2012(6) ALL MR 265
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.P. DHARMADHIKARI AND A.P. BHANGALE, JJ.
Mrs. Z. H. Lamak Vs. Accountant General- Ii & Ors.
Writ Petition No. 3113 of 1996
13th September, 2012
Petitioner Counsel: Shri Z.A. HAQ
Respondent Counsel: Mrs. B.H. DANGRE, Shri C.S. KAPTAN, Shri S.R. DESHPANDE
Maharashtra Civil Services (Pension) Rules (1982), R.134A - Recovery of excess amount paid through mistake - Recovery sought to be effected 17 years after superannuation - Petitioner though was not in senior scale for eight years was allowed selection grade - It continued till she reached age of superannuation - Petitioner was not unaware about the same but she did not point out the error - Held, Government was justified in recovering amount of Rs.1,04,989/- paid in excess. (Paras 8, 9)
Col. B.J. Akkara (Retd.) Vs. Government of India & Ors., (2006) 11 SCC 709 [Para 4,7]
Syed Abdul Qadir Vs. State of Bihar, (2009) 3 SCC 475 [Para 4]
Chandi Prasad Uniyal Vs. State of Uttarakhand, 2012 ALL SCR 2467 =2012 (7) Scale 376 [Para 4,5,7]
Shyam Babu Verma Vs. Union of India, (1994) 2 SCC 521 [Para 7]
B. P. DHARMADHIKARI, J. :- The petitioner, now aged about 75 years, has in this petition questioned the order dated 31.07.1996 by which an amount of Rs.1,04,989/- is directed to be recovered from her terminal/ retiral benefits.
2. Having heard Shri Haq, learned counsel for the petitioner, Mrs. Dangre, learned Additional Government Pleader for respondents No. 1 & 2, Shri Kaptan, learned counsel for respondent No. 3 and Shri Deshpande, learned counsel for respondent No. 4, we find that the basic facts are not in dispute. The petitioner joined services in 1963 as a Tutor in English and in 1977 that post was upgraded as Lecturer with effect from Academic Session 1975-76. In 1977 only she acquired additional qualification Diploma in Teaching in English Language and because of Government Resolution dated 25.10.1977, she was placed in the post of Lecturer.
3. The Government Resolution on revision of pay scales issued on 27.02.1989 shows a Scheme for Career Advancing in its clause 12 onwards. As per clause 12, every Lecturer is to be placed in senior scale of Rs.3000-5000 after he completes eight years of service after regular appointment. There are other conditions which are not relevant in present matter. Clause 13 then stipulates that such Lecturer who has put in eight years in senior scale become eligible to Selection Grade of Rs.3700-5700 after completing eight years of service in senior scale. Again, there are certain other compliances and those compliances are not required to be noted. Clause 15 also shows that a Lecturer is first entitled to senior scale and such Lecturer who has put in eight years of service in senior scale can be conferred Selection Grade. In facts before us, in 1999, the petitioner was placed in Selection Grade with effect from 01.01.1986. Thus, she was never placed in Senior Scale and was directly placed in next higher grade i.e. Selection Grade of Rs.3700-5700. It is continued till she reached the age of superannuation i.e. on 30.06.1995. The error was realised and hence by impugned order, recovery has been ordered. Who noted the error or then who authorized the recovery, is not decisive of the controversy.
4. Shri Haq, learned counsel, submits that in this back ground, the petitioner cannot be blamed as she was not found at fault and having put in about 17 years after superannuation, permitting that recovery at this stage would not be just. He has invited attention to the judgment of the Hon'ble Apex Court in the case of Col. B.J. Akkara (Retd.) vs. Government of India & Ors., reported at (2006) 11 SCC 709, particularly paras 28 & 29 to show that the interference by the Courts in such matters and quashing of recoveries from retired employees is because of equity and not only on legal grounds. The judgment in the case of Syed Abdul Qadir vs. State of Bihar, reported at (2009) 3 SCC 475, was also pressed into service for this purpose. The recent judgment of the Hon'ble Apex Court in the case of Chandi Prasad Uniyal vs. State of Uttarakhand, reported at 2012 (7) Scale 376 : [2012 ALL SCR 2467], is also relied upon to show how all earlier binding precedents have been viewed by the Hon'ble Apex Court. The learned counsel states that in a matter before the Hon'ble Apex Court in said judgment, the employees were continuing in service and they had also given an undertaking that if their fixation was found improper, they would refund the amount. Because of these facts, the Hon'ble Apex Court has permitted recovery.
