Ram Pyare Mishra vs State of Jharkhand

Heard learned counsel for the petitioner and learned counsel for the respondents.

Petitioner has approached this Court with following prayers:-

(I) For quashing of letter dated 18.06.2016 by which the AGP (for short “Academic Grade Payâ€) granted to the petitioner to the tune of Rs.7000

to Rs.8000 has been recovered behind the back of the petitioner, on the ground that only such persons who have been promoted, are entitled for the

AGP.

(II) For declaring the action of the respondent authorities in recovering the AGP already granted to the petitioner as illegal, as the AGP has been

granted to the petitioner legally in terms of the 6th Pay Revision and there is no misrepresentation on the part of the petitioner in getting the said AGP.

(III) For a direction upon the respondents to refund the amount recovered behind the back of the petitioner immediately and accordingly re-fix the

pension of the petitioner.

The factual exposition as has been delineated in the writ petition is that the petitioner was appointed on 03.01.1983 in the department of Sanskrit in

Markham College of Commerce, Hazaribagh as Lecturer against which post the recommendation was sent on 15.12.1983 that is before cut-off date

i.e. 30.04.1986. However, now the nomenclature of the Lecturer has been changed as Assistant Professor. The petitioner has obtained Ph.D. degree

in the year 1988 and completed continuous service in the department as per statute and retired on 31.03.2016. The petitioner has been granted AGP of

Rs.7000 w.e.f. 2006 in terms of 6th Pay Revision. Thereafter, the petitioner has completed more than five years of the service and as the petitioner

was a Ph.D. holder, as per the norms of UGC, he has been granted the AGP of Rs.8000/- in year 2014 w.e.f. 2011. Thereafter, petitioner got

superannuated from service and after that, he was getting pension of Rs.49,100 but subsequently after recovery, it has been reduced to Rs.43,000/-

without issuance of any show-cause to him. Though he was entitled for gratuity to the tune of Rs.5,50,000/- but was given Rs.3,00,000/- only and

Rs.2,50,000/- has been recovered from him that too without giving any notice to the petitioner.

 It is further case of the petitioner that from perusal of impugned letter dated 18.06.2016 along with UGC’s recommendations dated 31.12.2008,

it would transpire that the person entering into the teaching profession in the Universities and Colleges shall be designated as Assistant Professor and

shall be placed in pay-band of Rs.15600 to 34100 with AGP of Rs.6000/-. Similarly, the lecturer already in service in pre-revised scale of Rs.8000-

13500 shall be re-designated as Assistant Professor with the said AGP of Rs.6000;Â

 Assistant Professor, who have completed four years of service and possessing Ph.D. degree in the relevant discipline shall be eligible for moving-up

to AGP of Rs.7000;Â

 Further, Assistant Professor who has completed 5 years of service in the AGP of Rs.7000/- shall be eligible to move-up to AGP of Rs.8000/-

subject to other requirements laid down by the UGC and admittedly, in terms of Clause-2 and UGC’s letter dated 31.12.2008, petitioner got the

AGP of Rs.8000/- and there is nothing like work promotion. When the impugned letter dated 18.06.2016 was passed, the petitioner made several

representations but all went in vain. Hence, the petitioner has approached this Hon’ble Court for redressal of his grievances.

Mr. Saurav Arun, learned counsel appearing for the petitioner strenuously urges that the action of the respondents in reducing the AGP of the

petitioner is illegal, void and without jurisdiction and the respondent cannot recover the AGP granted to the petitioner, behind his back. Learned

counsel further submits that the respondent authorities are bound to assign reason for recovery of the excess amount paid towards AGP and the

respondent-authority without issuance of show-cause notice to the petitioner and without assigning any reason, cannot recover the amount of AGP

which has already been paid to the petitioner. Learned counsel also submits that the respondents are bound to consider that the AGP has been granted

to the petitioner in terms of letter dated 31.12.2008 issued by the UGC w.e.f. 2006 and the action of the respondents is in violation of Articles 14 and

16 of the Constitution of India.

Per contra, counter-affidavit has been filed. Dr. A.K. Singh, learned counsel appearing for the respondent-University, vehemently opposes the

contention of the learned counsel for the petitioner. Mr. Singh argues that under Section 35 of the Jharkhand State Universities Act, 2000, it is only the

State Govt. which has the power and authority to determine the pay-band/ pay-scale, grade-pay and allowances admissible/ payable to a University

Teacher. A University has no role and discretion in this matter and the University is bound to give to a teacher what has been approved by the State

Government and nothing else. Mr. Singh further argues that it is a settled proposition of law that U.G.C. guidelines are only directory and not

mandatory in nature. The State Govt. has full right to accept or reject it or to accept it partly or to accept it with suitable modifications. The provisions

contained in resolution No. 1188 dated 20.11.2010, talks about admissibility of AGP of Rs.8000/- to a Lecturer (Senior Scale) who has five years of

service in the pay-band of Rs.15600-39100 and AGP of Rs.7000/- as on 01.01.2006 and if he fulfills the other requirements laid down by UGC.

