Writ Petition No. 407 of 2010

20th July, 2011

Petitioner Counsel: Mr.R. L. Khapre
Respondent Counsel: Mr. A. M. Deshpande,Mr. N. S. Khubalkar,Mr. Abhay Sambre

Cases Cited:
Union of India and others Vs. M. Mathivanan, AIR 2006 SC 2326 [Para 6]
Syed Abdul Qadir and others Vs. State of Bihar and others, 2009 AIR SCW 1871 [Para 6]
Sahib Ram Vs. State of Haryana, 1995(Supp.)1 SCC 18 [Para 6]
Bihar State Electricity Board Vs. Bijay Bahadur, 2000(10) SCC 99 [Para 6]
Punjab National Bank Vs. Manjeet Singh, 2006(8) SCC 647 [Para 6]
Purushottam Lal Das Vs. State of Bihar, 2006(11) SCC 492 [Para 6]
B. J. Akkara Vs. Government of India and others, 2006(11) SCC 709 [Para 6,8]
Union of India Vs. M. Bhaskar, 1996(4) SCC 416 [Para 6]
Sadanand Bhimrao Narnawre (Dr.) Vs. Reserve Bank of India, Nagpur, 2011(1) Mh.L.J. 207 [Para 8]

JUDGMENT

SMT. VASANTI A. NAIK :- Rule. Rule made returnable forthwith. The writ petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.

2. By this writ petition, the petitioners seek a writ, order or direction for quashing and setting aside the Resolution passed by the Maharashtra Council for Agriculture, Education and Research, the respondent no.2 to this petition, on 14.08.2009, as also the consequential order dated 23.10.2009, passed by the respondent no.3 Dr. Panjabrao Deshmukh Krishi Vidyapeeth, Akola, seeking the recovery of the excess amount, which was paid to the petitioners. The petitioners seek a further declaration that the petitioners were entitled to get the higher pay-scale from the date of their time bound promotion, without any deductions.

3. Few facts giving rise to this writ petition, are stated thus-

The petitioners were appointed by the respondent no.3 - University as Junior Research Assistants in the pay-scale of Rs.365-760. The cadre of the Senior Research Assistants is the promotional cadre for the Junior Research Assistants, like the petitioners. It is the case of the petitioners that since the posts of the Senior Research Assistants were inadequate and since there was no opportunity for the Junior Research Assistants to be promoted in the said cadre, the respondent no.1State of Maharashtra, by its decision dated 21.09.1999 applied the scheme of time bound promotion to the cadre of Junior Research Assistant. At the relevant time, the pay-scale of the Senior Research Assistants with five years experience was enhanced to Rs.7450-11500 with a condition that the person must have a Master's Degree with second class in the relevant subject. In accordance with the said policy, time bound promotion was granted to the petitioners by the orders passed in 2000 and 2001. The time bound promotion was, however, granted to the petitioners with effect from 01.10.1994. It is not in dispute that after the petitioners were granted time bound promotion, some time in the years 2000 and 2001, they were paid salary in the pay-scale of Rs.7450-11500 with effect from 01.10.1994.

4. It appears that out of the four agricultural universities in the State of Maharashtra, the Junior Research Assistants at Dr. Panjabrao Deshmukh Krushi Vidyapeeth, Akola (respondent no.3) and Marathwada Krushi Vidyapeeth, Parbhani were paid the salary in the pay-scale of Rs.7450-11500, after the time bound promotion was granted to them, but the other two universities in Maharashtra namely, Mahatma Phule Krushi Vidyapeeth, Rahuri and Kokan Krushi Vidyapeeth, Dapoli paid the salary in the pay-scale of Rs.6500-10500 to the Junior Research Assistants, who were granted time bound promotion. It appears that this anomaly was noted by the respondent no.2 for the first time in 2009 and it was resolved by the respondent no.2 by the resolution dated 14.8.2009 that the Junior Research Assistants, who were given time bound promotion should be paid the salary in the pay-scale of Rs.6500-10500. It appears that the respondent no.3, on the basis of the Resolution passed by the respondent no.2, issued the notice of recovery of the excess amount paid to the petitioners as according to the respondent nos.2 and 3, the pay of the petitioners was liable to be fixed in the pay-scale of Rs.6500-10500 and not in the pay-scale of Rs.7450-11500. The Resolution passed by the respondent no.2 and the order of recovery passed by the respondent no.3, are impugned by the instant petition.

