This writ petition has been filed with the prayer to quash the impugned order dated 08.10.2018 passed by respondent no.1 as contained in Annexure 1 to the petition and also to command the respondents to treat the service of the petitioner as Regular Service from the date of the initial appointment i.e. from 25.08.1986 as Assistant Engineer for the purpose of providing him the Financial Upgradation, Pension and other post retiral benefits.
Brief facts of the case are that the petitioner was initially appointed on the post of Assistant Engineer Mechanical on 07.08.1986 in pursuance to the examination conducted by the I.I.T., Kanpur. Vide order datd 06.07.1995 the services of the petitioner were regularized in pursuance to the Amended Regularization Rules, 1989 and he has been given the benefits of fixation of pay and other benefits admissible to him. The petitioner after attaining the age of 60 years had retired from the services on 31.10.2017. The audit party made objection that the benefit of Finance Up-gradation was wrongly provided to the petitioner and in pursuance to that, recovery had been proposed against the petitioner. The petitioner represented his case on 23.01.2017 and his claim was rejected on 14.02.2017. The petitioner again made a detailed representation on 22.09.2017. Thereafter the petitioner filed a Writ Petition No.25767 (SS) of 2018 before this Hon'ble Court, which was disposed of vide order dated 10.09.2018 and in pursuance to the said direction, the representation of the petitioner was decided by the impugned order. Hence this petition.
With this background, learned counsel for the petitioner has submitted that the petitioner was selected and appointed in the department after following the due process of selection and against the vacant post as advertised on 05.10.1985. It has also been submitted that the services of the petitioner were regularized on 06.07.1995 after calculating the services rendered on ad-hoc basis he has been provided the Assured Career Progression Scheme (ACP) after examining the service record of the petitioner. Learned counsel for the petitioner has also submitted that there were no dispute regarding the regularization of the services of the petitioner from the date of the initial appointment. Learned counsel submits that after getting the 'No Dues Certificate' from the department at every level, the opposite parties have not provided the post retiral dues and pension to the petitioner though he represented his case to the opposite parties through proper channel. It is submitted while passing the impugned order, no reasons have been assigned for reviewing the pay-scale which has been earlier granted and recovery has also been initiated against the petitioner on the alleged excess payments, which were made to the petitioner. Learned counsel submits that in view of the judgment of Hon'ble the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported at (2015) 4 SCC 334 wherein it has held that no recovery can be made from the retrial dues of the petitioner, even if the excess amount is paid without any fault on the part of the employee. Learned counsel vehemently submitted that the impugned order is illegal, arbitrary and passed in the mechanical way without assigning any reason and the same is liable to be quashed.
Per contra, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State has vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that the excess payment was made while granting the ACP and other benefits in pursuance of the order dated 06.07.1995 and it was the error on the part of the State authorities. It is submitted that after getting the opinion from the Finance Department and looking to the objection made by the Audit Party, the department has revisited the entire controversy and thereafter the error has been corrected. It has also been submitted that the impugned order has been passed after taking into consideration the entire facts of the case and there is no illegality in the impugned order. It is submitted that the petitioner has failed to make out any case for interference by this Hon'ble Court and for issuance of a writ as prayed. The petition is devoid of merit and it is liable to be dismissed.
Heard learned counsel for the parties and perused the record. I have also perused the impugned order as well as the order dated 06.07.1995.
