IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 11945 of 2008. Decided on: 24.12.2010. __________________________________________________________ Anita Rani. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Petitioner : Mr. D.P. Gupta, Advocate. For the Respondents : Mr. Anshul Bansal, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General. Rajiv Sharma, J. (oral): Petitioner has obtained degree in M.A. Mathematics from Himachal Pradesh University in the year 1988. She was appointed Lecturer in privately managed college, i.e. D.A.V. College, Sujanpur Tihra. D.A.V. College, Sujanpur Tihra was taken over by the State Government vide notification dated 28th August, 2001. The following condition was imposed vide notification dated 28th August, 2001 (Annexure A-1):- “The Lecturers whose services have been taken over as Lecturer (College) Cadre (as per Annexure –“A”) will be required to clear N.E.T. Examination as prescribed in R & P 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - Rules, within a period of three years, failing which their increments will be withheld.” The name of the petitioner figures at Sr. No.18 of the Notification dated 28th August, 2001 (Annexure A-1). Petitioner was offered fresh appointment vide notification, dated 31st October, 2001 (Annexure A-2) and she was required to clear “NET Examination” as prescribed in R&P Rules within a period of three years, failing which her increments were to be withheld. Since the petitioner has not qualified the NET Examination within three years as per conditions imposed vide Annexures A-1 and A- 2, her future increments were withheld and a decision was also taken to recover the amount already paid on account of grant of increments during three years. 2. Mr. D.P. Gupta, learned counsel for the petitioner has strenuously argued that the decision of the respondent-State to effect recoveries from the salary of the petitioner on account of over payment of increments for not qualifying NET examination within a period of three years is illegal, arbitrary; thus, violative of Articles 14 and 16 of the Constitution of India. According to him, the respondents could withhold the future increments, but the amount already paid to the petitioner could not be recovered. Mr. Anshul Bansal, learned Additional Advocate General has supported the issuance of Annexure A-5, dated 4th May, 2005. 3. I have heard the learned counsel for the parties and perused the pleadings carefully. 4. Petitioner’s services were taken over by the State Government vide Annexures A-1 and A-2, notifications dated 28th August, 2001 and 31st October, 2001. She has been issued letter by the - 3 - Principal of the Government College, Mandi on 18th March, 2005 seeking information whether the petitioner had qualified the NET Examination or not. The petitioner submitted reply to the same on 29th April, 2005. She informed the Principal that she could not qualify the NET Examination. She also submitted therein that the increments which she had earned in three years could not be withdrawn. She was served with a letter dated 24th May, 2005 whereby she was informed that since the petitioner had not qualified the NET Examination within three years, the increments already earned by her were being withdrawn and future increments were also being withheld. The case of the respondent-State, in a nutshell, is that since the petitioner has failed to pass the test, the benefit of increments given in the first instance was ordered to be recovered and the petitioner was held not entitled to future increments. 5. The decision of the respondent-State to withdraw the amount which had already been paid to the petitioner as increments for a period of three years is unreasonable and arbitrary. The petitioner has worked for a period of three years and she had earned increments. It is also true that the petitioner has not qualified the NET Examination and for that purpose she could not be granted future increments after the period of three years. The expression used in condition No.2 of Annexure A-1 and condition No.1 of Annexure A-2 is that in case the NET Examination is not passed, the increments will be withheld. It is evident from the plain reading of Annexures A-1 and A-2 that the candidate who fails to qualify the NET Examination within a period of three years, his/her increments would be withheld. In other words, the increments could only be withheld after three years and if the petitioner could have qualified the NET Examination, she was entitled to future - 4 - increments. The increments have been paid to her by the State Government of its own. The petitioner has neither misled nor misrepresented the authorities at the time when the increments were granted to her. 6. Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants- teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 56. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the - 5 - pay fixation by the Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake." 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors.,vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid - 6 - to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” 7. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-5, Dated 4th May, 2005 is quashed and set aside. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. December 24, 2010. (sck).