Excess payment made to Group-C staff cannot be recovered by the state: High Court of Orissa

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.217719 State of Odisha Ashokarani Mishra Petitioner Mr. L. Samantaray A.G.A. Versus Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.(C) No.263717 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Madhusmita Swain …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.(C) No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Basanti Toppo …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Gitarani Nayak …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Menaka Swain …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Nirupama Pal …. Opposite Party Mr. Surya Narayan Patnaik Advocate 2 W.P.No.263817 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Mamata Manjari Satapathy …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.264217 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Sitabati Kujur …. Opposite Party Mr. Surya Narayan Patnaik Advocate W.P.No.20321 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Anupama Naik …. Opposite Party Mr. Prakash Kumar Rout Advocate W.P.No.22821 State of Odisha …. Petitioner Mr. L. Samantaray A.G.A. Versus Mamata Dash …. Opposite Party Mr. Prakash Kumar Rout Advocate CORAM: THE CHIEF JUSTICE JUSTICE S.K. PANIGRAHI 1. This matter is taken up by video conferencing mode. Order No. 09. 3 2. The present writ petitions have been filed challenging the order dated 7th February 2019 passed by the Odisha Administrative Tribunal Bhubaneswar in a series of applications where issues involved are identical in nature. Accordingly all these writ petitions filed by the State of Odisha against the said orders are disposed of by this common order. 3. The common issue in all these writ petitions is whether the Opposite Parties who are Staff Nurses should get their revised pay scale in terms of the Government Resolution issued on 26th June 2013 prospectively three years after regularization or retrospectively i.e. from the date of their regularization 4. The OAT has answered the question in favour of the nurses and held that they would be entitled to the revised pay scale from the respective dates of their regularization. Consequently the OAT quashed the clarification dated 17th May 2015 issued by the Health & Family Welfare Department and an order dated 31st May 2014 refixing the revised pay scale of the Opposite Parties as well as the letter dated 12th September 2014 issued by the CDMO of various districts directing recovery of the excess payments. The OAT issued a positive direction to the Petitioner to pay the Opposite Parties the revised scale of pay in terms of the earlier order dated 1st March 2014. 5. The background facts are that each of the Opposite Parties was appointed as Staff Nurse on contractual basis. After 4 completion of the contractual period of engagement each of them was regularized in service in the scale of pay of Rs.5200 20 200 with a Grade Pay of Rs.2800 . 6. Since they were not getting the salary component at par with their counterpart Staff Nurses in the Govt. of India the Opposite Parties represented to the Petitioner. The matter of discrepancy in fixation of their salary was referred to the Anomaly Committee. After taking note of a comparative study of the entry level qualifications service conditions and the scale of pay in various states the Anomaly Committee recommended upward revision of the pay scale and sent its proposal to the Petitioner State. 7. Acting on the said recommendation in exercise of the power under Rule 9 of the Odisha Revision of Scale of Pay Rules 2008 ORSP Rules) the Petitioner restructured the pay scale for its Staff Nurses but mandated that the revised pay scale would be payable on their completing three years of service in the regular scale of pay. The resolution dated 26th June 2013 was issued to the above effect. 8. The question that then arose was whether the revised scale of pay would become payable only after completion of 3 years as regular Staff Nurse or would become payable from the date when the regularization in fact took place Initially the CDMOs understood the above resolution to mean that the revised pay scale would become available regular Nurses 5 retrospectively from the date of their regularization. However within a year on 17th May 2014 the Health and Family Welfare Department issued a clarification stating that the revised pay scale would not have retrospective effect and that the resolution should be implemented from the date of its publication. Acting on this the CDMOs issued fresh orders modifying the earlier instructions on the revision of the scale of pay and across the board stating that it would be applicable only from 26th June 2013. A further direction was issued on 31st May 2014 that the excess dues already paid should be recovered from the salary of the Opposite Parties or they could opt to deposit the entire excess amount in one instalment. 