Central Administrative Tribunal - Patna
Shashi Bhushan Singh vs Postal on 8 May, 2024
// 1 // OA/050/00584/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00584/2017
050/00
Reserved on : 3.4.2024
Pronounced on : 8.5.2024
CORAM
HON'BLE SHRI SUNIL KUMAR SINHA, MEMBER [A]
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER [J]
Shashi Bhushan Singh son of Sri Rameshwar Prasad Singh, Postal
Assistant, Patna G.P.O., Resident of Village - Ganauli, P.O. -
Mashrakh, District - Saran (Bihar).
.......... Applicant.
-Versus
Versus-
1. The Union of India through the Director General of Post, Ministry of
Communication, Department of Post, Sanchar Bhawan, New Delhi -
110001.
2. General, Bihar Circle, Patna - 800001.
The Chief Post Master General
3. The Director, Postal Service (HQ.), Office of the Chief Post
Master General, Bihar
ar Circle, Patna - 800001.
4. The Chief Post Master, Patna G.P.O.,
G.P.O. Patna G.P.O., Patna - 800001.
5. The Director, Postal Accounts, G.P.O. Campus, Patna - 800001
(Bihar).
6. The Senior Superintendent of Post Offices, Saran
aran Division, Chapra
(Bihar).
7. The Senior Post Master, Chapra
apra Head Post Office, Chapra, District -
(Bihar).
......... Respondents.
FOR APPLICANT
APPLICANT: Shri M.P. Dixit,
Dixit Advocate
FOR RESPONDENTS: Shri H.P. Singh,
ingh, Senior Central Government
Standing Counsel
Couns with Shri Radhika Raman,
Additional Standing Counsel.
ORDER
AS PER : AJAY PRATAP SINGH, MEMBER [JUDICIAL] [JUDIC
1. Applicant has filed present original application under Section-
Section-
19 of the Administrative Tribunals, Act 1985 to set set-aside order no.PA--
III/Pay Fi Fixation/ S.B. Singh/880 filed as Annexure - A-1 received on 22.09.2017 22.09.2017,, whereby in the light of letter dated 25.07.2016 of the Government of India, Ministry of Communication & Information Technology, Department of Posts, New Delhi, the pay fixed in accordance with office letter dated 27.05.205 has been rectified and re re-fixation fixation of pay // 2 // OA/050/00584/2017 of the re re-employment employment pensioner made and excess amount so paid of pay and allowances from 10.10 10.10.2006 .2006 to till date calculated for effecting recovery. The applicant has also sought direction to the respondents to restore the pay of applicant ₹14,500/-+G.P. +G.P. ₹2400 to @₹16,900 instead of ₹7,510+G.P. ₹2400 to @ ₹9,910 as on 10.10.2006 10 and also to quash order der dated 16.11.2017 Annexure A A-5 5 with note dated 28.08.2015 (Annexure - A-10) and set-aside aside order dated 31.07.2023 (Annexure - A-12) with calculation of Pension etc @ @₹44,100/- in Annexure - A-15 15 and further direct respondents to carryout re re-fixation fixation of entire entire pensionary benefits on last pay drawn @72,800/ @72,800/- alongwith consequential benefits including refund of the amount, if so, recovered towards impugned order Annexure - A-11 with statutory interest.
PRAYER
2. Applicant has claimed following reliefs (as extracted extracted from the OA):-
"(i) To quash and set aside the impugned order No.PA-III No.PA III / Pay Fixation/ S.B. Singh/ 880 dated Nil as contained in Annexure-A/1 A/1 passed by the Respondent No.5.
(ii) To direct the Respondents to restore the pay of Applicant as Rs.14,500(+) 2,400 (=) Rs.9,910/- as on 10.10.2006.
(iii) To direct the Respondents to grant all consequential benefits including refund of amount if so recovered towards impugned order with statutory interest.
(iv) Any relief or reliefs including Cost of the proceeding proceeding may be allowed in favour of the applicant.
(v) To quash and set aside the order dated 16.11.2017 as contained in Annexure-A/5 Annexure A/5 together with Note No.1101965/2015-Estt.
Estt. (Pay-II) (Pay II) dated 28.08.2015 circulated vide Letter dated 15/22.09.2015 as contained in viewew of Annexure-A86, Annexure A86, A/7, A/8 & A/9 respectively.
(vi) To quash and set aside the order dated 31.07.2023 as contained in Annexure-A/45 Annexure A/45 together calculation of Pension and DCRG on the last pay drawn, shown as Rs.44100/- at serial No.7 dated 12.05.2023 as contained tained in Annexure-A-15.
Annexure
(vii) To direct/command the respondents to grant all consequential benefits together with fixation of entire pensionary bendfits of applicant at the basic pay/last pay drawn by him as Rs.72800/-
Rs.72800/ at the time of retirement with statutory statu interest.
(viii) Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicant."
// 3 // OA/050/00584/2017
FACTS IN BRIEFS
3. Briefly stated, the facts as adumbrated by applicant in the OA that applicant while working in the Indian Air Force stood superannuated on 31.07.2001 as ex ex-serviceman.. Thereafter re-employed re under Ex--
Servicemen Quota [[Hereinafter Hereinafter referred as E.Q.] on the post of Postal Assistant, H.P.O., Chapra Division Saran and joi joined on 10.10.2006.
4. Applicant has further stated in the OA that respondents on superannuation on 31.07.2001 from Indian Air Force joined on 10.10.2006 as Postal Assistant in the Postal Department under EQ. The respondent amended CCS (fixation of pay of re-employed mployed pensioners) order, 1986 vide O.M. dated 05th April, 2010, DoPT, Government of India. The pay of the applicant was correctly fixed accordance with clarification contained para (v) of para 3 of O.M. dated 05th April, 2010 whereby initial pay in sub--para of applicant @ @₹14,500+GP ₹14,500+GP 2400=₹16,900/-
2400=₹16,900/ fixed w.e.f. 10.10.2006 (Date of re-employment) employment) as applicant retired prior to 01.01.2006 (superannuated on 31.07.2001) as Ex Ex-Serviceman.
Serviceman. Thus the impugned order Annexure A-1, A 1, whereby pay of applicant again re-fixed fixed w.e.f. 20.10.2006 and reduced to ₹7,510+GP ₹2400 = ₹9,910 vide Directorate Order dated 25.07.2016 (Annexure P/6 P/6) with rejoinder to written statement. Thus reduction of pay on re-fixation fixation of pay of re re-employed employed applicant under under EQ is unjust, and contrary to clause(2) of Article 311 of the Constitution of India.
