Madan Prasad Singh vs The State Of Bihar
2021 Latest Caselaw 116 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.12040 of 2019
     ======================================================

Madan Prasad Singh, age - 60 years (approxi.), Gender - Male, son of Late Ramashraya Singh Resident of Village and P.O.- Doiyan, P.S.- Dinara, Dist- Rohtas at present resident of Mohalla- Gaurakshni- Gajaradh, Streat No.1/B, Sasaram, District- Rohtas.

... ... Petitioner Versus

1. The State of Bihar through its Principal Secretary, Water Resources Department, Irrigation Building, Near Bihar Legislative Council, Government of Bihar, Patna.

2. Engineer in Chief, Water Resources Department, Bihar, Patna.

3. Chief Engineer, Irrigation Creation, Water Resources Department, Dehri, Rohtas.

4. Superintending Engineer, Irrigation Circle, Bhabhua.

5. Executive Engineer, Sone High Level Canal Division, Sasaram.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr.Dr. Harendra Nath Ojha, Advocate Mr. Jitendra Kumar, Advocate For the Respondent/s : Mr.Harish Kumar (GP8) ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 13-01-2021

The petitioner in the present case is seeking following

reliefs:

(i) For payment of entire gratuity amount without recovering the excess salary payment amount which was paid by order of competent authority of the department in view of Finance Department Circular No. 6338 dated 16.07.2015 read with another Finance Department Circular No. 3111 dated 25.03.2015.

(ii) For providing cost and compensation if any for not complying the directions passed in the Order dated 27.02.2019 in CWJC No. 13644 of 2016 for Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

treating equal the petitioner as Correspondence Clerk with Accounts Clerk appointed in between 01.05.1980 to 27.09.1999."

2. During pendency of the writ application an

Interlocutory Application being I.A. No. 01 of 2020 has been

filed for adding two more reliefs and the I.A. has been allowed

vide order dated 25.09.2020 to be part and parcel of the writ

application. The reliefs prayed therein are as under:-

"(III) For quashing of the Order dated 11.04.19 passed by the Chief Engineer, Water Resources Department, Dehri to the Superintending Engineer, Irrigation Circle, Bhabhua for Recovery of amount as paid to petitioner by the Department after modification/revision in pay scale as correspondence clerk in term of Finance Department Circular 3111 dated 25.03.2015 read with Circular No. 6338 dated 16.07.15 from the petitioner's Gratuity amount.

(Vide Annexure -1 of this petition).

(IV) For quashing the Finance Department Circular No. 8059 dated 14.09.15 by which modified pay scale of Bhandarpal/Correspondence Clerk working under Work Departments, as provided under earlier Finance Dept. Circular No. 6338 dated 16.07.15, was withdrawn with effect from 16.07.15 and further directed to deduct the amount paid under modified/revised pay scale if any from them.

(Vide Annexure -8 of writ application, which is also attached herewith as Annexure - 2 to this petition)."

3. It is the case of the petitioner that he was

appointed as a Correspondence Clerk on 20.03.1980 in the

Irrigation Department, Government of Bihar. While he was still Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

in service the Department of Finance, Government of Bihar

came out with a Circular contained in Memo No. 3111 dated

25.03.2015 (Annexure '1' to the writ application). By this

Circular a decision was taken that the employees appointed in

the cadre of Accounts Clerk in between 01.05.1980 to

27.09.1999 will be known by a common post known as Sr.

Accounts Clerk and those Accounts Clerk are entitled to get pay

scale of Rs. 730-1080/- with effect from 01.04.1981; Pay Scale

of Rs. 1400-2300/- with effect from 01.01.1986 and Pay Scale

of Rs. 4500-7000/- with effect from 01.01.1996 and then after

01.01.2006 PB+2800/- will be applicable. Paragraph '5' of the

said Circular on which reliance has been placed on behalf of the

petitioner is quoted hereunder for purpose of consideration:-

"lE;d fopkjksijkar dk;Z foHkkxksa ds ys[kk fyfid laoxZ ds osrueku ds laca/k esa fuEufyf[kr fu.kZ; fy;k x;k gS %&

