Orissa High Court

Afr vs State Of Odisha And Others on 14 October, 2022

                     ORISSA HIGH COURT: CUTTACK


                       WPC (OAC) NO. 935 OF 2011

         In the matter of an application under Articles 226 and
         227 of the Constitution of India.
                                ---------------

AFR Shantasen Pradhan ..... Petitioner

-Versus-

         State of Odisha and others          .....      Opp. Parties


             For Petitioner   :    Mr. Anil Kumar Behera,
                                   Advocate


             For Opp. Parties :    Mr. S.K. Jena,
                                   Standing Counsel for School &
                                   Mass Education Department.

         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of Judgment : 14.10.2022

DR. B.R. SARANGI, J. The petitioner stating to be working as

Head Master in Senior SES Cadre has filed this writ

petition challenging recovery of excess amount

consequent upon fixation of pay on the basis of revised

option, vide order dated 04.01.2011 passed by opposite

party no.3 under Annexure-4, wherein the petitioner was

directed to deposit the excess amount of Rs.53,940/- in

one installment through treasury challan.

2. The factual matrix of the case, in brief, is that

while the petitioner was working as Head Master in a

Government High School belonging to Senior S.E.S.

Cadre, the Government of Odisha revised the pay of the

Government Servants by introducing Orissa Revised Scale

of Pay Rules, 2008, ("ORSP Rules, 2008" in short) which

had been given effect to from 01.01.2006. On the date of

coming into effect of ORSP Rules, 2008, i.e., as on

01.01.2006, the petitioner was getting the salary in the

pay scale of Rs.5700-9900/-. As per the provisions of

ORSP Rules, 2008, the pay of the petitioner was fixed at

Rs.14330/- with the grade pay of Rs.4200/- vide order

dated 16.01.2009. In the said order, the next increment

was allowed with effect from 01.01.2007 by sanctioning

ACP, since the petitioner had completed 15 years of

service in the grade of Head Master. The petitioner was

allowed Head Master scale of pay with effect from

14.01.1992, when he completed 7 years of service as B.Ed

qualified teacher. Subsequently, as per the order of the

Government dated 08.04.2010, the petitioner re-exercised

his option to come over to the Revised Scale of Pay Rules,

2008 w.e.f 15.01.2007 by retaining the pre-revised scale

of pay till 14.01.2007 and availing TBA scale of pay in

the pre-revised scale. Accordingly, the petitioner was

sanctioned TBA scale of pay of Rs.6500-10,500/- of the

pre-revised scale of pay of Rs.5700-9900/- with effect

from 15.01.2007, as he completed 15 years of service in

the pre-revised scale on 15.01.2007. Taking into account

the TBA scale of pay, the pay of the petitioner was revised

as per ORSP Rules, 2008 and the petitioner was placed in

the revised pay band of Rs.15440/- and Grade Pay of

Rs.4600/- in revised scale of pay of Rs. 9300-34800/-

with effect from 15.01.2007. Taking into account the

revised option and consequential re-fixation of pay, the

opposite parties assessed the excess amount drawn by

the petitioner for the period from 01.01.2006 to

15.01.2007 amounting to Rs.53,940/- and vide order

impugned dated 04.01.2011, the petitioner was directed

to refund the said amount in one installment on the basis

of the undertaking furnished by him. Aggrieved by such

action, the petitioner has approached this Court by filing

the present writ petition.

3. Mr. A.K. Behera, learned counsel appearing for

the petitioner vehemently contended that the benefit of

re-fixation of revised scale for the period from 01.01.2006

to 15.01.2007 was not the outcome of any

misrepresentation or fraud. Rather the petitioner is

entitled to get the same under ORSP Rules, 2008, which

he had received towards salary. To re-exercise the option,

the opportunity was given by the opposite parties and as

a result thereof, the petitioner re-exercised his option

and, accordingly, the pay was fixed as per pay fixation

order dated 26.06.2010. Thereby, if at all any excess

amount has been paid that cannot be recoverable from

the petitioner as it is not an outcome of misrepresentation

of fact by the petitioner.

To substantiate his contention, learned counsel

for the petitioner has relied upon the judgments of the

apex Court in the cases of State of Punjab v. Rafiq

Masih, (2015) 4 SCC 334 and V. Gangaram v. Regional

Joint Director, AIR 1997 SC 2776.

4. On the contrary, Mr. S. Jena, learned Standing

Counsel for School and Mass Education Department

contended that as per the provisions of ORSP Rules,

2008, vide notification made on 24.02.2008, the pay of

the petitioner had been fixed with effect from 01.01.2006

after receipt of the proposal for fixation of pay along with

an undertaking regarding refund of excess payment paid

due to fixation of pay as per ORSP Rules, 2008. Pursuant

to the Government order dated 08.04.2010 since the

petitioner had re-exercised his option to come over to the

revised scale of pay after availing TBA scale of pay in the

pre-revised scale with effect from 15.01.2007, his pay had

been re-fixed on 15.01.2007 after receipt of the recovery

statement showing excess payment paid to him earlier

due to fixation of pay under ORSP Rules, 2008 on

01.01.2006. As such, the petitioner has also furnished an

undertaking on 15.01.2009 to the effect that if any excess

amount is paid that will be recovered from the petitioner.

