Partly allowed

Smt. Shakuntala Soman v. State Of Chhattisgarh and Ors.

Chhattisgarh HC8 Mar 2022WPS/5186/2012

Case brief

AI extract

What is this about?

High Court held that recovering excess salary from a Class-IV employee on compassionate appointment, due to departmental error, is harsh and impermissible citing Rafiq Masih. The order directing recovery was quashed while pay scale re-fixation remained.

What did the court decide?

Order Annexure P-6 directing recovery of excess payment from petitioner is quashed; re-fixation of pay scale portion not interfered with.

Smt. Shakuntala Soman Vs State Of… — Pension and Retirement Benefits | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT of CHHATTISGARH, BILASPUR

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WPS No. 5186 of 2012

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Smt. Shakuntala Soman W/o late Shri M.K. Soman, aged about 49 years, R/o Q.No. A/58, MPHB Colony, Kota, P.S. Saraswati Nagar, District Raipur Chhattisgarh.

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------Petitioner

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VERSUS

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State of Chhattisgarh through the Secretary, Water Resources Department, Mantralaya, Raipur Chhattisgarh.

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The Chief Engineer, Mahanadi Project, Water Resources Department, Raipur Chhattisgarh.

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The Executive Engineer (E/M) Bhaari Sayyantra Sambhag, Water Resources Department, Raipur Chhattisgarh.

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------- Respondents

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For Petitioner : Mr. Sunil Pillai, Advocate

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For Respondents : Mr. Sandeep Dubey, Dy. Adv. General

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Single Bench: Hon'ble Shri Parth Prateem Sahu, Judge

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ORDER

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08/03/2022

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Petitioner has filed this writ petition with the following reliefs:

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“10.(i) To call for records pertaining to the compassionate appointment of petitioner as also the records based on which the impugned order was passed, for kind perusal of the Hon'ble High Court.

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(ii) To direct respondents to grant petitioner the status and benefits of permanent employee from the date of initial appointment thereby extending all the consequential benefits calculated from the said date along with interest to the advantage of petitioner.

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(iii) To set aside the impugned order dated 26.07.2012 (P-6).

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(iv) To direct respondents to pay the cost expenses of petition to petitioner.

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(v) To grant any other relief deemed fit and proper by the Hon'ble High Court in the interest of justice.”

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Mr. Sunil Pillai, learned counsel for petitioner submits that petitioner's husband was under the employment of RespondentDepartment on Class-III post “Progressman”. He died in harness on 08.01.2000. Petitioner moved an application for grant of compassionate appointment which was allowed and she was given appointment on the post of “Store Attendant” with a pay scale of 2750-70-3800-75-4400 on temporary basis. Petitioner after her appointment was working continuously with full devotion. On 26.07.2012, she was served with an order, Annexure P-6, issued by Respondent 2, reducing her pay scale to 2550-552660-60-3200. Before bringing down the pay scale of petitioner, she was not given prior notice or opportunity of hearing. He submits that in the same order, Annexure P-6, there was a direction for recovery of excess payment made to the petitioner which is also illegal. There was no suppression of fact on the part of petitioner. Fixation of pay scale in the appointment order is not on account of any fault on the part of petitioner. She is an employee of Class-IV and recovery of any payment will be harsh upon the petitioner. He submits that as there was no prior notice before passing the order Annexure P-6, reducing of pay scale of the post on which she was appointed, hence, the order Annexure P-6 be quashed.

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Mr. Sandeep Dubey, learned State counsel, opposing the submissions made by learned counsel for petitioner would submit, that petitioner was granted compassionate appointment on the post of “Store Attendant” which is Class-IV category post under the posts' setup of Respondent-Department. He submits that services of the petitioner are governed by Chhattisgarh Irrigation Work Charge and Contingency Paid Employees,

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Recruitment and Service Conditions Rules, 1977 (earlier “Madhya Pradesh Irrigation Work Charge and Contingency Paid Employees, Recruitment and Service Conditions Rules, 1977”) (for short “Rules of 1977”). As per the post setup, post of “ Store Attendant ” is mentioned at serial No. 134 to be a Class-IV post. The appointment order of petitioner is placed on record as Annexure P-5 wherein post on which petitioner is appointed is also mentioned as “Store Attendant”. The pay scale which is mentioned in the order of appointment is with respect to Class-III employees. The pay scale of Class-III employee, in order of appointment, has been mentioned due to inadvertent mistake. It is contended that as wrong pay scale has been made, the order Annexure P-6 was passed only to rectify the mistake and further there is direction for recovery of excess payment because the petitioner was not entitled for payment of such pay scale, hence, there is no illegality in the order passed by Respondent 2, in any manner.

