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Nand Kishore Pandey v. Jharkhand State Electricity Board & Ors.
Judicial Opinion Summary — M.Y. Eqbal, J.
Factual and Procedural Background
The petitioner, a Junior Storekeeper (Super Selection Grade) at Transmission Central Store, Namkum, Ranchi, filed this writ application seeking (a) a direction restraining the respondents from recovering alleged excess payment from his salary on the ground that he had not passed the Hindi Noting and Drafting Examination, and (b) a direction to release annual increments which had been withheld.
The petitioner joined service in 1968 and began receiving increments from 1970. A table of fixation dated 29.10.2003 recommended recovery of alleged excess increments paid to the petitioner for the period 16.7.1979 to 14.5.1994 on account of his alleged non-passing of the Hindi Noting and Drafting Examination. The petitioner contended that he passed that examination on 29.8.1994 and that prior to 1994 there was no such condition of service.
The respondents (Jharkhand State Electricity Board) in their counter-affidavit said that the Bihar State Electricity Board had adopted the Bihar Government Service (Hindi Examination Regulation), 1968 by Regulation No. 537 dated 16.7.1979, which required Board employees to pass the Hindi Noting and Drafting Examination before being entitled to increments or promotion. The respondents acknowledged the petitioner passed the examination in 1994 but maintained that he had received increments prior to passing and therefore recovery was warranted.
The court heard learned counsel for both sides and proceeded to examine precedent authorities before addressing the rival submissions and the facts of the case. The court noted that the Board's 1979 resolution adopting the Rules had been circulated only in 1993 (letter no. 31 dated 8.2.93) and that employees were informed by circulars in 1992–94 that those failing the examination would not get increments. The petitioner appeared immediately and passed the examination in 1994.
Legal Issues Presented
- Whether the respondents are entitled to recover alleged excess increments paid to the petitioner for the period 16.7.1979 to 14.5.1994 on the ground that he had not passed the Hindi Noting and Drafting Examination at the relevant time.
- Whether the petitioner is entitled to a direction for release of annual increments that have been withheld by the respondents.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted that he began receiving increments in 1970 and that the requirement to pass the Hindi Noting and Drafting Examination was not a condition of service prior to 1994.
- He contended that he passed the Hindi Noting and Drafting Examination on 29.8.1994 and that, in consequence, recovery of increments paid before that date on the ground of non-passing would be unjust.
Respondents' Arguments
- The respondents stated that the Bihar Government Service (Hindi Examination) Regulation, 1968 was adopted by the Board through Regulation No. 537 dated 16.7.1979, making passing the Hindi Noting and Drafting Examination a condition precedent for increments and promotions.
- They contended that because the petitioner received increments prior to passing the examination (which he passed in 1994), he was not entitled to those increments and thus the Board sought recovery of the amounts so paid.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 | The principle that where an authority erroneously grants benefit (e.g., a higher pay scale) not resulting from any misrepresentation by the employee, the amounts paid may not be recoverable from the employee; fairness and absence of fault by employee are material. | The court recorded concurrence with the observations in Sahib Ram and relied on its principle that when payments were made without misrepresentation by the employee, recovery could not be sustained; this formed part of the foundation for refusing recovery here. |
| Bihar Electricity Board v. Bijay Bahadur, (2000) 10 SCC 99 | The principle that where employees were allowed increments and promotions and later the employer seeks to recover increments while allowing promotions to stand, such selective withdrawal is unfair; an authority (especially under Article 12) must not adopt dual standards and equity demands fairness. | The court held that Bijay Bahadur governs the present facts and applied its fairness/equity principle to conclude it would be totally unfair for the Board to recover increments paid before the employees obtained the examination pass and therefore disallowed recovery for that period. |
| V. Gangaram v. Regional Joint Director, (1997) SC 2777 | The decision addressed entitlement to advance increments on acquisition of qualifications, limited entitlement to a specified number of increments, and prescribed approach to recovery of excess amounts with reference to specified cut-off dates and mitigation (e.g., recovery from pension in installments). | The court cited the decision to illustrate circumstances where recovery and limitation of entitlement to increments have been judicially managed, including directions limiting recovery to particular periods and protecting prior payments; the opinion discusses the court’s approach to temporal limits for recovery. |
| Saheed Kumar Banerjee v. Bihar SEB (unreported single-judge decision) | Relied upon in Bijay Bahadur at High Court level as supporting refusal to recover amounts where employees had passed later and payments were made without misrepresentation. | The opinion notes that the High Court in Bijay Bahadur relied on this unreported decision; the present court records concurrence with the line of reasoning that payments made without misrepresentation should not be recoverable. |
| Smt. Girish Kumari Prasad v. The State of Jharkhand, (2005) 3 JLJR 659 | The proposition that where there is no misrepresentation on the part of the employee, respondents are prohibited from recovering amounts (including from retiral benefits) paid earlier as a consequence of promotions or increments granted/allowed. | The court cited this case as following Sahib Ram and applied the same equitable principle to support the conclusion that where payments were made without misrepresentation, recovery from the employee (or retiral benefits) should be prohibited. |
Court's Reasoning and Analysis
The court proceeded in two principal stages: (1) examination of relevant precedent authorities discussing when recovery of amounts paid to employees is permissible; and (2) application of those principles to the facts of the present case.
