of pay

with effect from 18.08.1990 vide option dated 14.09.1986

so far as 1985 Pay Revision is concerned and 23.08.1991

so far as 1989 Pay Revision is concerned.

9. It was submitted that such options exercised by the

Petitioner were duly communicated by the Headmaster

of the school to the Competent Authority and,

accordingly, the Inspector of Schools fixed up the pay of

the Petitioner at Rs.425/- in accordance with 1981 Pay

Revision Rules with effect from 14.08.1981, at Rs.1560/-

with effect from 18.08.1990 in accordance with 1985 Pay

Revision Rules and Rs.1750/- with effect from 18.08.1990

in accordance with 1989 Pay Revision Rules and the

Petitioner was, accordingly, receiving his salary. It was

further submitted that such fixation of pay of the

Petitioner were made taking into the fact that the

Petitioner was a Trained Graduate with effect from

14.08.1980.

// 7 //

10.It was also submitted that since this Court had made a

declaration vide the order 29.07.1991 passed in O.J.C.

No.2070 of 1991 that the Petitioner was entitled to get

trained graduate scale of pay with effect from the date

he acquired the training qualification, i.e. 18.08.1979 and

the Opposite Parties had to extend such benefit to the

Petitioner with effect from 18.08.1979. Accordingly, the

pay of the Petitioner should have been fixed suitably in

accordance with the subsequent Pay Revision Rules, in

which the pay of the Petitioner has been fixed taking the

Petitioner as a Trained Graduate Teacher with effect

from 14.08.1980 instead of 18.08.1979. The Petitioner had

opted to come over to the Revised Scale of pay of 1981

Pay Revision Rules with effect from 14.08.1981 taking

into consideration the fact that the Petitioner was

granted Trained Graduate Scale of Pay by the

Government with effect from 14.08.1980. The Petitioner's

pay in accordance with the Trained Graduate Scale of

Pay as fixed in 1981 Pay Revision is Rs.410-15-425-20-

465-25-540-EB-25-590-30-680-EB-30-770-35 -840/- and to

be fixed with effect from 14.08.1981. The next increment

of the Petitioner was Rs.15/- and the Petitioner ought to

have been given the benefit of the increment in the

month of August 1981 by raising his pay from Rs.410/-

// 8 //

to Rs.425/-. Therefore, on coming to 1981 Pay Revision

Rules, the Petitioner ought to have been put on Rs.445/-

on 18.08.1981, considering the fact that the Petitioner

acquired the B.Ed. qualification on 18.08.1979 in

accordance with the order of this Court vide

Annexure-1.

11. In fact, the Opposite Party No.3 has rightly fixed up the

pay of the Petitioner at Rs.445/ on 18.08.1981. However,

a mention has been made in the service book of the

Petitioner that the pay of the Petitioner has been fixed in

the revised pay Rules of 1981 at Rs.425/- on 01.01.1981. It

was contended that taking the fixation of the pay of the

Petitioner from any angle by fixing the pay as on

01.01.1981 or on 18.08.1981, in normal fixation, the pay

of the Petitioner had to be fixed on 18.08.1981 at

Rs.445/-. Therefore, merely because a mention made in

the service book that the pay of the Petitioner has been

fixed on 01.01.1981 in accordance with the Pay Revision

Rules 1981, the pay of the Petitioner could not have been

altered in any manner on 18.08.1981 other than fixing

the same at Rs.445/-per month. Accordingly, the

Petitioner has been drawing his salary in such scale of

pay at Rs.445/- on 18.08.1981 fixing his next increment

on 18.08.1982 at Rs.465/-. The pay of the Petitioner was // 9 //

also suitably fixed at Rs.1560/ under the 1985 Pay

Revision Rules with effect from 18.08.1990 and at

Rs.1750/- under the 1989 Pay Revision Rules with effect

from 18.08.1990 and the pay of the Petitioner was fixed

at Rs.5900/- with effect from 01.01.1996 in the scale of

pay of Rs.5000-150-8000/- in accordance with 1998 Pay

Revision Rules, which came into force with effect from

01.01.1996. The pay of the Petitioner was further fixed in

accordance with 1998 Pay Revision Rules pursuant to

the advancement scale of pay at Rs.6200/- with effect

from 01.01.1996 by fixing the next increment of the

Petitioner with effect from 01.01.1997.

