Supreme Court Allows Recovery Of Wrong Benefits From Retired Govt Officers
The Supreme Court in a recent decision while deciding on a Civil Appeal preferred by a superannuated Ayurvedic and Unani Medical Officer appointed on an ad-hoc basis, held that the state government is entitled to do the recovery of entitlements received by the officer as the entitlement so received were granted pursuant to the order dated 4th August 2011 issued by the Principal Secretary that...
The Supreme Court in a recent decision while deciding on a Civil Appeal preferred by a superannuated Ayurvedic and Unani Medical Officer appointed on an ad-hoc basis, held that the state government is entitled to do the recovery of entitlements received by the officer as the entitlement so received were granted pursuant to the order dated 4th August 2011 issued by the Principal Secretary that was not consistent with the orders issued by the Government orders of the Finance Department.
Concurring with the finding of the High Court, the Division Bench of Justices Abhay S. Oka and Pankaj Mithal, refused to interfere with the view taken by the High Court.
The Court held the order of recovery dated 27th October 2014 passed by the state government from the appellant is correct by observing that the order dated 4th August 2011 extended the benefits only to the Ayurvedic and Unani Medical Officers but others, and no material was brought on record to show how and why favourable treatment was given to the appellants.
Factual Background
It is the case of the Appellant (“Medical Officer” being superannuated), that the benefit of a personal/promotional pay scale granted by the State of Uttarakhand had been withdrawn under a subsequent decision of the State of Uttarakhand. The medical officer was appointed on an ad hoc basis in the State Ayurvedic and Unani Medical Service Cadre. Thereafter the Government Order dated 5th February 1998 was passed which records that the service rendered by the Medical Officers on an ad hoc basis shall be taken into account for computing 8 years of continuous satisfactory service. However, it also provides that they should be given the benefit of personal pay only after the regularisation of their service.
Further, the Government order dated 8th March 2011 issued by the Finance Department, was made applicable to all service cadres of the State, where three financial upgradations shall be given to all personnel of the State under certain conditions on the post of direct recruitment after completion of continuous satisfactory service of 10, 18 and 26 years respectively from the first appointment.
However, the order issued by the Principal Secretary, Department of Ayush, the Government of Uttarakhand, on 4th August 2011 provided that after the regularisation, the ad-hoc services rendered by the Ayurvedic Medical Officers shall be taken into consideration for the grant of personal/promotional pay scale, which is payable on completing 8/14 years of service.
Coming across the glaring defect in the order passed by the Principal Secretary with out the approval of the State Cabinet, the State Government on 22nd August 2014 came to the conclusion that the order dated 4th August 2011 was contrary to the Government Order issued by the Finance Department and accordingly, the order dated 29th May 2014 was passed, recalling the order dated 4th August 2011.
Based on the order dated 29th May 2014, the State Government made one more application before the High Court, where it observed that the Government was at liberty to act in accordance with the order dated 29th May 2014. In pursuance to this, by the order dated 27th October 2014, the Principal Secretary of the Government ordered recovery from the appellants on the basis of the cancellation of the order dated 4th August 2011.
This action of recovery, as well as the order dated 29th May 2014, were challenged by the appellants by filing writ petitions, which have been dismissed by the impugned judgment and order. It is against the said dismissal of the writ petition by the High Court; the appellant has preferred the instant Civil Appeal before the Supreme Court.
Issue Discussed
The moot question discussed by the court is whether benefits can be recovered from the appellants who have superannuated?
Observation by the Court
The Court noted that the the order dated 4th August 2011, the personal/promotional pay scale was made admissible after 8 and 14 years of service only to the Ayurvedic and Unani Medical Officers special class of Ayurvedic and Unani Medical Officers, therefore a special class of Ayurvedic and Unani Medical Officers was created who have been given a different treatment. While referring to the order dated 29th May 2014 passed by the State Government, that cancelled the order dated 4th August 2011, the court in Para 10 observed as follows:
“It is observed that though the Finance Department had objected to issuing the order dated 4th August 2011, the opinion of the Finance Department was overruled, and the same was issued without the approval of the Cabinet. That is how the Cabinet, on 22nd May 2018, decided to cancel the order dated 4th August 2011. We find no error in the view taken by the State Government as there was no valid reason to grant a higher pay scale only to the Ayurvedic and Unani Medical Officers after continuous satisfactory service of 8 years, whereas, for all other Government servants, satisfactory continuous service of 10 years was required.”
Further, the court noted that the personal time-bound pay scale was granted to the appellant vide order date 8th Nov. 2006, with a caveat that if any contrary decision being taken by the government, then the government would be entitled to recovery of amount so received by the appellant, to this effect the court's observation in Para 13 is meaningful:
“As held earlier, under the order dated 4th August 2011, the benefit of personal/promotional pay scale was granted only on Ayurvedic Medical Officers upon completing 8 and 14 years of service. The said order was contrary to the order of the Finance Department and, therefore, was rightly withdrawn as we have held earlier. We may note here that by the order dated 8th November 2006, the personal time-bound pay scale was granted to the appellants, subject to the condition that if the Government takes any decision to the contrary, the amount will be recovered from the salary of the concerned medical officers.”
While dealing the refund issues, the court viewed the observation of the High Court as correct which held that the appellants, being Ayurvedic Medical Officers, do not belong to a weaker section of the society and, therefore, recovery will not be inequitable.
Finally, the court while referring to the facts of the case in hand, held that the benefits were granted only to the Ayurvedic and Unani Medical Officers under the Order dated 4th August 2011 and were not extended to any other category of the State Government employees. Further, no material was brought on record to show how and why favourable treatment was given to the appellants.
Conclusion
The Court ultimately declined to interfere with the order/judgment passed by the High Court. Further it held as follows:
“As observed in the order dated 27th October 2014 passed by the State Government, the appellants will be entitled to ACP benefits made available under the orders dated 8th March 2011 and 1st July 2013. Therefore, if any consequential benefits accrue based on the said two orders with time, the appellants will be entitled to the same. Needless to add, the recovery shall be made, as specified under the order dated 27th October 2014.”
Accordingly, the Appeals are dismissed.
Case Title: Dr. Balbir Singh Bhandari V. The State of Uttarakhand & Ors.
Citation : 2024 LiveLaw (SC) 30