5. Per Contra, the respondents have contested the claim of the applicant that applicant was posted as Junior Warrant Officer (Non (Non--
Gazetted) in the Indian Air Force and on 31.07.2001 31.07.2001 stood retired before attaining age of 55 years. The applicant last pay drawn on 31.07.2001 date of leaving service in minimum of scale of pay ₹5,770-140-8,290.
8,290.
Thereafter under Ex Ex-Serviceman Serviceman Quota re-employment re employment on the post of Postal Assistant in the Postal Department on 10.10.2006, after implementation of 6th CPC w.e.f. 01.01.2006.
6. Respondents have further stated that method of fixation of re-
re-
employment under EQ given accordance with Para 3(v) of OM dated 05.04.2010 as well as clarification GID(4) of Annexure-II II of Swamy Compilation. The above mentioned fixation of pay was due to misinterpretation of Para 3(v) of OM dated 05.04.2010, whereas in case of the applicant pay pay-fixation fixation ought to have been done as per Para 4(b)(1) of OM dated 05.04.2010 accordance with Rule 4(b)(1) of CCS (fixation of // 4 // OA/050/00584/2017 pay of Re Re-employed employed Pensioners) Orders, 1986 (Hereinafter referred as Orders, 1986). Applicant furnished written itten undertaking dated 02.08.2016, 02.08.2016, 31.05.2015 filed as Annexure R-1 1 and R-2 R with the written statement.
Applicant was aware that in the event of any over over-payment payment made to him in light of Orders dated 27.05.
27.05.2015 2015 the said amount shall be recovered from the salary.
7. Audit and CPMG Bihar Circle raised objection during inspection for over over-payment made.. The clarification was received vide Directorate Letter dated 15.09.2015, 22.09.2015 and applicant was not entitled ed for protection of last pay drawn before retirement. The PA Patna, GPO examined pay pay-fixation fixation statement made by Sr. Post Master, Chapra HO vide letter dated 24.02.2015 in case of applicant as to Para 4(d) and 3(v) of Orders, 1986 was not applicable and pa payy of applicant was incorrectly fixed whereas pay was to be fixed as per Para 4(b)(i) of OM dated 05.04.2010 and Para 4(b)(i) of Orders, 1986.
8. Pay of applicant since 10.10.2006 to be fixed as basic pay ₹7,510/ ₹7,510/- plus Grade Pay ₹2400/- equal to ₹9,910/- whereas as erroneously fixed as basic pay ₹9300/- plus Grade Pay ₹4200/- plus ₹2000/- plus ₹1400 equal to ₹16,900/-. Thus over-payment payment was made. The Show Cause Notice was issued and in similar cases O.A.No.05/2016 (Patna/CAT) vide order dated 21.08.2017 and in O.A.No.1723/2015 .No.1723/2015 (CAT/Bangalore Bench) vide order dated 16.08.2017 recovery as well as re re-fixation fixation orders were upheld and OA stand dismissed.
9. Respondents have also filed supplementary written statement. The respondents have categorically stated in para 5, 6, 7 of supplementary affidavit based on documentary evidence that application dated 24.10.2014 from applicant to PA Patna, GPO on deputation to Circle Office, Patna as to fixation of pay of re re-employed employed pensioner with reference to Orders, 1986 vide DoPT dated 31.07.1986 read with O.M. dated 03.11.2008, 11.11.2008 and 05.04.2010.
10. Sr. Post Master Chapra HO received application of applicant and re--fixed fixed fixed pay/calculated arrears to tune of ₹7,33,777 for period 10.10.2006 to June, 2012 and thereafter applicant on 08.04.2015,, once again submitted application to CPM Patna, GPO for pperiod riod July 2012 to May 2015 and later was forwarded to DA(P), Patna for fixation of pay of re-employed employed pensioner vide office letter dated 08.04.2015.
// 5 // OA/050/00584/2017
11. DA(P), Patna vide letter dated 27.05.2015 27.0 pre-audit audit pay fixation dated 27.05.2015 of case of applicant sent copy to Sr. Post Master Chapra, HO with approval and refixation of pay. The Audit Party of DA(P), Patna raised audit objection dated 30.09.2016 and raised the matter of wrong fixation of pay and over payment to applicant and directed for recovery of ₹17,29,511/- upto 30.09.2016.
12. Clarification dated 15.09.2015 circulated under CPMG letter dated 12.09.2015 which do not provide for pay protection of last pay drawn before retirement to the ex ex-servicemen.
servicemen. The applicant case for fixation of pay to be considered as per the scheme under P Para ara 4(b)(i) of Orders, 1986 not otherwise. The applicant at time of fixation submitted clear undertaking being aware that over payment due to wrong fixation of pay may lead to recovery.
13. Further stand of the respondents that in similar, similar, identical facts and issue the coordinate Bench this Tribunal at Bangalore in O.A.No.1723, 1717, 1773 of 2015 dismissed and in O.A.No.5/2016 Sanjay Kumar Shrivastava, the CAT Bench of Patna also upheld the orders of re-- fixation. The issue involved in the present OA is no more res-integra and Hon'ble High Court, Patna upheld the recovery order in case of Sanjay Kumar Shrivastava vs Union of India & Ors (Supra).
14. Rejoinder has been filed by the applicant denying the contentions of respondents stated that orders referred in the written statement are orders in rem and applicant entitled for fixation accordance with Para 3(v) of Orders, 1986 as applicant retired before 01.01.2006 from defence servi services and re-employed employed after 01.01.2006.
15. Applicant further stated that after impugned order pay-
pay-
fixation made and thereafter upheld vide order dated 16.11.2017 to effect recovery @ @₹32,050 per-month month from the salary of November 2017 onwards and reduced basic pa pay ₹62,800 to ₹38,100 contrary to letters dated 16.09.2017, 06.11.2017, 23.07.2015 and 22.08.2016 filed as Annexure - A-- 6 to A--9.
9. The case of applicant as per his averments that above letters are clarificatory in nature that pay of EQ persons re re-employed to be fixed on basis of Para 3(v) of DoPT, OM dated 05.04.2010 05.04.2010,, whereas respondents wrongly re re-fixed pay based on note-dated dated 28.05.2015 and 15/22.09.2015 (Annexure A A-10).
10). The office of Principal Controller of Accounts vide Ministry of Defence letter dated 23 23.07.2015, .07.2015, 22.08.2015 clarified note // 6 // OA/050/00584/2017 dated 28.08.2015 and has no applicability in respect to E.Q. who retired before 01.01.2006 and re re-employed employed after 01.01.2006. The further case of applicant that Ministry of Defence vide letters dated 16.09.2017 and 06.11.2017 2017 clarified the position and applicant case is covered by Para 3(v) of Orders, 1986 not as per note dated 28.08.2015 (Annexure - A-10).