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I have heard learned counsel for the respective parties and also perused the record with utmost circumspection.

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Sofar as, the submission of learned counsel for petitioner with regard to bringing down the pay scale from 2750-70-3800-754400 to 2550-55-2660-60-3200, State in its reply specifically pleaded the reasons that wrong pay scale was mentioned in order of appointment. No rejoinder is filed in this regard. The submission of learned counsel for Respondents that the post of 'Store Attendant' is a Class-IV category post, is also not disputed by counsel for petitioner. In the Rules of 1977 filed along with reply to the writ petition, it is clearly mentioned that 'Store Attendant' as Class-IV. In the case at hand,

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undisputedly, petitioner was given compassionate appointment on Class-IV post. It is also not disputed by the petitioner that pay scale mentioned in the order of appointment is of Class-III post. By the impugned order the post on which petitioner was appointed was not amended but only the pay scale mentioned in appointment order was corrected because the pay scale mentioned in appointment order is one which is of Class-III employee.

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The appointing authority is having powers to correct/ rectify the mistake if occurred in issuing any order including order of appointment. Post sanctioned, its Class and pay scale is provided under the Rules of 1977. As it is not in dispute that the petitioner was appointed as “Store Attendant” which is Class-IV post, she will be entitled for pay scale prescribed for Class-IV post under the Rules of 1977. Respondent 2 in the order impugned amended the pay scale. It is not the case of petitioner that the pay scale mentioned in the original appointment order is of Class IV post on which she was appointed. Non-issuance of showcause notice will not cause any prejudice to her in the facts of the case because the correction is made based on the Rules of 1977 as applicable to the post on which she was appointed, hence, I do not find any illegality in fixation of correct pay scale according to post on which petitioner was appointed.

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With regard to another submission of learned counsel for petitioner that the order of recovery in Annexure P-6 to be illegal, the undisputed facts of the case would show that, it is the Respondent/ employer who gave compassionate appointment to the petitioner vide Annexure P-5 order on the post of “Store Attendant” on 16.07.2008 mentioning pay scale therein. The

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salary as per the pay scale mentioned in the appointment order is paid by the Department. In the order Annexure P-6, there is no mention that fixation of pay scale is on account of any fault of petitioner, by mis-statement or suppression of any material fact. Hon'ble Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (white washer) and others reported in (2015) 4 SCC 334 has considered the issue with regard to recovery of excess payment made to Class-III and Class-IV employees and held thus:

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“ 18 . 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

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(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.

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(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.

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(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.

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19 . We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by

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the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.

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In the case at hand also, the petitioner is Class-IV employee, appointed on compassionate basis, excess payment is made to her was not on account of any fault of petitioner but due to mistake of Respondent-Department. Recovery of excess payment from petitioner, a Class-IV employee, will definitely be harsh upon her and would also be iniquitous.

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In view of the facts of the case and ruling of Hon'ble Supreme Court in case of Rafiq Masih (supra) , recovery as mentioned in order Annexure P-6 of excess payment made to petitioner is not sustainable in the eye of law and it is hereby set aside.

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10.For the foregoing reasons, order Annexure P-6 dated 26.07.2012, sofar as, relates to re-fixation of pay scale is not interfered and the portion of the order directing recovery of excess payment from petitioner is quashed.

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Writ petition is accordingly allowed in part in the aforementioned terms. No order as to cost(s).

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(Parth Prateem Sahu) Judge

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P a w a n

Smt. Shakuntala Soman v. State Of Chhattisgarh and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Shakuntala Soman v. State Of Chhattisgarh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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