5. Mr. R. L. Khapre, the learned counsel for the petitioners submitted that the Senior Research Assistant was entitled to get his pay fixed in the pay-scale of Rs.6500-10500 for a period of first five years and with an experience of five years in the university, the Senior Research Assistant was entitled to the pay-scale of Rs.7450-11500. It is submitted on behalf of the petitioners that since both these conditions were fulfilled in the case of the petitioners, namely the possession of the Master's Degree in second class and five years experience at the University, the petitioners were entitled to get their pay fixed in the pay-scale of Rs.7450-11500 from the date on which the time bound promotion was granted to them. The learned counsel for the petitioners submitted that all the petitioners had five years experience and each of them had a Master's Degree with second class and hence, their pay was rightly fixed in the pay-scale of Rs.7450-11500. The learned counsel for the petitioners submitted that the action of the respondent no.2 in passing the resolution that the pay of the petitioners was wrongly fixed in the pay-scale of Rs.7450-11500 is bad in law and the consequential order passed by the respondent no.3, seeking recovery of the so called excess amount paid to the petitioners, is also illegal.

6. In the alternative, it is submitted on behalf of the petitioners that in case this Court finds that the petitioners were not entitled for fixation of their pay in the pay-scale of Rs.7450-11500 and that their pay was liable to be fixed in the pay-scale of Rs.6500-10500, this Court may quash and set aside the order passed by the respondent no.3 so far as it directs the recovery of the amount, which is paid to the petitioners in excess. According to the learned counsel for the petitioners, this is a fit case where the relief against recovery of the excess payment made by the respondents, needs to be granted as the petitioners were not guilty of fraud or misrepresentation and there was no fault on the part of the petitioners. According to the learned counsel for the petitioners, excess payments were wrongly made to the petitioners on account of the mistake on the part of the respondents and in such circumstances, this Court may grant the relief against the recovery. It is also submitted on behalf of the petitioners that grave and serious prejudice would be caused to the petitioners, in case the recovery is made, as the petitioners were paid the higher pay-scale since 01.10.1994 and it would be difficult for them to refund the excess amount to the respondents after a lapse of more than 15 years. It is submitted on behalf of the petitioners that some of the petitioners have already retired from service and there would be greater hardship to the retired petitioners, in case the amount is sought to be recovered from their pension. The learned counsel for the petitioners relied on the judgments reported in AIR 2006 Supreme Court 2326 (Union of India and others .vs. M. Mathivanan), 2009 AIR SCW 1871 (Syed Abdul Qadir and others .vs. State of Bihar and others), 1995(Supp.)1 Supreme Court Cases 18 (Sahib Ram .vs. State of Haryana), 2000(10) Supreme Court Cases 99 (Bihar State Electricity Board .vs. Bijay Bahadur), 2006(8) Supreme Court Cases 647 (Punjab National Bank .vs. Manjeet Singh), 2006(11) Supreme Court Cases 492 (Purushottam Lal Das .vs. State of Bihar), 2006(11) Supreme Court Cases 709 (B. J. Akkara .vs. Government of India and others), 1996(4) Supreme Court Cases 416 (Union of India .vs. M. Bhaskar), to substantiate his submission.

7. Mr. N. S. Khubalkar, the learned counsel for the respondent no.2 submitted that the case of the petitioners that they were entitled to the fixation of pay in the pay-scale of Rs.7450-11500, is ill founded as the petitioners were never promoted on the post of Senior Research Assistant at any point of time. It is the case of the respondent no.2 that the petitioners were not actually promoted to the post of Senior Research Assistants, but were merely granted higher pay-scale so as to remove the frustration of the petitioners due to stagnation in the post of Junior Research Assistants. The learned counsel for the respondent no.2 submitted that the post of Senior Research Assistant carries two pay-scales. Presently, the normal pay-scale is in the pay-scale of Rs.6500-11500 and the higher pay-scale is in the pay-scale of Rs.7450-11500. It is submitted on behalf of the respondent no.2 that only the Senior Research Assistants, who have five years experience and who possess the Master's Degree with second class in the relevant subject, are entitled to the higher pay-scale of Rs.7450-11500. It is the case of the respondent no.2 that with a view to avoid frustration due to stagnation, the petitioners should have been given the normal pay-scale, which was payable to the higher post i.e Senior Research Assistant. The learned counsel for the respondent no.2 submitted that the higher pay-scale of the higher post i.e. Senior Research Assistant, was payable to the employees, who were actually working on the higher post for a period of five years. According to the learned counsel for the respondent no.2, the petitioners were never working on the higher post i.e. Senior Research Assistants and were performing the job of Junior Research Assistant, and hence were entitled to the normal pay-scale, which was payable to the Senior Research Assistants. The learned counsel for the respondent no.2 submitted that the petitioners were wrongly paid in the higher pay-scale of Rs.7450-11500, though they were never promoted on the post of Senior Research Assistant, and were merely granted the time bound promotion, which results in the payment of the pay-scale, which is payable to the higher post.