9. This was then challenged before the OAT by the Opposite Parties by filing their respective applications. In the impugned order the OAT has noticed that there was nothing in the resolution dated 26th June 2013 indicating that the revised pay would take effect only prospectively. Accordingly the OAT proceeded to quash the subsequent clarification to that effect issued by the Petitioner. 10. As regards recovery of the excess pay since each of the Opposite Parties was a Group C staff the OAT was of the view that the excess payment if at all could not be recovered on the strength of the judgment of the Supreme Court in State of Punjab v. Rafiq Masih2015SCC 334. 11. This Court heard the submissions of Mr. L. Samantaray learned Addl. Govt. Advocate for the State and Mr. Surya 6 Narayan Patnaik and Mr. Prakash Kumar Rout learned counsel for the Opposite Parties. 12. Once the Anomaly Committee recommended removal of anomalies and recommended the revision of the pay scale of regular Staff Nurses clearly the revised pay scale would become applicable from the date of the regularization itself. The recommendation of the Anomaly Committee was not to the effect that the revised pay scale should be made available prospectively as and when it was notified by the Petitioner Government. That being the position when the notification dated 26th June 2013 was issued the rider inserted by the Petitioner that it would become payable on completion of 3 years in the regular pay scale was unwarranted. That did not reflect the true intention of the Anomaly Committee. 13. A parallel could be drawn with any other pay scale revision. For e.g. the National Pay Commission’s recommendations. There too the discrepancies are sought to be removed by referring the matters to the Anomaly Committee and whenever such Anomaly Committee clarifies the issue and recommends re fixing the pay scale that is given effect to from the date when the recommendation of the Pay Commission became effective. In other words the operation of the revised pay scale would not be postponed to different dates unless expressly stated in the notification for reasons to be given. 14. In the present case there was no occasion to postpone the applicability of the revised pay scales to a later date. The original 7 Government Resolution issued on 26th June 2013 was not intended to make the revised pay scales applicable only from the date of such resolution. 15. Further since the Opposite Parties are in Group C posts the decision in the case of Rafiq Masihwould apply and no recovery of any alleged excess payment can be made. 16. Therefore no grounds have been made out for interference with the impugned order of the OAT. The writ petitions are dismissed but in the circumstances with no orders as to costs. Chief Justice S.K. Parida S.K. Panigrahi) Judge 

Summary: Group-C staff refers to government employees who usually undertake supportive and non-supervisory tasks and have salaries between Rs.18,000 and Rs.29,200. If any excess payment is made to staff belonging to this category, the state does not have to right to recover it. This was held by a bench of the High Court of Orissa consisting of Justice Dr. S. Muralidhar and Justice S.K. Panigrahi in the case of State of Odisha v Ashokarani Mishra [W.P.(C) No. 21772 of 2019] on 24th June 2021. The immediate writ petition was filed by the state of Odisha challenging the order passed by the Odisha Administrative Tribunal, Bhubaneswar  on 7th February 2019. The opposite party, Ashokarani Mishra is a staff nurse who was working for a state hospital. The main issue of the petition is whether the opposite party along with other nurses should get their revised pay scale in terms of the government resolution retrospectively or prospectively. Since the nurses were not getting salaries on par with other nurses working for the government of India, the anomaly committee recommended upward revision of the pay scale and sent the proposal to the petitioner.  The state government’s Health and Family Welfare Department issues a clarification stating that the revised pay scale would not have retrospective effect and that the resolution should be implemented only from the date of its publication. Acting on this the CDMOs issued a direction to recover any excess dues already paid to the opposite part. The Odisha Administrative Tribunal ruled in favour of the opposite party, declaring that she would be entitled to the revised pay scale from the respective dates of their regularisation. It was noted that the opposite party as a staff nurse, belonged to the Group-C staff category. In the case of State of Punjab v Rafiq Masih (White Washer) [2015 (4) SCC 334], the Supreme Court of India held that any excess payment, if all at all could not be recovered from Group-C staff.