10).
Hence applicant prayers to declare order dated 16.11.2017 of recovery as illegal.
16. Respondents have further filed response to the rejoinder filed by applicant as to written statement and supplementary written statement reiterating submissions of written statement and supplementary written statement.
17. Applicant has also so filed M.A.No.70 of 2024 for f amendment challenging orders dated 31.07.2023 (Annexure-A-12) (Annexure 12) calculation of Pension, DCRG, F.P. last pay drawn shown ₹44,100/- and to grant all benefits including basic pay drawn ₹72,800 at the time of retirement with with statutory interest and stated that respondents not release released d any retiral dues till date.
18. It is pertinent to mention that matter was heard finally on 29.02.2024 and reserved for orders, whereas it has been noticed that M.A.No.415/2017 dated 27.11.2017 and M.A.No.70 of 2024 for amendment were pending alongwith M.A. M.A.No.416 No.416 of 2017, 149 of 2018, 150 of 2018, 276 of 2023 and matter was de de-reserved reserved on 19.03.2024 and heard finally on 03.04.2024.
SUBMISSION ON BEHALF OF THE APPLICANT
19. Shri M.P. Dixit learned Counsel appearing for the applicant vociferously canvassed that applicant plicant superannuated on 31.07.2001 prior to 01.01.2006, from Indian Air Force. Re Re-employed employed on 10.10.2006 after 01.01.2006 under EQ as Postal Assistant H.P.O. Accordance with the amended provisions of CCS (fixation of pay of re re-employed employed pensioners) Order, 1986 vide O.M. dated 05th April, 2010, DoPT Government of India (Pay-Rules) Rules) based on sub sub-para para (v) of Para 3 of orders, 1986 it was clarified that fixation of pay of personnel who retired prior to 01.01.2006 and re re--
employed after 01.01.2006 will be fixed by notionally at their revised basic pay at the time of retirement as if they had retired under the revised pay structure. This will be done with reference to the fitment table of the Defence Service Rank/Civilian Service post (as the case may be) from // 7 // OA/050/00584/2017 which they had retired and the stage of basic pay at the time of their retirement. Their basic pay will be fixed at the same stage as the notional last basic pay before retirement so arrived at. However, they shall be granted Grade Pay of re re-employed post.
20. Shrii M.P. Dixit further argued that respondents initially fixed his pay attached to the post of Postal Assistant on his joining on 10.10.2006 on re-employment employment under Ex Ex-serviceman serviceman Quota. The respondents thereafter accordance with Para 3(v) of Orders, 1986 correctly re re-fixed fixed his initial pay w.e.f. 10.10.2006 with pay pay-protection protection of last pay drawn before retirement from IAF and same deserves to be upheld.
21. Shri M.P. Dixit also contended that respondents have arbitrarily revised his pay fixation on re re-employment employment on 10.10.2006 retired on 31.07.2001 from IAF as Junior Warrant Officer prior to 01.01.2006. He supports pay prot protection ection granted on date of retirement as ex-serviceman ex serviceman initial pay ₹9300+4200+2000+1400 equal to ₹16900. Shri M.P. Dixit vehemently contended that impugned order Annexure - A-1 1 with OA received on 22.09.2017 reduction of applicant pay on revised fixation to ₹7510 plus G.P. ₹2400 equal to ₹9,910 and further illegally respondents restructuring of basic pay from ₹62,800 to ₹38,100 w.e.f. 01.11.2017 vide impugned order dated 16.11.2017 and recovery of overpayment of pay and allowances, and huge amount of recover recovery of ₹45,39,487 is illegal and impugned orders deserve to be set-aside aside with all consequential benefits.
22. Shri M.P. Dixit learned counsel for applicant placed heavy reliance on judgments in case of Director General of Posts & Ors versus B. Ravindran & Anr. reported in (1997) 1 SCC 641, Surendra Kumar Singh versus Union of India & Ors. In Civil Appeal No.7320 of 2022 [arising out of SLP(C) No.18270 of 2022] decided on 14.10.2022. So also to buttress his submissions, Shri Dixit also places reliance on orders ddated ated 09.07.2015 in W.P.(C) No.4410/2015 Dharmendra Singh Rana versus the Government of NCT of Delhi, Shri P. Harischandra Reddly versus National Institute of Rural 1995(2) ALT 555 by Hon'ble High Court, Andhra Pradesh.
23. Shri M.P. Dixit submitted that respondents respondents had arbitrarily fixed his pension on reduced basic pay @ @₹38,100 ₹38,100 whereas the applicant is entitled for fixation of pension and benefits @ @₹62,800 ₹62,800 with protection of the last pay drawn before retirement as ex ex-serviceman.
// 8 // OA/050/00584/2017
24. Shri M.P. Dixit to buttress his arguments heavily placed reliance on the letters dated 16.09.2017, 06.11.2017 written to Capt. Lakshmikantha Rao by the Minister of Defence and also relied on communication dated 23.07.2015 and 22.08.2016 from Jt. Controller of Accounts (fys), Kolkata to the ACFA (fyx.) Trichuchirapally contained in Annexure A A-6 to A-9.
9. He submits impugned orders are contrary to Rule 2(vii) of CCS (RP) Rules 2008, persons employed in Government Service after retirement these Rules 2008 donot have any appli application.
25. Shri M.P. Dixit also placed reliance on order dated 18.06.2014 passed in O.A.No.1094/2013 (CAT/Bangalore Bench) titled C. Raveendran versus Union of India O.A.No.1093/2013 (CAT/Bangalore Bench) C.M. Sathyan vs Union of India, decided on 18.06.2014 and in O.A. No.53 No.535/2015 5/2015 (CAT/ Allahabad Bench) titled Bijay Kumar versus Union of India decided on 05.10.2018 so also placed reliance on order dated 17.03.2023 in case of S. Vijayan & Anr. versus Union of India and others in O.A.No.1296/2015 (CAT/ Chennai Bench).
SUBMISSIONS ONS ON BEHALF OF RESPONDENTS
26. Shri H.P. Singh learned Senior Central Government Standing Counsel with Shri Radhika Raman, Additional Standing Counsel appearing for the respondents argued that the applicant retired on 31.07.2001 from the post of Junior Warrant Officer (Non (Non-Gazetted) Gazetted) from the IAF, joined on 10.10.2006 on re re-employment employment on the post of Postal Assistant in the Postal Department, Government ooff India as direct recruit in ex-serviceman ex serviceman quota.