8. According to the learned counsel for the respondent no.2, this Court may not grant any relief to the petitioners against the recovery of the excess amount as Clause 5 of the Appendix, which is annexed to their time bound promotion orders, stipulates that in case the time bound promotion is wrongly given to an employee, the respondents would be entitled to withdraw the higher pay-scale, which is granted to the employee and the employee should furnish an undertaking in that regard. It is submitted on behalf of the respondent no.2 that the petitioners had given an undertaking in accordance with Clause 5 of the Appendix annexed to their time bound promotion orders, issued in the years 2000 and 2001. It is submitted on behalf of the respondent no.2 that in view of the undertaking given by the petitioners, the respondents are entitled to recover the excess amount, which is wrongly paid to the petitioners. The learned counsel for the respondent no.2 relied on the judgment reported in 2011(1) Mh.L.J. 207 (Sadanand Bhimrao Narnawre (Dr.) .vs. Reserve Bank of India, Nagpur) to substantiate his submission. The learned counsel for the respondent no.2 also relied on the judgment reported in 2006(11) Supreme Court Cases 709 (B. J. Akkara .vs. Government of India and others) to canvass that in any case the petitioners would not be entitled to seek the relief against the recovery from the date it was made known to them that they were wrongly paid in the higher pay-scale.

9. Mr. A. M. Deshpande, the learned Assistant Government Pleader, appearing on behalf of the respondent no.1, adopted the submissions made on behalf of the respondent no.2 and submitted that the petition be dismissed as the action of the respondent nos.2 and 3 in seeking the recovery of the amount, is just and proper and this Court may not grant any relief against the recovery.

10. Mr. Abhay Sambre, the learned counsel appearing on behalf of the respondent no.3 submitted that since the petitioners were paid in the higher pay-scale for a long time, the respondent nos.2 and 3 have rightly decided to seek the recovery of the amount from the petitioners. The learned counsel for the respondent no.3 submitted that it was due to the mistake of the respondent no.3-University that the petitioners were paid in the higher pay-scale for a long time and the excess payment was not made due to any misrepresentation or fraud on the part of the petitioners. The learned counsel for the respondent no.3 submitted that the respondent no.3 is seeking the recovery in 36 installments and hence, this Court may not grant any relief against the recovery to the petitioners. The learned counsel for the respondent no.3 also sought for the dismissal of the writ petition.

11. On hearing the learned counsel for the parties, it appears that the pay of the petitioners was wrongly fixed in the pay-scale of Rs.7450-11500 since the year 1994. It is necessary to note that the petitioners were nor actually promoted to the post of Senior Research Assistants at any point of time. Since, the petitioners could not have been promoted on the post of the Senior Research Assistant in the absence of the vacancies and since, the petitioners would have suffered frustration due to stagnation in the post of Junior Research Assistant, the State of Maharashtra decided to grant time bound promotion to the petitioners. In view of the decision of the State of Maharashtra, the petitioners were granted the time bound promotion and the orders in that regard were issued in the years 2000 and 2001 granting time bound promotion with effect from 01.10.1994. The Government Resolution dated 21.09.1999 clearly shows that the petitioners were only entitled to the higher pay-scale as the higher posts were not in existence. The Government Resolution dated 21.09.1999 stipulates that after a period of 12 years, an employee would be entitled to the higher pay-scale. The Government Resolution speaks merely of grant of a higher pay-scale and does not speak of actual promotion. In fact, the words "functional promotion" are incorporated in the Resolution/decision to show that there is difference between the terms "functional promotion" and "time bound promotion". Functional promotion is referable to actual promotion and time bound promotion entitles an employee to the pay scale of the higher post on completion of 12 years service, without actual promotion. Since the post of Senior Research Assistant carried two pay scales, the petitioners were entitled to the lower pay scale of the two, as the higher pay scale was payable only the Senior Research Assistants who were actually promoted as such and also had 5 years experience and a masters degree with a second class.