The petitioner was appointed on ad-hoc basis in the year 1986 and he joined on the post on 25.08.1986 for a period of one year or till the joining of a candidate selected from the U.P. Public Service Commission. Subsequently, his appointment was extended from time to time and thereafter his services were regularized vide order dated 06.07.1995 under Rules. The petitioner was provided the higher pay-scale, Assured Career Progression Scheme and other benefits as was admissible to him looking to the service record of the petitioner. An objection was raised by the Audit Party and in pursuance to that recovery had been proposed against the petitioner. The petitioner has represented his case but his claim has been rejected. While passing the impugned order, the following has been observed :
foRr foHkkx }kjk mijksDr ds lEcU/k esa iwoZ esa fn;s x;s vius ijke'kZ ,oa izdj.k esa izkIr dkfeZd foHkkx ds ijke'kZ ds vkyksd esa ;g voxr djk;k x;k fd dkfeZd foHkkx ds ijke'kZ ds vuqlkj iwoZxkeh frfFk ls rnFkZ fu;qfDr;ksa ds fofu;ferhdj.k ds lEcU/k esa lEizfr dkfeZd foHkkx }kjk dksbZ izkfo/[email protected]'kk funsZ'k fuxZr ugha fd;s x;s gSA flpakbZ foHkkx] m0iz0 'kkl ds 'kklukns'k la[;k&[email protected]&27&fla&[email protected]] fnukad 06-07-1995 }kjk fnukad 01-10-1986 vFkok mlls iwoZ lgk;d vfHk;Urk ¼;kW0½ ds inksa ij lh/kh HkrhZ ds ek/;e ls rnFkZ :i ls fu;qDr dkfeZdksa dk fofu;ferhdj.k fd;k x;k gSA mijksDr 'kklukns'k esa Jh ';ke d`".k JhokLro dks lgk;d vfHk;Urk ;kfU=d ds in ij rkRdkfyd izHkko ls fofu;fer djrs gq, fu;fer fu;qfDr iznku dh x;h gSA vr% Jh okLro dks 'kklukns'k fnukad 11-04-1990 }kjk dh x;h O;oLFkk ds dze eas fnukad 06-07-1995 ls iwoZ izFke oS;fDrd osrueku :0 3000&4500 vuqeU; ugha gksxkA Jh JhokLro dks fu;fer fu;qfDr dh frfFk 06 tqykbZ] 1995 ls osrueku :0 3000&4500 dk ykHk ns; gksxkA blds i'pkr fnukad 06-07-1995 rd dh lsok ekurs gq, dqy 18 o"kZ dh fu;fer fujUrj ,oa larks"ktud lsok] tks fnukad 06-07-2008 dks iw.kZ gksus ij f}rh; oS;fDrd osrueku ds :i esa xzsM osr :0 [email protected]& ns; gksrk gSA foRr foHkkx ds 'kklukns'k fnukad 05 uoEcj] 2014 ds izLrj&4 ¼V½ dh O;oLFkkuqlkj fnukad 06-07-1995 rd 05 o"kZ dh lsok ekurs gq, dqy 26 o"kZ dh lsok;sa] tks fnukad 06-07-2016 dks iw.kZ gksrh gS] ls r`rh; ,0lh0ih0 ds :i esa xszM osru :0 [email protected]& vU; 'krksZ ,oa izfrcU/kksa dh iwfrZ gksus ij ns; gksxkA mijksDr rF;ksa ds vkyskd esa foRr foHkkx }kjk izdj.k esa vf/k"Bku iqujh{k.k C;wjks }kjk dh x;h vkifRr;ksa dks fu;eksa ,oa O;oLFkk ds vuq:i crkrs gq, Jh JhokLro dks iwoZ esa vuqeU; djk;s x;s ykHkksa dks mijksDrkuqlkj la'kksf/kr fd;s tkus dk lq>ko fn;k x;k gSA 10& mYys[kuh; gS fd Jh ';ke d`".k JhokLro] lsokfuo`Rr vf/k'kklh vfHk;Urk }kjk isa'ku xzsP;qVh ,oa jkf'kdj.k dk Hkqxrku u gksus ds dkj.k ek0 mPp U;k;ky; [k.MihB] y[kuÅ ds le{k fjV ;kfpdk la0&[email protected] ¼,l-ch-½;ksftr dh x;hA mDr ;kfpdk esa fnukad 10-09-2018 dks ikfjr fu.kZ; esa ek0 U;k;ky; }kjk mudk izR;kosnu fuLrkfjr djrs gq, fu;fer isa'ku xszP;qVh ,oa jkf'kdj.k dk Hkqxrku fd;s tkus ds funsZ'k fn;s x;s gSA ek0 U;k;ky; dk fdz;kRed va'k fuEufyf[kr gS%& "Accordingly, we direct the State Government to take a final decision in the matter after inter-departmental consultation, if required. The said decision shall be taken by the State Government, expeditiously, say, within a period of six weeks from the date of production of certified copy of this order.