5. Mrs. Dangre, learned Additional Goverment Pleader is opposing the petition. She submits that the provisions of Government Resolution dated 27.02.1989 are very clear and it cannot be presumed that the petitioner was unaware about the same. The petitioner, therefore, should have immediately pointed out that she was not given senior scale. The error came to notice when entitlement of the petitioner was being worked upon, on her superannuation and has been corrected. As it is government money which has been released inadvertently, same must be allowed to be recovered from a person who is otherwise not entitled to it. Our attention is also drawn to the fact that the petitioner had given an undertaking on 10.02.1984 that in case of over payment, the recovery could be made from her pension, Provident Fund contribution, death-cum-retirement, gratuity etc. The provisions of Rule 134A of Maharashtra Civil Services (Pension) Rules, 1982, is also being pressed into service for said purpose. The support is also being taken from the judgment of the Hon'ble Apex Court in the case of Chandi Prasad Uniyal vs. State of Uttarakhand, [2012 ALL SCR 2467] (supra).
6. This Court has admitted the matter on 02.07.1997. On that date, the petitioner was asked to give an undertaking that in case her petition fails, she would be bound to pay back the amount without any court action. The petitioner did not furnish any such undertaking and hence the amount of Rs.1,04,989/- was directed to be invested in fixed deposit, drawing maximum interest. Accordingly, the amount is already invested.
7. The two judgments on which Shri Haq, learned counsel, has placed reliance are looked into by the Hon'ble Apex Court in its later judgment in the case of Chandi Prasad Uniyal vs. State of Uttarakhand, [2012 ALL SCR 2467] (supra). The facts in that matter show that the appellants before the Hon'ble Apex Court were continuing in service and while they were fixed in Fifth Central Pay Scale, they had given an undertaking guaranteeing recovery of amount received in excess, from the salary/ pension. In para 13 the Hon'ble Apex Court has referred to the judgment in the case of Col. B.J. Akkara (Retd.) vs. Government of India & Ors., (supra) and Shyam Babu Verma vs. Union of India, reported at (1994) 2 SCC 521, and noted that the excess amount paid there to the teachers was not because of any misrepresentation or fraud on their part and those appellants also had no knowledge that the amount paid to them was more than their entitlement. Those appellants were, therefore, held not responsible. The confusion was ascribed to inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Thereafter the fact that majority of the beneficiaries had retired or were on the verge of superannuation, has been looked into and because of those peculiar facts and circumstances and to avoid any hardships, the recovery was not permitted. In para 15, the Hon'ble Apex Court has clarified that its earlier judgments have not laid down a proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients then only the excess amount paid could be recovered. The Hon'ble Apex Court has further pointed out that those cases turned on the peculiar facts and circumstances either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy. This law accordingly has been applied to the facts presented to it and order of High Court was maintained.
8. As we have already noted that the Scheme which is very clear, we are not in a position to hold that the excess amount was received by the petitioner without noticing it. The fact that she was not fixed in senior scale, could not have escaped her attention. Thus, release of Selection Grade directly to her in violation of above Government Resolution dated 27.02.1989, cannot be attributed only to inadvertence or negligence on the part of the Government officers.
9. We, therefore, find that the amount to which the petitioner was not entitled, has been received by her and in the light of observations made by the Hon'ble Apex Court above, its recovery cannot be said to be either unjust or illegal.
10. We, therefore, find that no case is made out. Writ Petition is dismissed. Rule discharged. The Government is permitted to withdraw the amount in deposit with interest accrued upon it. However, there shall be no order as to costs.