1. Heard Sri Fareeduddin, learned counsel for the petitioner and Sri S.K. Mishra, learned Standing Counsel.
2. This writ petition is filed by the petitioner against the order dated 09.02.2001 (Annexure 8) and 21.07.2000 (Annexure 4) passed by respondent no. 1.
3. The facts of the case are that the petitioner was appointed as Assistant Master on the temporary basis in the C.T. Grade in the pay scale of Rs. 75-5-120-EB-8-200 vide order dated 15.09.1965 at Government Normal School, Barua Sagar, Jhansi on a substantive post, falling vacant due to the transfer by adjudicating the petitioner's work for seven years.
4. Thereafter, the petitioner claims that he was selected by the U.P. Public Service Commission and was appointed as an Assistant Teacher (Art) in L.T. Grade pay scale of 150-8-190-EB-10-260-12-296-EB-12-320-15-350 on 29.07.1972 on direct recruitment and had been given posting at Rajkiya Diksha Vidyalaya, Fatehpur.
5. Thereafter by means of an Order No. Appointment/27/33-7(36)/78-79 dated 25.04.1978 the services of the petitiner became permanent in the L.T. Grade in pay scale 300-350 as Assistant Teacher (Art) after completing his 2 years probation w.e.f. 30.6.1976. After completing his ten years of regular and satisfactory services the petitioner had been accorded selection grade of Rs. 1640-60-2540-EB-75-2765 in the L.T. Grade w.e.f. 1.1.1986 as per provision of Government Order No. 4772(2)/15-2-89-27(53)/88 dated 18.10.1989 by an Order No. Appointment/5516-17-1/8990 dated 15.3.1990 passed by the Assistant Director of Education (Basic) Varanasi Region, Varanasi.
6. According to the petitioner, since the petitioner completed ten years of satisfactory service in the L.T. Grade in which he had been accorded selection grade w.e.f. 1.1.1986 and he completed 6 years continuous regular service in the selection grade, therefore, under the provisions of Government Order No. DO-1-1763-ten/89-F09 dated 3.6.1989 Column-3 (ten) and Government Order No. BA-1-2186-ten-1939/M/89 dt. 31.5.1990, he was accorded the promotion on pay scale (pronnat Vetanmaan) 2840-3165, w.e.f. 1.8.1992 by an Order No. (Ma)/ /97-98 dated 10.7.1997.
7. The petitioner claims that w.e.f. 1.1.1996 the petitioner's pay scale was revised alongwith other teacher and on 1.10.1997 he was promoted on the post of lecturer and under the provisions of G.O.No. 50-2-1007-10-17G-98 dated 10.07.1998 and the other G.O.No. 30-2/1282/10/17G-98 the petitioner had been granted pay scale of Rs. 6500-200-10500 and at the time of his retirement the petitioner was getting his salary as Rs. 10100 per month and after competing services for 33 years, 7 months and 10 days the petitioner retired from services on 30.6.1999 after attaining the age of superannuation from the post of Lecturer (History) at Government Girls Intermediate College, Jaunpur.
8. The petitioner submits that after retirement and completing all the formalities the papers regarding pension and other post retirement benefit of the petitioner were duly forwarded by the Principal of the Institute vide her Letter No. 0-9/1999-2000 dated 23.5.2000 which were submitted to the respondent no. 1, Joint Director of Education, Varanasi Region, Varanasi.
9. It is submitted that the Joint Director of Education vide his order dated 21.07.2000 has reduced the pension of the petitioner at Rs. 3713/- by forfeiting the encasement of the petitioner as well as the gratuity amount and has directed the Treasury Officer, Jaunpur to adjust/recover the amount of Rs. 59947.30/- from the pension and other post retirement benefits of the petitioner.
10. Learned counsel for the petitioner has submitted that the Joint Director of Education, respondent no. 1, by means of the impugned order dated 21.07.2000 has directed to recover the aforesaid amount by adjusting the same from the amount of the pension which is payable to the petitioner. It is also pointed out here that among the amount of Rs. 219878/- only Rs. 2,09878/- has been paid and a balance amount of Rs. 10,100/- has not been paid. The amount of encashment of Rs. 2,52,500/- has not been paid. The petitioner's pension be fixed at Rs. 5050/- out of which the deduction of 40% encashment i.e. Rs. 2,52500/-, his pension remains as Rs. 3030/- per month while in the impugned order the respondents have fixed the petitioner's pension as Rs. 3713/- after deduction of Rs. 1485/- per month as an encashment, the pension remains Rs. 2228/- per month, while deducting the same no opportunity of hearing or issuing any show cause notice in this regard is provided.
11. According to the learned counsel for the petitioner till filing of the instant writ petition the respondents have not paid the amount for which the petitioner is entitled and the other post retiremental benefits although the period of about 18 years passed after the date of retirement of the petitioner.
12. Per contra, learned Standing Counsel has submitted that the entire amount as claimed by the petitioner has been paid to the petitioner. In support of his contention, learned Standing Counsel has placed reliance of Page Nos. 44 & 45 of the Writ Petition which are the pages of the impugned order.
13. According to the learned Standing Counsel deductions are made following the Government Orders.
14. Learned Standing Counsel has also referred the contents of Paragraph nos. 7 and 10 of the counter affidavit filed by Sri Vinay Kumar Rai, Accounts Officer attached in the office of Joint Director of Education, Varanasi. The contents of Paragraph nos. 7 and 10 of the counter affidavit are quoted herein below:
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15. Learned counsel for the petitioner has place reliance of a judgment of the Hon'ble Apex Court in the case of State of Punjab and Others Etc Vs. Rafiq Masih reported in 2015 (4) SCC 334 by referring Paragraph No. 12 of the aforesaid judgment, which is quoted herein below:
"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, summarize 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.
(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.
16. Learned Standing Counsel, on the other hand, has placed reliance of a judgment of the Hon'ble Apex Court in the case of High Court of Punjab and Haryana and Others Vs. Jagdev Singh (Civil Appeal No. 3500 of 2006).
17. The judgment of Jagdev Singh (Supra) cited by learned Standing Counsel is related to an appointment of the respondent as a Civil Judge (Junior Division) who was promoted as Additional Civil Judge and thereafter was allowed under the Haryana Civil Services (Junior Branch) and Haryana Superior Judicial Service revised by Rules 2001. The said rules provides that 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.
18. While deciding the above proposition, the Hon'ble Apex Court has considered that the said rules specifically provides the condition/undertaking whereas in other cases likewise the present one in hand no such rules are prescribed.
19. In view of the aforesaid, in my opinion, the judgment which has been referred by learned counsel representing the petitioner in the case of Rafiq Masih (supra) is fully applicable upon the facts of the present case and following the said judgment, this writ petition is allowed and the matter is remitted to the respondent no. 1, Joint Director of Education Varanasi Region, Varanasi to pass an appropriate and reasoned order, in accordance with law, after considering the judgment on Rafiq Masih (Supra) and after determination the eligibility of the petitioner, if the Petition found eligible the amount claimed, be paid to the petitioner within a period of two months from today.
20. Let a copy of this order be sent to Joint Director of Education Varanasi Region, Varanasi for necessary compliance.
Order Date :- 10.9.2018 Kamar