Partly allowed

Kuldeep Singh v. State of Uttarakhand through Secretary Education

Uttarakhand HC6 Nov 2023WPSS/3210/2018

Case brief

AI extract

What is this about?

This judgment dismisses the State of Uttarakhand's claim to recover excess salary paid to a Group 'C' Assistant Teacher. The Court held that recovery from lower-category employees due to a departmental bona fide mistake is impermissible under the principles enunciated by the Supreme Court in State of Punjab v. Rafiq Masih. The vast majority of 40+ clubbed writ petitions seeking similar relief were

What did the court decide?

Petitioners were restrained from making any recovery from the Petitioners in terms of the impugned direction to recover excess salary.

Kuldeep Singh Vs State of Uttarakhand… — Pension and Retirement Benefits | Uttarakhand HC (2023)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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ON THE 6^TH DAY OF NOVEMBER, 2023

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BEFORE:

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HON’BLE SHRI JUSTICE MANOJ K. TIWARI Writ Petition (S/S) No. 990 of 2018 BETWEEN:

Manoj Kumar

… Petitioner

AND:

State of Uttarakhand & others

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… Respondents

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With

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Writ Petition (S/S) No. 2068 of 2018 / Writ Petition (S/S) No. 2069 of 2018
Writ Petition (S/S) No. 2070 of 2018 / Writ Petition (S/S) No. 2071 of 2018
Writ Petition (S/S) No. 2072 of 2018 / Writ Petition (S/S) No. 2073 of 2018
Writ Petition (S/S) No. 2074 of 2018 / Writ Petition (S/S) No. 2076 of 2018
Writ Petition (S/S) No. 2077 of 2018 / Writ Petition (S/S) No. 2078 of 2018
Writ Petition (S/S) No. 2079 of 2018 / Writ Petition (S/S) No. 2080 of 2018
Writ Petition (S/S) No. 2081 of 2018 / Writ Petition (S/S) No. 2082 of 2018
Writ Petition (S/S) No. 2083 of 2018 / Writ Petition (S/S) No. 2084 of 2018
Writ Petition (S/S) No. 2085 of 2018 / Writ Petition (S/S) No. 2086 of 2018
Writ Petition (S/S) No. 2087 of 2018 / Writ Petition (S/S) No. 2088 of 2018
Writ Petition (S/S) No. 2190 of 2018 / Writ Petition (S/S) No. 2191 of 2018
Writ Petition (S/S) No. 2192 of 2018 / Writ Petition (S/S) No. 2193 of 2018
Writ Petition (S/S) No. 2194 of 2018 / Writ Petition (S/S) No. 2195 of 2018
Writ Petition (S/S) No. 2196 of 2018 / Writ Petition (S/S) No. 2197 of 2018
Writ Petition (S/S) No. 2198 of 2018 / Writ Petition (S/S) No. 2199 of 2018
Writ Petition (S/S) No. 2200 of 2018 / Writ Petition (S/S) No. 2201 of 2018
Writ Petition (S/S) No. 2202 of 2018 / Writ Petition (S/S) No. 2203 of 2018
Writ Petition (S/S) No. 2204 of 2018 / Writ Petition (S/S) No. 2205 of 2018
Writ Petition (S/S) No. 2206 of 2018 / Writ Petition (S/S) No. 2207 of 2018
Writ Petition (S/S) No. 2208 of 2018 / Writ Petition (S/S) No. 2209 of 2018
Writ Petition (S/S) No. 2210 of 2018 / Writ Petition (S/S) No. 2211 of 2018
Writ Petition (S/S) No. 2212 of 2018 / Writ Petition (S/S) No. 2213 of 2018
Writ Petition (S/S) No. 2214 of 2018 / Writ Petition (S/S) No. 2215 of 2018
Writ Petition (S/S) No. 2216 of 2018 / Writ Petition (S/S) No. 2217 of 2018
Writ Petition (S/S) No. 2229 of 2018 / Writ Petition (S/S) No. 2230 of 2018
Writ Petition (S/S) No. 2231 of 2018 / Writ Petition (S/S) No. 2557 of 2018
Writ Petition (S/S) No. 2558 of 2018 / Writ Petition (S/S) No. 2559 of 2018
Writ Petition (S/S) No. 2560 of 2018 / Writ Petition (S/S) No. 2561 of 2018
Writ Petition (S/S) No. 2562 of 2018 / Writ Petition (S/S) No. 2563 of 2018
Writ Petition (S/S) No. 2564 of 2018 / Writ Petition (S/S) No. 2565 of 2018
Writ Petition (S/S) No. 2566 of 2018 / Writ Petition (S/S) No. 2567 of 2018
Writ Petition (S/S) No. 2568 of 2018 / Writ Petition (S/S) No. 2569 of 2018
Writ Petition (S/S) No. 2570 of 2018 / Writ Petition (S/S) No. 2571 of 2018
Writ Petition (S/S) No. 2572 of 2018 / Writ Petition (S/S) No. 2573 of 2018
Writ Petition (S/S) No. 2574 of 2018 / Writ Petition (S/S) No. 2575 of 2018
Writ Petition (S/S) No. 2576 of 2018 / Writ Petition (S/S) No. 2577 of 2018
Writ Petition (S/S) No. 2578 of 2018 / Writ Petition (S/S) No. 2579 of 2018
Writ Petition (S/S) No. 2580 of 2018 / Writ Petition (S/S) No. 2581 of 2018
Writ Petition (S/S) No. 2582 of 2018 / Writ Petition (S/S) No. 2583 of 2018
Writ Petition (S/S) No. 2584 of 2018 / Writ Petition (S/S) No. 2585 of 2018
Writ Petition (S/S) No. 2586 of 2018 / Writ Petition (S/S) No. 2587 of 2018
Writ Petition (S/S) No. 2588 of 2018 / Writ Petition (S/S) No. 2589 of 2018
Writ Petition (S/S) No. 2590 of 2018 / Writ Petition (S/S) No. 2591 of 2018
Writ Petition (S/S) No. 2592 of 2018 / Writ Petition (S/S) No. 2593 of 2018

