2016(2) ALL MR 750
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A. V. NIRGUDE AND A. I. S. CHEEMA, JJ.

Babulal Rama Thakre Vs. Work Load Committee, Zilla Parishad & Ors.

Writ Petition No.3190 of 2003

24th November, 2014.

Petitioner Counsel: Shri S.V. NATU
Respondent Counsel: Smt. S.D. SHELKE, Shri P.R. PATIL

Constitution of India, Art.16 - Government Resolution, dt.29.04.1978 - Pay fixation - Claim for recovery of amount - Due to wrong fixation of pay - GR regarding option to be exercised of revised pay scale - Petitioner was terminated prior to said GR - Petitioner was subsequently reinstated in service - Claim for recovery was made after reinstatement in service - Authorities accepted and certified pay fixation - Petitioner cannot be deprived of consequential benefits arising from pay fixation in subsequent course of his service - Recovery if any made is to be refunded to petitioner. (Paras 7, 8, 9, 12, 13)

Cases Cited:
Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors., 2009(3) SCC 475 [Para 10]
Kusheswar Nath Pandey Vs. State of Bihar & Ors., 2013(12) SCC 580 [Para 11]
Bihar State Electricity Board & Anr. Vs. Bijay Bhadur & Anr., (2000) 10 SCC 99 [Para 11]
Purushottam Lal Das & Ors. Vs. State of Bihar & Ors., (2006) 11 SCC 492 [Para 11]


JUDGMENT

A. I. S. CHEEMA, J. :- Petitioner Babulal Thakre was working as Assistant Teacher with Respondent No.4. Respondent No.3 - Senior Auditor of Education Department while verifying revision of pay-scale as per 5th Pay Commission in 2002, raised objections that in 1979 there was wrong fixation of pay and directed recovery. Hence the Petition.

2. Facts can be stated in brief as follows:

(A). Petitioner claims that he was appointed as Assistant Teacher in the High School at Tamaswadi, of Respondent No.4 on 12th June 1974. Pay-scale of the staff was revised under Badkas Pay Commission vide Government Resolution dated 19th January 1976, with effect from 1st April 1974. Respondent No.4 - School suspended the Petitioner on some charges, from 16th September, 1976. He was reinstated on 1st April 1977. Again the School terminated the Petitioner on 11th June 1977. Petition shows various authorities moved by the Petitioner and the matter was carried to High Court in Writ Petition No.1399 of 1979. Petitioner succeeded and he was reinstated on 12th November 1979. Thus Petitioner was terminated on 11th June 1977 and got reinstated on 12th November 1979. In between, on 29th April 1978 Government Resolution was issued applying Bhole Pay Commission to the employees of Government and Non -Government Schools, w.e.f. 1st April 1976. Petition refers to Government Resolution dated 29th April 1978 (relevant extract Exhibit A) and Government Resolution dated 2nd August 1978 (Exhibit A-1) and it is claimed that as per the G.R.s option was to be exercised by the employees within three months to fix their pay in revised pay-scales and in the absence of declaration, the employees were to be deemed to have elected the revised scales of pay w.e.f. 1st April 1976. The schools were directed to bring the contents of the G.R.s to the notice of the employees whether on duty, leave, deputation or under suspension and to advise them to declare their options. The Petitioner, however, was at the relevant time, out of employment and thus there was no question of his exercising option till he got reinstated on 12th November 1979. Petition claims that within three months of joining his duties, Petitioner exercised his option for application of Bhole Pay Commission w.e.f. 12th June 1977, the date of his termination by Respondent No.4. His pay-scale was accordingly fixed and the same was verified by Senior Auditor vide orders dated 26th March 1980.

(B). According to Petitioner the Government of Maharashtra applied 4th Pay Commission w.e.f. 1st January 1986 vide orders dated 2nd September 1988 and his pay-scale was fixed after revision, which was verified by Deputy Director of Education (Respondent No.2). Later, under G.R.'s dated 2nd September 1989 and 15th January 1990, Respondent No.4 School Committee vide order dated 4th March 1990 sanctioned Senior Grade to Petitioner w.e.f. 1st June 1986. Even this was verified and certified by Senior Auditor of Education Department, Jalgaon. Petitioner has filed Exhibits B to D in support of such fixation and verification of pay-scales.