12.It was further submitted that while the Petitioner was so

continuing as an Assistant Trained Graduate Teacher

under the Junior Subordinate Education Service (SES)

Cadre, the school was taken over by the State

Government as a Government institution with effect

from 07.06.1994 and the Petitioner was also promoted to

the Senior SES Cadre vide office order No.37935 dated

06.08.2007 by the Opposite Party No.2. The scale of pay

prescribed for the post of Senior SES Cadre

(Headmaster) was Rs.5700-9900. Therefore, the

Petitioner was entitled to have his fixation of pay in the

Senior SES Cadre, to which the Petitioner has been // 10 //

promoted considering the scale of pay last drawn by

him in the Junior SES Cadre. The Petitioner, therefore,

gave his option on 11.09.2007, on being promoted to the

Senior SES Cadre to come over to the promotional scale

of pay with effect from 01.01.2008, on the date of accrual

of his next increment in the lower post. It was further

submitted that the Petitioner was granted increment by

the Opposite Party No.3 on 01.01.2008 by raising his

scale of pay from Rs.7850/- to Rs.8000/- on 01.01.2008.

While the matter stood thus, the pay of the Petitioner

was to be fixed in the post of Senior SES Cadre

(Headmaster) with effect from 01.09.2007, since the

Petitioner joined as the Headmaster on 30.08.2007. But,

surprisingly the Petitioner was communicated a letter

by the Opposite Party No.2 bearing No.17747 dated

31.03.2008 vide Memo No.5172 dated 03.05.2008 of the

Inspector of School, Bolangir Circle indicating therein

that the pay of the Petitioner in the Trained Graduate

Scale (Junior SES) has been wrongly fixed and the

Petitioner was paid higher salary than he was entitled to

and thereby a direction was issued to refix the pay of the

Petitioner in a lesser scale of pay directing to recover the

excess payment made to the Petitioner from his salary.

He further submitted that that the communication made // 11 //

by Opposite Party Nos.2 and 3 to the Petitioner vide

Annexure-9 does not stand to scrutiny in view of the

fact that the pay of the Petitioner was fixed in

accordance with the Pay Revision Rules and as well as

the option exercised by the Petitioner in its proper

prospective and the so called refixation made in

Annexure-9 was without any notice and without asking

the Petitioner in this regard. Therefore, such unilateral

fixation of pay of the Petitioner by the Opposite Party

Nos.2 and 3 vide Annexure-9 is a nullity and needs to be

quashed.

13.It was further submitted that all the pay fixations made

in favour of the Petitioner were duly approved by the

Opposite Party No.3 and also approved by the Audit

Department of the Opposite Party No.2. At no point of

time, any objection was raised either by Opposite Party

No. 2 or Opposite Party No.3 pertaining to fixation of

the pay of the Petitioner. The fixation of pay of the

Petitioner by taking the petitioner's entitlement in the

Trained Graduate Scale of pay, as directed by this Court

with effect from 18.08.1979 and in accordance with the

option exercised by the Petitioner for each scale of pay

was verified and found correct by all concerned.

Therefore, while fixing the pay of the Petitioner in the // 12 //

Senior SES Cadre, objection raised by the Opposite Party

No.2 after 27 years of receipt of the salary by the

Petitioner, not only appears to be malafide one, but also

meant to cause harassment to the Petitioner at the fag

end of his service career. Hence, such order passed by

the Opposite Party No.2 is in contravention with the

service Rules is liable to be quashed. The option

exercised by the Petitioner was duly accepted by the

authorities and the pay has been fixed in accordance

with the Rule 74 of the Orissa Service Code. A right has

accrued in favour of the Petitioner and, therefore, any

order passed by the Opposite Party No.2 affecting the

right of the Petitioner needed a show cause as the

Petitioner is the affected party. By this impugned

exercise, the Petitioner will be losing more than Rs.