(i) fnukad [email protected]@1980 ls fnukad [email protected]@1999 dh frfFk rd bl laoxZ esa fu;Dr dehZ ,dhd`r inuke& "ojh; ys[kk fyfid" ls vfHkfgr gksaxs A ,sls ys[kk fyfid dks fnukad [email protected]@1981 ds izHkko ls :0 730&[email protected]] fnukad [email protected]@1986 ds izHkko ls :0 1400&[email protected] fnukad [email protected]@1996 ds izHkko ls :0 4500&[email protected] rFkk fnukad [email protected]@2006 ds izHkko ls ih- ch- &1 + [email protected] vuqekU; gksxk A

(ii) fnukad [email protected]@1999 ,oa mlds ckn dh frfFk;ksa esa dk;Z foHkkxksa ds ys[kk fyfid laoxZ esa duh; ys[kk [email protected]; ys[kk [email protected]; fyfid (ys[kk) ds in ij fu;qDr dehZ duh; ys[kk fyfid ds inuke ls vfHkfgr gksaxs rFkk mUgsa fnukad [email protected]@2005 rd :0 4000&[email protected] Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

rFkk fnukad [email protected]@2006 ls ih- ch- 1 + [email protected]& dk osrueku vuqekU; gksxk A ojh; ys[kk fyfid dksfV esa izksUufr ds ckn mudk osrueku 4500&7000 rFkk fnukad 01-01-2006 ds ckn ih- ch- 1+2800 :- vuqekU; gksxk A"

4. It is further case of the petitioner that vide Memo

No. 6338 dated 16.07.2015 the Additional Secretary,

Government of Bihar issued another circular by which

considering the nature of work and responsibility of the post of

Store Keeper (Bhandarpal) and Correspondence Clerks they

were treated at par with the Accounts Clerk under the works

Department and they were conferred with the same benefits

which were applicable to the Accounts Clerks. Memo No. 6338

dated 16.07.2015 has been brought on record as Annexure '2' to

the present writ application and this Court will deal with the

same at an appropriate place.

5. The petitioner states that in terms of the

circulars/letters (Annexure '1' & '2' of the writ application), he

became entitled for the benefits attached to the post of Accounts

Clerk and accordingly those benefits were disbursed to him.

6. After the benefits had already been disbursed to

the petitioner, the respondents came out with a letter as

contained in Memo No. 8059 dated 14.09.2015 (Annexure '8').

By this letter it was informed to the Senior Accounts Officer, Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

Office of the Accountant General, Govt. of Bihar that there had

been several discrepancies in the letter dated 16.07.2015

(Annexure '2' to the writ application), therefore, the benefit

conferred vide letter dated 16.07.2015 are being withdrawn with

effect from the date of issuance of the letter i.e. 16.07.2015.

Annexure '8' further states that if any person has been given

benefit of the earlier letter and the resolution, the same be

recovered from them.

7. It appears that earlier a writ application being

CWJC No. 17796/2015 was filed by some of the similarly

situated persons for quashing of the letter dated 14.09.2015

(Annexure '8' hereof) issued under the signature of the

Secretary (Expenditure), Department of Finance, Government of

Bihar. In the said writ application, learned coordinate Bench of

this Court though refused to quash the impugned notification

but stayed the recovery pursuant thereto. The said writ

application was disposed off directing the State Government to

take a final decision on a fresh application to be filed by the

association or representative of the petitioners before the

Principal Secretary, Finance, Government of Bihar. The order

passed by the learned coordinate Bench in CWJC No.

17796/2015 is Annexure '16' to the rejoinder filed on behalf of Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

the petitioner to the counter affidavit of the State respondents.

8. Being aggrieved by the letter as contained in

Memo No. 8059 dated 14.09.2015 the Bihar State Road and

Building Construction Employees Union (Gope Group) and

some other employees had filed CWJC No. 13644 of 2016. By

order of a learned coordinate Bench all the similar nature of writ

applications were heard together.

