IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11382 of 2010 ============================================= 1. Surendra Pratap Singh S/O Late Kailash Singh R/O 524/6a, Hansnagar Coloney, Tak, Takpur, Varanasi Cant, Ardali Bazar, Varanasi (U.P.) .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Agriculture Production Commissioner-Cum-Secretary, Department Of Agruculture Government Of Bihar, Patna 3. The Director Of Agruculture Government Of Bihar, Patna 4. The Secretary, Finance Department Patna 5. The Accountant General Bihar, Patna 6. The Additional Secretary, Agriculture Department Government Of Bihar, Patna .... .... Respondent/s ============================================= with Civil Writ Jurisdiction Case No.11817 of 2010 ============================================= 1. Dwarika Prasad S/O Late Ramjee Prasad R/O Progressive Colony, Jaiprakash Nagar, P.O. Bahadurpur Housing Colony, P.S. Agam Kuan, Patna 2. Ramchandra Prasad Singh S/O Late Hari Singh R/O North Income Tax Colony, Boot Nath Road, P.O. Bahadurpur Housing Colony, P.S. Agam Kuan, Patna 3. Narayan Prasad Sharma S/O Dulichand Sharma R/O 128, Bhagwat Nagar, P.O. Bahadurpur Housing Colony, P.S. Agam Kuan, Patna .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Agriculture Production Commissioner-Cum-Secretary, Department Of Agriculture, Govt. Of Bihar, Patna 3. The Director Of Agriculture, Govt. Of Bihar, Patna 4. The Secretary, Finance Department, Patna 5. The Accountant General, Bihar 6. Additional Secretary, Department Of Agriculture, Patna .... .... Respondent/s ============================================= Appearance : (In CWJC No.11382 of 2010) For the Petitioner/s : Mr. Gyan Shankar For the Respondent/s : Mr. (Sc16) (In CWJC No.11817 of 2010) For the Petitioner/s : Mr. Gyan Shankar For the Respondent/s : Mr. (Gp22) ============================================= 2 21-11-2011 Heard learned counsel for the petitioners, the State and the Accountant General in both the writ 2 applications. Except for a minor distinction with regard to the date of superannuation in the two the questions of law involved are common. They have thus been taken up for consideration together and are being disposed by a common order. The petitioners are aggrieved by orders dated 7.4.2005 and 28.5.2005 reducing their pay scale from Rs.2200-4000/- to Rs.2000-3800/-. The latter is the pay scale for upgraded posts of Agriculture Inspectors. The former is the scale applicable to members of the Bihar Agriculture Service, Grade-2. The petitioners were appointed as Agriculture Inspectors in the year-1964 under the Subordinate Agriculture Service. On 18.9.1987 the post of Agriculture Inspector bearing a pay scale of Rs.850-1360/- was upgraded in the pay scale of Rs.1000-1820/-. On 23.6.1989 the upgraded posts were merged with the Bihar Agricultural Service, Grade-2. The merger came to be cancelled on 8.2.1991. It led to a spate of litigations culminating in an order of remand by the Supreme Court. During the pendency of the controversy before a Division Bench of this Court the State Government in 2004 constituted a high level committee which reiterated the decision for demerger dated 8.2.1991, as a matter of policy. 3 The Division Bench in 2008 (3) P.L.J.R. 221 ( Bihar Agriculture Graduate Service Association Vs. The State of Bihar & Ors.) did not uphold the challenge. On account of the matter being sub judice, the petitioners continued to receive the scale of Rs.2200-4000 along with the corresponding revised scale till they superannuated on 30.9.1997, 31.7.1998, 31.1.2000 and 31.1.2001 as applicable to them individually. The petitioner in C.W.J.C. No.11382/10 has also been granted the benefit of A.C.P. in the merged scale. Learned counsel for the petitioner submitted that there was a serious controversy with regard to their claim for entitlement to the merged scale. The respondents had acted contrary to the law by ex-parte cancellation leading to the controversy being prolonged. There are no allegations of any fraud or misrepresentation made by the petitioners to obtain the benefit. They are all superannuated employees. It is highly unjust and inequitable in the facts of the case to now require them to refund the enhanced salary paid to them in the merged scale from their meager pensionary resources. Likewise, recovery of higher pension paid shall cause severe loss and penury. Reliance was placed on (2009) 3 SCC 475 (Syed Abdul Qadir and others vs. State of Bihar and others). A feeble attempt was last made to persuade the Court relying 4 upon Rule-151 of the Bihar Pension Rules that pension has to be determined in terms of the emoluments which the government servant was last receiving on the date of superannuation. The petitioners were drawing the emoluments of the merged scale on the date of their superannuation and therefore the Court may carve out an exception with regard to them preserving their emoluments and pensionary benefits on basis of the same as an accrued and vested right. Learned counsel for the State contended that the merger of the upgraded posts in the Bihar Agricultural Service, Grade-2 was itself contrary to the law as approved in the Bihar Agriculture Graduate Service Association (supra). The State had been alert in taking action. Necessary steps for annulment were taken in time. The matter remained pending in litigation. The grant of the merged scale being itself contrary to the law, no benefits flow to the petitioners. If the grant has been held to be contrary to the law necessary consequences must ensue by deduction. Reliance has been placed on a Full Bench decision 2007 (3) P.L.J.R. 398 (Ram Binod Singh vs. State of Bihar). In Bihar Agriculture Graduate Service Association (supra) it has been noticed that the order for cancellation of merger dated 8.2.1991, was challenged in 5 an earlier writ application which was rejected on 26.5.1992. The matter traveled to the Supreme Court at the behest of aggrieved leading to a order dated 12.5.1993 that the decision dated 8.2.1991 reducing the emoluments was detrimental to the interest of the aggrieved and was reduced without affording any opportunity of hearing. The order dated 8.2.1991 was set aside with liberty to issue show cause notice and then decide in accordance with law. Show cause notices were then issued whereafter an order was issued