12. Thus, the petitioners were never promoted on the post of Senior Research Assistants and they never performed the functions and duties of the higher post. The petitioners were not actually promoted on the post of Senior Research Assistants and were merely given higher pay-scale with a view to remove frustration due to stagnation. In such circumstances, the petitioners were entitled to receive the pay in the normal pay-scale of the Senior Research Assistant in the pay-scale of Rs.6500-10500 and were not entitled to the fixation of their pay in the pay-scale of Rs.7450-11500. The petitioners had at no point of time actually worked as Senior Research Assistants and therefore, could not have got their pay fixed in the higher pay-scale of Rs.7450-11500. It appears that the respondent no.3 has mistakenly granted the higher pay-scale to the petitioners, though, the petitioners were entitled to the fixation of pay in the pay-scale of Rs.6500-10500 only. Since the petitioners were only granted time bound promotion, which results in the grant of higher pay-scale only and were not actually promoted to the post of Senior Research Assistants, they were entitled to the normal pay-scale, which was payable to the post of Senior Research Assistant and not the higher pay-scale in the pay-scale of Rs.7450-11500, which was payable to the Senior Research Assistants, after gaining five years of experience. Hence, we find nothing wrong with the resolution passed by the respondent no.2 on 14.08.2009 holding that the petitioners, who were grated time bound promotion, were entitled to the fixation of pay in the pay-scale of Rs.6500-10500 only.

13. Having held that the petitioners were not entitled to the fixation of pay in the pay scale of Rs.7450-11500/-, and instead were entitled to pay scale of Rs.6500-10500, it would be necessary to consider whether the petitioners are entitled to grant of any relief against the recovery. It is not in dispute as it is admitted on behalf of the respondent on.3 that the petitioners were not granted the higher pay scale of Rs.7450-11500/- on the misrepresentation by the petitioners or due to some fraud on the part of the petitioners. It is in fact admitted by the respondent no.3 University that it is due to the mistake of the University that the pay of the petitioners was fixed in the pay scale of Rs.7450-11500/-. The petitioners have pointed out that the youngest petitioner in this case is about 52 years of age and some of the petitioners have retired from service. It is brought to the notice of this court that all the petitioners are in the advanced age and are liable to incur additional expenses for the higher education and the marriages of their children. It is averred in the petition that at this stage, if the salary of some of the petitioners is reduced, and if the pension amount payable to some of them is forfeited in view of the recovery, they would be put to great hardship for no mistake on their part. It is the case of the petitioners that with the drastic reduction in the salary and pension, the petitioners would suffer grave hardships and hence, this court may grant the relief against the recovery in this case.