With the aforesaid observations and directions, the writ petition is finally disposed of."
11& fjV ;kfpdk la0&[email protected] ';ke d`".k JhokLro cuke m0iz0 jkT; o vU; esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 10-09-2018 esa fn;s x;s funsZ'k ,oa foRr foHkkx ds mijksDr ijke'kZ ds vkyksd esa lE;d fopkjksijkUr Jh ';ke d`".k JhokLro] vf/k'kklh vfHk;Urk dks izFke oS;fDrd osrueku fn;s tkus fo"k;d izeq[k vfHk;Urk ds dk;kZy; Kki la0&[email protected]@mPprj [email protected]';ke d`".k JhokLro] fnukad 21-11-1995 dks fujLr djrs gq, ,oa flapkbZ foHkkx] m0iz0 'kklu ds 'kklukns'k la0&[email protected]&lRrkbl&fla&2&[email protected]] fnukad 31-03-2008] ,oa 'kklukns'k la0&[email protected]&lRrklh&23¼3½@10] fnukad 13-01-2014 dks la'kksf/kr djrs gq, Jh ';ke d`".k JhokLro dks izFke oS;fDrd osrueku :0 3000&[email protected]& fnukad 06-07-1995 ls] f}rh; oS;fDrd osreku :0 12000&[email protected]& fnukad 06-07-2008 ls ,oa r`rh; ,0lh0ih0 dk ykHk fnukad 06-07-2016 ls vuqeU; djrs gq, Jh JhokLro dk izR;kosnu fnukad 22-09-2017 ,oa fnukad 13-11-2017 dks ,rn~}kjk fuLrkfjr fd;k tkrk gSA 12& mDr 'kklukns'k la0&[email protected]&lRrkbl&fla&2&[email protected]] fnukad 31-03-2008] ,oa 'kklukns'k la0&[email protected]&lRrklh&23¼3½@10] fnukad 13-01-2014 mDr lhek rd la'kksf/kr le>s tk;saxsA In view of the above, I do not find any merit in the arguments as advanced by the learned counsel for the petitioner that once the decision has been taken by the department, the same cannot be revisited or corrected the wrong drawn by the department. The reasons assigned for revisiting/reviewing the earlier order passed for giving the financial benefits to the petitioner is sufficient and I do not find any reason to interfere in the same. But so far as the recovery part, if any, on account of wrong fixation of pay is concerned, Hon'ble Apex Court in the judgment of Rafiq Masih (supra) considered the matter in detail and has observed in para 10 that this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligation of the State. The para 10 of the said judgment, on reproduction, reads as under:
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India."
The Hon'ble Apex court after considering various judgments of the Apex Court in regard to recovery of the excess amount paid to the employee held that recovery of excess payments made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer with the following emphasis:
"Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation."
After detailing the issue in detail the Hon'ble Apex Court summarizes the few situations wherein recovery by the employer were emphazied in para-12 of the judgment, which is reproduced:
"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.
(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 above situations described in paragraph 12 of the judgment of the Hon'ble Apex court are binding as they have been issued under Article 142 of the Constitution of India and in view thereof the recovery from retired employees or employees who are due to retire within one year, order of recovery is impermissible in law and accordingly, the same cannot be made.
In view of the above, I am of the considered opinion that the recovery, if any, made from the retiral dues of the petitioner is not permissible under law as held by the Hon'ble Apex Court in case of Rafiq Masih (supra).
Accordingly, the writ petition is partly allowed and the opposite parties are directed to pay the recovered amount, if any, as well as the withheld amount, if any, to the petitioner within a period of two months from the date of receipt of a certified copy of this order.
No order as to costs.
Order Date :- 18.02.2021 VNP/-