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Writ Petition (S/S) No. 2594 of 2018 / Writ Petition (S/S) No. 2595 of 2018 Writ Petition (S/S) No. 2596 of 2018 / Writ Petition (S/S) No. 2597 of 2018
Writ Petition (S/S) No. 2598 of 2018 / Writ Petition (S/S) No. 2600 of 2018
Writ Petition (S/S) No. 2601 of 2018 / Writ Petition (S/S) No. 2602 of 2018
Writ Petition (S/S) No. 2603 of 2018 / Writ Petition (S/S) No. 2613 of 2018
Writ Petition (S/S) No. 2615 of 2018 / Writ Petition (S/S) No. 2616 of 2018
Writ Petition (S/S) No. 2743 of 2018 / Writ Petition (S/S) No. 2744 of 2018
Writ Petition (S/S) No. 2749 of 2018 / Writ Petition (S/S) No. 2750 of 2018
Writ Petition (S/S) No. 2751 of 2018 / Writ Petition (S/S) No. 2752 of 2018
Writ Petition (S/S) No. 2753 of 2018 / Writ Petition (S/S) No. 2788 of 2018
Writ Petition (S/S) No. 2789 of 2018 / Writ Petition (S/S) No. 2790 of 2018
Writ Petition (S/S) No. 2791 of 2018 / Writ Petition (S/S) No. 2792 of 2018
Writ Petition (S/S) No. 2793 of 2018 / Writ Petition (S/S) No. 2794 of 2018
Writ Petition (S/S) No. 2795 of 2018 / Writ Petition (S/S) No. 2796 of 2018
Writ Petition (S/S) No. 2797 of 2018 / Writ Petition (S/S) No. 2798 of 2018
Writ Petition (S/S) No. 2821 of 2018 / Writ Petition (S/S) No. 2824 of 2018
Writ Petition (S/S) No. 2825 of 2018 / Writ Petition (S/S) No. 2826 of 2018
Writ Petition (S/S) No. 2827 of 2018 / Writ Petition (S/S) No. 2829 of 2018
Writ Petition (S/S) No. 2830 of 2018 / Writ Petition (S/S) No. 2831 of 2018
Writ Petition (S/S) No. 2832 of 2018 / Writ Petition (S/S) No. 2833 of 2018
Writ Petition (S/S) No. 2834 of 2018 / Writ Petition (S/S) No. 2835 of 2018
Writ Petition (S/S) No. 2836 of 2018 / Writ Petition (S/S) No. 2837 of 2018
Writ Petition (S/S) No. 2839 of 2018 / Writ Petition (S/S) No. 2840 of 2018
Writ Petition (S/S) No. 2841 of 2018 / Writ Petition (S/S) No. 2842 of 2018
Writ Petition (S/S) No. 2843 of 2018 / Writ Petition (S/S) No. 2847 of 2018
Writ Petition (S/S) No. 3013 of 2018 / Writ Petition (S/S) No. 3014 of 2018
Writ Petition (S/S) No. 3016 of 2018 / Writ Petition (S/S) No. 3017 of 2018
Writ Petition (S/S) No. 3018 of 2018 / Writ Petition (S/S) No. 3019 of 2018
Writ Petition (S/S) No. 3020 of 2018 / Writ Petition (S/S) No. 3021 of 2018
Writ Petition (S/S) No. 3023 of 2018 / Writ Petition (S/S) No. 3024 of 2018
Writ Petition (S/S) No. 3025 of 2018 / Writ Petition (S/S) No. 3206 of 2018
Writ Petition (S/S) No. 3207 of 2018 / Writ Petition (S/S) No. 3208 of 2018
Writ Petition (S/S) No. 3209 of 2018 / Writ Petition (S/S) No. 3210 of 2018
Writ Petition (S/S) No. 3211 of 2018 / Writ Petition (S/S) No. 3212 of 2018
Writ Petition (S/S) No. 3213 of 2018 / Writ Petition (S/S) No. 3215 of 2018
Writ Petition (S/S) No. 3217 of 2018 / Writ Petition (S/S) No. 3273 of 2018

