| SooperKanoon Citation | sooperkanoon.com/911986 |
| Court | Kolkata Appellate High Court |
| Decided On | Mar-07-2011 |
| Case Number | WP No. 6025 (W) of 2009 |
| Judge | HARISH TANDON, J. |
| Appellant | Sipra Bhattacharya (Lahiri) |
| Respondent | The State of West Bengal and ors. |
| Appellant Advocate | Mr. Amlesh Roy; Mr. Diptanil Chakraborty, Advs |
| Respondent Advocate | Mr. Bhudeb Bhattacharya, Adv |
2. The writ petitioner was appointed as assistant teacher in the vacant post in Asutosh Institution- a DA getting institution imparting education to the physically handicapped. The approval of such appointment was duly accorded by the Director of the Technical Education, West Bengal on 30.1.1986 with retrospective effect from 5.8.1985. Subsequently the writ petitioner was appointed as Principal w.e.f. 1.4.1988 and such approval was granted by the Deputy Director of Technical Education, West Bengal on 11.10.1988. Subsequently the Government of West Bengal Mass Education Extension Department issued a memo dated 30.3.2001 sanctioning the sponsorship to the said Asutosh Institution. It was specifically mentioned therein that the exiting teaching and non-teaching regular staff of the institution will be absorbed against the respective posts and shall be placed in respective scales of pay as admissible for holders of the similar qualification in identical post in sponsored institutions for the handicapped under the administrative control of the said department. It was further provided that the staff having requisite qualification and training will be absorbed in the teaching posts. By a subsequent notification dated 29th August 2002 issued by the Joint Secretary, Government of West Bengal, Mass Education Extension Department the government of West Bengal approved the service of the writ petitioner as principal of the said Asutosh Institution with effect from the date of the sponsorship of the institution i.e. 1.4.2001 and allowed further increment in scale of pay if she obtains a proper qualification and training for the post of principal within three years. By another government order dated 26.11.2002 issued by the Director of the Mass Education Extension, Government of West Bengal the appointment of the writ petitioner as principal was approved w.e.f. 1.4.2001 but stopped the further increment in scale of pay until the writ petitioner obtains the qualification and training within three years in terms of the government order dated 25.2.2002. The writ petitioner subsequently obtained B.Ed. degree in 2003 and also completed the training course in terms of the condition laid down in the letter of approval. After obtaining such training the Director of the Mass Education Extension vide memo dated 29th March 2006 intimated the Secretary, Asutosh Institution that the condition regarding the training and drawal of early increment is withdrawn and the writ petitioners are allowed to draw their early increments as trained staff with effect from the date following the date of last examination of training course. The writ petitioner thereafter was given the early increment by the respondent authorities. By an impugned order the increment which was given to the writ petitioner was stopped and further recourse was contemplated to recover the overdrawal amount paid to the writ petitioner. Thereafter several representation is made for withdrawing the impugned memo but no decision for such withdrawal was taken.
3. The writ petitioner has prayed for cancellation, quashing and setting aide the said memo dated 28th November 2007. It would be pertinent to mention that during the pendency of the writ application the writ petitioner has attained the age of superannuation.
4. Mr. Amles Roy, learned Advocate appearing for the petitioner submits that once the writ petitioner is absorbed to the post of a principal the authorities thereafter cannot question the qualification of the writ petitioner for her appointment to such post. He further argues that the order of stopping the early increment was passed on the basis of memo dated 25th February 2002 which only provides that the untrained teachers of the sponsored institutions shall be absorbed with immediate effect with the condition that they would complete the requisite training from the government recognized training seeking within three years from the date of their approval of appointment. He therefore submitted that once an approval of appointment is made and the writ petitioner is absorbed as the principal of the said institution the subsequent of the respondent authorities in stopping the earlier increment on the ground of lack of requisite qualification is not justified and tenable. He submits that even in an impugned order the approval of writ petitioner as principal has not been withdrawn but the earlier increment which the writ petitioner is entitled after having undergone the training courses. He further submits that once an increment is granted and paid to the writ petitioner by the authority concerned, no recovery could be contemplated in absence of any fraud or misrepresentation. To buttress such contention Mr. Roy relies upon a judgment of the Supreme Court in case of Shyam Babu Verma & Ors. v. Union of India & Ors. reported in (1994) 2 SCC 521 and Union of India v. Indian Railways SAS Staff Association & Ors. reported in 1995 Supp (3) SCC 600.