9. This petitioner was petitioner no. 17 in the said

writ application. The writ application was filed seeking a

direction to the respondents to confer the same benefits which

were available under the government decision dated 25.03.2015

whereby the Scale of Rs. 4000 - 6000/- was made applicable to

the appointees as Accounts Clerk on compassionate

appointment after 28.09.1999. The fact as noted in the judgment

dated 27.02.2019 passed by the learned coordinate Bench of this

Court (Annexure '10' to the writ application) would disclose

that all the four petitions were considered taking that the

petitioners in those writ applications were the appointees on

compassionate ground as Correspondence Clerk. It is for this

reason Mr. Harish Kumar, learned Government Advocate has

hasten to inform this Court that the petitioner was though not an

appointee on compassionate ground after 28.09.1999, his case Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

has also been considered taking him as similarly situated with

other petitioners because neither the petitioners' counsel nor the

learned counsel representing the State could inform the status of

the petitioner as regards his appointment. The fact remains that

the writ application preferred by the petitioner has been allowed

vide common judgment dated 27.02.2019.

10. It appears that vide judgment dated 27.02.2019

passed in CWJC No. 9633/2016 and it's analogous matters, the

learned coordinate Bench of this Court has held that the order

dated 14.09.2015 as well as order dated 29.03.2016 issued by

the Finance Department are unsustainable in law and those have

been quashed. Petitioners in those writ applications have been

found entitled to the same benefits as have been extended to the

petitioners in the case of Vinit Kumar by the Hon'ble Division

Bench vide judgment dated 11.07.2018 passed in LPA No.

124/2018.

11. The petitioner was due to retire on 31.03.2019. It

is his case that he had received letter as contained in Annexure

'11' to the writ application informing him that his gratuity

amount has been fixed at Rs. 11,87,010.00 in the light of

resolution no. 321 dated 23.05.2017 and resolution no. 3590

dated 24.05.2017 and letter no. 7828 dated 24.10.2018 of the Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

Finance Department and as such 90% of Gratuity amount of Rs.

10,68,309.00 is approved for it's payment. Vide Pension

Payment Order (in short 'PPO') dated 14.02.2019 his pension

amount was fixed.

12. The reason for once again moving this court by

filing the present writ application is that the respondents are not

paying the entire gratuity amount to the petitioner. The Chief

Engineer, Water Resources Department, Dehri has directed the

Superintending Engineer vide letter dated 11.04.2019 to recover

the amount paid to the petitioner pursuant to the letter dated

16.07.2015 (Annexure '8' to the writ application). The letter

dated 11.04.2019 and the letter dated 16.07.2015 are under

challenge in I.A. No. 01/2020. The petitioner is looking for

release of his entire gratuity amount without recovering the

excess payment allegedly made to him prior to withdrawal of

the benefit vide Annexure '8' to the writ application.

13. Learned counsel for the petitioner has pleaded

before this court that the spirit of Annexure '2' is to treat the

persons rendering the service as Correspondence Clerk on equal

footing with the 'Bhandarpal' and the 'Accounts Clerk'. It is his

submission that the petitioner was very much rendering his

service as Correspondence Clerk on the date of issuance of Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

Annexure '2' and he was rightly conferred the benefits which

were being allowed to the Bhandarpals and the Accounts Clerk

who were re-designated as Senior Accounts Clerk.

14. It is submitted that the benefits were provided to

the Correspondence Clerk, therefore all those who were serving

on the date of issuance of the letter as contained in Annexure '2'

were entitled for the benefits as no distinction could have been

drawn between those who were appointed prior to 28.09.1999

and those who were appointed after 28.09.1999. It is also

submitted that there is no rationale behind saying that the

persons who were appointed on compassionate ground would be

entitled for the benefit of the pay scale and other benefits but the

petitioner would not be entitled for the same. Learned counsel

has also submitted that in view of the judgment of the Hon'ble

Supreme Court in the case of State of Punjab & Others Vs.

Rafiq Masih (White Washer) reported in 2015 AIR SCW 501,

the case of the petitioner would be covered under the

exceptional category as the petitioner was holding Class - III

post and at this stage if the recovery is effected against him he

would be deprived of a substantial amount which would have

been otherwise available to the petitioner to take care of him at

the evening of his life.

Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

15. Mr. Harish Kumar, learned counsel representing

the State has opposed the writ application. It is his submission

that Annexure '1' and '2' to the writ application would not be

applicable to the petitioner. Learned counsel has sought to draw

a distinction between the case of the petitioner on the ground

that he is an appointee of March 1980 i.e. the date of the

appointment is 20.03.1980, therefore in terms of paragraph '5'

of Annexure '1' to the writ application, those who were

appointed in the post of Accounts Clerk between 01.05.1980 to

27.09.1999 and thereafter would have been only entitled for the

same. This is the only ground which has been pleaded before

this Court on behalf of the State respondents to defend the

withdrawal of the benefits in respect of the petitioner.

16. Learned counsel has relied upon the judgment of

the Hon'ble Supreme Court in the case of High Court of

Punjab & Harayana Vs. Jagdev Singh reported in (2016) 14

SCC 267, to submit that in the said case the Hon'ble Apex

Court had held inter alia that in the cases where at the time of

disbursement of the amount itself the employee had been served

with a notice that in case such payment is found not payable, the

amount will be recovered from him, the employee would be

liable to refund the amount.

Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

17. This Court wanted to know from learned counsel

representing the State as to whether in the facts of the present

case while making disbursement of the benefits by virtue of

Annexure '2' to the writ application any such prior undertaking

was provided by the petitioner, learned counsel for the petitioner

though attempted to refer Annexure '3' to the writ application

but learned counsel is unable to show that any undertaking was

given to the petitioner prior to disbursement of the benefits in

terms of Annexure '2' to the writ application. Learned counsel

has however submits that the petitioner is not entitle to take the

benefits of Annexure '2' and is liable to refund the amount to

the State.

Consideration

18. Having heard learned counsel for the petitioner

and learned counsel for the State, this Court finds that there are

some admitted facts of this case. In the letter as contained in

Annexure '2' it is mentioned that the State Government has

declared the Bhandarpal (Store Incharge) equal to the Accounts

Clerk cadre. In this regard, the Finance Department's letter no.

6316 dated 06.08.2002 has been referred to. In Annexure '2',

thus, it was declared that the Accounts Clerk/Bhandarpal/

Correspondence Clerk will be governed by paragraph '5' of the Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

resolution no. 3111 dated 25.03.2015 (Annexure '1'). The copy

of the letter (Annexure '2') was marked to the Incharge, Finance

Officer, Department of Finance for necessary action. After

issuance of Annexure '2' the petitioner was made available the

benefits accruing out of the same and he was accordingly paid

the entire benefits. By Annexure '3' bearing letter no. 575, the

District Accounts Officer, Rohtas, Sasaram communicated to the

District Accounts Officer, Rohtas, Sasaram about verification of

the service book and the salary of the petitioner fixed earlier and

mentioned therein the amount so fixed on 01.05.1987 and

01.05.1988 on enhancement. It is in this respect that a mention

has been made that upon verification, if any excess payment has

been made to the employee the same should be adjusted. It is

not the case of the State that upon verification the amount has

been found as excess payment. The dispute has arisen because

of withdrawal of the benefit after payment vide Annexure '8' to

the writ application. The letter talks of only two amounts i.e. Rs.

820/- and Rs. 840/- which were fixed upon enhancement from

Rs. 805/- and Rs. 820/- on 01.05.1987 and 01.05.1988

respectively.

19. On perusal of the office order contained in letter

no. 684 dated 10.08.2015, 685, 686, 687 and 688, all dated Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

10.08.2015, it would that these office orders have been issued

fixing the pay of the petitioner and the same has been done upon

verification of the District Accounts Officer, Rohtas (Sasaram).

In these office orders there is no stipulation that any payment

made to the petitioner by virtue of the fixation of his pay under

these office orders/letters if any excess amount is paid to him,

the same may recovered. There is also no stipulation in these

office orders that if the benefits being allowed to the petitioner

are found to have been wrongly fixed, the same may be

recovered. Fact remains that no undertaking was taken from the

petitioner.

20. It is a matter of record that while clubbing of the

writ petitions for common hearing, the vide order dated

23.11.2016 (Annexure '9') a learned coordinate Bench of this

Court passed an interim order in the following terms:

"All these applications will be placed for admission after the report of the Seventh Pay Commission is placed before the Government. Recovery will be subject to outcome of the writ application. The Court gives absolute freedom to any person including these petitioners or their class of people to present their argument and assert for the highest kind of pay scale which they think they deserve, because of their so called exalted position and responsibility which they hold."

Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

21. On record, with the reply to the counter affidavit

the petitioner has placed before this Court a copy of the letter

dated 07.06.2017 (Annexure '17') issued by the Department of

Finance, Government of Bihar. The contents of the letter are

relevant for purpose of this case inasmuch as it shows that the

State Pay Commission which was constituted by Department of

Finance Resolution No. 9701 dated 22.12.2016 for removing the

discrepancies in respect of the salaries of the State Government

employees has submitted it's recommendation and the same was

placed before the Cabinet in it's meeting held on 16.05.2017 and

23.05.2017. After approval of the recommendations by the

Cabinet the revised pay scale sanctioned for the government

employees were notified by the Department of Finance

Resolution No. 3590 dated 24.05.2017. All the administrative

departments were directed to notify their final decision by

30.06.2017. The relevant part of the letter reads as under:-

ÞjkT; ljdkj ds fu.kZ;kuqlku osru lajpuk ls brj vk;ksx }kjk dh x;h vU; vuq"kalkvksa ij lacaf/kr iz"kklh foHkkxksa }kjk fnukad&30-06-2017 rd vafre fu.kZ; ysdj rRlaca/kh vkns"k fuxZr fd;k tkuk gSA vk;ksx dh vuq"kalk;sa for foHkkx ds osolkbV ij miyC/k gSA lqyHk izlax gsrq vk;ksx dh vuq"kalk dh ,d izfr layXu dh tk jgh gSA vk;ksx dh vkids foHkkx ls lacaf/kr xSj forh; vuq"kalk fuEuor gS& ¼d½ {ks=h; LFkkiukvksa ds fofHkUUk inuke ;Fkk ys[kk fyfid] HkaMkjiky] i=kpkj fyfid] fuEu oxhZ; fyfid ,oa mPp oxhZ; fyfid dk vyx&vyx laoxZ ugha gksxk] vfirq ;s Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

lHkh lkekU; fyfid laoxZ ds fuEu oxhZ; [email protected] oxhZ; fyfid ds uke ls tkus tk;saxsA ys[kk fyfid ej.k"khy laoxZ gksxk rFkk bl ij ubZ fu;qfDr ugha dh tk,xhA fuEu oxhZ; fyfid dh 6 o'kZ dh dkykof/k vFkok fnukad&01-01-16 tks ckn esa gks] dh frfFk ls mPp oxhZ;

fyfid ds in ij izksUufr nh tk,xhA mPp oxhZ; fyfid ls iz/kku fyfid ds in ij izksUufr gsrq fuEu oxhZ; fyfid ,oa mPp oxhZ; fyfid ds inksa ij fcrkbZ x;h dqy vof/k dks vko";d dkykof/k dks ns[krs gq, izksUufr iznku dh tk ldsxhA lacaf/kr foHkkx }kjk izksUufr dk vuqikr 60-40 fu/kkZfjr djrs gq, vuq"kaflr izksUufr dk ykHk vkns"k fuxZr dh frfFk ls fn;k tk ldsxkA izksUufr ds lHkh Lrjksa ds fy, ml in dk osru fu/kkZj.k mlds xzsM is dk izfrLFkkuh is eSfVªDl Lrj fn;k tk ldsxkA ¼pSIVj 3-2½ ¼[k½ vfHk;a=.k lsok esa vuqjf{kr xzsM is :0&7600 dk in ugha FkkA iqujhf{kr osru esa osru Lrj ij 12 dk;Zikyd vfHk;ark ojh; gsrq Lohd`r dj osru Lrj 11 ds 8 o'kZ ds vuqHko izkIr dk;Zikyd vfHk;ark dks bl Lrj ij mUu;u fn;k tk;sxkA ¼pSIVj 3-7½ vr,o vuqjks/k gS fd ljdkj ds fu.kZ;kuqlkj vk;ksx dh mDr vuq"kalk ij fnukad&30-06-2017 rd fu.kZ; ysdj vkns"k fuxZr djus dh d`ik dh tk;Aß

22. It is because of the aforesaid letter the petitioner

has pleaded that now the post of Correspondence Clerk of

Works Department is merged with the Lower Division Clerk

and Upper Division Clerk in the Seventh Pay Revision report

vide Annexure '17'.

