Court No. - 7
Case :- WRIT - A No. - 12495 of 2001
Petitioner :- Ram Shanker Dubey & Others
Respondent :- Joint Director Of Education & Others
Counsel for Petitioner :- A.K.Singh,Devendra Kumar,H.N.Pandey,Yashpal Chaturvedi
Counsel for Respondent :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J.
1- Heard Sri H.N. Pandey, learned counsel for the petitioners and Sri S.K. Mishra, learned Standing Counsel for the State- respondents.
2- By the impugned order dated 7.3.2001 passed by the Joint Director of Education, Kanpur Division, Kanpur, recovery of certain amount due to wrong fixation of pay of the petitioners in the year 1986, has been directed to be made from the pension of the petitioners.
3- The petitioners were appointed as Lecturers in the respondent no.4 institution. They retired from service on 30.6.2000. According to the respondents, the salary of each of the petitioners was fixed at Rs.2300/- w.e.f. 1.1.1986 instead of Rs.2240/- per month. After the petitioners retired from service, the aforesaid discrepancy was detected and the impugned order dated 7.3.2001 was passed for recovery of the alleged excess payment.
4- According to the petitioner there was no excess payment.
5- Learned counsel for the petitioner submits that even if it is assumed that a sum of Rs. 86,152/- was excess paid due to wrong fixation of pay in the year 1986 yet it cannot be recovered in view of the law laid down by the Hon'ble Supreme Court in the case of Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department, SCC (2014)16 444 and a judgment of this Court in State of U.P. and others v. Bhim Sen Sharma and another, 2017(4) ADJ 768 (DB) (LB).
6- On 22.5.2018 this Court passed the following order :
"Sri P.N. Saxena, learned senior advocate assisted by Sri H.N. Pandey, learned counsel for the petitioners submits that the controversy is squarely covered by law laid down by a Division Bench of this Court in State of U.P. and others vs. Bhim Sen Sharma and another, 2017 (4) ADJ 786 (DB)(LB) and by Hon'ble Supreme Court in Shushil Kumar Singhal vs. Pramukh Sachiv Irrigation Department, (2014) 16 SCC 444.
Learned standing counsel prays for time to look into the judgments and prepare the case.
As prayed, list on 29.05.2018".
7- Learned standing counsel does not dispute the legal proposition as established by the aforesaid two judgments.
8- In Bhim Sen Sharma and another (supra), the Division Bench of this Court has held as under :
"7. This Court has experience of similar matters coming in large numbers, where, after 10 or 20 or 30 years, irrespective of any time limit, and that too after retirement of Government servant, this type of alleged wrong fixation is claimed and for entire long period of decades, pay is reduced and recovery is ordered. This ultimately results in large number of litigation before this Court and mostly this Court has directed in such matters, not to make any recovery of the amount, already paid.
9. However, we do not find ourselves in agreement with aforesaid submission. Whenever any action prejudicial to interest of a Government servant is taken, Competent Authority must exercise its power within a reasonable time and it cannot be appreciated that such power should be exercised after decades and that too after retirement of Government servant. In the present case, impugned order has been passed after almost 6 years from the date of retirement.
10. It is well established that when a power is there and there is no period prescribed under law, power should be exercised reasonably and within a reasonable period also and not after a very long time or at any time. In these facts and circumstances, we are of the view that if there is any error in pay fixation etc., Competent Authority is entitled to rectify mistake within a period of three years. We further provide that in case such a mistake is detected after three years in that case instead of taking action against the person who is benefited with such wrong fixation, Competent Authority must take action against the person who caused such mistake and is responsible and recover loss suffered by department".
9- In Sushil Kumar Singhal's case (supra), Hon'ble Supreme Court noted the fact that the salary of the employees was wrongly fixed in the year 1986 and it was re-fixed by an order dated 23.3.2005 and on the basis of re-fixed salary a sum of Rs. 99,522/- was sought to be recovered on account of incorrect fixation of salary in the year 1986. on these facts Hon'ble Supreme Court held as under :
"7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs.11,625/- and on the basis of the said salary his pension had been fixed as Rs.9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced.
8. The learned counsel appearing for the respondent employer could not deny any of the facts stated hereinabove.
9. In the aforestated circumstances, the High Court was not correct while permitting the respondent authorities to reduce the pension payable to the appellant by not setting aside the order whereby excess amount of salary paid to the appellant was sought to be recovered.
10. For the aforestated reasons, we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant.
12. For the reasons recorded hereinabove, we quash and set aside the impugned judgment as well as the order dated 23.03.2005 whereby salary of the appellant was re-fixed and order dated 23.04.2005 whereby recovery of excess amount of Rs.99,522/- was ordered to be recovered from the appellant. The appellant shall be paid pension which had been determined at the time of his retirement, i.e. immediately after 31st December, 2003. The appeal is disposed of as allowed with no order as to costs".
10- The controversy involved in the present writ petition is squarely covered by the aforesaid judgments. Therefore, the impugned order cannot be sustained and is hereby quashed. Any amount recovered from the petitioner pursuant to the impugned order, shall be refunded to him with simple interest @ Rs.6% per annum within three months from the date of presentation of a certified copy of this order.
11- If the pension of the petitioner has been reduced on account of the alleged wrong fixation of pay in the year 1986, then the competent authority shall pass an appropriate order in view of the law laid down by the Division Bench of this Court in the case of Bhim Sen Sharma and another (supra) and the judgment of Hon'ble Supreme Court in the case of Sushil Kumar Singhal (supra).
12- The writ petition is disposed of.
Order Date :- 29.5.2018 Ak/