The applicant is already drawing full pension for service rendered as J.W.O. in the IAF and on the joining of the Postal Department on 10.10.2006 his pay was correctly fixed as per entry pay in the revised pay structure of re re-employment employment post of Postal Assistant as pay attached to the post. The pay of applicant on the post of Postal Assistant fixed @ ₹7510 plus Grade Pay ₹2400 equal to ₹9,910 accordance with rules applicable Rule-Para Para 4(b)(1) of Central Civil Services (fixation of pay of re-
re-
employed pensioners) Orders, 1986. Since the system of the running pay bands and grade pay introduced the relevant provisions of Orders, 1986 were amended vide O.M. dated 05.04.2010 by DoPT, Government of India.
27. Shri H.P. Singh learned Sr. CGSC also argued that at the time of joining on 10.10.2006 on the post of Postal Assistant on re re-employment, employment, the applicant pay was correctly fixed after 6th CPC recommendations on // 9 // OA/050/00584/2017 entry pay on re re-employment employment whereas applicant submitted applications applications dated 24.10.2014 and 24.02.2015 for re re--fixation fixation of his pay and arrears as per Rule Para 3(v) of Orders, 1986 for protection of last pay drawn before retirement on the post of J.W.O. in the IAF. On the basis of applications dated 24.10.2014 and 24.
24.02.2015 re-fixation fixation of pay was erroneously carried out and huge amount of public fund illegally paid as arrears.
28. Shri H.P. Singh, learned Sr. CGSC vehemently argued that on the applications dated 24.10.2014 and 08.04.2015 of the applicant benefits of revi revised sed higher scale of pay erroneously given arrears paid and undertakings given by the applicant that he would be liable to refund any excess payment made to him and bound by such undertaking. In support of such contention, Shri Singh placed reliance upon ju judgment of Hon'ble Supreme Court in case of State of Punjab & Haryana versus Jagdev Singh, reported in (2016) 14 SCC 267. Shri H.P. Singh also places heavy reliance on similar case on facts and issue dismissed and recovery justified by Hon'ble High Court, P Patna in CWJC No.16186/2018 Sanjay Kumar 22.06.2022, binding on Shrivastava vs Union of India & Ors. Decided on 22.06.2022 this Tribunal.
ANALYSIS AND FINDINGS
29. We have bestowed our anxious consideration on the rival contentions of the learned counsel appearing for the parties and perused the material placed on record as well as considered the precedents relied.
30. Admitted facts are that the applicant served in Indian Air Force on the post of J.W.O. (Non (Non-Gazetted) Gazetted) and retired on 31.07.2001 before attaining age of 55 years. The applicant was re re-employed under ex--
servicemen quota on the post of Postal Assistant in Postal Department Department,, Government of India and joine joined on 10.10.2006.
0.2006. The applicant retired from IAF from the post of JWO (non (non-gazetted) gazetted) non-commissioned non commissioned service and entire pension and pensionary benefits ignored for initial basic pay on re-- employment. The Department has fixed initial pay on re re-employment employment as per re-employed post in 6th CPC pay entryy pay in revised pay structure of re scales. The entry pay on post of Postal Assistant was fixed at initial stage ₹7510 plus G.P. ₹2400 equ equal to ₹9,910 (PB I - ₹5200-20,200) 20,200) in the revised pay structure on 10.10.2006 date of joining.
31. Applicant submitted application dated 24.10.2014 while on deputation to Circle Office, Patna regarding fixation of pay of re re-employed employed // 10 // OA/050/00584/2017 pensioner with reference to Orders, 1986 read re with O.M. dated 05.04.2010.
The Sr. Post Master, Chapra HO revised and re re-fixed fixed applicant pay and for period 10.10.2006 to July 2012 paid arrears to tune of ₹7,33,777.
32. Applicant submitted another application dated 08.04.2015 to CPM, P Patna atna GPO for payment of arrears for rest of period from July 2012 to May 2015. The pay of applicant was far above period was re re-fixed.
fixed. The Audit Party of Directorate of Accounts (Postal) in audit objection dated 30.06.2016 found that applicant case was of wrong fixation of pay and overdrawal of pay and allowances and instructed to recover upto 30.09.2016 amount of ₹17,29,511 and pay-fixation pay fixation for applicant case cannot be done as per Para 3(v) of O.M. dated 05.04.2010.
33. Show Cause Notice dated 08.11.2017 was issued issued for recovery of overpayment and allowances of ₹21,15,199 for period 10.10.2006 to 31.10.2017 due to wrong fixation of pay. The applicant had furnished undertaking in light of order dated 27.05.2015 for revised pay fixation. The outstanding recoverabl recoverable amount ₹45,39,487 45,39,487 indicated on 31.10.2023 and applicant retired on 30.04.2023 last pay drawn @ @₹44100/- (in PB 5200--
20200, (PB (PB-I) I) + GP 2800 level pay matrix-5).
matrix
34. The dispute in the present case relates to fixation of pay taking into consideration of service rendered by IAF and fix as per applicant his initial pay on the re re-employment employment at same stage last drawn pay prior to retirement from defence service in accordance with Para 3(v) of dated 05.04.2010. Whereas the stand of the postal department DoPT OM dat that in case of applicant retired as JWO (Non (Non-Gazetted) Gazetted) from IAF and entire pension and pensionary benefits are ignored and as per provisions for fixation of pay on re re-employment employment to be fixed accordance accordance with Para 4(b)(i) of Orders, 1986 read with O.M. dated 05.04.2010 and revised fixation done on applications of applicant under Para 3(v) of OM dated 05.04.2010 is impermissible under rules for fixation of pay on re-employment.
re THE ISSUE
35. From the above submissions of the learned counsel for the parties and material placed on record. The issues for consideration:
consideration:-
(i) "Whether the applicant re-employed employed pensioner entitled under CCS (fixation of pay of re-employed re employed pensioners) Orders, 1986 read with O.M. dated 11.11.2008 and 05.04.2010 for // 11 // OA/050/00584/2017 protection of scales of pay/pay structure of the post held by him prior to retirement?"
(ii) "Whether orders of recovery of the excess amount paid on representations and undertakings of the re employed re-employed pensioner- applicant should be be exempted in law from the reimbursement of the same to the employer-respondents."
employer
36. As evident from the record that applicant was previously working on the post of Junior Warrant Officer in the Indian Air Force and retired on 31.07.2001 before attaining age of 55 years. The applicant last pay drawn was minimum ₹5,770 in the scale of pay ₹5,770 ₹ 140-8290 8290 on the date of leaving service from IAF.