On precedent, the court reviewed and recorded its concurrence with the Supreme Court's reasoning in Sahib Ram (1995) and Bijay Bahadur (2000), and also considered V. Gangaram (1997) and a High Court decision in Smt. Girish Kumari Prasad (2005). These authorities, as discussed in the opinion, deal with situations where (a) payments were made to employees by reason of administrative error or incorrect construction of rules, (b) the presence or absence of misrepresentation by the employee is critical to recovery, and (c) employers cannot adopt a selective approach — withdrawing one benefit while allowing another correlated benefit (e.g., promotions) to stand.
Turning to the facts, the court noted these factual findings stated in the record: the Board adopted the Bihar State Services (Hindi Examination) Rules, 1968 in 1979, but the Board's resolution was circulated to concerned authorities only in 1993 (letter no. 31 dated 8.2.93). Employees were informed by circulars in the 1992–94 period that failure to pass the Hindi Noting and Drafting Examination would result in loss of increments. The petitioner immediately appeared and passed the examination in 1994.
The court applied the equitable principles from Bijay Bahadur and Sahib Ram on the basis that (a) the payments (increments) in issue were given without any misrepresentation by the petitioner, and (b) it would be unfair and inconsistent with equity, good conscience and justice for the Board to recover increments paid prior to 1994 after having delayed communicating the requirement and after the employees had in many cases obtained promotions or other benefits. The court emphasized that the Board's selective withdrawal of benefits (withdraw increments while not cancelling promotions) would amount to a dual standard and be impermissible, particularly for an authority within the meaning of Article 12.
Given these considerations, the court concluded that the principle in Bijay Bahadur applied and that recovery of increments paid before the petitioner’s passing of the examination (i.e., before 1994) would be unfair. The court therefore exercised its writ jurisdiction to prevent the proposed recovery limited to the facts of the case.
Holding and Implications
Holding: The writ application is allowed.
Implications:
- The direct effect of the decision is that the Jharkhand State Electricity Board (respondents) is not permitted, on the facts of this case, to recover increments paid to the petitioner prior to 1994 on the ground that he had not earlier passed the Hindi Noting and Drafting Examination.
- The court applied established principles from higher and earlier decisions (notably Bijay Bahadur and Sahib Ram) emphasizing fairness, absence of employee misrepresentation, and the impermissibility of selective withdrawal of benefits; the decision is thus an application of existing precedents rather than the setting of a new legal principle.
- No broader new precedent was announced by the court; the order is expressly grounded in the facts before the court and the court's application of prior authoritative decisions to those facts.
Note: This summary is prepared strictly on the basis of the provided opinion and does not add or infer facts beyond those expressly stated therein.
M.Y Eqbal, J.:— In this writ application-the petitioner has prayed for issuance of a writ commanding upon the respondents not to recover the alleged excess payment from his salary on the ground of non-passing of Hindi Noting and Drafting Examination and further for a direction to release the annual increments which has been withheld by the respondents.
2. Petitioner's case is that he is Junior Storekeper (Super Selection Grade) at Transmission Central Store, Namkum, Ranchi. In 1968 the petitioner joined the service and from 1970 he started getting increments. However, all of a sudden in the table of fixation of pay scale prepared on 29.10.2003 the authority of the respondents has recommended for recovery of excess payment allegedly made to the petitioner by way of increments from 16.7.79 to 14.5.94 on account of non-passing of Hindi Noting and Drafting Examination. Petitioner's case is that he passed Hindi Noting and Drafting Examination on 29.8.1994 and before 1994 there was no such condition of service of passing Hindi Noting and Drafting Examination.