1200/- per month from the date such order was passed

and also a substantial amount is going to be recovered

from the salary of the Petitioner for such incorrect and

wrong order passed by the Opposite Party No.2. It was,

therefore, submitted that the pay of the Petitioner is to

be fixed with effect from 01.01.2008 in the Senior SES

Cadre, i.e. in the scale of pay of Rs.5700-9900/- suitably

as on 01.01.2008 considering the last pay drawn by the // 13 //

Petitioner at Rs.8000/- per month in the Junior SES

Cadre on that date.

14. The Petitioner seeks to quash the order dated

31.03.2008 passed by the Opposite Party No.2/Director,

Secondary Education, Orissa, Bhubaneswar with a

direction to the Opposite Parties to fix the pay of the

Petitioner in the Senior SES Cadre (Headmaster) with

effect from 01.01.2008 as per the option exercised by the

Petitioner suitably in the scale of pay of Rs.5700-9900/

taking into account the last pay drawn by the Petitioner

in the Junior SES Cadre at Rs.8000/- as on 01.01.2008.

III. Submissions on behalf of the Opposite Party No.3:

15. Learned Standing Counsel for the Department of School

and Mass Education submitted that the Petitioner has

filed the present Writ Petition with a prayer to quash the

order dated 31.03.2008 passed by the Opposite Party

No.2/Director, Secondary Education, Orissa,

Bhubaneswar vide Annexure-9, wherein the Director,

Secondary Education has put the scale of pay of the

Petitioner to recast as he was found to have been

allowed the date of next increment with effect from

01.08.1981 instead of 01.01.1982 due to allowance of

Trained Graduate scale of pay for the second time in his // 14 //

favour with effect from 18.08.1979 vide Inspector of

School office order No.69 dated 04.01.1992.

16. He further submitted that the Managing Committee of

Menda High School appointed the Petitioner as an Asst.

teacher on 12.11.1974. At the time of his appointment,

the school was an aided school. At the time of

appointment the Petitioner did not possess any training

qualification and he subsequently acquired his training

qualification i.e. B.Ed. on 18.08.1979. The Petitioner was

allowed Trained Graduate scale of pay, i.e. Rs.400-620/

with effect from 14.08.1980 vide order No.10326 dated

03.09.1980 of the Inspector of Schools, Bolangir pursuant

to G.O. No.35635/EYS dated 20.08.1980.

17. It was further submitted that earlier the Petitioner had

approached this Court seeking a direction to the

Opposite Parties to give him Trained Graduate scale of

pay with effect from the date of acquisition of B.Ed.

qualification i.e. 18.08.1979 vide O.J.C. No.2070 of 1991.

He further made a prayer therein that he should be

treated as Trained Graduate teacher with effect from the

date of his appointment to the post of Science teacher for

the purpose of determining his seniority inter se via-a-

vis other teacher for placement in the common cadre.

This Court vide order dated 29.07.1991 directed the // 15 //

Opposite Parties to give the Petitioner Trained Graduate

scale of pay with effect from 18.8.1979 i.e., the date of

acquisition of training qualification. Pursuant to order

dated 29.07.1991 of this Court, the Petitioner was

allowed Trained Graduate scale of pay with effect from

18.08.1979 i.e. the date of passing of B.Ed. examination,

vide order No.69 dated 04.11.1992 of the Inspector of

Schools, Bolangir, wherein it was mentioned that the

Petitioner is entitled to the next periodical increment on

completion of one year.

