The State of West Bengal and Others vs Gautam Kumar Acharjee

Anindita Roy Saraswati, J.—Being aggrieved by the decision of the West Bengal Administrative Tribunal in O.A. No. 420 of 2005. The petitioners have approached before this Court Under Article 226 of Constitution of India. By the said order, the learned Tribunal allowed the application filed by the respondent and thereby directed the petitioners not to make any recovery which the petitioner enjoyed till 31st October, 2011. The respondents filed the original application before the Tribunal on the ground that the respondents'' authority issued an order dated 18.12.2001 vide No. 2713/123 Pt. VII of the Chief Engineer, Public Works (Construction Board) Directorate, Calcutta withdrawing thereby the benefit of CAS of the applicant which was already allowed to the applicant in 1997. The applicant was not even served with any order of promotion prior to his availing of the said benefit in 1997. The applicant actually joined in the Public Works Directorate as a Lower Division Clerk on 12.06.1987. On 31st August, 1995 the applicant made an application to the effect that due to some of his family troubles, he would not be in possession to accept any promotion, which was accepted by the concerned authority. The department had given promotion to alt other deserving incumbents save an except the applicant. After satisfactory service consecutively for 10 years under the said directorate, an order was issued in favour of the applicant granting an additional increment to his pay with effect from 11.06.1997 under CAS, 1990. The directorate, by an order dated. 27th November, 1997 promoted the applicant along-with other in the rank of Grade III clerk with an order of posting at Barasat Sub-Division Public Works Directorate with immediate effect. And on basis of his prayer he was again transferred to the office of Chief Engineer Public Works Directorate, Calcutta.

The Finance Department of Government of West Bengal issued an order dated 13th November, 2000 to the effect that the employees who had willfully refused promotion within the span of 10 years, he would not be entitled to any benefit under CAS, 1990. On that basis, the Chief Engineer Public Works Directorate, Calcutta had issued an office order on 18th December, 2001 withdrawing thereby the said CAS benefit in respect of the applicant along with others. Though the applicant had never refused to accept promotion for which the applicant respondent approached before the Administrative Tribunal for quashing the order of recovery of the said amount which has already been paid to the applicant respondent as CAS benefit.

The State petitioner opposed the said application before the Tribunal by filing reply and also stated that a person after refusing/delaying promotion cannot get CAS benefit an avail promotion thereafter and in that case of the petitioner, the applicant hot only erroneously derived the benefit of CAS but also subsequently accepted promotion in a mala fide manner and to avoid such malpractice on the part of the employees the Government issued the circular and the authority on basis of the circular has passed the impugned order.

However, learned Tribunal after contested hearing though observed that there is no illegality in the impugned order for recalling the benefit of CAS but directed the State Government not to make any recovery which the petitioner enjoyed up to 31st October, 2011.

Learned Advocate for the petitioner/State submitted that the respondent already drew excess amount of Rs. 1,29,858/- as benefit of CAS though admittedly he is not entitled to get the same and also derived the said benefit in a mala fide manner.

Learned Advocate for the respondent on the contrary submitted there was no mala fide intention of availing CAS benefit by the respondent applicant and it was given by the department by its order dated 17th January. 1997 and thereafter promoted him along with others by its order dated 27th November, 1997. He is in previous occasion refused his promotion from Grade IV Clerk to Grade III Clerk due to some family troubles.

Be that as it may, it appears to me that the respondent had worked admittedly as a clerk Grade IV the Directorate of Public Works on and from 12.06.1987. His promotion was due in 1997. He made a representation before the authority stating that he was not in a position to accept promotion from Grade IV Clerk to Grade III Clerk due to some family troubles, which was accepted by the authority. The authority thereafter by its order dated 17.06.1997 allowed CAS benefit to the respondent along with others, thereby the respondent got the benefit of next higher scale of pay under that scheme of 1990.

However, after availing that benefits the respondent made another representation on 3rd October, 1997. Thereby he expressed his willingness to avail promotion from Grade IV to Grade III, as at that time he was physically better in position. The authority then accepted his said representation and passed the order of promotion on 27.11.1997 in the post of Grade III Clerk. However, the authority by its order dated 18.12.2001 passed an order to the effect that if any employee enjoyed the benefit of CAS Scheme, 1990 after refusing the promotion that benefit should be cancelled immediately and the amount of CAS benefit should be recovered by the D.D.O. and that order was duly communicated to the respondent along with others. The respondent thereafter filed the original application being aggrieved by the said order communicated to me.

He also obtained the interim order from the Tribunal and on the strength of the said order the petitioner had enjoyed the benefit of CAS and the Tribunal directed the Government not to make any recovery of the said amount till 31.10.2011.

However, it appears to me though it is the submission of the respondent that he never refused or delayed his promotion, prior to getting the CAS benefit but the fact remains and it appears from the document filed by himself show that he had submitted a representation refusing thereby the foregoing promotion with a plea of family troubles. Thereafter, duly enjoyed the CAS benefit on and from 12.06.1997. The respondent by his representation dated 3rd October, 1997 submitted that he had expressed his unwillingness to avail the promotion earlier as he was physically unwell. Now, he is ready to avail the same as he is now physically better. It is, therefore, clear that the averment of the said representation regarding his first representation is contradictory. It is quite clear from the second representation that he had refused his earlier promotion by the first representation and was promoted by the authority after acceptance of second representation by its order dated 27.11.1997. Thus, the respondent avails both the benefit with mala fide intention and thus he got unusual enhancement of pay scale. In such situation the order of the Government is very much applicable in the present case. In a case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, referred by the petitioner, the Hon''ble Apex Court observed that any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situation law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

In the present case it is quite clear that it is not fall in any of the exceptional category and due to mala fide intention of the respondent he had availed both the benefit from the Government and the Government accordingly has right to pass the order dated 18.12.2001 for recovery of the said amount. It is quite clear from the said order that it has scope of retrospective impact. Though the respondent got an interim order of Tribunal for stay of recovery of the said amount but it is obvious that the Government hats every right to recover the said huge amount. In the circumstances we are in opinion that the decision of the Tribunal is not correct and required to be set aside. The petition is accordingly allowed without any order of cost.

Nishita Mhatre, J.

I agree.