(C). It is further case of Petitioner that vide G.R. Dated 13th May 1999, 5th Pay Commission was applied and Respondent No.4 granted Selection Grade to the Petitioner in the 5th Pay Commission w.e.f. 1st January 1996 but the same was yet to be verified. Petitioner was again suspended on 1st June 2000 by Respondent No.4 but as per orders in Writ Petition No.2936 of 2000, he got reinstated on 2nd December 2000. Service Book of the Petitioner was sent for verification to Respondent No.3 - Senior Auditor by Respondent No.4. On this occasion, Respondent No.3 raised objections that while applying Bhole Pay Commission, option was exercised twice, which was not permissible. Respondent No.3 called explanation of Respondent No.4 and Respondent No.4 vide letter dated 12th March 2001 informed that option was not exercised twice. However, Senior Auditor - Respondent No.3 reported to Deputy Director of Education (Respondent No.2) that pay fixation under Bhole Pay Commission was wrongly done and explanation of Petitioner was taken and the Deputy Director of Education informed Respondent No.1 - Work Load Committee. The Committee directed Respondent No.3 to recover excess payment from Petitioner and Respondent No.2 issued letter dated 6th May 2002 (Exhibit J) in this regard. Respondent No.2 vide letter dated 18th May 2002 (Exhibit K) directed the School (Respondent No.4) to calculate and recover excess payment and submit proof. Respondent No.4 calculated dues of Rs.74,492/- and the amount is sought to be recovered. Thus, the present Petition was filed seeking quashment of letters Exhibit J and K as well as order dated 30th June 2003 (Exhibit L) vide which the difference was calculated.

3. When the Petition was filed and Rule was issued on 30th September 2003, it was directed that recoveries, if made, pursuant to the impugned communication shall be subject to the final decision in this Petition.

4. The Respondents (1 to 3 and 5) filed affidavit in reply dated 12th November 2003. The School has not filed affidavit. We will refer to Respondent Nos. 1 to 3 and 5 as Respondents. As per the affidavit in reply, the Petitioner was under suspension on 1st April 1976 and he was reinstated on 12th November 1979. He opted for revision of pay w.e.f. 1st April 1976 as per G.R. dated 29th April 1978, within period of three months from date of reinstatement (dated 12th November 1979). After that the Head Master being competent authority, fixed the revised pay w.e.f. 1st April 1976 at the stage of Rs.290/-. The Senior Auditor verified this pay fixed vide remarks dated 29th December 1979, in the service book. Exhibit R-1 with extract from Service Book is filed in support. According to Respondents, Petitioner exercised second and new option for revision of pay w.e.f. 12th June 1977 on the basis of which his revised pay w.e.f. 12th June 1977 at the stage of Rs.340/- was fixed by the Head Master and verified by Senior Auditor on 26th March 1980. In this regard, copy of relevant page from Service Book, with Exhibit R-2 has been filed. Respondents claimed that vide G.R.'s dated 29th April 1978 and 2nd August 1978 it was made clear that option once exercised was final and thus according to Respondents second time option could not have been exercised. The verification by Senior Auditor on 26th March 1980 was not on the basis of first original option but on second new option, which was not permissible. Subsequent pay fixation done under the 4th Pay Commission was on the basis of the earlier pay fixation done which was not correct. When the case was received for verification under the 5th Pay Commission, Respondents noticed the error and thus objections were raised and after giving opportunity to the Petitioner, orders were passed regarding recovery as claimed. The provisions of G.R. dated 3rd August 2001 are applicable to State Government employees only and are not applicable to Petitioner being in Non Government secondary school. Respondents claim that on 30th November 1989 (i.e. after 4th Pay Commission) Petitioner had given undertaking that if there is any excess payment, the same could be recovered. The defence of the Petitioner was not accepted by Regional Task Force, referred to by Petitioner as Work Load Committee.