Learned counsel further argues that the petitioner was never promoted as a Lecturer (Senior Scale) as per the procedure laid down for the said

purpose and he remained in basic grade of Assistant Professor from beginning till his superannuation and as such, he was not entitled to the AGP of

Rs.80,00/- in the light of provisions contained in letter No. 1188 dated 20.11.2010 of the State Govt. The petitioner was granted the academic grade

pay of Rs.8000/- by virtue of memo No. 1406/2014 dated 20.08.2014 issued by the University but due to an inadvertent mistake the University failed

to mention in that letter that the AGP of Rs.8,000/- was payable only to Lecturers (Senior Scale) who have five years of services in the pay-band of

Rs.15,600-39,100 and AGP of Rs.7,000 as on 01.01.2006, if they fulfilled the other requirements laid down by UGC. Learned counsel submits that a

mistake is a mistake and it can always be corrected at any point of time and when the University realized its mistake, it had issued Circular dated

18.06.2016 addressed to the Principals of all Constituent Colleges and Heads of all Post-Graduate Departments clarifying the position with regard to

admissibility of AGP of Rs.8,000/-.

Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that admittedly the petitioner has

received the AGP of Rs.8,000/- in view of letter dated 20.08.2014 issued by the University but this does not create a right to the petitioner to receive

the AGP of Rs.8000/- though he was not entitled for the same. From perusal of the documents brought on record it is manifestly clear that when the

mistake was detected by the University a circular dated 18.06.2016 was issued addressed to all Constituent Colleges and Heads of all Post-Graduate

Departments clarifying the position with regard to admissibility of AGP of Rs.8,000/-. It is clear from the resolution dated 20.11.2010 regarding

admissibility of AGP of Rs.8000/- to a Lecturer (Senior Scale) who has five years of service in the pay-band of Rs.15,600-39,100 and AGP of

Rs.7,000/- as on 01.01.2006 and if one fulfills the other requirements laid down by UGC. Admittedly, the petitioner was never promoted to the post of

Lecturer (Senior Scale) as per the procedure laid down for the said purpose and he remained in basic grade of Assistant Professor from beginning till

his superannuation and as such, he was not entitled to the AGP of Rs.8000/- in the light of provisions contained in letter No. 1188 of 20.11.2010 of the

State Govt. The mistake once detected can be rectified at any point of time and rightly, the University realized its mistake and rectified the same by

issuing fresh circular dated 18.06.2016 rectifying the earlier circular dated 20.08.2014. It is an admitted position that the pay-scale of Lecturer was

Rs.8,000-13,500/- as on 01.01.1996 and not of Rs.10,000-15,200/- on 01.01.1996. The petitioner can only be entitled for advance AGP of Rs.8,000/- if

at all he was getting the pay-scale of Rs.10,000-15,200/- as on 01.01.1996. However, the petitioner was in the payscale of Rs.8,000-13,500/- and was

getting the AGP of Rs.6,000/- till 2011. The petitioner accepted the same and the said pay-scale was never challenged by him.  In view of the

rectification and letter of Director, Higher Education, Govt. of Jharkhand, the AGP of Rs.8000, which was granted to the petitioner along with other

similarly situated persons working in the University has been withdrawn vide memo No. 7384 dated 15.07.2016.

The Hon’ble Apex Court in para-14 in case of Chandi Prasad Uniyal and Ors. vs State of Uttarakhand and Ors., reported in (2012) 8 SCC 417

has held that:-

“14. We are concerned with the excess payment of public money which is often described as “tax payers moneyâ€​ which belongs neither to the

officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in

such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess

payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because

money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the

mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients

also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme

hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust

enrichment.â€​

 Further, the principle enunciated in case of High Court of Punjab & Haryana Vs. Jagdev Singh, reported in (2016) 14 SCC 267 fully applies in the

instant case and hence, no interference is required in the instant case

In view of the aforesaid legal propositions and settled principles of law, the petitioner is not entitled for grade-pay of Rs.8,000/- and rightly the same

has been withdrawn. However, in the instant case, the petitioner has been superannuated on 31.03.2016 and without adhering to the provisions of law,

the amount has been ordered to be recovered. It is the settled principle of law that no recovery can be done from the retiral benefits viz. pension,

gratuity, etc. without following the principles of natural justice and without adhering to the settled principles of law. Admittedly, the same has not been

done and as such, the respondents are not allowed to recover any amount from the retiral benefits and if it has been recovered, the same may be

refunded to the petitioner within a period of six weeks from the date of receipt/production of a copy of this order. However, the amount of pension

shall be fixed in the pay-scale to which the petitioner is actually entitled, in view of the rectification made by the University vide notification dated

18.06.2016.

Resultantly, writ petition stands partly allowed.