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1996 Supreme(All) 513
HIGH COURT OF ALLAHABAD
B.M.Lal, R.K.Mahajan
HARISH CHANDRA SRIVASTAVA
Versus
STATE OF U P
Decided On : 26 April 1996
Civil Misc. W. P. No. 7271 of 1986
An employee who receives a higher pay scale due to no fault of his own cannot be held liable to refund the salary already paid to him.
Headnote:
SALARY RECOVERY - WRONGFUL PROMOTION - REFUND OF EXCESS SALARY - PRINCIPLE OF NATURAL JUSTICE - EQUAL PAY FOR EQUAL WORK - [U. P. Government Servants (Pay) Rules, 1933, Rule 10]
Fact of the Case:
Petitioner, a Demonstrator in Litho Plate making, was promoted to the post of Junior Instructor plate Mounting in 1974. He continued in the post and received salary in the revised pay scale until his retirement in 1986. Later, the department sought to recover the excess salary paid to him, claiming that his promotion was wrongful.
Finding of the Court:
The court held that the petitioner was not liable to refund the excess salary as he had not misled the department to secure promotion and had discharged his duties efficiently. The court also held that the department could not recover the salary paid due to its own mistake.
Issues: 1. Whether the petitioner was liable to refund the excess salary paid to him due to a wrongful promotion. 2. Whether the principle of natural justice was violated by not affording the petitioner an opportunity of being heard before passing the recovery order.
Ratio Decidendi: 1. The court held that the petitioner was not liable to refund the excess salary as he had not misled the department to secure promotion and had discharged his duties efficiently. 2. The court held that the principle of natural justice was violated by not affording the petitioner an opportunity of being heard before passing the recovery order.
Final Decision: The court allowed the petition and quashed the recovery order passed by the department.
This petition is directed against an order dated 8-4-1986 passed by the Director of Technical Education, Kanpur, (respondent No. 2) contained in Annexure 13 to this petition, whereby the petitioner is asked to refund the salary paid in excess to him.
2. In short the case of the petitioner is that he was appointed on the post of Demonstrator in Litho Plate making, Stone Making, Chrome Litho (redesignated as Demonstratar in plate making) in the pay-scale of Rs. 120-8-200-EB-10-300 plus usual Dearness Allowance admissible under the U. P. Government at the
Northern Regional School of Printing Tech nology, Allahabad in the year 1959. The appointment was thereafter approved by the U. P. Public Service Commission, Allahabad and since his work was found commendable, therefore, the petitioner was subse quently confirmed in the year 1964.
3. The nomenclature of Northern Regional Schools of Printing Technology, Allahabad was later of charged to Northern Regional Institute of Printing Technology, Technical Education, U. P. and eight posts of Junior Instructors were sanctioned in the pay-scale of Rs. 160-320. The qualifications prescribed for the post of Junior Instructors were Diploma in Printing Technology from a recognised institute with two years skilled experience in the concerned trade or High Schools with ability of high standard production work and 12 years skilled experience in operation and maintenance of the machine of concerned trade.
4. On 16-8-1974 the petitioner was promoted to the post of Junior Instructor plate Mounting in the pay- scale of Rs. 160-320 vide order dated 16-8-1974 contained in Annexure 2 to this petition and accordingly he was paid the salary admissible to the Junior Instructor plate Mounting.
5. However, his appointment/promotion was upto the regular appoint ment/selection by the Director of Technical Education who advertised the posts of Junior Instructors plate Mounting in a daily newspaper northern India Patrika dated 5-11-1974 contained in Annexure 3 to this petition.
6. The petitioner though applied for the post in pursuance of the aforesaid advertisement but could not participate in the interview. According to the petitioner no other candidate was also found suitable and selected and, therefore, the petitioner was allowed to continue on the post of Junior Instructor plate Mounting.
7. Subsequently when the pay scale was revised by order dated 16-11-197 the petitioner was placed in the revised pay scale of Rs. 300-500 vide order dated 16-11-1976 contained in Annexure 4 to this petition.
8. It is further submitted that the post was again re advertised on 12-1-1977 in a Hindi daily newspaper aaj contained in Annexure 5 to this petition. In the process of the second selection the petitioner did participate in the Interview/selection and was duly selected vide order dated 13-7-1978 contained in Annexure 6 to this petition. However, this selection was termed as temporary/ad hoc by the Department and subsequently again this pay scale was revised to Rs. 515-860 and the petitioner was
allowed to continue on the said pay scale and to draw salary in the new pay scale since July 1, 1979 vide order dated 28-10-1983 contained in Annexure 7 to this writ petition.
9. A dispute arose between the petitioner and the department in respect of arrears of salary for which the petitioner made several repre sentations and lastly made a complaint to the Director of Technical Education U P. Kanpur claiming his arrears of salary but of no avail and vide order dated 8-4-1986 contained in Annexure 13 to the petition the petitioner was informed that he was wrongly promoted to the post of Junior Instructor on the pay-scale of Rs. 300-500 which was subsequently revised to Rs. 515- 860 and, therefore, salary drawn by him on the afore said pay-scale be refunded to the Department by him. In between the petitioner reached to the age of superannuation on 31-7-1986 and recovery proceedings were initiated against him, hence the