37. Applicant was re-employed employed under ex-servicemen ex servicemen quota on the post of Postal Assistant in the Postal Department on 10.10.2006 after implementation of the 6th CPC w.e.f. 01.01.2006 accordingly pay was fixed fixed to entire pay of the post on which applicant was posted as Postal Assistant.
38. Applicant, Postal Assistant, Patna GPO was on deputation to Circle Office, Patna and submitted application dated 24.10.2014 for fixation of pay of re re-employed employed pensioner accordance accordance with orders, 1986 issued vide DoPT OM dated 31.07.1986 read with O.M. dated 11.11.2008 and O.M. dated 05.04.2010.
39. Senior Post Master Chapra HO, where applicant was appointed on application dated 24.10.2014 and office letter dated 28.11.2014 sent to S Sr. r. Post Master Chapra for fixation of pay of re-
re-
employed pensioner. The Sr. Post Master Chapra HO had revised and pay protection on last pay drawn before retirement and thereafter fixed his pay calculated arrears a sum of ₹7,33,777 for period of 10.10.2006 10.10.2006 to June 2012.
40. Applicant once again submitted application dated 08.04.2015 to C.P.M. Patna, GPO for rest of period i.e. July 2012 to May 2015 and letter was forwarded to the DA (P), Patna for fixation of pay of re re--
employed pensioner vide office letter dat dated ed 08.04.2015. The DA(P) Patna vide letter dated Pre Pre-Audit Audit Pay Fixation dated 27.05.2015 approved and re-
re-
fixation of pay of applicant done granting pay protection of last pay drawn before retirement.
41. The Audit Party of DA(P), Patna raised audit objection vide inspection memo No.115 and 116 dated 30.09.2016 and pointed out wrong // 12 // OA/050/00584/2017 fixation of pay and over payment of pay and allowances of the applicant and directed to recover amount upto 30.09.2016 of tune of ₹17,29,511.
42. Directorate (H.Q.) issued order dated 15th September, 2015, clarification regarding fixation of pay of re re-employed ex-servicemen servicemen pensioners retiring before attaining age of 55 years and who hold post below commissioned officer rank in the Defence forces. The Directorate's letter dated 15.09.20 15.09.2015 15 was sent vide letter dated 22.09.2015 for all cases of pay fixation of re re-employed ex-servicemen servicemen pensioners who held post below commissioned officer rank in Defence forces.
43. The relevant extract of DoPT, Note dated 28.08.2015 to decide the controversy in involved volved in the case, for ready reference reads as :-
:
"The.
The. matter has been examined in this Department. It is pointed out that paras 4(a), 4(b)(i) and 4(d)(i) of DOS (Fixation of Pay of Re-employed employed Pensioners) Orders, 1986 as amended vide this Department's OM. No.3/19/2009-Estt.(Pay.ll) No.3/19/2009 dated 5.4.2010, provide that in case of ex-servicemen servicemen who held post below Commissioned Officer rank in the Defence Forces and in the case of civilians who held posts below Group 'A' posts at the time of their retirement before re 55 years of age, the entire pension and pension equivalent of retirement benefits shall be ignored, that is, no deduction on this count is to be made from the initial pay fixed on re-employment.
employment. Also, in terms Of the Para 4(b)(i) of CCS (Fixation of Pay of Re-employed employed Pensioners) Orders, 1986, as amended vide this Department's O.M. No.3/19/2009-Estt.(Pay.ll) No.3/19/2009 dated 5.4.2010, the initial pay on re-employment re shall be fixed as per the entry pay in the revised pay structure of the re-employed re post applicable in the case of direct recruits appointed on or after 1.1 .2006. as notified vide Section II, Part A of First Schedule to CCS(Revised Pay) Rules, 2008. These instructions do not provide for protection of last pay drawn before retirement, in such cases."
cases.
DoPT PT ID Note No.1101965/2015-Estt.
No.1101965/2015 (Pay-II) dated 28th August 2015 [Emphasis Supplied] The above mentioned clarification issued by the Ministry of Personnel, PG and Pensions, DoPT, New Delhi, DoPT ID Note No.1101965-Estt. (Pay-II) dated 28th August, 2015 regarding No.1101965 regarding fixation of pay of re re-employed ex-servicemen servicemen pensioners was sent to all C.P.M.G. and all concerned to disposed of all cases of pay fixation of re re-employed ex--
servicemen pensioner retiring before age of 55 years below commissioned officer rank in D Defence forces.
44. DoPT Note dated 28.08.2015 is clear as extracted herein above that Para 4(a), 4(b)(i) and 4(d)(i) of Orders, 1986 as amended vide O.M. dated 05.04.2010 that in cases of ex ex-servicemen servicemen who held post below // 13 // OA/050/00584/2017 commissioned officer in Defence Forces at the time of retirement before 55 years, the entire pension and pension equivalent to retirement benefits shall be ignored, that is there shall be no deduction on this count to be made from the initial pay fixed on re re-employment.
45. DoPT, Note dated 28.08.2015, 2015, extracted herein above further clearly provides that Orders, 1986. The Orders, 1986 are service rules for the fixation of pay of the applicant on re re-employment and Orders, 1986 has to be read with amendment based on O.M. dated 05.04.2010 in the Orders, s, 1986. The relevant amended orders, 1986 so far Para 4(a), 4(b)(i) and 4(d)(i) of Orders, 1986 as amended vide O.M. dated 05.04.2010 are reproduced for ready reference as under:
under:-
"Government Government of India Ministry of Personnel, P.G. & Pension (Department of Personnel & Training)
---------------
New Delhi, the 31st July, 1986.
Subject:- Fixation of pay of re-employment
re pensioners.
4(a) Reemployed pensioners shall be allowed to drawn pay only in prescribed scales of pay for the posts in which they are reemployed. No protection of the scales of pay of the held by them prior to retirement shall be given.
4(b)(i) In all cases where the pension pension is fully ignored, the initial pay on reemployment shall be fixed at the minimum of the scale of pay of the reemployed post.
4(d) In the case of persons retiring before attaining the age of 55 years and who are reemployed, pension (including pension equivalent of gratuity and other forms of retirement benefits) shall be ignored for initial pay fixation to the following extent.
(i) In the case of ex--servicemen servicemen who held posts below commissioned officer rank in the Defence Forces and in the case of Civilians retirement, the entire pension and pension equivalent of retirement benefits shall be ignored.
