Patna High Court
Ashok Kumar vs The State Of Bihar on 12 December, 2023
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 150 of 2022
======================================================
1. Ashok Kumar S/o Late Ram Bilas Prasad, R/o Meridian Green Apartment,
Flat No. 105, Adarsh Vihar Colony, Rukanpura, Patna - 800014 (Retired-
Senior Administrative Assistant, I.G.I.M.S., Patna).
2. Shri Awadh Kishor Sharma S/o Tribhuvan Prasad Sharma, R/o Flat No. 202,
Bharti Residency, Nasriganj, Mithila Colony, Patna - 800011 (Retired -
Senior Administrative Assistant, I.G.I.M.S, Patna)
3. Sushma Kumari R/O B-3/15, I.G.I.M.S Campus, Sheikhpura on behalf of
her Husband Late Shri Ashok Kumar Jha, Patna - 800014 (Junior
Administrative Assistant, I.G.I.M.S, Patna - 800014).
4. Smt. Sunita Kumari W/o Akhilesh Prasad R/O B-9/15, I.G.I.M.S Campus,
Sheikhpura, Patna - 800014 (Senior Administrative Assistant, I.G.I.M.S.)
5. Shri Prabhat Kumar S/o Late Vikramaditya Narayan Verma, R/o Vikram
Prabha Kutir, Mahua Bag, Dhanaut Near H.P Gas Godown, Rupaspur, Patna
- 801506 (Junior Account Officer, I.G.I.M.S., Patna).
6. Shri Ravindra Pratap Singh, S/o Late Parmeshwar Dayal Singh, R/o Vastu
Sarita Duplex Behind St. Karens School, Gola Road, Patna - 801503 (Senior
Administrative Assistant, I.G.I.M.S, Patna).
7. Shri Pradeep Kumar Singh S/o Vishwanath Singh, R/o B- 5/18, I.G.I.M.S
Campus, Patna - 800014 (Senior Administrative Assistant, I.G.I.M.S, Patna).
8. Shri Rajkumar Singh S/o Kamal Ray, R/O B- 5/9, I.G.I.M.S Campus, Patna
- 800014 (Senior Administrative Assistant, I.G.I.M.S, Patna).
9. Shri Sudama Lohra, S/O Sukhu Mistri R/o B- 4/9, I.G.I.M.S Campus, Patna
- 800014 (Senior Administrative Assistant, I.G.I.M.S, Patna).
10. Shri Anil Kumar S/o Ram Narayan Chaudhary R/o B-1/11, I.G.I.M.S.
Campus Patna - 800014 (Junior Administrative Assistant, I.G.I.M.S, Patna).
11. Shri Rakesh Ranjan S/o Chandeshwar Prasad Singh R/o A/21, Ashiyana
Nagar, Ram Nagri, Sector - 2, Patna - 800025. (Senior Administrative
Assistant, I.G.I.M.S, Patna).
12. Shri Dileep Kumar S/o Mahendra Pratap Sinha R/o Patel Nagar, Patna -
800029 (Assistant Account Officer, I.G.I.M.S, Patna).
13. Shri Vimal Kumar Tripathi S/o Late Brijanand Tripathi R/O B- 5/15,
I.G.I.M.S Campus Patna (Senior Administrative Assistant, I.G.I.M.S. Patna).
14. Shri Shiv Shankar Paswan S/o Late Laxmi Paswan, R/o Balupar, Kurji,
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
2/9
Sadakat Ashram, Patna-801105. (Sr. Administrative Assist., IGIMS, Patna)
15. Shri Virendra XAXA S/o Jowakin XAXA R/o B- 5/14, I.G.I.M.S Campus,
Patna - 800014) (Senior Administrative Assistant, I.G.I.M.S, Patna).
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar.
2. The Principal Secretary, Ministry of Health and Family Welfare Department,
Government of Bihar.
3. Director, Indira Gandhi Institute of Medical Sciences, Patna - 800014.
4. Deputy Director (Administration), Indira Gandhi Institute of Medical
Sciences, Patna - 800014.