5. Vide rejoinder dated 26th September 2014 Petitioner has countered the affidavit in reply claiming that it is wrong for Respondents to claim that he had exercised option for revision of pay w.e.f. 1st April 1976. According to him, revision of pay as reflected in Page No.74 (Exhibit R-1) was done, in default, during period of his termination which is prior to 12th November 1979, which was duly verified by Senior Auditor of Education on 29th December 1979. According to Petitioner, after reinstatement on 12th November 1979 he has exercised the option for first time to fix his pay as on 12th June 1977 which was the date of his termination and accoring to him, he has exercised this option within three months from reinstatement as per the G.R. dated 29th April 1978. This option was rightly exercised and the earlier endorsement of pay fixation on 1st April 1976 was cancelled as it was contrary to G.R. dated 29th April 1978. The Petitioner is pointing out that in the endorsement below Exhibit R-2 there is endorsement "as per option", which is missing if the relevant portion in Exhibit R-1 is perused. After the endorsement as seen below Exhibit R-2, verification of pay was done three times by Senior Auditors and thus it cannot be said that Petitioner has illegally exercised option.

6. We have heard learned counsel for both sides who have vehemently supported the above respective cases of parties. According to learned counsel for Petitioner when Bhole Pay Commission was applied, Petitioner was out of job and exercised option only once after reinstatement and opted for date of 12th June 1977 and all subsequent pay fixations are on this basis and position cannot be reversed after 2 decades to take away benefits flowing from the fixation as to order recoveries. Counsel for Respondents however claims that recovery is legal and permissible due to wrong fixation and payment.

7. Government Resolution dated 29th April 1978 (relevant extract - Exhibit A - Page 18) shows that the option regarding revised pay scale was to be exercised within three months of the date of issue of the Resolution. If the option was not exercised, the employee was deemed to have elected the revised scale of pay w.e.f. 1st April 1976. Para 4(1)(i) and (ii) of the said Government Resolution read as under:

"4. Exercise of option:

(1) The option under proviso to para 3 shall be exercised in writing in the form annexed to this Resolution (Annexure I) so as to reach the authority mentioned in sub para (2) below within three months of the date of issue of this resolution or where an existing scale has been revised by an order issued subsequent to that date, within three months of the date of such order provided that -

(i) In the case of an employee who is on that date on leave or deputation on foreign service, the said option shall be exercised in writing so as to reach the said authority within three months of the date of his return from leave or repatriation from deputation or foreign service and

(ii) where an employee was under suspension on the 1st April 1976 the option may be exercised within three months of the date of his return to duty if that date is later than the date prescribed in this sub para."

8. It is clear that this did not cover the case of the Petitioner who was already terminated on 12th June 1977 when this Government Resolution dated 29th April 1978 got issued. He was reinstated only on 12th November 1979 after orders in the Writ Petition which he had filed. Exhibit R-3 (page 79) filed by the Respondents is letter dated 7th December 2001 which was sent by the School - Respondent No.4. It shows ( at page 80) that there was no clarity regarding what is to be done regarding employee like the Petitioner and so stamp regarding his pay fixation got put on the service book and it was done after orally consulting the Senior Auditor. The letter in further part is that the pay fixation w.e.f. 12th June 1977 was done accepting the option exercised. In this regard letter dated 12th March 2001 (Exhibit F - Page 46) of the Respondent No.4 - School is much more clear which in no uncertain terms records that option was not exercised twice and the option exercising pay revision from 12th June 1977 was correct. The Petitioner has rightly argued that in Exhibit R-1 the fixation of pay read with the extract from service book does not show that it was on the basis of any option exercised, something which is mentioned with the stamp of pay fixation done at Exhibit R-2 where also service book extract is attached. In the service book extract with Exhibit R-2 (at page 77) with the stamp regarding pay fixation, words are added "as per option". Although the Respondents claim that option was exercised twice but there is no document to show that on the earlier occasion any option in writing as per G.R. was filed by the Petitioner. The affidavit in reply vaguely mentions (in Para 4) that the deponent opted for revision of pay w.e.f. 1st April 1976. Nothing in support has been filed except making reference to Exhibit R-1. Petitioner has rightly argued that earlier stamp put by the Head Master in the service book was not on the basis of any option exercised by the Petitioner. It is rightly argued that the Petitioner was not in service at the particular time and exercised option only after being reinstated on 12th November 1979.

