Sopanrao Pawar Vs. the State of Madhya Pradesh - Court Judgment

HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION No.5003/2011 Sopanrao Pawar Vs. State of M.P. & others __________________________________________________________ None for the petitioner. Shri Piyush Dharmadhikari, learned Govt. Advocate for the respondents. __________________________________________________________ Present : Hon’ble Shri Justice K.K. Trivedi __________________________________________________________ ORDER

(20.11.2012) The writ petition has been filed under Article 226 of the Constitution of India by the petitioner ventilating his grievance that an amount of Rs.1,20,291/- has been recovered from his GPF and other retiral dues allegedly on account of erroneous fixation of his pay. It is contended that petitioner was rightly given the benefit of posting in the pay scale of Rs. 4000-6000/- which was subsequently upgraded in the pay scale of Rs.5200-20200 + 2400 grade pay. It is contended that since the petitioner was promoted on the post of Head Clerk by an Order dated 28.02.98, the aforesaid pay scales were given to him. Infact, the petitioner should have been given the pay scale of Rs.4500-7000/- and consequential revised pay scale in the higher pay scale, but that was not done. Some sort of objection was taken by the Joint Director, Treasury and Accounts on the basis of which the salary of the petitioner has been reduced 2 and the alleged recovery aforesaid has been made from his retiral dues. It is contended that the order impugned issued in this respect was never communicated to him not any opportunity of hearing was given and as such the order impugned is bad in law and is liable to be quashed.

2. Relief is claimed to the effect that respondents be commanded to refund back the aforesaid amount with interest.

3. Refuting the allegations made in the writ petition, the respondents have filed their return. It is categorically contended by the respondents that though an order of promotion was issued in respect of petitioner on 24.2.98, but in the order itself specific condition was prescribed that those who have not obtained the accounts training were not to be relieved to join on the post. It is contended that the statutory rules prescribe an eligibility condition of passing of accounts training and the same has been made an essential condition for such Upper Division Clerks who are to be promoted on the post of Head Clerks. It is contended that since erroneously the then Principal of school instead of verifying the fact whether petitioner has obtained the accounts training or not, relieved the petitioner to join on the promotional post and revised the salary of petitioner on higher pay scale, erroneous payment of salary was made to the petitioner. When at the time of retirement, the salary statement of petitioner was considered, it was found that in terms of the statutory provisions of the rules as also in terms of the recommendation made by Singh Deo Committee, the petitioner was entitled to a lesser pay scale and accordingly when the salary was revised, it was found that the petitioner was paid aforesaid amount in excess to his entitlement. The said amount has been recovered only from the gratuity payable to the petitioner and not a single penny has been recovered 3 from the GPF of the petitioner. It is contended that the GPF amount was already withdrawn by the petitioner and this being so, nothing was to be paid to the petitioner towards the GPF. It is contended that in view of the latest law laid down by the Apex Court, the petitioner is not entitled to any relief and the petition is liable to be dismissed.

4. Though the return is received by the petitioner on 8.9.2011 as is clear from the endorsement made in the return filed by the respondents, yet no rejoinder whatsoever has been filed by the petitioner. It has not been pointed out that the petitioner was given an opportunity to obtain accounts training or not. Though in the representation submitted by the petitioner (Annexure P/5) it has been mentioned that the petitioner was entitled to grant of exemption from accounts training on account of attaining the age of 47 years at the time of his promotion, but nothing has been placed on record to indicate whether any such exemption was available to such an employee or not. Even otherwise whether any instructions were issued by the State Government relaxing such statutory condition prescribed under the rules in the matter of grant of accounts training or not, have not been placed on record by the petitioner.

5. The Apex Court in Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (2012) 8 SCC 41.has held that in case any amount has been paid in excess even without the fault of recipient party, if the law so permits, an obligation is always on the payee to recover the said amount. Even recovery of the amount can be made from the retiral dues if the same is paid in excess to the entitlement of an employee. The law laid down by the Apex Court in the case of Sahib Ram vs. State of Haryana 1995 Supp (1) SCC 1.has also been considered in the aforesaid case. 4 In view of the aforesaid annunciation of law by the Apex Court recently, it has to be seen whether the respondents could have recovered the amount from the petitioner or not.

6. The statutory rules relied by respondents indicates that the eligibility condition was prescribed for promotion on the post of Head Clerk/Accountant. The petitioner was sought to be promoted on the post of Head Clerk from the post of Upper Division Clerk on completion of six years of service. As per the rule known as M.P.Non- Gazetted-Class III Service (Collegiate Branch), Recruitment and Promotion Rules, 1974, as amended on 15th April, 1982, the Upper Division Clerks were to be promoted on the post of Head Clerks in case they have completed six years of service and have obtained the accounts training. It is not the case of the petitioner that he was granted the accounts training, therefore, he could not have been promoted on the post of Head Clerk. The condition was very specifically mentioned in the order of promotion that in case such Upper Division Clerk is not accounts trained he is not to be relieved to join on the promotional post of Head Clerk. Thus, infact erroneously petitioner was granted benefit of higher pay scale on account of such promotion to which otherwise he was not entitled to.

7. As per the law laid down by the Apex Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (supra), the respondents were right in making recovery of such amount paid in excess to the petitioner. Even otherwise it was the statutory requirement of Rule 65 of M.P.Civil Services (Pension) Rules, 1976 that such an undertaking was required to be given by the petitioner that any amount, if paid in excess to the entitlement of the petitioner, the same will be refunded by him or the same can be 5 recovered from the retiral dues of the petitioner. As has been mentioned hereinabove, the amount has been recovered from the gratuity of the petitioner and not from the provident fund. Accordingly, no wrong is committed by the respondents in making such recovery.

8. Resultantly, the petition fails and is hereby dismissed. However, there shall be no order as to costs. (K.K. Trivedi) Judge jk.