by the State Government on 11.11.1993 reiterating its earlier decision leading to fresh challenge before this Court not upheld by a Bench of this Court on 10.1.1997. In appeal the Division Bench noticed that the State Government as recently as 6.1.2004 during the pendency of the matter constituted a high level committee which after re-examination opined that the upgradation was not proper as sanction of the Finance and Personnel Department had not been obtained and which came to be approved by the Cabinet. Holding that these were policy matters the Division Bench arrived at the conclusion that there was no justification for the upgraded post holders to claim merger in the Bihar Agricultural Service, Grade-2 and that they were not entitled to the scale of Rs.2200-4000. This 6 judgement was delivered on 21.5.2008. The facts reveal that it cannot be classified simply as a matter for grant of wrong pay scale and recovery. The actions, right or wrong at different stages were all unilateral of the respondents with no role attributed to the petitioners. A final adjudication on the issue vitiates the decision and actions taken by the respondents from its nativity. If, in the meantime, the petitioners have obtained any benefit, they cannot claim unconditionally to retain the same. The right to retain the benefit cannot be asserted when the legal foundation for the same is found wanting. It therefore essentially becomes a case for moulding of relief in the facts and circumstances of the case. It has already been noticed that the merger and grant of the higher payscale was the result of application of mind by the respondents and not an unconsidered decision. Undoubtedly, it was cancelled on 8.2.1991. The cancellation was contrary to well established procedures long laid down in the law, ex parte in nature prolonging the controversy. At this stage if the respondents had acted with prudence and in accordance with well settled law, not only much controversy could have been avoided, but substantial finance, time and manpower of the State may have been saved from litigation and also otherwise. Those who took 7 such actions contrary to law and allowed the finances of the State to suffer cannot escape answerability and accountability for their lapses including recovery from them of the financial implications. The petitioners cannot be at the receiving end alone. It has to be kept in mind that they are superannuated employees. The judgment in the case of Bihar Agriculture Graduate Service Association (Supra) has been delivered on 21.5.2008. There are no allegations against the petitioners for having manoeuvred the decision for merger of their post in the Bihar Agricultural Service, Grade-2, much less obtained the scale by any misrepresentation and/or concealment. Whatever has been paid to them in the meantime was on account of the nebulous situation in law created by the conduct of the respondents and not the petitioners. The emoluments/pension paid to them in today’s world of galloping inflation obviously has not been stored by them as precious metal but has been spent for survival. They are in the evening of their life when apart from pension there is no other source of income. Any direction of recovery for payments made as salary and/or pension for such long years will undoubtedly very seriously eat into their meager pensionary resources. Some of them must be at the very advanced age of over 70 years. The average Indian life expectancy cannot be ignored also. In 8 the case of Ram Binod Singh (supra) the conclusion of the Full Bench at paragraph-28 does not detract in any manner from the contentions put forth on behalf of the petitioners in the present case and the relief as proposed to be moulded by the Court. In the case of Saiyad Kadir & Ors. (supra) the matter also related to fixation of pay scale. After having arrived at the determination for excess payment, the question for consideration was framed at paragraph-53 with regard to recovery of the additional increment paid on promotion. The present discussion hereinabove has already noticed the laxity repeatedly on part of the respondents both at the stage of decision for merger and demerger when procedures of law were not complied with. It has also noticed that on account of such conduct of the individuals concerned, the State has had to incur much financial liability which could have been avoided by the decision making process by the respondent being tempered by settled law. The same anguish has been reiterated by the Supreme Court at paragraph-56 of the judgment which reads as follows:- “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…” Explaining the law with regard to relief granted 9 against recovery when issues of superannuation shall necessarily become relevant and also that they could not be saddled because of the “inaction, negligence and carelessness of the officials concerned of the Government of Bihar”. The conclusion at paragraphs-58 and 59 is as follows:- “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. 59. Undoubtedly, the excess amount that has been paid to the appellant 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 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 appellant teachers submitted that majority of the beneficiaries 10 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” In conclusion, the Court holds that the respondents cannot make any recovery from the pensionary resources of the petitioners either for any salary paid to them in the merged scale or from the pension paid to them till 21.5.2008. The cut-off date is considered appropriate as the law was finally pronounced on that date. The pension payment orders of the petitioners shall therefore have to be revised in accordance with the judgment in the case of Bihar Agriculture Graduate Service Association (supra) from 1.6.2008. The amount paid to them as pension till today with regard to permissible scale after 21.5.2008 is therefore held to be recoverable. The Court permits the petitioners to represent before the respondents for the mode, method and manner in which the petitioners may suggest recovery keeping in mind that they are superannuated employees and which the Court expects the respondents to consider reasonably and prudently. The writ applications stand disposed. Krishna Chandra Jha/- (Navin Sinha, J)