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Rajendra Singh Negi v/s State of Uttarakhand & Others


Company & Directors' Information:- RAJENDRA LIMITED [Strike Off] CIN = U99999KA1943PLC000306

Company & Directors' Information:- RAJENDRA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U17219TZ1948PTC000161

    Writ Petition (S/B) No. 517 of 2018

    Decided On, 12 February 2019

    At, High Court of Uttarakhand

    By, THE HONOURABLE CHIEF JUSTICE MR. RAMESH RANGANATHAN & THE HONOURABLE MR. JUSTICE R.C. KHULBE

    For the Appearing Parties: Dharmendra Barthwal, Prabha Naithani, Bhupesh Kandpal, Advocates.



Judgment Text

Ramesh Ranganathan, CJ.

1. Heard Mr. Dharmendra Barthwal, learned counsel appearing on behalf of the petitioner and Mr. Bhupesh Kandpal, learned counsel appearing on behalf of respondent nos. 4 and 5 and, with their consent, the writ petition is disposed of at this stage.

2. The petitioner has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the proceedings dated 29.06.2018 received by the petitioner on 02.07.2018, and the order dated 03.08.2018 passed by the Joint Secretary, Technical Education; and to further direct the respondents to forthwith release the other retiral benefits treating the petitioner to have retired from the post of Deputy Registrar of the Institution; and a writ of mandamus directing the fourth respondent to reimburse to the petitioner the recovered amount of Rs. 41,600/-, which had been made by the respondent in violation of the dictum of the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334.

3. Facts, to the extent necessary, are that the petitioner was appointed as a Junior Assistant in the erstwhile State of Uttar Pradesh on 15.09.1977. While the petitioner was discharging the duties of a Senior Assistant, he was appointed as an Office Superintendent after undergoing the process of interview on 17.04.1998 in the fourth respondent-College. The nomenclature of the post of Office Superintendent was later changed to Administrative Officer Grade-II. Thereafter, vide Government Order dated 01.05.2012, the post of Senior Administrative Officer was created, to which post the petitioner was promoted.

Subsequently, in the year 2014, two posts of Deputy Registrar were created in the College.

4. It is the petitioner's case that, as per Clause 3 (1) proviso (2) of the by-laws of the College, the first vacancy shall be filled up by direct recruitment, and the second vacancy shall be filled up by promotion, and so on; a departmental structure was formed and prepared by the then Principal of the College on 07.07.2010, based on which certain promotions were effected, which were approved by the Administrative Committee in its meeting held on 04.03.2011; a D.P.C. was constituted for filling up the post of Deputy Registrar on 07.07.2015 under the orders of the then Principal; the D.P.C. considered and recommended the petitioner's case for promotion to the post of Deputy Registrar; and based on its recommendations, the subsequent officiating Principal promoted the petitioner, vide proceedings dated 31.03.2016, as the Deputy Registrar of the College. The petitioner joined the said post on 31.03.2016.

5. The age of superannuation of employees in the fourth respondent-College is 60 years, and the petitioner was to reach the age of superannuation on 30.06.2018. The Board of Governors had earlier, in its meeting held on 19.11.2016, decided to hold a fullfledged inquiry into the allegations against the Professor and the former officiating Principal, who had issued orders of promotion of the petitioner. However, the inquiry is said to have still not been completed. The third respondent, vide letter dated 22.06.2018, informed the petitioner and others regarding his illegal promotion to the post of Deputy Registrar. On 23.06.2018, the officiating Director is said to have requested the Joint Secretary for an inquiry report to be submitted by him by 25.06.2018. On the said date i.e. 25.06.2018, the petitioner was informed by the Director to submit his written reply to the Inquiry Officer. The petitioner submitted his reply on 26.06.2018 and the Inquiry Officer submitted his report on 28.06.2018 to the Director. On 29.06.2018 the petitioner was reverted to the post he earlier held i.e. Senior Administrative Officer, and the differential salary of Rs. 41,600/- paid to him, on his promotion as a Deputy Registrar, was recovered from him. Questioning his reversion as a Senior Administrative Officer, and the action of the respondents in recovering Rs. 41,600/- from him, the petitioner has invoked the jurisdiction of this Court.

6. Mr. Dharmendra Barthwal, learned counsel appearing on behalf of the petitioner, would submit that reversion of the petitioner from the post of Deputy Registrar to that of a Senior Administrative Officer is a major penalty for which a full-fledged inquiry is required to be held; a copy of the inquiry report is required to be furnished to him, and his objections are required to be called for; based on an inquiry report, which was not even furnished to him, the impugned order of reversion was passed; since such an order is in violation of the law laid down by the Supreme Court in Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar, etc., (1994) AIR SC 1074, the impugned order of punishment is liable to be set aside on this score; and in any event, as the order of recovery was passed just a few days prior to the date of superannuation of the petitioner on 30.06.2018, the law declared by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, would require the said amount to be refunded to the petitioner as recovery of money, mistakenly paid to employees, cannot be permitted to be recovered within one year prior to the date on which the employee attains the age of superannuation.

7. On the other hand, Mr. Bhupesh Kandpal, learned counsel appearing on behalf of respondent nos. 4 and 5, would submit that, in terms of the by-laws of the College, all promotions effected to posts, carrying a pay scale exceeding Rs. 2900/-, are required to be made only by the Board of Governors of the Institution; the petitioner's promotion as a Deputy Registrar was made by the Incharge Principal, and not by the Board of Governors; as the petitioner's promotion is contrary to the Rules in force, and is not as a measure of punishment, the question of holding a departmental inquiry, and thereafter furnishing a copy of the inquiry report, would not arise; the law declared by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 is not applicable to the facts of the present case in as much as the excess amount paid to the petitioner was on the basis of his illegal promotion as a Deputy Registrar, and was not by mistake; and the impugned order does not , therefore, necessitate interference in proceedings under Article 226 of the Constitution of India.