14. On perusal of the various judgments relied on by the counsel for the petitioners it appears that the Hon. Supreme Court has time and again granted relief against the recovery in cases where the excess amount is not paid to the employees due to their misrepresentation or fraud on their part and has been paid in view of the mistake of the authorities. In the judgment reported in 1995 (Supp) (1) SCC Page 18, the Hon. Supreme Court has granted relief against the recovery in favour of the employee in that case as the Supreme Court found that the employee was not at fault and it was due to the mistake of the Principal that the employee was paid the excess amount. Similarly in the judgment reported in 1994(2) SCC Page 521, the Hon. Supreme Court directed that no steps should be taken to recover or adjust any excess amount paid to the employees due to the fault of the authorities as the employees were in no way responsible for the excess amount paid to them. Also, in the case reported in 1996(4) SCC Page 416, the Hon. Supreme Court observed that the recovery of the amount already paid would cause hardship to the employees concerned and therefore, the authorities were restrained from recovering the amount which was already paid to the employees. In the judgment reported in 2006(11) SCC Page 709 the Supreme Court held that the relief against recovery is granted in favour of the employees by the courts not because of any right of the employees, but in equity with a view to relieve the employees from the hardship that would be caused if the recovery was made. The Supreme Court observed that the government servant would spend whatever emoluments he receives for the upkeep of his family and in case he receives an excess payment for a long period, he would spent it, genuinely believing that he is entitled to it. The Hon. Supreme Court went on to add that as the pensioners are in a more disadvantageous position as compared to the employees in service, any attempt to recover the excess wrong payment would cause undue hardship to them. In the case before the Supreme Court, the employees were not guilty of any misrepresentation or fraud in regard to the excess payment. The hardship caused to the employees before the Hon. Supreme Court and the employees in the present case is some what similar. The petitioners in this case were also receiving the higher pay scale for a long time and the petitioners were normally expected to spend it, genuinely believing that they were entitled to it. In the instant case the petitioners were not guilty of any misrepresentation or fraud in regard to the excess payment. As held by the Hon. Supreme Court, the recovery should not be made from the pensioners as they are in a more disadvantageous position as compared to the employees in service. In the case before the Supreme Court, the Supreme Court therefore granted the relief against the recovery of the excess amount of pension paid to the employees till the date they filed the petition and obtained interim order of stay. We humbly follow the law laid down by the Hon. Supreme Court in the judgment reported in 2006(11) SCC Page 709 to hold that the respondents would not be permitted to seek the recovery till the respondent no.3 passed the order on 23.12.2009 seeking recovery from the petitioners on the ground that they were not entitled to higher pay scale. By the order dated 23.12.2009, it was communicated to the petitioner that they were not entitled to higher pay scale and hence the petitioners cannot seek the relief against recovery after 23.12.2009 as they became aware at that time that they were not entitled to the higher pay scale. Any further insistence by the petitioners for grant of higher scale after December 2009 would mean that they were desirous of claiming higher pay scale though they were not entitled to it. The learned counsel for the respondent no.2 has rightly relied on the judgment reported in (2006) 11 SCC Page 709 and specifically paragraph 31 thereof to canvass that the petitioners should not be granted the relief against the recovery after December 2009. The judgment reported in 2011 (1) Mh.L.J. Page 207 and relied on by the learned counsel for the respondent no.2 would not support the respondent no.2 in preventing the grant of relief against recovery in favour of the petitioners as it is observed in clause (e) of paragraph 5 of the judgment that wherever the court is satisfied about the hardship that would be caused due to the recovery, the matter being in the realm of judicial discretion, the courts may on facts and circumstances of a particular case, in equity, make a suitable order regarding recovery except in a case where the employee is guilty of misrepresentation or fraud. By following the law laid down by the Hon. Supreme Court we exercise the discretion, in equity, in favour of the petitioners so as to grant the relief against the recovery in their favour as this is surely not a case where the petitioners are guilty of misrepresentation or fraud.

15. The submission made on behalf of the respondent no.2 that the petitioners are not entitled to grant of relief against the recovery in view of clause (v) to the Appendix annexed to the orders granting time bound promotion is liable to be rejected as clause(v) of the Appendix merely speaks of an undertaking for withdrawal of the higher pay scale in certain cases and in this case the respondents asked the petitioners to give an undertaking about the repayment of the amount which is received by the employee because of grant of an incorrect pay scale. In fact it would be necessary to consider the government resolution dated 21.9.1999 which provides that in case a time bound promotion is granted to an employee wrongly that benefit would be withdrawn, but the monetary benefits which are granted to such an employee shall not be recovered from him. Even otherwise, we feel that in the facts and circumstances of the case grave and serious hardship would be caused to the petitioners in case the petitioners are not granted the relief against the recovery. Since the petitioners were paid in the higher pay scale for a period of more than 15 years, the petitioners would be literally thrown on the streets in case the excess amount paid to them is recovered by the respondents. Even if the amount is recovered in installments the amount of each installment would be huge and the recovery of the amount in installments would also cause hardship to the petitioners who are either at the fag end of their service or are retired. Hence, we permit the respondents to recover the excess amount paid to the petitioners after December 2009 as in December 2009 the petitioners realised that they were paid in the higher pay scale.

16. Hence, for the reasons aforesaid, the writ petition is partly allowed. It is held that the petitioners were not entitled to fixation of pay in the pay-scale of Rs.7450-11500/- and were entitled to fixation of pay, only in the pay scale of Rs.6500-1050/-. The petitioners are however granted the relief against the recovery of the excess payment made to the petitioners till December 2009. The respondents, are free to make the recovery of the excess payment made to the petitioners after December 2009 and also refix the pension of the retired petitioners.

Rule is made absolute in the aforesaid terms with no order as to costs.

Petition partly allowed.