Philip Jamatia vs State Of Tripura And Ors

[1] Heard Mr. S. Deb, learned senior counsel assisted by Mr. P.K. Pal, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents.

[2] By means of this petition, the petitioner has challenged the order under No.F.4(9)-DJ/S/ACCT/2014-16/8210-215 dated 02.11.2017 [Annexure-6 to the writ petition] whereby the excess amount that the petitioner has overdrawn for wrong fixation of pay in the promotional post under Rule 12(1) of the Tripura Civil Services (Revised Pay) Rules, 2009, has been directed to be recovered. The order dated 03.11.2017 [Annexure-8 to the writ petition] is the consequential order emanating from the said order dated 02.11.2017. By the said order dated 03.11.2017, the amount that has been overdrawn by the petitioner has been quantified at Rs.62,415/-. The fact which is relevant for the present controversy may briefly be stated at the outset.

The petitioner had entered into the service under the South Tripura District Judiciary in the post of LDC in the revised scale of pay of Rs.5300-24000/- [PB-2] with the Grade Pay Rs.1800/-. Thereafter, the petitioner was promoted to the post of UDC by virtue of the order under No.F.10(3)-DJ/N/2010/4015-40 dated 13.06.2012 [Annexure-2 to the writ petition]. The petitioner had joined in the post of the UDC on 26.06.2012 and his pay had been fixed as UDC at Rs.9410/- in the said scale of pay w.e.f. 26.06.2012 as per Rule 12(2) of the ROP Rules, 2009 by the order dated 29.08.2012 [Annexure-3 to the writ petition]. Thereafter, the petitioner got promoted to the post of Head Clerk [Judicial] and he was posted in the office of the District & Sessions Judge, Belonia by the order dated 23.11.2016 [Annexure-4 to the writ petition]. The petitioner's pay in the post of Head Clerk was fixed at Rs.13500/- in the scale of pay of Rs.5700-24000/- [PB-2] with the Grade Pay Rs.4200/- w.e.f. 05.11.2014 as per Rule 12(1) of the ROP Rules, 2009 by the order No.F.7(A)(1)-DJ/U/2015/8919-923 dated 14.12.2016 [Annexure-5 to the writ petition]. By the impugned order as referred before, the petitioner's pay was refixed and as consequence thereof, his pay in the post of Head Clerk on the said date was refixed in terms of the advise rendered by the Finance Department vide their memorandum dated 21.06.2013 [Annexure-7 to the writ petition]. In terms of the said order dated 02.11.2017 which has been challenged in this writ petition, the order dated 03.11.2017 has been issued directing the concerned authority to recover a sum of Rs.62,483/- [Rupees Sixty Two thousand Four hundred Eighty Three] from the petitioner. The petitioner made a representation objecting to such re-fixation of his pay on 25.06.2012 after more than 5 years. The petitioner has challenged the re-fixation of his pay in post of Head Clerk [Judicial] which was done on the basis of fixation in the post of UDC. Without any response to the petitioner's representation, the recovery had started and the petitioner approached this court by challenging the said recovery based on the guidelines as laid down in State of Punjab & Ors. vs. Rafiq Masih [White Washer] & Ors., reported in (2015) 4 SCC 334. There cannot be any dispute in Rafiq Masih (supra). The apex court has laid down the following guidelines so far the recovery of the excess amount from Group-C & D employees is concerned. For purpose of reference, the said guidelines are reproduced hereunder:

"It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

(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."

[3] This court had immediately stayed the order of recovery by the order dated 05.04.2018 and for that reasons, no further amount has been recovered from the petitioner, but according to Mr. Pal, learned counsel appearing for the petitioner, a sum of Rs.25,511/- had been deducted from the salary of the petitioner and that arbitrary act of the respondents is reflected in the order dated 16.11.2017 [Annexure-11 to the writ petition]. Mr. Pal, learned counsel has further submitted that even the amount that has to be recovered has been rectified by the order dated 16.01.2018 [Annexure-12 to the writ petition]. Mr. Pal, learned counsel has fairly submitted that in terms of Rule 12 of the ROP Rules, 2009, the fixation of pay appears to be regular and as such, the challenge against the fixation of pay has been abandoned by the petitioner. However, Mr. Pal, learned counsel has seriously objected to the action of recovery as reflected in the orders dated 02.11.2017, 03.11.2017, 16.11.2917 and 16.01.2018 [Annexures-6,8,11 & 12 to the writ petition]. Mr. Pal, learned counsel had initially wanted to refer FR 27 for purpose of contending that the initial pay fixed not to be reduced.