5. Mr. Bhudeb Bhattacharya, learned Advocate appearing for the state respondent submits that the writ petitioner having no requisite qualification to be appointed as a principal cannot be given an increment. He further submits that the qualification and requisite training are imperative to avail an increment and in absence of any one such early increment cannot be granted. He further submits that the authorities have a right to recover the money which was paid to the writ petitioner for which she was not entitled. To distinguish the judgment of the apex court delivered in case of Shyam Babu Verma (supra) Mr. Bhattacharya sought to make a distinction that in the said case the recovery was contemplated after the retirement and at the time of casting the pensionary benefits but in the instant case the authorities are sought to recover the excess payment during the period of service which is legally permissible
6. Mr. Roy, in reply, submits that there is a distinction between an absorption and appointment and in case of an absorption an employee working in a particular post is appointed by absorbing as permanent staff in terms of an existing statute or statutory rules or a policy decision of the state and in case of an appointment the requisite rules existing for such recruitment must be followed. In support of such contention he relies upon a Division Bench judgment of this court in case of State of West Bengal & Ors. v. Bibhuti Bhusan De & Ors. reported in 1997 (1) CLT HC 309. He submits that the line of distinction sought to be made by Mr. Bhattacharya with regard to recovery of an excess money the same is inconsequential in view of the judgment of the apex court.
7. Having considered the respective submissions made at the bar the point emerges for consideration is whether the recovery can be made for an excess payment from an employee if he has not committed any fraud or misrepresentation. Secondly, the early increment can be stopped for want of requisite qualification after approving the appointment and absorbing the writ petitioner to the post of principal. By an impugned order it appears that the authorities sought to implement two decisions. Firstly, stopping the early increment with retrospective effect and secondly, contemplating the recovery proceeding for an excess payment. It is a settled law that the court shall grant relief against the recovery of the excess payment if such payment is made without pr ising fraud or making any misrepresentation by the employee to the employer. In case of Shyam Babu Verma (supra) the writ petitioners were appointed as Pharmacists in the Northern Railway Central Hospital in the scale of Rs. 130-240 which was subsequently revised to Rs. 330-560 after completion of 10 years of service. Subsequently the Railway Board pointed out that the writ petitioners therein were not a qualified Pharmacists and does not posses a requisite qualification and as such were not entitled to the pay scale of Rs. 330-560. It is held in such perspective that if the petitioners therein were paid at the higher scale then what they are entitled when in absence of any fraud or misrepresentation no step should be taken to recover and adjust an extra amount paid to the petitioners.
8. Even in case of the payment in excess, the relief against recovery of excess amount can be granted by the Court. The apex court in a case of Syed Abdul Qadir & Ors vs- State of Bihar & Ors., reported in 2009(1) Supreme 163 observed as follows :
25. We now come to the question as to whether the amount that has been paid in excess to the appellants teachers should be recovered or not. It is the submission of the learned counsel appearing on behalf of the appellants-teachers that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount that has been paid to the appellants cannot and should not be recovered; it having been paid without any misrepresentation or fraud on their part. 26. From the record that has been produced before us, there is not an iota of doubt that officials of the State Government, responsible for issuing resolution dated 18.12.1989, were ignorant of the amended provisions of the FR 22-C and it is their in ion, negligence and carelessness which has created all the chaos in the case on hand. Further, until January 1999, the officials of the Education Department of the Government of Bihar were unaware of the amendment in the said rule until the accountant General, government of Bihar, on a query being made to him by the director of secondary Education, who is the head of the Department of the Secondary Education in the state of Bihar, vide his letter dated 8.1.1999, responded to the said query that the officials of the Education Department came to know of the amendment in FR 22C. That apart, it also appears from the record produced before us that while the Finance Department of the government of Bihar was in favour of making the amended provisions of FR.22C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human resource Development , Government of Bihar , wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR 22C to its teachers, unaware of the f that even under FR 22C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the state of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department was the competent authority. In this very affidavit, the Finance department while admitting that the pay fixation by the education department was wrong stated as under:
the fixation of pay under Fundamental rule 22C has wrongly been made at it was not in existence Pay fixation on the basis of a non-existent rule is a bona fide mistake.
