O R D E R
Per Hon'ble Mr. D.S.Mahra, J.M.
In the present OA the applicants have prayed for the following reliefs :
"(a) That the impugned Government Order No. 05-JK(Agri) of 2021 dated 7.1.2021 may be quashed/set aside;
(b) Respondents be restrained from effecting any recovery of the two advance increments granted to petitioners for completing Master's Degree in terms of law laid down by the Hon'ble High Court of J&K in SWP No. 1791/2006 titled Jawahar Lal Raina & Ors. -vs-State & Ors. As has been done in case of other similarly situated employees;
(c) Respondents be directed to give and continue all consequential benefits to the petitioners of the advance increments as granted to them in terms of Government Order 129-Agri of 2018 dated 16.5.2018 as same shall be in the interest of justice;
(d) Any other order or direction which this Hon'ble Tribunal may deem fit in the circumstances of the case may also be passed in favour of the petitioner and against the respondents in the interest of justice and equity."
2. The facts of the case in brief are that the applicants were appointed against various posts in the respondent Agriculture Production & Farmer's Welfare Department. Vide order dated 27.05.1972 two advance
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increments were granted to the officers of the Agriculture Department who acquired M.Sc. and M.V.Sc. Degrees. Respondents, thereafter, framed the Civil Services (Revised Pay) Rules, 1982 and the grant of advance increment for higher qualification was maintained in terms of Rule 12. The Rules were again revised in 1987 vide SRO dated 17.07.1987 and in terms of Rule 12 of the said SRO, the above position was again maintained. Thereafter the Rules were further revised in 1992 and the position was again maintained except for the post of Police Constables and Junior Engineers. Since the applicants were appointed before issuance of the SRO 75 dated 30.03.1992, their services continued to be governed by the Rules of 1987 and they continued to receive the benefit of two additional increments in favour of the applicants. However, in 2005 Government issued a communication to the Directors concerned stating that the said benefit for acquiring higher qualification by in-service employees and fresh recruits made from 01.04.1992 is inoperative and accordingly sought withdrawal of benefits to the employees who had been appointed prior to 31.03.1992 but had obtained the Master's Degree subsequently. The officers of the department after making several representations approached Hon'ble High Court in SWP No. 1791/2006 which was allowed vide order dated 31.08.2017. In compliance to that judgment, the respondent issued order dated 16.05.2018 by which benefit of advance increments were continued to all officers appointed prior to 31.03.1992 including the applicants. But Government issued the impugned order dated 07.01.2021 withdrawing the benefits to the applicants and the sole reason shown is that the present applicants were not petitioners in SWP No. 1791/2006 before the Hon'ble High Court. Hence the present OA.
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3. Learned counsel for the applicants submitted that the benefit of two increments extended to them long back cannot be stopped/withdrawn at this belated stage, especially after the retirement of the applicants, and as such the impugned order dated 07.01.2021 is contrary to law. The learned counsel further submitted that the said benefit was extended to the applicants as per order passed by the Hon'ble High Court of J&K in SWP No.1791/2006 in the matter of Jawahar Lal Raina v State of J&K, decided on 31.08.2017. He further stated that the respondents cannot be permitted to withdraw the said benefit by applying the rule of estoppels.
4. Respondents have filed their counter stating that Jawahar Lal Raina and others filed SWP No. 1791/2006 before Hon'ble High Court at Jammu and sought benefit of advance increments who possessed the higher qualification at the time of initial appointment as well as the officers who acquired such qualification while in service in terms of Rule 12 of 1982 vide SRO No. 91/1982 followed by SRO 370/1987. Rule 12 reads as under :
"Advance increment(s) on acquisition of higher qualification either while in service or at the time of initial appointment, as admissible under the relevant rules and orders in various departments like Education, Agriculture, Animal Husbandry, Health Medical Education etc. will continue to be allowed in the revised scales on the existing terms and conditions."
5. It is further submitted that the Rules of 1987 were followed by the J&K Civil Services (Revised Pay) Rules, 1992 which were notified vide SRO-75 dated 30.3.1992. There was a change in grant of benefit for higher qualification under the Rules of 1992, inasmuch as the benefit of advance increment(s) to the fresh recruits in the aforementioned departments was temporarily withdrawn. It is also submitted that the Finance Department vide order dated 15.9.1992 clarified that the terms
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'fresh recruits', 'fresh appointments', 'new appointments', 'future appointments' appearing in the Rules of 1992 shall mean appointments as have been made or shall be made on or before 31.3.1992.