18. He further submitted that the Department was pleased

to allow revised scale of pay to the employees of aided

High schools under O.R.S.P. Rules-1981 with effect from

01.01.1981 vide G.O. No.13233/EYS dated 08.04.1982. As

per para-9(1) of the said G.O. the option under the

proviso to rule-8 shall be exercised in writing in the

form appended (Annexure-C) hereto so as to reach the

concerned authority mentioned below in sub-rule (2)

within a period of two months from the date of issue of

this Resolution. As per Sub-rule-2, the option shall be

intimated by the employees of Non-Government

Colleges, High Schools and M.E. Schools to the Director

of Public Instruction (HE), concerned circle Inspector

and District Inspector of Schools respectively. It is // 16 //

further mentioned that option once exercised shall be

final and it shall not be altered on any account.

19. It was further submitted that at para-11 of ORSP Rules,

1981 it has been prescribed that where the pay has been

fixed at the minimum of revised scale or at the stage of

the revised scale which is equal to the existing scale, his

next increment shall be granted on completion of one

year from the date of which it so fixed.However, where

the pay is fixed in revised scale at the stage next below

the pay in respect of existing scale with an increment at

that stage, the next increment shall be granted on the

anniversary of last increment in the existing scale of pay.

20. Learned Standing Counsel for the Department of School

and Mass Education further contended that in the

instant case the pay of the Petitioner was fixed for the

first time under ORSP Rule 1981 on 14.8.1981 under

Annexure-3 series, but inadvertently taking into

consideration the option exercised by the Petitioner on

12.08.1981 under Annexure-2 series i.e. much before the

extension of benefit under ORSP Rules, 1981 to the

teachers of aided schools vide G.O. No.13233/EYS dated

08.04.1982. He further contended that the above said

G.O. came into force on 08.04.1982 and the option was

exercised by the Petitioner on 12.08.1981 which was // 17 //

much prior to publication of the above said G.O. and as

per the said G.O. the option should have been exercised

by the Petitioner within two months from the date of

publication of G.O. In view of such fact, the said option

exercised by the Petitioner is nothing but the nullity and

the same should not have been taken into consideration.

But inadvertently the said option was considered and

the pay of the Petitioner was wrongly fixed at the scale

of pay as per Annexure-3 series.

21. He further submitted that after allowing the Trained

Graduate scale of pay to the Petitioner from 18.08.1979,

the scale of pay to be fixed at Rs.425/- on 01.01.1981

under ORSP Rules,1981 with next date of increment on

18.08.1981 was not correct as per the procedures

prescribed in the said Rules relating to sanction of

increment.

22. It was also contended that the Petitioner was promoted

to the rank of Senior S.E.S. grade in the scale of pay

Rs.5700-200-9900/- vide order No.37935 dated 06.08.2007

of the Director, Secondary Education, Orissa and he

joined in the rank of Senior S.E.S, Headmaster, on

30.08.2007. Accordingly, necessary proposal for fixation

of pay in favour of the Petitioner in Senor S.E.S. grade

has been submitted to the Director, Secondary // 18 //

Education, Orissa, according to the option exercised by

the Petitioner under Annexure-7. In view of the facts

narrated above, considering the option exercised by the

Petitioner on 12.08.1981 i.e. much prior to publication of

G.O. dated 08.04.1982 and the same option being the

nullity, the Director, Secondary Education, Orissa has

rightly passed the order under Annexure-9 recasting the

scale of pay of the Petitioner. Therefore, this Writ

Petition being devoid of any merit is liable to be

dismissed.

III. Court's reasoning and orders:

23.In the present case, when the Petitioner was appointed,

when Pay Revision Scale of Pay, 1974 was in force and

accordingly, the Petitioner was paid his salary in the

untrained graduate scale of pay, i.e. @ Rs.320/- per

month in the scale of pay of Rs.320-500/-. The

Petitioner's pay was fixed by the Opposite Party Nos.2

and 3 in the trained graduate scale of pay, i.e. Rs.400-620

at Rs.410 with effect from 14.08.1980. However, the

Petitioner approached this Court vide O.J.C. No. 2070 of

1991 seeking fixation of graduate scale of pay in his

favour with effect from 18.08.1979 as he had obtained

the training qualification from said date.