5. Accountant General, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance:
For the Petitioner/s : Mr. Sanjeev Kumar, Advocate
Mr. Alok Kumar, Advocate
Mr. Rajeev Shekhar, Advocate
Mr. Rohit Kumar Tripathi, Advocate
For the IGIMS : Mr. Sunil Kumar, Advocate
For the Accountant General: Mr. Anand Kumar, Advocate
For the State : Mr. Ramadhar Singh, GP-25
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date: 12-12-2023
1. The present writ petition has been filed for quashing the
letter No. 7382/Admin dated 17.12.2021, issued by the Director,
Indira Gandhi Institute of Medical Sciences, Patna (herein after
referred to as the "IGIMS") whereby and whereunder a sum of
Rs. 44,57,951/- has been ordered to be recovered from 18
Employees, including the petitioners herein, of IGIMS, Patna, in
monthly instalments of up to 50%.
2. At the outset, the learned counsel for the petitioners has
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
limited his prayer to restraining the respondents from making
any recovery from the petitioners, on the head of excess salary
paid to them on account of upgradation of pay-scale upon re-
designation of the posts from LDC to UDC and simultaneously,
grant of the due benefits of Assured Career
Progression/Modified Assured Career Progression scheme
(herein after referred to as the "ACP/MACP scheme"). It is also
prayed that in case recovery has already been made, the
respondent authorities be directed to refund the same.
3. The learned counsel for the petitioners has further
submitted that the respondents have issued the order of recovery
on the presumption that the petitioners have wrongly been
granted the benefits of ACP/MACP scheme, from the specified
dates, inasmuch as they had already been granted financial
upgradation of pay-scale at the time of re-designation of the
posts from LDC to UDC, hence the respondents have annulled
the orders granting the benefits of ACP/MACP scheme to the
petitioners, although they are liable to be granted such benefits,
after completion of twelve years of service.
4. Though the learned counsels appearing for the
respondents have submitted that upon re-designation of the post
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
of LDC as UDC, the pay-scales of the petitioners were upgraded
and thereafter, they were also granted the benefits of ACP/
MACP scheme to which they were not entitled, hence the
benefits granted to the petitioners under the ACP/MACP scheme
have been annulled and recovery has been ordered, but it has
nowhere been denied that excess salary was paid to the
petitioners on account of fault of the department/IGIMS and not
on account of any misrepresentation on the part of the
petitioners.
5. This Court finds that the law regarding recovery is no
longer res integra and has been well settled in a catena of
decisions reported in (2009) 3 SCC (Syed Qadir vs. State of
Bihar); (1995) Suppl.1 SCC 80 (Sahib Ram vs. State of
Haryana); (1994) 2 SCC 52 (Shyam Babu Verma vs. Union
of India) ; (1997) 6 SCC 139 (B.Ganga Ram vs. Regional
Joint Director) ; (2006) 11 SCC 492 (Purshottam Lal Das vs.
State of Bihar) ; (2000) 10 SCC 99 (Bihar State Electricity
Board vs. Bijay Bhadur); (2006) 11 SCC 7089 (B.J. Akkara
vs. Government of India University) and (1995) suppl. 1
SCC 18 (Sahib Ram vs. State of Haryana) and the one
reported in (2015) 4 SCC 334 (State of Punjab vs. Rafique
Masih).
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
6. At this juncture, this Court, deems it fit and proper to
refer to yet another judgment rendered to by the Hon'ble Apex
Court in the case of Thomas Daniel Vs. State of Kerala and
Others, reported in (2022) SCC Online SCC 536, paragraphs
no.9, 11 and 14 to 16 whereof, are reproduced herein below:-
"9. This Court in a catena of decisions has consistently
held that if the excess amount was not paid on account of
any misrepresentation or fraud of the employee or if such
excess payment was made by the employer by applying a
wrong principle for calculating the pay/allowance or on
the basis of a particular interpretation of rule/order
which is subsequently found to be erroneous, such excess
payment of emoluments or allowances are not
recoverable. This relief against the recovery is granted
not because of any right of the employees but in equity,
exercising judicial discretion to provide relief to the
employees from the hardship that will be caused if the
recovery is ordered. This Court has further held that if in
a given case, it is proved that an employee had
knowledge that the payment received was in excess of
what was due or wrongly paid, or in cases where error is
detected or corrected within a short time of wrong
payment, the matter being in the realm of judicial
discretion, the courts may on the facts and circumstances
of any particular case order for recovery of amount paid
in excess.