6. The aggrieved officers filed representation before the Finance Department for redressal of their grievances. Finance Department rejected the representations of the Agriculture Officer for withdrawal of the benefit of the advance increments given to in-service officers, who were appointed prior to the Rules of 1992 but obtained higher qualification after that. The benefit of advance increments (excess pay and allowances) given to all such officers upto 12.9.2001 was waived of and it was ordered that the fixation of their pay shall be reviewed and regulated correctly and the excess payment made w.e.f. 12.9.2001 shall be recovered.
7. In the meantime the writ petition SWP No. 1791/2006 (Jawahar Lal Raina & Ors. -vs- State of J&K & Ors.) was disposed of by Hon'ble High Court on 31.8.2017. The relevant portion of the order reads as under :
"...the Finance Department by withdrawing the benefit of advance increment(s) even to the officers, who have joined service prior to coming into force of these rules has in effect re-written Rule 8. Administrative departments have the power to issue orders and circulars to clarify the meaning and the purport of a legislative provision but no such administrative device can be used to re-write a statutory provision and to render it ineffective. Legal position in this regard is well settled and is required to be followed by all. To state the legal position in this regard, para 10 of the Supreme Court judgment in State of M.P. and Ors. -vs- Yogendra Shrivastava [(2010) 10 SCC 539] is reproduced:
"The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail(See: K. Dayandal Lal V. State of Kerala - 1996(9) SCC 728, T.N. Housing Board Vs. N.Balasubramanium 2004 (6) SCC 85, State of Karnataka vs. KGSD Canteen Employees Welfare Association 2006(1) SCC 370)., Executive orders cannot be
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made or give effect in violation of what is mandated by the Rules. If appointment letters provides for payment of NPA which is not in consonance with Rules, they can be corrected or set right by Tribunals/courts."
In the result of the above analysis, it is that the Finance Department has fallen in error by depriving benefit of Rule 8 of the Rules of 1992 even to those officers who had joined service prior to coming into force of these rules but acquired the higher qualification after that. Accordingly, this writ petition succeeds as it has strong merit.
This writ petition is, therefore, allowed and by issue of a writ of certiorari the communication Nos. Agri-e-104/04-Gnl dated 30.3.2005 and OM No. A/9(81)1-888 dated 28.7.2006 are quashed and by issue of a writ of prohibition respondents are restrained from withdrawing the benefit of advance increment(s) given to them in terms of Rule 8 of the Rules of 1992."
8. Hon'ble High Court quashed the communication dated 30.3.2005 and 28.7.2006 and directed the respondents to restrain from withdrawing the benefits of advance increments given to the applicants in terms of Rule 8 of the Rules of 1992. The matter was also taken up with Director Agriculture, Jammu and was finally referred to Finance Department for consideration who conveyed its approval vide order dated 5.4.2018 for implementation of the order dated 31.8.2017. As per approval of the competent authority vide order dated 16.5.2018, sanction was accorded to the grant of two advance increments on acquisition of higher qualification i.e. M.Sc. Agriculture in favour of the applicants herein/Agriculture Officers who have been appointed in the department prior to 31.3.1992.
9. In compliance of the Hon'ble High Court's order dated 31.8.2017 in SWP No. 1791/2006, the claim of the applicants has been examined and considered in the department under rules and keeping in view the opinion of finance Department as well as the advice of Department of Law, Justice and Parliamentary Affairs, the Govt. order dated 16.5.2018
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has been rescinded ab initio and further necessary modifications have been carried out vide order dated 07.01.2021.
10. Heard learned counsels for both sides and perused the materials on record.
11. The applicants are appointees of dates prior to issuance of SRO 75/1992 and were entitled to the benefits at the time of entry into service. Hon'ble High Court while allowing the earlier writ petition vide order dated 31.8.2017 held that the rules require that the employees appointed prior to 1992 are entitled to the benefits of advance increments even though the Masters Degree has been obtained after 1992. The said interpretation has been accepted by the Government and the judgment has been implemented. Therefore the Government cannot now withdraw such benefits extended to the applicants. Moreover the excuse taken by the Government that the judgment was not in rem is also not correct. Hon'ble High Court proceeded to interpret the Rule itself and held that the decision of the Government in denying benefits to the employees prior to 31.3.1992 is contrary to Rule and therefore the judgment being based on interpretation of Rule, is judgment in rem. Hon'ble Supreme Court in the case of State of Punjab vs Rafiq Masih & Ors [(2015) 4 SCC 334] held that recovery cannot be made when the payment of excess amount is due to a bona fide mistake and does not involve fraud or misrepresentation. The Hon'ble Supreme Court has held in para 18 of the said judgment as follows:
w"1o8u.l dI t giosv neornt peomspsilble to postulate all situations of hardship which henatvietl emmiesntat.k eBnely t hbae oeyne et m
s aodne thbey isthsuee eomf prleocyoevre, ryin, wehxecrees sp aoyfm tehnetisr
hfeewre insiatbuoavtieo,n ws,e wmhaey
,a as si ta mreaady,y breafseerd on the decisions referred to
impermissible in law:r ein recoveries b
eyn ceth, es umemmpalroiysee rtsh, e wfooluloldw inbge
(i) CRleacsosv IeVry s efrrovmice t h(oer eGmropulopy Cee as nbde Glornoguipn gD t ose Crvliacses) .I II and
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(ii) wRehcoo vaerery dfureo mto threet irreetired erecovery. within m polnoey eyeesa, ro, ro fth eth ee moprdloeyr eoesf
(iii) hRaecovery from the employees, when the excess payment thes obredeenr mofa rdeec ofovre ray pise riisosdu eidn. excess of five years, before
(iv) bReeecno vreery in cabeen pqauidir eadc tcoo sdes where an employee has wrongfully rightfully been rerqd
ischarge du
uinirgeldy ,t o ewvoe
tnie st hoof uag hhi ghhee r pshoostu,l dan dh ahvaes rk against an inferior post.