3. In the counter affidavit filed by the respondents-Jharkhand State Electricity Board, it is stated that Bihar State Electricity Board (B.S.E.B) adopted the Bihar Government Service (Hindi Examination Regulation), 1968 through its Regulation no. 537 dated 16.7.1979 wherein there is requirement of the Board employees for passing Hindi Noting and Drafting Examination before getting any increment or promotion. It is stated that petitioner passed Hindi Noting and Drafting Examination in 1994 but he has received increment prior to passing of such examination. Hence, he was not entitled to increment and, therefore, recovery is sought to be made.
4. I have heard learned counsel for the petitioner and the learned counsel appearing for the J.S.E.B
5. Before appreciation the rival submission of the learned counsel, I would like to discuss some of the decisions of the Supreme Court.
6. In the case of Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18] the fact of the case was that the appellant was appointed on the post of Librarian in 1972 in Government College in the pay scale of Rs. 220-550. The Haryana Government, accepting the recommendations of the Government of India and the University Grants Commission, upgraded the pay scales of Librarians with effect from 1.1.1973 to Rs. 700/- —1600/- if they possessed a minimum educational qualification of first or second class M.A, M.Sc, M. Com. plus a first or second class B. Lib. Science or a Diploma in Library Science. Thereafter, taking into consideration the representations made by the several Librarians appointed prior to 3.12.1972, the Government of India relaxed the requirement of educational qualification. Consequently the pay scale of the appellant was revised at Rs. 700-1600. However, the Government of Haryana directed the Principal to withdraw the pay scale allowed to the appellant. The said order was challenged and the High Court dismissed the writ petition. The matter went up to the Supreme Court and the Supreme Court, after considering the matter, held as under:
“Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order, as to costs.”
7. In the case of Bihar Electricity Board v. Bijay Bahadur [(2000) 10 SCC 99] the fact was that the respondents who were the employees of the appellant-Board, were given yearly increments based on service records. Subsequently the Board took a decision by issuing office order for recovery of diverse sums of money paid to the respondents by way of increments on the ground that they did not pass Hindi Noting and Drafting Examination at the relevant, time which was a condition precedent for granting annual increments in terms of the policy decision of the Board. The Board, by its regulation no. 537 dated 16.7.1979 adopted the Bihar Government Service (Hindi Examination) Regulation, 1968 and made it applicable to the Board's employees. The respondents passed Hindi Noting and Drafting Examination in the year, 1993. While dealing with the matter the Supreme Court held as under:
“Admittedly, the writ petitioners have been allowed annual increments even without passing the Hindi Noting and Drafting Examination which according to Mr. Pramod Swarup, learned advocate appearing, for the appellant Board has become a condition precedent and part of their service conditions and question of there being any entitlement de hors the same does not and cannot arise. Mr. Swarup contended that Regulation 8 is rather categorical on the score as to the date of entitlement and since its deemed effect as a part of the condition of service, the appellant Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Shri Swarup on behalf of the appellant. Board is that since the writ petitioners are not entitled to receive any increment, question of retention of the amount paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the Governmental agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of the selfsame Regulation. Regulation 7 of the Regulation itself provides that there shall not be any increment or any promotion nor would the employees be allowed to cross the efficiency bar. The petitioners have been given due promotions and as a matter of fact the petitioner in CWJC No. 4576 of 1997 is posted as an Accountant in the Electricity Supply Sub-Division at Sheohar Town in district, Sheohar on promotion. Of the dual benefits conferred the Board however, thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. This, in our view is not permissible since dual standards are not only non-acceptable but ought to be avoided more so by reason of the factum of the appellant being an authority within the meaning of Article 12. of the Constitution.”
Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year, 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 14-15 years to replenish the Board exchequer from out of the ‘employees’ salaries which were paid to them since the year, 1979. It is on this score the High Court observed that as both the petitioners have passed the examination though in the year, 1993, their entitlement for relief cannot be doubted in any way.”
The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB. We do record, out concurrence with the observations of this Court in Sahib Ram's case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstance be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go-by. As such, the action initiated for recovery cannot be sustained under any circumstance. This order, however, be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality.”