9. As mentioned, the letter dated 7th December 2001 (Exhibit R-3 - Page 79) clearly shows that the Head Master was having confusion regarding what to do with regard to matter like the present Petitioner and the G.R. (Exhibit A-Page 18) dated 29th April 1978 did not deal with situation of employee like Petitioner who was litigating termination and got reinstatement subsequently. In such situation, if the Respondent No.4 and then Auditor accepted cancellation of the earlier endorsement put in the service book (Exhibit R-1) and accepted pay revision as per subsequent endorsement (Exhibit R-2), it would not be appropriate to reopen the topic after more than 20 years. Record does show that after the pay revision endorsement dated 26th March 1980 (Exhibit R-2), the same pay revision of Petitioner was also acted upon and further accepted when 4th Pay Commission was introduced and implemented. There is no justification for belated act of the Respondents in May, 2002.

10. Learned counsel for the Petitioner relied on the case of Syed Abdul Qadir and others vs. State of Bihar and others, reported in 2009(3) S.C.C. 475.. In that matter at the time of revision of pay-scale certain additional increments on promotion to higher post were given. The same were later tried to be recovered as wrongly paid. In Para 28 of the Judgment, Hon'ble Supreme Court observed as under:

"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 inaction, 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 facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. "

11. Reliance is also placed on the case of Kusheswar Nath Pandey vs. State of Bihar and others, reported in 2013(12) S.C.C. 580. In that matter appellant was given time bound promotion and after 11 years the authorities woke up to claim that the time bound promotion was wrongly given, relying on the rules. Learned Single Judge of the High Court allowed writ petition holding that the time bound promotion granted to the appellant 11 years earlier was not because of any fault or fraudulent act on the part of the appellant and therefore could not be cancelled. In appeal, the Division Bench of the High Court set aside the Judgment of the learned Single Judge. In Appeal to the Hon'ble Supreme Court, the counsel for appellant relied upon Judgments of the Hon'ble Supreme Court in the case of Bihar State Electricity Board and another vs. Bijay Bhadur and another reported in (2000) 10 S.C.C. 99 and the case of Purushottam Lal Das and others vs. State of Bihar and others, reported in (2006) 11 S.C.C. 492 where it was held that recovery could be permitted only in such cases where the employee concerned is guilty of producing forged certificate for the appointment or got the benefit due to misrepresentation. Hon'ble Supreme Court observed in Para 10 and 11 as under:

"10. In our view, the facts of the present case are clearly covered under the two Judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time bound promotion which was given to him and some eleven years thereafter, the Authorities of the Bihar Government woke up and according to them the time bound promotion was wrongly given and then the relevant rules are being relied upon and that too after the appellant had passed the required examination.

11. In our view, this approach was totally unjustified. Learned Single Judge was right in the order that he has passed. There was no reason for the Division Bench to interfere. The Appeal is therefore allowed. The Judgment of the Division Bench is set aside. The writ petition filed by the appellant will stand decreed as granted by the learned Single Judge. The parties will bear their own costs."

12. Keeping in view the Judgments of the Hon'ble Supreme Court as above and comparing and considering facts of the present matter, we have no doubts that the acts of the Respondents attempting to claim that option was exercised twice while applying Bhole Commission, cannot be justified.

13. We hold and direct that the Respondent Nos. 1 to 5 cannot be allowed to reopen the pay fixation done of the Petitioner and which was certified on 26th March 1980 (as per Exhibit R-2) and the Petitioner cannot be deprived of consequential benefits arising from the said pay fixation in subsequent course of his service. The present Writ Petition is allowed accordingly. Recoveries, if any made, in this regard consequent to impugned orders dated 6th May 2002 (Exhibit J), 18th May 2002 (Exhibit K) and 30th June 2003 (Exhibit L) shall be refunded to the Petitioner within three months of this Judgment and order.

Rule made absolute on the terms indicated above.

Petition allowed.