8. Along with the writ petition, the petitioner has himself filed a copy of the by-laws of the Govind Ballabh Pant Engineering College. Clause 1(b) thereof defines "Board" to mean the Board of Governors of the College. Clause 2 relates to Classification of Members of the Staff of the College and, under sub-clause (e) relating to Administrative (Non-Teaching), are the posts of (i) Registrar (ii) Deputy Registrar (iii) Assistant Registrar/Head Assistant (iv) Finance Officer etc. Clause 3 thereof relates to Appointments and, sub-clause (1) thereof, provides that all appointments to posts under the College shall be made (a) by the Principal if the maximum of the scale does not exceed Rs. 2900/- (Except Class II), and (b) by the Board in other cases. While Clause 4 provides for a Selection Committee, Clause 17 stipulates that any matter not covered by the above Rules and by-laws would be governed by the relevant rules applicable to employees of the State Government for the time being in force, till the Board frames its Rules and By-laws. As noted hereinabove, the petitioner was promoted as a Deputy Registrar by the officiating Principal of the College, and not by the Board of Governors. The fact that the post of Deputy Registrar carries a pay-scale far in excess of Rs. 2900/- is not in dispute. Consequently, in terms of Clause 3(1)(b), it is only the Board of Governors of the College which could have promoted the petitioner to the post of Deputy Registrar, and not the Principal.

9. While Mr. Bhupesh Kandpal, learned counsel for respondent nos. 4 and 5, would submit that the petitioner was not entitled to be promoted in any case as a Deputy Registrar, as a Senior Administrative Officer is required to be first considered for promotion to the post of Assistant Registrar, and only thereafter to the post of Deputy Registrar, Mr. Dharmendra Barthwal, learned counsel for the petitioner, would draw our attention to the cadre structure for non-teaching staff dated 07.07.2010, wherein below the post of Deputy Registrar is the post of Assistant Registrar/Administrative Officer, to submit that the channel of promotion from the feeder cadre of Administrative Officer is to the post of Deputy Registrar, and not the Assistant Registrar. It is wholly unnecessary for us to dwell on this issue any further, as it is not in dispute that the petitioner was appointed as a Deputy Registrar by the officiating Principal, against whom disciplinary proceedings have been initiated by the Board of Governors, and not by the Board of Governors themselves. Promotion of the petitioner as a Deputy Registrar is, evidently, contrary to the applicable bylaws and is illegal. As the petitioner's appointment as a Deputy Registrar by promotion is contrary to the by-laws and is illegal, he is not entitled to continue in the said post and his reversion to his substantive post of a Senior Administrative Officer cannot be construed as punishment, much less a major punishment warranting adherence to the procedure prescribed for imposing major punishment including conducting a departmental inquiry, furnishing a copy of the inquiry report, permitting the employee to submit his objections thereto, and for a punishment to be imposed thereafter. The contention, urged on behalf of the petitioner, that failure to furnish a copy of the inquiry report to the petitioner is fatal is, therefore, not tenable. We see no reason, therefore, to interfere with the impugned order to the extent the petitioner was directed to be reverted to his substantive post of Senior Administrative Officer.

10. The next question which necessitates examination is whether the respondents were justified in recovering Rs. 41,600/- from the petitioner representing the differential emoluments which the petitioner was entitled to in the post of Senior Administrative Officer, and which was paid to him as a Deputy Registrar, for the period during which he discharged the duties of a Deputy Registrar. As reliance is placed by Mr. Dharmendra Barthwal on the judgment of the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, it is necessary to take note of the exceptions carved out therein for recovery of amounts paid to the employees by the employer. The Supreme Court, in this context, observed:

"........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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

(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.

(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.

(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."

As is evident from the aforesaid judgment, it is only payments mistakenly made by the employer, in excess of the employee's entitlement, which is prohibited from recovery from retired employees or employees who are due to retire within one year of the order of recovery.

11. In this case, the higher emoluments paid to be petitioner as a Deputy Registrar was in terms of an illegal promotion order made by the Principal and cannot be construed as a mistake, only in which case would it fall within the exceptions carved out by the Supreme Court in Rafiq Masih (supra). We see no reason, therefore, to interfere with the order of the respondent-authorities in having recovered Rs. 41,600/- from the petitioner.

12. Yet another a

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spect, which necessitates examination, is the petitioner's entitlement to be extended the Assured Career Progression benefits which he would have been entitled to as a Senior Administrative Officer, and which was not extended to him because of his promotion as a Deputy Registrar by the Principal. The Inquiry Officer, in his report, has recommended that the petitioner be extended the said benefits, if they are applicable. As the respondents have recovered the differential salary paid to the petitioner as a Deputy Registrar, he would be entitled for all such emoluments which he would have received if he had continued to discharge the functions of a Senior Administrative Officer, which he did not because of his illegal promotion as a Deputy Registrar. The respondents shall examine whether the petitioner is entitled for the benefit of the Assured Career Progression benefits as a Senior Administrative Officer, if he had continued to function in the said post but for his illegal promotion as a Deputy Registrar; and, if he is found entitled to such benefits, to then extend to him the said benefits, along with all other retiral benefits due to him as a Senior Administrative Officer till date, with utmost expedition and, in any event, not later than three months from the date of receipt of a certified copy of this order. 13. Subject to the aforesaid observations, the writ petition fails and is, accordingly, dismissed.
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