PUTTASWAMY Vs. STATE OF KARNATAKARESENTED

JUDGEMENT

(1.) THE petitioner was appointed on 3. 8. 1974 as a Physical Culture Instructor. His salary was fixed as provided by the Circular issued by the Director of Collegiate Education dated 1. 1. 1975, by an order dated 6. 9,1995, the Basic pay of the petitioner as on 31. 12. 1995 was shown as Rs. 4325/-,. On extension of the University Grants Commission scale from 1. 1. 1996, the petitioner was promoted to the Selection Grade oil 7. 8. 1990. As the petitioner had put in five years of service in the cadre of Selection Grade, his pay was fixed at Rs. 14,940/ -. He was paid this scale till January, 2005. As was clear from the Government Order of 15. 11. 1999, that from 1. 1. 1996, university Grants Commission Scale of pay was extended to teachers, Librarians and Physical education Directors of Aided Colleges of Education. According to the petitioner, the government, by an order dated 17. 11. 1997, had directed that Physical Education Teachers, director of Physical Culture Instructors working in the First Grade Colleges, to be treated as teachers. As such, the Physical Education Directors working in the First Grade Colleges are to be considered on par with other lecturers. It transpires that upon an audit being conducted in the fifth respondent institution and that in terms of a Circular dated 23. 10. 2001, the petitioner was held not eligible for fixation of pay in the 1996 revised UGC scale and the excess pay that was paid was directed to be recovered by an order dated 25. 2. 2005, passed by the fourth respondent. It is this circumstance, which has warranted this petition.

(2.) THE counsel for the petitioner would argue that even assuming that there was an audit objection and it was allegedly discovered that the petitioner had been wrongly paid at a higher scale of pay, there was no opportunity of hearing provided to the petitioner before ordering recovery of money and hence, the action of the respondents would have to be treated as arbitrary and in violation of the principles of natural justice. The counsel would submit that the earlier fixation of pay of the petitioner at Rs. l4940/- is in accordance with the Government Order dated 17. 11. 1997. And, further, when in the year 19% the revised UGC scale was extended to the director of Physical Education Selection Grade, by an order dated 15. 11. 1999, it is not tenable to contend that the petitioner was not entitled to the said scale of pay. The Government order dated 17. 11. 1997 directing the Director of Physical Education and others, being considered as teachers, it would be discriminatory not to consider the Physical Education Directors on par with lecturers. The counsel would further submit that even if it is to be considered that there was a wrong fixation of the pay scales, and as it is not at the instance of the petitioner or on a misrepresentation by the petitioner, the same cannot be ordered to be recovered in view of the law laid down by the Supreme Court in the case of P. H. Reddy and Ors. v. NTRB 2002 (6)SUPREME 418 and especially so, when the re-fixation can in feet be justified in favour of the petitioner. It is also pertinent to note that the audit is an on-going process and that when no discrepancies were found for several years, during which time the petitioner has been paid salary at the re-fixed rate and the recovery sought to be ordered on the basis of a circular issued in the year 2001, is a case in point.

(3.) THE State Government has resisted the petition and the Government Advocate would substantiate the statement of objections by contending that the Government Order dated 23. 10. 2001 has clarified that the Directors of Physical Education, among others named therein, have been extended the revision of UGC pay scale retrospectively from 1. 1. 1996, withholding all other benefits on the recommendation of the Government of India and including the fixation of pay at Rs. 14940/- on completion of five years in the cadre of SGN Reader, Assistant Professor and until the Government clears the extension of other benefits, they would not be entitled to fixation of pay at Rs. 14,940/ -. The order has further clarified that until further orders, the government order extending benefits therein from the 1996 revision, shall not be granted and it is in this background that the audit department has scrutinised the service register of the petitioner and an amount of Rs. 3,82,121/- was found to have been paid in excess to the petitioner during the period 1. 1. 1996 to 31. 12. 2004. Therefore, there is no infirmity or illegality in the order directing review and by way of further additional statement of objections, the State seeks to contend that the proposal to fix the revised pay scale in favour of the petitioner was accepted by the Divisional Joint Director of Collegiate Education in the belief that the request and declaration made by the fifth respondent was correct and in order. However, it was apparent that there was collusion between the petitioner and the fifth respondent, in incorrectly stating that the revised Basic Pay as per the UGC pay scale is at Rs. 14,940/-instead of Rs. 12420/- as provided in the Government order dated 15. 11. 1999 as at Annexure "g". That in terms of the said Government order dated 15. 11. 1999, emoluments are provided for as existing on 1. 1. 1996. The said Government order provides that in case of lecturers selection grade in five years service drawing pay at the 6th stage namely at Rs. 4325/- in the pre-revised pay scale, was to be fixed at rs. 14940/- under the revised scale of Rs. 12420-18300. This benefit is confined only to lecturers Selection Grade and not to any other class of employees. The petitioner certainly cannot claim the benefit of the said clause. This error has remained unnoticed and immediately upon discovery of the same in the audit, steps are taken to recover the amounts. Hence, there is no illegality or violation of principles of natural justice in this regard.