11. In Col. B.J. Akkara (Retd.) v. Government of India
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
this Court considered an identical question as under:
"27. The last question to be considered is whether
relief should be granted against the recovery of the
excess payments made on account of the wrong
interpretation/understanding of the circular dated 7-6-
1999. This Court has consistently granted relief
against recovery of excess wrong payment of
emoluments/allowances from an employee, if the
following conditions are fulfilled (vide Sahib Ram v.
State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC
(L&S) 248], Shyam Babu Verma v. Union of India
[(1994) 2 SCC 521 :1994 SCC (L&S) 683 : (1994) 27
ATC 121], Union of India v. M. Bhaskar [(1996) 4
SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v.
Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC
(L&S) 1652]):
(a) The excess payment was not made on account
of any misrepresentation or fraud on the part of the
employee.
(b) Such excess payment was made by the employer
by applying a wrong principle for calculating the
pay/allowance or on the basis of a particular
interpretation of rule/order, which is subsequently
found to be erroneous.
28. Such relief, restraining back recovery of excess
payment, is granted by courts not because of any right
in the employees, but in equity, in exercise of judicial
discretion to relieve the employees from the hardship
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
that will be caused if recovery is implemented. A
government servant, particularly one in the lower
rungs of service would spend whatever emoluments he
receives for the upkeep of his family. If he receives an
excess payment for a long period, he would spend it,
genuinely believing that he is entitled to it. As any
subsequent action to recover the excess payment will
cause undue hardship to him, relief is granted in that
behalf. But where the employee had knowledge that
the payment received was in excess of what was due or
wrongly paid, or where the error is detected or
corrected within a short time of wrong payment, courts
will not grant relief against recovery. The matter being
in the realm of judicial discretion, courts may on the
facts and circumstances of any particular case refuse
to grant such relief against recovery.
29. On the same principle, pensioners can also seek a
direction that wrong payments should not be
recovered, as pensioners are in a more
disadvantageous position when compared to in-service
employees. Any attempt to recover excess wrong
payment would cause undue hardship to them. The
petitioners are not guilty of any misrepresentation or
fraud in regard to the excess payment. NPA was added
to minimum pay, for purposes of stepping up, due to a
wrong understanding by the implementing
departments. We are therefore of the view that the
respondents shall not recover any excess payments
made towards pension in pursuance of the circular
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
dated 7-6-1999 till the issue of the clarificatory
circular dated 11-9-2001. Insofar as any excess
payment made after the circular dated 11-9-2001,
obviously the Union of India will be entitled to recover
the excess as the validity of the said circular has been
upheld and as pensioners have been put on notice in
regard to the wrong calculations earlier made."
14. Coming to the facts of the present case, it is not
contended before us that on account of the
misrepresentation or fraud played by the appellant, the
excess amounts have been paid. The appellant has retired
on 31.03.1999. In fact, the case of the respondents is that
excess payment was made due to a mistake in interpreting
Kerala Service Rules which was subsequently pointed out
by the Accountant General.
15. Having regard to the above, we are of the view that
an attempt to recover the said increments after passage of
ten years of his retirement is unjustified.
16. In the result, the appeal succeeds and is accordingly
allowed. The Judgment and order of the Division Bench
dated 02.03.2009 and also of the learned Single Judge of
the High Court dated 05.01.2006 impugned herein, and
the order dated 26.06.2000 passed by the Public
Redressal Complaint Cell of the Chief Minister of Kerala
and the recovery Notice dated 09.10.1997 are hereby set
aside. There shall be no order as to costs."
7. Having regard to the facts and circumstances of the case
and in view of the law laid down by the Hon'ble Apex Court in
Patna High Court CWJC No.150 of 2022 dt.12-12-2023
a catena of decisions, as aforesaid, as also in view of the fact
that the respondents have not denied the fact that there was no
misrepresentation on the part of the petitioners leading to
payment of excess salary, this Court finds that no recovery can
be made from the salary of the petitioners, hence, the letter No.
7382/Admin dated 17.12.2021, issued by the Director, Indira
Gandhi Institute of Medical Sciences, Patna is quashed and it is
directed that in case any recovery has been made from the salary
of the petitioners, the same be refunded back to the petitioners
within a period of eight weeks from today.
8. The writ petition stands allowed to the aforesaid extent.
(Mohit Kumar Shah, J)
Kanchan./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.12.2023
Transmission Date NA