// 19 //

24.This Court vide order dated 29.07.1991 directed the

Opposite Parties to give the Petitioner Trained Graduate

scale of pay with effect from 18.8.1979 i.e., from the date

of acquiring training qualification. Pursuant to order

dated 29.07.1991 of this Court, the Petitioner was

allowed Trained Graduate scale of pay with effect from

18.08.1979 i.e. the date of passing of B.Ed. examination,

vide order No.69 dated 04.11.1992 of the Inspector of

Schools, Bolangir, wherein it was mentioned that the

Petitioner is entitled to the next periodical increment on

completion of one year. Therefore, the Petitioner was

entitled to periodical increment on August 1980, August

1981 and so on.

25.While the matter stood, the Government revised the

scale of pay of the employees of aided High schools

under O.R.S.P. Rules-1981 with effect from 01.01.1981

vide G.O. No.13233/EYS dated 08.04.1982. As per para-

9(1) of the said G.O. the option under the proviso to

rule-8 shall be exercised in writing in the form

appended (Annexure-C) thereto so as to reach the

concerned authority mentioned below in sub-rule (2)

within a period of two months from the date of issue of

this Resolution. As per Sub-rule-2, the option shall be

intimated by the employees of Non-Government // 20 //

Colleges, High Schools and M.E. Schools to the Director

of Public Instruction (HE), concerned circle Inspector

and District Inspector of Schools respectively. The

option once exercised shall be final and it shall not be

altered on any account. Further, at para-11 of ORSP

Rules, 1981 it has been prescribed that in cases where

the pay has been fixed at the minimum of revised scale

or at the stage of the revised scale which is equal to the

existing scale, his next increment shall be granted on

completion of one year from the date of which it was so

fixed. Where the pay is fixed in revised scale at the stage

next below the pay in respect of existing scale with an

increment at that stage, the next increment shall be

granted on the anniversary of last increment in the

existing scale of pay.

26.Accordingly, the pay of the Petitioner was revised in the

scale of Rs.410-840 at Rs.425/- with effect from

14.08.1981 in accordance with the 1981 ORSP Rules.

Subsequently, the Opposite Parties revised the pay of

the Petitioner at Rs.445/- with effect from 18.08.1981 but,

a mention was made in the service book of the Petitioner

that the pay of the Petitioner has been fixed in

accordance with the revised pay Rules of 1981 at

Rs.425/- with effect from 01.01.1981. It has been // 21 //

contended by the Opposite Parties that since O.R.S.P.

Rules-1981 came into effect from 01.01.1981 vide G.O.

No.13233/EYS dated 08.04.1982, the option for coming

under such rules could have only been exercised after

08.04.1982, within a period of two months. However, the

pay of the Petitioner was fixed for the first time under

ORSP Rules 1981 on 14.08.1981. Taking into

consideration the option exercised by the Petitioner on

12.08.1981 i.e. much before the extension of benefit

under ORSP Rules, 1981 to the teachers of aided schools.

Therefore, the Opposite Parties are of the view that the

Petitioner's pay has been revised twice under the 1981

ORSP Rules, the first one with effect from 01.01.1981 and

the second with effect from 01.08.1981. This revision was

alleged to have been done in a wrongful manner as the

same is contrary to the guidelines prescribed in Para-11

of vide G.O. No.13233/EYS dated 08.04.1982.

27.However, this Court is of the opinion that even though

the 1981 ORSP Rules had not been extended to the

Petitioner in the year 1981, considering the resolution

was issued on 08.04.1982 and any cause of action

pertaining to the said Rules would have arisen after

08.04.1982, the Petitioner would have still been entitled

to the pay at Rs.445 per month with effect from // 22 //

18.08.1981. Since the Petitioner was extended Trained

Graduate scale of pay at Rs.410/- with effect from

14.08.1980 and he would've been eligible for next

revision in the Trained Graduate Scale of pay after

completion of one year i.e. on 14.08.1981. Therefore, the

Petitioner would have been entitled to revision at

Rs.425/- under the Trained Graduate scale of pay with

effect from 14.08.1981, even if the applicability of 1981

ORSP Rules were to be ousted.