Therefore, if the mistake committed by the authority has

been detected and subsequently the same has been

directed to be recovered, no illegality or irregularity has

been committed by the authority and, as such, the

petitioner is bound by his undertaking and in terms of

such undertaking, the excess amount so paid, is liable to

be recovered from the petitioner. He also contended that

the principle laid down by the apex Court in Rafiq Masih

(supra) has no application to the present case.

To substantiate his contention, learned

Standing Counsel for School and Mass Education

Department has relied on the judgment of the apex Court

in the case of High Court of Punjab and Haryana v.

Jagdev Singh, (2016) 14 SCC 267.

5. This Court heard Mr. A.K. Behera, learned

Counsel appearing for the petitioner and Mr. S. Jena,

learned Standing Counsel for School & Mass Education

Department, appearing for the opposite parties by hybrid

mode, and perused the records. Pleadings having been

exchanged between the parties, with the consent of

learned Counsel for the parties this writ petition is being

disposed of finally at the stage of admission.

6. The admitted fact is that the petitioner had

exercised his option for grant of revised scale of pay with

effect from 15.01.2007 by retaining the pre-revised scale

of pay till 14.01.2007 and availing TBA scale of pay in the

pre-revised scale. Accordingly, the petitioner was

sanctioned TBA Scale of pay of Rs.6500-10,500/- of the

pre-revised scale of pay of Rs.5700-9900/- with effect

from 15.01.2007, with an undertaking that if any excess

amount is paid the same shall be recovered. When

subsequently it was detected that he is not entitled to get

such benefit, the order under Annexure-4 dated

04.01.2011 was passed for recovery of excess amount of

Rs.53940/- in one installment, in view of the undertaking

furnished by the petitioner on 15.01.2009 vide Annexure-

A/3 to the counter affidavit.

7. It is made clear that the petitioner to whom the

payment was made at the first instance was clearly placed

on notice that excess payment if found to have been

made, the same is required to be refunded. Therefore, in

view of the undertaking furnished, while opting for

revised scale of pay, that he would refund the excess

amount paid, he is bound by such undertaking. The

claim made by the petitioner is that the excess amount

should not be recovered from him and to substantiate the

same, he relied on the judgment of V. Gangaram (supra),

where the apex Court held that if the department by itself

wrongly had given him four increments in that case

recovery of excess payment is not allowed to be made.

But fact of the said case is distinguishable from the

present case. Here, the petitioner has furnished an

undertaking that if any excess amount is paid, that can

be recovered. Thereby, the ratio of V. Gangaram (supra)

will not apply to the present case.

8. So far as Rafiq Masih (supra) is concerned,

the apex Court has laid down the guidelines in

paragraph-12 of the judgment to the following effect;-

"12. 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, summaries the following few situations, wherein recoveries by the employees, 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."

While laying down the aforementioned principles, the

apex Court has taken note of the fact that 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. But fact remains in the

present case when the petitioner has re-exercised his

option and furnished an undertaking and subsequently it

was revealed that excess payment has been made in that

case, he is liable for refund of the amount in view of the

undertaking given by him.

9. Meaning of "undertaking" and effect of such an

undertaking reads as follows:-

Black's Law Dictionary, 5th Edn. defines

"undertaking" in the following words:

"A promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtain some

concession from the court or the opposite party. A promise or security in any form."

Osborn's Concise Law Dictionary, 10th Edn,

defines "undertaking" in the following words:

"A promise, especially a promise in the course of legal proceedings by a party or his counsel, which may be enforced by attachment or otherwise in the same manner as an injunction."

In M. v. Home Office, (1992) 4 All ER 97, the

expression "undertaking" has been dealt with in the

following manner:

"If a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood."

Hudson, In re, (1966) 1 All ER 110, the

English Court observed as under:

"An undertaking to the court confers, no personal right or remedy on any other party."

Similar view has also been taken by the apex

Court in Rama Narang (5) v. Ramesh Narang, (2009) 16

SCC 126 : AIR 2007 SC 2029.

10. In Jagdev Singh (supra), the apex Court has

also taken note of the decision in the case of Rafiq Masih

(supra) and in paragraph-11, the apex Court observed as

follows:-

"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."

11. Keeping in view the ratio decided in the case of

Jagdev Singh (supra), there is no doubt that the

petitioner 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 and the petitioner has furnished the

undertaking while opting for the revised pay scale. He is

bound by such undertaking and, as such, the judgment

of the apex Court in Jagdev Singh (supra) is fully

applicable to the present case. Therefore, the direction

given for recovery of the amount on the basis of the

undertaking furnished by the petitioner is well justified.