27. this court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) 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. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case , it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the f s and circumstances of any particular case, order for recovery of the amount paid in excess.
28. Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance department had in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them for which the appellants cannot be held responsible. Rather, the whole confusion was because of in ion, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar f s and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
9. In a case of Monohar Kumar Mitra vs- State of West Bengal & Ors., reported in 2007(2)CLJ(Cal) page 131 , this court, while dealing with the case of an excess payment on account of an increment over the scale of pay, was pleased to observe that the authorities have no right to recovery the overdrawn amount if the same has been paid by mistake at the instance of the respondent authorities and disallowed the adjustment and/or recovery of any excess amount paid to the petitioner therein.
10. Yet in another judgment this court in case of Radha Gobinda Das vs- the State of West Bengal & Ors, unreported judgment passed in W.P. No. 1075 (W) of 2010 dated 7.7.2010 uniformly decided that the unilateral adjustment by authorities concerned on account of overdrawal cannot be made unless a case of misrepresentation or of fraud is made and ultimately directed the respondent authorities to refund the said amount illegally deducted.
11. The Division Bench of this Court, in the case of The State of West Bengal & Ors. vs- Harekrishna Sardar & Anr reported in 2009(2) CLJ 259 held that the unilateral deduction without issuance of any show cause or offering an opportunity of explanation is highhanded, arbitrary, mala fide and illegal. The Division Bench further observed that such unilaterally deduction which causes civil consequences cannot be passed without observing the rule of natural justice. In the same tune, the other judgment of this court in the case of Radha Govinda Das vsthe State of West Bengal & Ors unreported judgment dated 7.7.2010 passed in W.P. No. 1075 (W) of 2010 was passed.
12. Second point as enumerated above it appears that the writ petitioner was appointed as a teacher by a DA-getting institution and the appointment was duly approved by the respondent authorities. Subsequently the appointment as principal was also approved and at the time of sponsorship of the institution the writ petitioner was absorbed to the post of a principal entitled to get the early increment subject to the condition to obtain a training within a period of three years. It is not in dispute that the writ petitioner obtained a training within the stipulated period and the same was duly notified. Taking into consideration the training undergone by the writ petitioner, the writ petitioner was given an early increment. The impugned memo dated 25th February 2002 sought to be relied upon does not contend that the early increment can be granted if the employee as both the qualification as well as the requisite training from the government. What has been provided in the said memo dated 25th February 2002 is to complete the requisite training from a government recognized training centre within a period of three years from the date of approval of an appointment. Once the writ petitioner is absorbed to the post of a principal in absence of any step taken for de-absorption on the ground of lack of requisite qualification the authorities cannot contend that the writ petitioner is not entitled to early increment. As envisaged in the said memo dated 25th February 2002 to avail of a benefit of early increment it is not the requisite qualification but the completion of requisite training from the government recognized training centre is contemplated. The respondent authorities are contending that qualification and training are to be adhered conjointly in terms of the said memo dated 25th February 2002 but I could not find any such provision in the said memo.
13. The court cannot shut its eyes to a subsequent f which has not been denied by the respondent that in the meantime the writ petitioner has attained the age of superannuation. So any contemplation for recovery of any excess payment at this juncture shall be opposed to the principles laid down in various judgments of the apex court as referred hereinabove as well as the judgments delivered by this court in the above-noted reports. After the completion of the training the respondent authorities have granted the early increment to the writ petitioner and the same being the requisite qualification in terms of the said memo dated 25th February 2002 the decision of the respondent authorities for stopping the early increment is not tenable and/or justified. In view of the discussion as made hereinabove, the writ petition is allowed. The impugned memo no. 1180/MEE/Sectt. dated 26.11.2007 is hereby quashed, set aside and cancelled. The respondents are directed to draw the annual increment as applicable to the post of principal of sponsored mentally retarded institution and also to cast the pensionary benefits in accordance with law.
14. However, there shall be no order as to costs.
15. Xerox certified copy of this order, if applied for, be given to the parties on urgent basis.