(v) cIn awoonucll nuyd s
i other casebeo nin, iqthuaitto ures c ,o vwerhye rief the court arrives at the as would far outwoeri ghha rsthh eo r m aarbdiet rafrryo mto the employee, employer's right to recover." equitable b saulacnhc aen oexf tetnhte,
Based on the legal position, the respondents issued an OM dated 2.3.2016 extending the benefits to the similarly situated employees. The applicants are retirees or who are due to retire within one year, where payments have been made in excess of five years before the order of recovery is issued.
12. The Hon'ble Supreme Court in a recent judgment dated 22.05.2022 passed in Civil Appeal No.7115/2010 in the matter of Thomas Daniel v State of Kerala & others, also dealt with the issue, and held that the excess payment, if not paid on account of any misrepresentation or fraud of the employee, or 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, such excess payment of emoluments or allowances are not recoverable. The Apex Court further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of the wrong payment, the matter being in the realm of judicial discretion, the courts may, on facts and circumstances of any particular case, order for recovery of amount paid in excess. The Hon'ble
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Supreme Court, while deciding the issue, relied upon various earlier judicial precedents, including that of Rafiq Masih (supra). Relevant paragraph of the judgment is extracted hereunder:
t"mh
9e. This Cisrepexrecses
osu rt aimn oau cnattentatio
enwa aosf dencoits ionpsa ihda s coonn siastcecnotulyn th elodf thaatn iyf fpoary mcaelnctu lwataisn gm a
nd eor fraud of the employee or if such excess
interpretation otfh er
bpya the employer by ule/yo/allowance or on
applying a wrong principle
erroneous, such excess rpdaeyrm wenhti cohf eims oslu tbhsee qbuaesnitsl yo ff oau npdar ttiocu lbaer
bneoct aruesceo voefr aabnlye . riTghhits orfe ltiheef aegainst the urmeceonvtse royr allowances are
jud mployees but in eq
uiisty ,g reaxnetercdi sinnogt
hhaard
icsihailp dtihsacretion to provide res further th welidll tbhea tc aiufs eidn ifa thge li eref cotov etrhye employees from the
employee had knowledge that thei vpeany mceanset ,
isit oirsd eprerodv. eTdh itsh Cato uarnt
odef tewchteat was due or wrongly paid, or in
reccaesievse dw whearse i ne rerxocre siss
mthea ttefar
db eoinr gc ionr rtehcet erde awlmit hoinf ja shortcts and circumstances udoifc iaaln dtiimscere ot f wrong payment, the
recovery of amount paid in excess." y part
iiocunl,a trh ec acsoeu rtosr dmeary foonr
It is not the case of the respondents that the payment of the excess amount to the applicants was on account of any misrepresentation or fraud on their part, or that such excess payment was made by applying a wrong principle for calculating the pay and allowances, or on the basis of a particular interpretation of the rule or order which might have been found to be erroneous subsequently. In fact, the benefit was extended by the respondents, and after a long time the said benefit was withdrawn by the impugned order. We are, therefore, of the considered view that the respondents are not justified in ordering recovery from the applicants.
13. In view of the above the impugned order dated 07.01.2021 is set aside. Respondents are directed to give all consequential benefits of the advance increments as granted to the applicants in terms of Government Order 129-Agri of 2018 dated 16.05.2018. In case of the applicants who have already retired from service, respondents are restrained from
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recovering the said amount and extend all retiral benefits in their favour within two months from today.
14. The OA is accordingly allowed. There will be no order as to costs.
(D.S.MAHRA) (SUNIL KUMAR SINHA)
MEMBER (J) MEMBER (A)
/as/