(ii) In the case of service officers belonging to the Defence Forces and Civilian pensioners who hold Group 'A' posts at the time of their retirement, the first Rs.500/-
Rs.5 of the pension and pension equivalent of retirement benefits shall be ignored."
[Emphasis Supplied]
46. We have analysed the scheme of pay-fixation pay fixation in case of applicant re re-employed pensioner on re-employment employment on the post of Postal Assistant in Government oof India. The applicant is legally entitled for fixation of pay under Orders, 1986, specific scheme providing for fixation of pay of re re-employed pensioners.
The 6th Pay Commission recommendations implemented implemented CCS (R.P.) Rules 2008 w.e.f. 01.01.2006. Thereafter vide DoPT, O.M. No.3/13/2008 Estt.(Pay Estt.(Pay-II) II) dated 11.11.2008 as extracted in first para of // 14 // OA/050/00584/2017 O.M. No.3/19/2009 Estt. (Pay II) dated 5th April, 2010 decided to amend (Pay-II) relevant provisions of Orders, 1986,, we have already extracted to analyse and understand in proper manner.
47. O.M. dated 11.11.2008 is clear as moon day that it is squarely applicable for fixation of pay of applicant applicant, re-employed employed in Central Government after 01.01.2006. The applicant retired oon n 31.07.2001 from Post of JWO (Non (Non-Gazetted) Gazetted) IAF and joined on 10.10.2006 on re-
re-
employment on civilian post as Postal Assistant. The relevant provision Para 4(b)(i) of Orders, 1986 read with O.M. dated 05.04.2010 specifically clearly provides for fixation of pay of applicant. The Para 4(b)(i) of orders, 1986 read with O.M. dated 05.04.2010 is applicable in the case on our hand that applicant pension on the post of J.W.O. is fully ignored. Admittedly applicant pension is not affected therefore as per above pprovision rovision for fixation of the initial pay on re-employment employment on the post of Postal Assistant had to be fixed as per entry pay in the revised pay structure of the re re--
employed post. The revised pay structure on the post of Postal Assistant shall be as applicabl applicablee in the case of direct recruits appointed on or after 01.01.2006 as notified vide Sec Sec-II, Part-A A of the first schedule to CCS (RP) Rules, 2008. Thus the above provision, Para 4(b)(i) of Orders, 1986 read with O.M. dated 05.04.2010 is clear that since appl applicant re-employed employed after 01.01.2006 and have been allowed revised pay structure on the post of Postal Assistant hence Rule 7 of the CCS (RP) Rules, 2008 shall not be applicable.
48. We have analysed the scheme provided under Orders, 1986, read with O.M. dated 11.11.2008 and O.M. dated 05.04.2010. We are in complete disagreement with the contention of the learned counsel appearing for the applicant that since applicant retired on 31.07.2001 as Junior Warrant Officer from t he IAF and being re re-employed under Ex--
serviceman erviceman Quota hence under clarification Para 3(v) of O.M. dated 05.04.2010 for fixation of pay to persons re re-employed employed after retirement pay has to be fixed by notionally arrived at their revised pay structure basic pay at the time of retirement as if reti retired red under revised pay structure. The above contention of Shri M.P. Dixit counsel for applicant is misconceived. The entire pension and pensionary benefits of applicant are ignored in the case of applicant and under provision of Para 4(b)(i) applicant initi initial pay on re--
employment was correctly fixed w.e.f. 10.10.2006 accordance with entry // 15 // OA/050/00584/2017 pay on re re-employment in revised pay structure given for the post the Postal Assistant on implementation of 6th CPC.
49. It's suffice to hold that in case of applicant pay-protection pay ction of the last pay drawn on retirement is not available as per rules applicable for the fixation of pay of re re-employed employed pensioners as entire pension and pensionary benefits are ignored in toto for fixation of pay on re-- employment.
50. The respondents action in the present case is justified, we see no legal infirmity in fixation of initial pay on re re-employment employment and there is no merit in O.A and no interference is warranted.
ISSUE NO.2
51. Now coming as to the next issue, issue no.2 - "whether applicant be exempted or not from recovery of excess amount already paid on his own written representation representations and undertakings?"
undertakings Onn the thorough consideration of contentions rule of law and covered cases, we have held that there is nothing irregular in the action taken by the respondents in the fixation of pay of the applicant.
52. We have also carefully perused the service book produced by the respondents and as evident that applicant was appointed vide order dated 27.04.2006 issued by Sr. S.P.O. Saran Division Chapra on the post of Postal Assistant on the terms and conditions that post of Postal Assistant carries pay scale of ₹4000-100-6000 6000 and entitled for minimum of pay scale of the post with D.A. and other allowance admissible. The applicant on re re--
ployment accepted the terms and conditions of appointment and employment acceptance letter submitted. Applicant pay rightly fixed @₹9910 @₹9910 on 10.10.2006 in PB PB-1 ₹5200-20,200 20,200 with G.P. ₹2400. The applicant accepted the terms and conditions of appointment on the post of Postal Assistant on employment and estopped from turning re-employment ing around and claim pay-protection pay protection of provisions service impermissible under rules applicable of Orders, 1986. On the repeated applications of applicant pay re-fixed re from 10.10.2006 erroneously and arrears rrears of difference of pay and allowances paid from 10.10.2006 to 06.2012 to tune of Rupees Seven lacs thirty three thousand and seven hundred seventy seven ((₹7,33,777=00) ₹7,33,777=00) in light of memo dated 27.05.2015. The applicant voluntarily furnished undertaking dated 31.05.2015 before accepting payment. The contents of undertaking Annexure - R-2 2 for ready reference reads as:-
as:
// 16 // OA/050/00584/2017
"UNDERTAKING
I, Shashi Bhushan Singh, hereby undertake that in the event of any over payment made to me in the light of order no.PA-
no.PA III/Pre-Audit/Pay-fixation/S.B. fixation/S.B. Singh/788 dated 27.05.2015, t he said amount should be recovered from my salary as & if admissible.
Sd/-
(Shashi Bhushan Singh) PA, Patna G.P.O. Dated: 31.5.2015 Presently on deputation Place: Patna To Monitoring Cell, C.O. Patna [Emphasis Supplied]
53. The applicant once again submitted representation dated 08.04.2015 contrary to terms and condition of appointment on re re--
employment and pay refixed from July 2012 to May 2015 and arrears accordingly. The undertaking dated 02.08.20 02.08.2016 (Annexure - R/1) reads as:-
UNDERTAKING I hereby undertake that in the event of my pay having been fixed in a manner contrary to the provisions contained in these Rules, as detected subsequently, any exess payment so made shall be returned by me to the Government either by adjustment against future payment due to me or otherwise.