8. In the case of “V. Gangaram v. Regional Joint Director” (1997) SC 2777, the fact was that the appellant was originally appointed as Teacher/Headmaster in a private aided school, in 1959. After his passing Secondary Grade Degree Training Examination in the year 1967, he was granted SGBT scale of Rs. 80-150 with effect from the aforesaid date. In view of the fact that the appellant went on improving his qualifications for B.A, M.A.B Ed., and M.Ed, the authorities went on giving revision of the pay scale granting advance increments as and when he acquired the qualification on the pay scale applicable at the relevant time. Subsequently, proceedings were issued to recover the said amount paid to him on the premise that he was not entitled to the advance increments more than two. The Tribunal dismissed the petition. The appellant moved the Supreme Court by filing S.L.P The Supreme Court observed:
“On the basis thereof, the appellant is entitled to only two additional increments, namely, one increment for M.A and thereafter one for M.Ed Under these circumstances, the authorities have wrongly applied the G.O Ms. No. 928 and G.O Ms 226 Finance and Planning dated November 17, 1986. While issuing the notice, it was confined to the question of recovery of the arrears paid to him from the year 1985, the year in which he is eligible to acquire additional qualifications for holding the post of Lecturer. Thus, it could be seen that he is entitled to the revised scale of pay giving the additional increments on two qualifications, namely, M.A and M.Ed and, therefore, he is entitled to the computation of the scale of pay then applicable to him prior to the date of immediate month in which examination was conducted of the scale of pay plus two additional increments. He is not entitled to the four increments, as successively claimed. We hold that he is entitled to only two increments, as indicated above. Since the Department it self has adopted above approach, we direct that arrears paid prior to 1985 are not to be recovered and excess amount from 1985 is liable to be recovered from the pension payable to the appellant. Installment should be proportionately distributed so as not to cause any un due hardship.”
9. In the case of Smt. Girish Kumari Prasad v. The State of Jharkhand (2005) 3 JLJR 659 (S.J Mukhopadhaya, J.) the fact was that petitioner was appointed as skilled Artisan in 1959 in the Office of Project Executive Officer, Simdega. Petitioner was initially granted 1st time bound promotion in 1981 but date of time bound promotion was shifted to 1982. Subsequently, petitioner was granted second time bound promotion with effect from 1988 vide order dated 17.5.1994 But it was cancelled after three years of petitioner's retirement vide order dated 20.11.1998 on the ground that it was granted illegally. A Bench of this Court following the decision of the Supreme Court in Sahib Ram case (supra) held as under:
“In the aforesaid background, there being no misrepresentation on the part of the petitioner, the respondents are prohibited from making any recovery from the retiral benefit of the petitioner on the ground that she was paid certain amount illegally in pursuance of second time bound promotion.
The respondents are directed to finalise the pension and gratuity of petitioner on the basis of the last pay drawn by her and to pay the arrears, within three months from the date of receipt/production of a copy of this order, failing which the respondents will be liable to pay the interest @ 5%.”
10. In the instant case, as noticed above, the petitioner was appointed as temporary Work Sarkar in 1968 in the Work charge establishment. Thereafter, he was appointed as a provisional Junior Storekeeper in 1970. Subsequently his services were confirmed and he has been continuing as junior store-keeper (selection grade). It appears that in 1979 the respondents-Board vide its resolution adopted the Bihar State Services (Hindi Examination) Rules, 1968 which was published in the official gazette. However, this resolution was circulated only in 1993 vide letter no. 31 dated 8.2.93 by which all the Chief Engineer, General Managers, Finance Controllers, Joint Secretaries and various other authorities were intimated regarding the details of the employees who were required to pass Hindi Noting and Drafting Examination. The petitioner immediately appeared in the Hindi Noting and Drafting Examination conducted by the Board and passed the said examination in 1994. It was only in 1992-94 employees of the Board were informed by a Circular that those employ-. ees who will not pass Hindi Noting and Drafting Examination shall not get increments.
11. In our view therefore, the principle laid down by the Supreme Court in Bijay Bahadur's case (supra) shall apply in the present case. Consequently, it would be totally unfair on the part of the Board if any increment paid before 1994 is directed to be recovered from the petitioners.
12. With the aforesaid direction, this writ application is allowed.
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