23. In the light of the order dated 23.11.2016 of

learned coordinate Bench no recovery was effected. All the writ

applications were placed for consideration and those were

finally decided on 27.02.2019. A copy of the judgment dated Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

27.02.2019 has been placed on record as Annexure '10'. The

judgment of learned coordinate Bench mentions as matter of

fact inter alia as under:-

"The appointees as Correspondence Clerk after 28.9.1999, in terms of pronouncement made by this court in the proceedings arising out of C.W.J.C. No. 9921 of 2017 and LPA No. 1702 of 2017 have been found to be entitled to same pay scale as is being granted to the Account Clerk appointed on compassionate ground after 28.9.1999 and therefore fully covered under resolution of the Finance Department dated 25.03.2015 bearing No. 3111. The decision therefore squarely covers the claims of the petitioners inasmuch as there is no distinction in the claim of the instant petitioners vis-a-vis that of Binit Kumar (supra)."

24. The learned coordinate Bench has held that the

order dated 14.09.2015 is not sustainable and the same has been

quashed. A direction has been issued to the State respondents to

extend the same benefit to the petitioners.

25. Although Mr. Harish Kumar, learned counsel for

the State (G.P. 8) as submitted before this Court that in case of

the petitioner Annexure '1' and '2' would not be applicable and

has taken a stand that in the judgment dated 27.02.2019 the

learned coordinate Bench has clearly mentioned about the

entitled person and they are those who have been appointed Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

after 28.09.1999, this Court would not be impressed by this

argument.

26. In the counter affidavit as well as the

supplementary counter affidavit filed on behalf of the State, a

stand has been taken that the reliefs have been granted to only

those Clerks who were appointed on compassionate ground on

or after 28.09.1999 and because the petitioner has been

appointed on 20.03.1980 as Correspondence Clerk, he would

not be entitled for the benefit.

27. This Court is unable to subscribe the submissions

made on behalf of the State respondents. If it is their stand that

the petitioner would not be covered by the judgment dated

27.02.2019, in the opinion of this Court the same is fit to be

rejected at the outset as it is not only overreaching the judgment

of this Court which has attained finality but is also

contemptuous in nature.

28. Learned counsel for the State has taken a plea that

the distinction between the case of the petitioner and the others

which were placed before a learned coordinate Bench could not

be brought to the notice of the Court, this Court is afraid that

such submission cannot be allowed to be taken in the present

proceeding, on the ground that the State had not been able to Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

take a plea which was available to the State in the earlier

proceeding. This Court would not be sitting in the review

jurisdiction to look into the judgment of the learned coordinate

Bench.

29. On records the situation, thus, writs large. As on

today the order contained in letter no. 8059 dated 14.09.2015

(Annexure '8' to the writ application) has already been set-

aside. The judgment dated 27.02.2019 has attained finality.

30. From the aforementioned discussions it is evident

that the withdrawal of benefit vide Annexure '8' to the writ

application stands nullified by virtue of the judgment dated

27.02.2019 of the learned coordinate Bench of this Court and

now in view of the recommendation of the Seventh Pay

Commission and acceptance of the recommendation by the

Cabinet the post of Accounts Clerk, Bhandarpal,

Correspondence Clerk as also Lower Division Clerk and Upper

Division Clerk are in the same cadre of General Clerk and they

will be known as Lower Division Clerk/Upper Division Clerk.

31. In the Case of Rafiq Masih (supra), the Hon'ble

Supreme Court was dealing with a case of excess/unauthorized

payment made to an employee. The Hon'ble Apex Court found

that all the private respondents in the said case were given Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

monetary benefits which were in excess of their entitlement.

These benefits had been conferred upon them mistakenly by the

concerned competent authority in determining the emoluments

payable to them. The respondent employees were however not

guilty of furnishing any incorrect information and the payment

of the higher amount was not as a result of any

misrepresentation made by them, nor was it on account of any

fraud committed by the employees. In such circumstance, the

Hon'ble Apex Court dealt with the previous case laws on the

subject and ultimately held as under:

"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, summarise the following few situations, wherein recoveries by the employers, 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.

Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

(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."

32. Learned counsel for the State respondents has

relied upon the judgment of the Hon'ble Apex Court in the case

of Jagdev Singh (supra). In the said case, the respondent was

appointed as a Civil Judge (Junior Division) on 16 th July 1987

and was promoted as Additional Civil Judge on 28th August

1997 in the Judicial Service of the State of Punjab. By

notification dated 28th September, 2001 a pay scale of Rs.

10,000 - 325 - 15,200 (Sr, Scale) was allowed under the

Haryana Civil Service (Judicial Branch) and Haryana Superior

Judicial Service Revised Pay Rules 2001. Under the Rules, each

officer was required to submit an undertaking that any excess

which may be found to have been paid will be refunded to the

government either by adjustment against future payments due or

otherwise. The respondent had also furnished an undertaking

and was granted the revised pay scale.

33. In the aforementioned background when the

recovery was sought for from the respondent and the judgment

of the Hon'ble Apex Court in the case of Rafiq Masih (White

Washer) etc. (supra) was sought to be relied upon, under the Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

proposition (ii) the Hon'ble Apex Court distinguished the case

on the ground that 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.

34. It is thus apparent on the face of it that the case of

Jagdev Singh was clearly distinguishable on facts from the case

of Rafiq Masih (supra). In the present case, no such

undertaking was ever sought for from the petitioner and it is not

the case of the State that the petitioner had furnished any

undertaking in this regard.

35. In fact after quashing of the order as contained in

letter dated 14.09.2015 (Annexure '8' to the writ application),

the very basis for seeking recovery has gone. The case of the

petitioner has not been distinguished and in the opinion of this

Court the stand taken by the State respondents saying that those

who were appointed after 28.09.1999 will only be entitled for

the benefit is a kind of misplaced submission. The petitioner has

already been disbursed the benefits accruing to him under

Annexure '2' to the writ application. He has retired from service

on 31.03.2019 and at this stage the recovery sought for by the Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

impugned order which is under challenge in I.A. No. 01/2020 is

not sustainable. The petitioner has not made any

misrepresentation and there is no allegation of playing any fraud

against the petitioner in the matter of deriving the benefits

accruing out of Annexure '2'. It is in fact not a case of excess

payment. The case is one of conferring the same benefit to the

petitioner being a Correspondence Clerk which were allowed to

the Accounts Clerk and the focus of Annexure '2' is on the

nature of the duties which were being performed by the

Accounts Clerk/Bhandarpals and the Correspondence Clerk

which were of similar nature. The recommendation of the

Seventh Pay Revision which has already been accepted by the

State Government vindicated the stand of the petitioner and now

the post of Accounts Clerk/Bhandarpals/Correspondence Clerk

have been merged in the cadre of General Clerks. This Court

finds the case of the petitioner covered under proposition no. (i),

(ii), (iii) & (v) of Rafiq Masih (White Washer) etc. (supra).

36. In the opinion of this Court the petitioner has been

able to make out a case for setting aside the impugned orders as

contained in I.A. No. 01/2020. The impugned order dated

11.04.2019 passed by the Chief Engineer, Water Resources

Department, Dehri as contained in Annexure '1' to I.A. No. Patna High Court CWJC No.12040 of 2019 dt.13-01-2021

01/2020 (it should have been marked as Annexure '16' in

continuity of the Annexures to the writ application) is hereby

set-aside. Since the order dated 14.09.2015 (Annexure '8' to the

writ application) has already been set-aside by a learned

coordinate Bench of this Court, this Court need not pass any

order with respect thereto as the same is no longer in existence.

On both counts as discussed above this writ application is fit to

succeed.

37. The writ application stands allowed.

38. The State respondents are directed to pay the entire

gratuity with statutory interest thereon from the date 30 days after

the gratuity became due to the petitioner till the date of payment

without any deduction/recovery of the alleged excess salary

payment under Annexure '2' to the present writ application. Such

payment shall be made within a period of two months from the

date of receipt/production of a copy of this order.

39. There would however no order as to cost.

(Rajeev Ranjan Prasad, J) Rajeev/-

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