Rajasthan High Court - Jodhpur

Arjun Dan vs State Of Rajasthan ... on 19 September, 2023

Bench: Vinit Kumar Mathur

[2023:RJ-JD:30408]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14605/2022

Arjun Dan S/o Shri Amba Dan, Aged About 62 Years, Resident Of Rupawati Khurd, Post Badgaon, Tehsil Raniwara, District Jalore, Rajasthan.

----Petitioner Versus

1. State of Rajasthan, Through Secretary, Department Of Education, Government Of Rajasthan Secretariat, Jaipur.

2. Director, Secondary Education, Bikaner.

3. The Principal, Government Senior Secondary School, Malwara-R, District Jalore, Rajasthan.

4. District Treasury Officer, Pension And Pensioner Welfare Department, Jalore.

----Respondents

For Petitioner(s) : Mr. Dheerendra Singh Sodha For Respondent(s) : Mr. Hemant Choudhary, G.C. with Mr. Umashankar Dhakad Mr. Ravi Panwar with Mr. Ashok Patel

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

19/09/2023

Heard learned counsel for the parties.

The present writ petition has been filed against the

impugned Demand Notice dated 16.06.2020 (Annex.12) and for

quashing of the demand raised by the respondents vide PPO dated

02.11.2020 (Annex.11).

Briefly, the facts required to be taken note of in the present

writ petition are that the petitioner was initially appointed as a

Class- IV employee in the respondent-Department and was

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subsequently promoted on the post of Lower Division Clerk (LDC)

in the year 1981. The petitioner was further promoted on the post

of Upper Division Clerk (UDC) vide order dated 30.03.1991. The

petitioner, while working in the respondent-Department, was

granted the selection scale as per the Assured Career Progression

(ACP) Scheme after completion of 18 & 27 years of service. The

petitioner was granted the third selection grade as per the ACP

Scheme on completion of 27 years in the year 2008 & his selection

sclae continued until his superannuation in the year 2021. The

authorities, while preparing the pension case of the petitioner,

noticed that he had wrongly been extended the benefit of third

selection grade on completion of 27 years of service on account of

the fact that he has already received two promotions and was

entitled for only one selection scale on completion of 18 years of

service. In these circumstances, the respondents issued an order

dated 16.06.2020 (Annex.12) while recalculating and refixing the

pay-scale of the petitioner. As a consequence of Annex.12, the

respondents issued the Pension Payment Order (PPO) on

02.11.2020 (Annex.11), reflecting therein a recovery of

Rs.3,82,985/- on account of excess payment having been made to

the petitioner. Aggrieved of the action of the respondents, the

present writ petition has been filed.

Learned counsel for the petitioner very fairly submits that

the petitioner has secured two promotions and one selection scale

on completion of 18 years of his service as per the ACP Scheme

and he was not entitled for the third selection scale on account of

completion of 27 years of service. He submits that the petitioner

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has not misrepresented or placed any wrong facts before the

respondents for getting the benefit of the selection scale on

completion of 27 years of his service. The respondents, after

examining the record on their own, have granted the selection

scale to the petitioner after completion of 27 years as per the ACP

Scheme.

Learned counsel submits that the recovery which is being

effected from the petitioner is in contravention to the judgment of

Hon'ble the Supreme Court in the case of State of Punjab Vs.

Rafiq Masih reported in AIR 2015 SC 696. He, therefore,

prays that the writ petition may be allowed and the action of the

respondents to the extent of recovery being effected from the

petitioner may be quashed and set aside.

Per contra, the learned counsel for the respondents submit

that the petitioner was not entitled for the grant of selection scale

as per the ACP Scheme on completion of 27 years of service as

the petitioner was already granted two promotions and he has

already been extended the benefit of the third selection grade on

completion of 18 years of service and, therefore, the grant of

selection scale on completion of 27 years of service was de hors

the rules and, therefore, the respondent-authorities were perfectly

justified in passing the order (Annex.12) and as a consequence

thereof, the recovery order in the shape of Annex.11.

Learned counsel for the respondents are not in a position to

controvert the submission made by the counsel for the petitioner

with respect to the recovery being effected in violation of the

[2023:RJ-JD:30408] (4 of 6) [CW-14605/2022]

judgment of Hon'ble Apex Court in the case of Rafiq Masih

(supra).

I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

Since the factual matrix of the case has not been disputed by

the counsel for the parties, therefore, the only question which

remains to be adjudicated in the present case is whether the

respondents are right in making recovery from the pension of the

petitioner in the facts and circumstances mentioned above.

This Court is of the view that since a wrong fixation of the

petitioner was made de hors the law, the respondents are well

within their right to rectify the mistake by placing the petitioner in

the appropriate pay-scale and pass an order of refixation of his

pay-scale.

As far as the recovery is concerned, since the petitioner has

not misrepresented before the respondent-authorities and has not

placed any wrong facts for getting the selection scale as per the

ACP Scheme on completion of 27 years of service, therefore, the

recovery order (Annex.11) against the petitioner for recovering

the amount of Rs.3,82,985/- is not sustainable in the eyes of law

in view of judgment of Hon'ble the Supreme Court in the case of

Rafiq Masih (supra).

The Hon'ble Supreme Court in the case of Rafiq Masih

(supra) has 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

[2023:RJ-JD:30408] (5 of 6) [CW-14605/2022]

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 the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from the retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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."

The judgment of Hon'ble the Supreme Court has further

been relied upon in the case of Thomas Daniel Vs. State of

Kerala & Ors. reported in AIR 2022 SC 2153, wherein it has

been held as under:-

"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

[2023:RJ-JD:30408] (6 of 6) [CW-14605/2022]

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."

In view of the discussions made above, the writ petition is

party allowed. The order dated 16.06.2020 (Annex.12) is upheld

to the extent of refixation of the pay-scale of the petitioner. The

order dated 02.11.2020 (Annex.11) for recovery of the amount of

Rs.3,82,985/- from the petitioner is quashed and set aside. The

respondents are directed to pay the amount of Rs.3,82,985/-