J. R. Burman vs State Of Chhattisgarh

This Petition has been filed challenging the order of pay fixation dated 26.05.2020 as the same was passed at the fag end of the retirement of the Petitioner which was due on 31.07.2020 and further claiming that the Petitioner was eligible for being appointed on the post of LDC in the year 1980.

Brief facts that necessitate for adjudication of the present case are that the Petitioner was appointed as LDC under Scheduled Caste quota in the Department of Agriculture in the erstwhile State of M.P. vide appointment order dated 27.09.1980. At the time of appointment, the advertisement published stated that there shall be 50% quota for those candidates who have no certificate of typewriting qualification and 50% for those who have certificate in typewriting. The Petitioner did not possess certificate in typewriting, therefore, he applied in the 50% quota which does not require any certificate. Thereafter, the Petitioner got confirmed on the post of LDC and was given promotion on the said post in the year 1986 and was absorbed on the post of Accountant. The Petitioner was superannuated on 31.07.2020 from the post of Assistant Superintendent and during his entire service period, no notice was issued to him seeking/asking for certificate of typewriting and only at the fag end of his retirement, the Respondent authorities placed reliance on the circulars of G.A.D dated 13.07.1973, 20.04.1974 and 16.01.1992 wherein conditions for making appointment on the post of LDC were mentioned. It is mandatory to clear Hindi typewriting test and if any person obtains appointment without passing the said examination, then in such circumstances, only after clearing the said examination, he will be granted the benefit of regular pay scale. Further, vide circular dated 16.01.1992, relaxation has been given to a candidate who had already attained the age of 40 years and not cleared the said examination and the benefit of the regular pay scale had also been given to him. Vide impugned order dated 26.05.2020, as it was held that the Petitioner is entitled for the pay fixation only after completing the age of 40 and not prior to that, hence this Petition.

Smt Dangi, learned Counsel for the Petitioner submits that the order passed by the Respondent authorities is against the dictum of Hon’ble Supreme Court established in the matter of State of Punjab & Others vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 in which, it has been categorically held that where payments have mistakenly been made by the employer, in excess of their entitlement, the following situations claiming recovery by the employer would be impermissible under law which are as under:-

“(i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

She further submits that after passing of such fixation order, as the Petitioner has now already retired, the Department has to either recover or adjust the said amount from the dues payable to him in the form of retiral benefits instead of recovering the same from him. She further submits that in the impugned appointment order itself, there is neither a condition of passing the typewriting examination within a stipulated period nor any notice has been issued to the Petitioner and even in the said fixation order also, no reasonable opportunity of hearing has been given to him and as the said order bears civil consequences, therefore, the compliance of principles of natural justice is mandatory and considering all these aspects, the order impugned may be set aside.

On the other hand, learned State Counsel supports the order impugned passed by Respondent No.5 and submits that even persons appointed under Scheduled Caste/Scheduled Tribe quota were never given any relaxation for passing the typewriting examination and vide circular dated 18.06.1975 also, the candidates belonging to such category were given only an extended opportunity so that they can pass such examination within the extended period of one year and 6 months.

Learned Counsel for the State fairly admits that in the return filed, it does not reflect that during the service period of the Petitioner, even a single notice has been issued to him for appearing in such typewriting examination. He also admits the fact that in the appointment order of the Petitioner, neither any rider stipulation for granting of regular pay scale to him nor any mandatory condition required to pass such type of test was mentioned.

Heard learned Counsel for the parties and perused all the documents annexed with the Petition carefully.

It is vivid that in the appointment order to the post of LDC issued to the Petitioner, there is no stipulation regarding the passing of typewriting examination within a stipulated period and further, the Respondents have failed to demonstrate that in the entire service period, any notice has been served to the Petitioner for appearing in such examination as he had categorically made an averment that the Department had never given any opportunity to him though in para-7 of the return, it has been mentioned that the Petitioner failed to pass Hindi typewriting examination for securing the benefit of regular pay scale. Upon being asked regarding such contention, learned Counsel for the State failed to bring to the notice of the Court that any such type of examination was held or letter was issued to the Petitioner whereby any opportunity has been given to him. It is further submitted that the Petitioner was also promoted to the post of UDC on 29.11.1984 and at the time of passing of the said order, he was holding the post of Assistant Superintendent and his retirement was due on 31.07.2020, therefore, on the verge of retirement, such a fixation of pay would adversely bear the civil consequences resulting into recovery from the concerned employee for the excess payment which has been made to him though he is not at fault, therefore, this Court is of the view that the order impugned is in the teeth of the judgment of State of Punjab & Others vs. Rafiq Masih (White Washer) and Others (supra) and the parameters envisaged therein clearly bar recovery from the employees belonging to Class-III and Class-IV services and as the Petitioner at the time of retirement was holding the post belonging to a Class-III category is not disputed, therefore, the recovery from the retired employee or the employees who are due for retirement within one year is also impermissible.

In view of the foregoing discussion, this Court is of the considered opinion that the impugned order of pay fixation is also in violation of principles of natural justice as the same is impermissible under law.

Resultantly, the present Writ Petition deserves to be and in accordingly allowed and the order impugned dated 26.05.2020 passed by Respondent No.5 is hereby set aside.