Signature: Sd/-
Name Shashi Bhushan Singh Designation Postal Assistant Date: 02/08/2016 Place: Patna"
[Emphasis Supplied] We have perused original record of the t service book entries calculation shown total recoverable amount ₹45,16,822 822 (forty five lacs sixteen thousands eight hundred twenty two only) from 10.10.2006 to 30.04.2023. On 28.11.2017 in present OA office order ddated ted 16.11.2017 was stayed and vide Dy. CPM (Admn (Admn.) .) Patna, GPO Memo dated 21.12.2017, applicant pay fixed at time of re re-employment employment was withdrawn and continuing benefits on erroneous re re-fixation fixation as evident from entry dated 28.10.2021 in the service book. So also the applicant filed document A-14 series obtained under R.T.I. as on 31.10.2023 recoverable Annexure A amount is shown as ₹45,39,487 and calculation of pension, DCRG based on last pay ₹44100. Whereas applicant seeking to re-fix re fix pensionary benefits on last pay drawn @ @₹72800 ₹72800 based on erroneous fixation.
fixation
54. So far as legal proposition laid down by Hon'ble Supreme Court germane to decide issue no.2 in case of State of Punjab & Others versus Rafiq Masih (White Washer) & Others reported in (2015) 4 // 17 // OA/050/00584/2017 SCC 334 relied upon by the learned counsel for applicant has been been distinguished by the Hon'ble Supreme Court in case relied by Shri H.P. Singh, Sr. CGSC learned counsel for respondents titled as High Court of Punjab & Haryana & others vs Jagdev Singh reported in 2016 SCC Online SC 748. The relevant paragraph 10 to 13 reads as under:-
"10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:
"(i) Recovery from employees belonging to Class-III Class and Class-IV IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within thin one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required d to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, em would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." (emphasis supplied).
11 The principle enunciated in proposition (ii) above cannot apply to a situation such ch as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking aking while opting for the revised pay scale. He is bound by the undertaking.
12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable re instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years. 13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs."
[Emphasis Supplied]
55. The written statement of respondents reveals that written undertakings dated 31.05.2015 and 02.08.2016 Annexure R R-2 and R-1 1 submitted promised to refund the excess amount paid failing which employer was authorized to recovery the same. We, therefore hold that in view of conscious decision to furnish voluntary undertakings binding on both parties in lis and law laid down by Hon'ble Supreme Court in case of (Supra).. The applicant has given undertakings Jagdev Singh (Supra) undertakings and recovery can be made strictly in terms of the undertakings. We also noticed that in // 18 // OA/050/00584/2017 the two undertakings extracted herein above there is mention of fact of liberty to respondents to recover amount paid in excess can be recovered.
56. In view of reasons stated, hereinabove, suffice to hold that in view of facts of present case, the employer has liberty to recover the excess amount paid to the applicant in terms of undertakings dated 31.05.2015 and 02.08.2016 furnished by the applicant vide Annexure - R/2 & R/1 which authorised respondents to recover principal excess amount. Since no case made out interim orders stand vacated and OA deserve to be dismissed devoid of merit.
57. We decide the issue no.2 against the applicant and direct respondents to recov recover, er, adjust, realize amount paid in excess in terms of both undertakings furnished by applicant and hereby upheld all the impugned orders Annexure A A-1, 1, dated 16.11.2017 Annexure A-5 A & A-10 10 and dated 31.07.2023 (Annexure A A-12)
12) being justified and in accordance accordance with applicable rules.
58. In support of his arguments, Shri M.P. Dixit has relied upon order dated 18.06.2014 in O.A.No.1093/2013 (CAT/Bangalore Bench) O.A.No.1093/2013 (Bangalore Bench) decided on 18.06.2014 and order dated 05.10.2018 in O.A.No.535/2015 ((CAT/ CAT/ Allahabad Bench), order dated 17.03.2023 in O O.A. .A. No.1296/2015 (CAT/Chennail Bench), order dated 14.10.2022 in Civil Appeal No.7320 of 2022 Surendra Kumar Singh versus Union of India.
59. But it is well settled position of law that judgment has got no universal application rather tested on basis of facts of each case. [Dr. 75]..
Subramanian Swamy vs State of Tamil Nadu & Ors (2014) 5 SCC 75] So also Hon'ble Supreme Court held in case of Nair Service Society vs Dr. T. Beermasthan, (2009) 5 SCC 545 its Para 48 that "....it is well settled that judgments in service jurisprudence should be understood with reference to the particular service rules governing the field." We have examined orders relied by the learned counsel for the applicant order dated 18.06.2014 in O.A.No.1093/2013 (CAT/ CAT/Bangalore Bench)) related to exercising option pursuant to Railway Board Circular and its effect hence of no help to the applicant. In case of O.A.No.1296/2015 (CAT/Chennail Bench) S. Vijayan & Anr versus Union of India & Others decide decided d on 17.03.2023, case involving identical facts and issue has been dismissed and similar impugned orders upheld. So is the case in O.A.No.535/2015 // 19 // OA/050/00584/2017 (CAT/Allahabad Bench) Bijay Kumar versus Union of India & Ors decided on 19.09.2018 and in similar issue and facts the OA has been dismissed. Shri M.P. Dixit also much emphasised on orders in case Surendra Kumar Singh (Supra) and not applicable in facts of case on hand distinguishable as recovery in the case upheld based on terms of undertakings and law laid down by Hon'ble Supreme Court in case of Jagdev Singh (Supra).
60. In our view the judgments cited by learned counsel for applicant are clearly distinguishable on the facts and it is well settled that one little difference in the facts will free this Tribunal from being bound by the ratio of a decided case. We have also examined facts of cases relied by Shri M.P. Dixit in case of C. Raveendran (Supra) related to RBE No.164/1998 dated 02.08.1998 issue related to exercise of option of wrong format. So also in case of Dharmendra Singh Rana (Supra) disposed of rendered infructuous. So also examined case of Shri P. Harish Chandra Reddy (Supra) re re-employed employed in NIRD retired as Ex-serviceman Ex serviceman on 30.09.1985 decided on 13.06.1995 whereas case on hand relates to orders, 1986 rea read with O.M. dated 05.04.2010 fixation of pay on re-employment.
re employment.
So also examined facts in case of B. Ravindran (Supra) related to entitlement to an advance increment only if his pay plus pension equivalent to gratuity is less than the last pay drawn at the time of retirement.