28.Further, the decision of this Court in O.J.C. No. 2070 of

1991, whereby, the Petitioner was allowed to draw

Trained Graduate Scale of Pay with effect from

18.08.1979 i.e., the date of acquiring qualification, had

not been complied and therefore, the Petitioner's pay

was revised yet again at Rs.445/- with effect from

18.08.1981. The only error crept into the revision of pay

scale of the Petitioner was that the option under 1981

ORSP Rules was exercised before the resolution. The

Petitioner's pay scale was revised in accordance with

1981 ORSP Rules on the basis of option exercised on

12.08.1981 when the said resolution had not even been

issued. However, such an error cannot be attributed to

the Petitioner as there was no misrepresentation or

fraud on his part. In fact, it was a result of mechanical // 23 //

action on the part of the Opposite Parties as the option

exercised by the Petitioner were duly accepted by the

authorities and the pay was fixed in accordance with

Rule 74 of the Orissa Service Code. Moreover, no

illegality on the part of the Petitioner has been alleged

by the Opposite Parties nor have they objected the

revision of pay of the Petitioner.

29. Since the Resolution dated 08.04.1982 was not in force

on the day the Petitioner exercised his option under

1981 ORSP Rules, it was incumbent upon the Opposite

Party No.2 & 3 to issue clarificatory order regarding the

same and the entire confusion could have been avoided.

However, the Opposite Parties sat over the matter and

the Petitioner was allowed such revision. Subsequently,

vide order dated 31.03.2008, the Opposite Parties issued

a communication to the Petitioner that the scale of pay

of the Petitioner in the Trained Graduate Scale (Junior

SES) had been wrongly fixed and the Petitioner was

paid higher salary than he was entitled to. A direction

was issued to refix the pay of the Petitioner in a lesser

scale of pay and the excess payment sanctioned to the

Petitioner was directed to be recovered from his salary.

The Opposite Parties raised this claim after a period of

27 years at the fag end of Petitioner's service career and // 24 //

the order of recovery of excess amount was directed

unilaterally without any show cause notice which

affronts the principles of natural justice.

30. The Apex Court has dealt with such an issue in Syed

Abdul Qadir v. State of Bihar1, wherein in paragraph 58

the following observation has been recorded:

"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess."

31.The Supreme Court in its judgment in Syed Abdul Qadir

(supra) recognized 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 unauthorized payment

is detected within a short period of time, it would be

open for the employer to recover the same. Conversely,

(2009) 3 SCC 475 // 25 //

if the payment had been made for a long duration of

time, it would be iniquitous to make any recovery.

Interference is that 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. Based on the above

consideration, the Supreme Court iterated 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.

// 26 //

32.In Shyam Babu Verma v. Union of India2, the Supreme

Court observed as under:

"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330- 480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330- 560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."

33.In State of Punjab v. Rafiq Masih3, the Supreme Court

observed:

"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:

(1994) 2 SCC 521

(2015) 4 SCC 334 // 27 //

(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."

34.Even if it were to be assumed that the Petitioner was

extended the revision of pay scale under 1981 ORSP

Rules for the second time, a belated claim/order of

recovery after 27 years is not only arbitrary, iniquitous

but also violative of Article 14 of the Constitution of

India. Moreover, neither was any sort of fraud or

misrepresentation alleged against the Petitioner, nor has

any material or evidence been brought on record to

substantiate such allegations. As a matter of fact, the

options exercised by the Petitioner was scrutinized, // 28 //

verified, and duly approved by the Opposite Party No.3

and the Audit Department of the Opposite Party No.2.