Diploma Holder Paid Excess Salary Of Degree Holder Due To Administrative Error, Calcutta HC Denies Recovery After 18 Years

The Calcutta High Court bench comprising Justice Smita Das De held that recovery of excess salary paid due to administrative error, without any fraud or misrepresentation by the employee is impermissible, especially after a long lapse of time. Background Facts An advertisement was published by the West Bengal Central School Service Commission on 01.11.1999. It was issued for appointment to the post of Assistant Teacher in Work Education in recognized non-government aided schools across West Bengal. The pay scale mentioned for pass graduate candidates was Rs. 4650–10175/-. The petitioner had a Diploma in Mechanical Engineering. He applied for the post and appeared in the Second Regional Level Selection Test, 1999. He was selected and therefore, was recommended for appointment in Alam Bazar Arya Vidyalaya Junior High School. An appointment letter was issued in his favour on 05.03.2000. He joined the post on 08.03.2001. The District Inspector of Schools (S.C.), Barrackpore approved his appointment on 13.07.2001, treating him as a pass graduate. Later the school was upgraded to High School from the 2001–2002 academic session. The petitioner went on to complete his B.A. Honours in Sociology in 2008, M.A. in Education in 2012, and B.Ed. through distance mode. He took prior approval for doing these courses. He received revised pay benefits under ROPA schemes over the years. He was granted an increment after completing 10 years of service in 2011. Then he applied for Career Advancement benefits in 2019, upon completing 18 years of service. The proposal was forwarded to the authorities. During vetting, the Joint Director (Accounts) observed that the petitioner had wrongly been granted a higher pay scale of Rs. 4650–10175/- instead of Rs. 4500–9700/- which was applicable for diploma holders. Therefore, the authority issued Memo dated 19.09.2019 demanding recovery of Rs. 21,770/- as excess payment made due to pay fixation error. Aggrieved by the same, the petitioner filed the writ petition. It was submitted by the petitioner that the respondents issued the recovery order without issuing any prior notice or affording the petitioner an opportunity of hearing. It was further submitted that the petitioner had been granted the pay scale of Rs. 4650–10175/- from the very beginning of his service based on the advertisement dated 01.11.1999, and the same was duly approved by the competent authority. Therefore the action of the respondent was arbitrary which downgraded the petitioner's pay scale to Rs. 4500–9700/- after 18 years of continuous service. On the other hand, it was submitted by the respondent State that the petitioner was not entitled to the higher pay scale of Rs. 4650–10175/- as he only held a Diploma in Mechanical Engineering and not a graduate degree at the time of appointment. It was stated that as per ROPA 1981, ROPA 1990, and ROPA 1998, the appropriate pay scale for diploma holders in the Work Education subject is Rs. 4500–9700/-. It was further contended by the State that the petitioner's initial pay was mistakenly fixed under a higher scale by the then District Inspector of Schools. Findings of the Court It was observed by the Court that the petitioner had been receiving the pay scale of Rs. 4650–10175/- ever since his initial appointment in 2001. The scale was approved by the competent authority and revised from time to time under various ROPA schemes. It was found by the Court that the petitioner had not committed any fraud or misrepresentation and had merely accepted the salary fixed by the authorities. It was held by the Court that the error in fixation of pay was entirely administrative in nature. The excess amount was paid due to a bona fide mistake on the part of the District Inspector of Schools. The petitioner had no role in the error. Thus, it was held that seeking recovery of the excess salary after 18 years of service was arbitrary and unsustainable. The Court emphasized that such recovery when made long after the benefit was granted and utilized in good faith, causes undue hardship. The case of State of Punjab vs. Rafiq Masih was relied upon wherein it was held that if an employee receives excess payment due to the employer's mistake and without any fraud, such recovery should not be made. Also, when the employee belongs to Group C or D service is nearing retirement, or the excess payment continued for more than five years, then recovery is impermissible. Further the judgment in Thomas Daniel vs. State of Kerala & Ors., was also relied upon by the court which held that such recoveries may be set aside in equity to prevent undue hardship, even if there is no legal entitlement to retain the amount. It was held by the Court that the petitioner had served faithfully for almost two decades, relying on the salary structure fixed by the authorities. Recovering the amount after such a long period would cause...

Diploma Holder Paid Excess Salary Of Degree Holder Due To Administrative Error, Calcutta HC Denies Recovery After 18 Years

Namdev Singh

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