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Petitioners

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(By Mr. Parikshit Saini, Mr. D.P. Bhatt & Mr. Vinod Chandra, Advocate holding brief of Ms. Neetu Singh, learned counsel for the petitioners)

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Respondents

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(By Mr. Jayvardhan Kandpal, learned Standing Counsel for the State of Uttarakhand)

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JUDGMENT

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1. Since common questions of fact and law are involved in these petitions, therefore, all these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPSS No. 990 of 2018 alone are being considered.

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2. Petitioner was appointed as Assistant Teacher in a Primary School run by U.P. Basic Education Board in the year 1999. Upon State Re-organisation,

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petitioner acquired status of Government Servant in view of provision contained in Section 58 of Uttarakhand School Education Act, 2006. Subsequently, in the year 2008, petitioner was promoted to the post of Assistant Teacher, Government Junior High School w.e.f. 30.01.2008 and he is still continuing as Assistant Teacher, Government Junior High School in District Haridwar.

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3. Petitioner is aggrieved by order dated 28.04.2018 issued by Director, Elementary Education, Uttarakhand. By the said order, direction was issued to all the District Education Officers within the State to recover the excess amount paid to petitioner and other similarly situate Teachers, by holding that excess amount was paid to them as salary from the date of their promotion, which however was payable only from 01.04.2009.

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4. Petitioner contends that whatever amount was paid to him as salary was payable from the date of his actual promotion to the post of Assistant Teacher, Government Junior High School and no excess amount was paid, which can now be recovered from him.

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5. A counter affidavit has been filed by State Authorities. The stand taken in the counter affidavit is that petitioner is entitled to benefit of fitment table in the matter of pay scale only once, however, due to mistake, the said benefit was given twice to him. Relevant extract of counter affidavit, on which reliance has been placed by State Counsel, is extracted below:-

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“9. …….. It is further submitted that as per the Govt. Order dated 28.11.2017, the benefit of Fitment Table is granted to the employees for revision of their pay from 5^th Pay Commission to 6^th Pay Commission

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and the benefit of Fitment Table is granted once only. The petitioner has received the benefit of Fitment Table twice first w.e.f. 01.01.2006 and secondly from the date of promotion and thus, received excess amount due to wrongful fixation of pay. True/correct typed version/copy of the Govt. Order dated 13.02.209 and 28.11.2017 are collectively being annexed as Annexure No. 3 to this affidavit.”

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6. From perusal of Government Orders/letters issued by State Government and the authorities of Education Department, it is revealed that petitioners were paid excess amount as salary, however, this Court finds substance in the contention made by learned counsel for petitioner that petitioner was not instrumental in getting excess amount nor did he play fraud upon the Authorities for getting the benefit, as was given to him.

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7. From the material brought on record, it is apparent that it was a mistake, though bona fide, on the part of authority of Education Department, due to which an excess amount was paid to petitioner. It is not the case of respondents that petitioner has made any misrepresentation or practiced fraud upon the Authorities for getting the benefit which is now sought to be recovered.

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8. Admittedly, petitioners are Group ‘C’ employees of the Education Department and in view of law laid down by Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334 , excess payment, if any, cannot be recovered from them. The principle summarized in the aforesaid judgment is reproduced below:-

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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

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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 the employees belonging to Class III and Class IV service (or Group C and Group D service).

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

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(iii) Recovery from the 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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9. Following the law declared by Hon’ble Supreme Court in the aforesaid judgment, this Court has no hesitation in holding that respondents are not entitled to recover the excess amount, which was mistakenly paid to the petitioner, as salary.

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10. In such view of the matter, writ petitions are partly allowed and respondents are restrained from making any recovery from petitioners, in terms of the impugned communication(s) issued by Director, Elementary Education.

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(Manoj KumarTiwari, J.) 06.11.2023

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Aswal

Kuldeep Singh v. State of Uttarakhand through Secretary Education

Case brief

What is this about?

What did the court decide?

Kuldeep Singh v. State of Uttarakhand through Secretary Education

Case brief

What is this about?

What did the court decide?

What the court decided

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