61. The issue involved in the present OA, no more res-integra integra and squarely covered by orders of dismissal passed by coordinate Benches of this Tribunal in case of Sri Sathya Narayana T & Ors versus Union of India & Ors, O.A.No.1723/2015 (B (Bangalore Bench), in O.A.No.1296/2015, S. Vijayan & Anr versus Union of India & Ors (CAT/Chennail Bench) decided on 17.03.2023 also squarely covered by order passed by coordinate Bench at Cuttack in O.A.No.796/2015 and in O.A.No.535/2015, Bijay Kumar (CAT/Allahabad Bench) also dismissed the O.A. vide order dated 05.10.2018.
62. In present case on hand also stands qualified by order dated d ted 22.06.2022 in identical facts and legal issue in case of Sanjay Kumar Shrivastava versus Union of India and Others, Civi Civill Writ Jurisdiction Case No.16186 of 2018 (arising out of order dated 21.08.2017 passed in identical case OA No.5/2016, Sanjay Kumar Srivastava vs. UOI) decided on 22.06.2022 by our own Hon'ble High Court, Patna. Their Lordships held that since petitioner has given the undertaking to the extent // 20 // OA/050/00584/2017 that if re re-fixation fixation of pay and payment of arrears, if not in accordance with law in that even arrears paid shall be recovered from the petitioner and undertaking furnished by the petitioner is binding on respective pparties. The entire order dated 22.06.2022 in CWJC No.16186 of 2018 for ready reference reads as as:-
"Heard Heard learned counsel for the parties.
2. The petitioner, an Ex-Serviceman Ex (released from Air Force on 30.11.2002 as Junior Warrant Officer) was appointed as Postal Assistant on 10.10.2006. At the relevant period he was employed as an Office Assistant in the Office of the Superintendent of Post Offices, Motihari. On 10.10.2014, he made a representation before the Postmaster, Motihari to fix his pay with reference ref to the fitment table of defence service rank from which post he retired. Accordingly, he wanted to fix his basic pay after taking into account the notional last basic pay drawn by him before his retirement in the Air force Service.
3. The Postmaster, er, Motihari thereafter taking into account the last basic pay drawn by the petitioner while in the Air Force revised his pay and paid the arrears of Rs.12,30,773/-
Rs.12,30,773/ on 13.03.2015 after obtaining an undertaking dated 05.03.2015 from the petitioner that if itt is found that the wrong payment has been made, the same shall be liable to be recovered.
4. During the audit check within a period of six months, the Senior Accounts Officer observed that the refixation of pay of the petitioner has been made irregularly and accordingly steps were taken for re-fixation fixation of pay and order of recovery of the arrears paid to him amounting to Rs.12,30,773/-.
Rs.12,30,773/ The petitioner made representation on 24.09.2015 followed by OA/050/00005/ 2016 preferred before the Central Administrative dministrative Tribunal, Patna Bench, Patna (henceforth for short 'the Tribunal').
5. The respondents appeared in the case and filed their written statement supporting the order of recovery, relying on the circular of the Department of Post and Telegraph (henceforth ( for short 'the DoP&T'). As per the respondents, in case of an Ex- Ex Servicemen, who held the post below commission rank officer in the defence service and in case of civilian staff below Group 'A' post, if they retired before 55 years of age, the entire e pensionary benefits has to be ignored.
6. Admittedly, the petitioner retired as Junior Warrant Officer on 30.11.2002 and joined as Postal Assistant on 10.10.2006. In the Defence Service, he was below the commissioned rank officer and retired before attaining the age of 55 years. As such, his pay fixation was to be ignored under the relevant provisions of the DoP&T OM No.3/19/2009-Estt.
No.3/19/2009 (pay-II) dated 05.04.2010. The petitioner too had relied on the same circular to claim re-fixation fixation of his pay scale.
scale It was only due to the confusion in the minds of the concerned Postmaster, Motihari that he chose to refix the pay scale of the petitioner while protecting the pay scale of Armed Service but had taken an undertaking from the petitioner on 05.03.2015 which whic is quoted below:
"I hereby undertake that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently will be refunded by me to the Government ernment either by adjustment against future payments due to me or otherwise."
(Refer Annexure-P/12) // 21 // OA/050/00584/2017
7. 'The Tribunal' after going through the facts of the case as also the written statement filed by the respondents vide an order dated 21.08.2017 in OA/050/00005/ 50/00005/ 2016 came to definite conclusion that the DoP&T OM No.3/19/2009-Estt.
No.3/19/2009 (pay-II) dated 05.04.2010 which was cited by both the petitioner as well as respondents is crystal clear on the pay scale which the petitioner is/was entitled to. Thus, any refixation ref made by the Postmaster, Motihari on the basis of the representation/undertaking given by the petitioner was erroneous. It is further held that the respondents were fully justified in recovery of the excess amount for which the steps was/were taken within six months of the alleged payment of Rs.12,30,773/. The petitioner after submitting a clear undertaking before the respondents cannot turn around and claim that the illegal excess amount paid to him should not be recovered. It is to be noted that undertaking un furnished by the petitioner is binding on respective parties. In respect of recovery of excess payment, petitioner relied on Mohd. Rafiq case of the Apex Court. The aforesaid decision is not applicable, since petitioner in the present case had given gi the undertaking to the extent that if re-fixation fixation of pay and payment of arrears, if it is not in accordance with law in that event arrears paid shall be recovered from the petitioner.
8. We have gone through the case in hand and do not find any merit in the writ application preferred by the petitioner. The order dated 21.08.2017 passed by 'the Tribunal' need no interference and the writ petition is accordingly dismissed."
dismissed.
[Emphasis Supplied] CONCLUSION
63. We have already analysed in detail issues and accordingly, our finding on issue No.1 is decided against the applicant and applicant is not entitled for pay protection of last pay drawn on retirement as per rules applicable for fixation of pay of re re-employe employed d pensioners. All impugned orders are upheld and we also find that respondents action is justified.
64. Our findings so far as on issue no.2 that employer has liberty to recover the excess amount paid to applicant in terms of undertakings furnished vide Annexure R R-2 & R-1 1 within express terms to recover excess amount of payment made on his representations representations.
65. Resultantly, ltantly, Original Application is dismissed.
66. There shall be no order as to Costs.
67. As a sequel, thereof, Miscellaneous Application(s), pending, if any, shall also stands disposed of.
68. The original record is returned herewith the receipt of which may be ackno acknowledged.
Sd/- Sd/- [Ajay Pratap Singh] [Sunil Kumar Sinha] Member [J[Judl.] Member [Admn.] sks/-