[4] That submission, as noted above, has been made on the basis of the Government of India, Ministry of Law [Department of Legal Affairs] under Order No.22057/62 - Adv.(P) dated 08.08.1962. But the concern of Mr. Pal, learned counsel is misplaced as the Government of India's order is in respect when a competent authority fixed the initial pay, the other authority, which is not competent, cannot reduce the pay originally fixed even when such pay was based on some data which subsequently turned to be incorrect.

[5] Mr. D. Sharma, learned Addl. G.A. appearing for the respondents has submitted that the mistake as committed can always be rectified. Nobody is entitled to reap the benefit perennially from a mistake committed inadvertently. The competent authority has a right to refix the initial fixation of pay and if in the event it is found that some amount has been overdrawn they have the equal authority to recover the said amount. According to Mr. Sharma, learned Addl. G.A. during the preparation of fixation under ROP rules, 2017 it has come to the notice of the Finance Department that during the earlier fixation prepared by the order dated 26.06.2012 and 14.12.2016, violation of the memorandum No.F.6(1)/FIN(PC)/08 dated 21.06.2013 [Annexure-R/1 to the counter affidavit] was caused. Therefore, the competent authority had rightly directed the Drawing and Disbursement Officer to redo the fixation and recover the amount that has been overdrawn by the petitioner. There is no wrong in the said action. Mr. Sharma, learned Addl. G.A. has raised another plea that since the petitioner had exercised the option in respect of the pay fixation, in view of the decision of the apex court in High Court of Punjab and Haryana & Ors. vs. Jagdev Singh, reported in (2016) 14 SCC 267 the amount that has been overdrawn can be recovered. The apex court has categorically propounded the law that the principle as enunciated in the proposition (2) of Rafiq Masih (supra) cannot apply generally to all situations. When the payment is made to an officer in the first instance and it is clearly placed on notice that any payment found to have been made in excess would require to be refunded, the guidelines in Rafiq Masih (supra) will have no application.

[6] Having appreciated the submissions made by the learned counsel appearing for the parties, this court is of the view that the wrong fixation as occurred is not for exercise of any option but for fixation under Rule 12(1) of the ROP Rules, 2009 which remained un-repealed in the ROP Rules, 2017. Therefore, Jagdev Singh (supra) does not have any relevance in the present context. There is no dispute that after more than 5 years, the respondents had refixed the initial pay of the petitioner in the post of UDC and carried out the consequential re-fixation in the post of Head Clerk. According to this court, the principle as propounded in Rafiq Masih (supra) as quoted above, would apply. In Rafiq Masih (supra) it has been clearly laid down that recovery should not be made from the employees when the excess payment is made 5 years preceding the order of recovery. This court, in a similar circumstance held in Sumendra Debbarma vs. State of Tripura & Ors. delivered in W.P.(C) No.1342 of 2016 that such recovery is impressible in view of the law propounded in Rafiq Masih (supra).

[7] Having observed thus, the respondents are restrained from recovering any amount from the petitioner in terms of the orders dated 02.11.2017 [Annexure-6 to the writ petition], 03.11.2017 [Annexure-8 to the writ petition], the consequential order dated 16.11.2017 [Annexure-11 to the writ petition] and the order dated 16.01.2018 [Annexure-12 to the writ petition]. Hence, the orders of recovery dated 03.11.2017, 16.11.2017 and 06.01.2018 stand quashed. But this court maintains the order dated 02.11.2017 of re-fixation of pay both in the post of UDC and Head Clerk [Judicial].

In terms of the above, this writ petition stands partly allowed.

There shall be no order as to costs.