Central Administrative Tribunal - Madras
A Christy Gnanavaram vs M/O Information And Broadcasting on 15 June, 2023
I OA 8472019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAT BENCH
GA NO.847/2019
Dated Thursday the 15" day of June Two Thousand Twenty Three
CORUM: HON'BLE MS. LATA BASWARAJ PATNE, WIDICIAL MEMBER
A.Caristy Gnanavaram
Retired Head Clerk, AIR, Trichyl
NG. 125, Samathuva nagar,
Behind Customs Staff Quarters, Karumandampam
Thiyuchirappali - 620001 .. Applicant
By Atdlvocate: Mr. Paul and Paul
Vs.
y.Union of India,
Rep.by Secretary,
Ministry of Information and Broadcasting,
' wing, Shastel Bhavan,
New Delhi- 110001,
2.Prasar Bharati
Rep by its Deputy Director {Pers}
Prasar Bharathi Secretariat,
2nd Floor, PTI Building,
Sansad Marg,
New Delhi - 110001.
3.The Director General
All India Radio
Akashvani Bhavan,
New Delhi - 110001.
4:The Deputy Director General (E)
Pratsar Bharati,
Broadcasting Corporation of India
All india Radio,
Tiruchirapalli - 620 O01.
5.Pay & Accounts Officer,
All India Radio,
Mylapore, Chennai - 690 004 ... Respondents
By Advocate: Mr. Su. Srinivasan
2 OA 47/2019
ORAL ORDER
(Pronounced by Hon'ble Smit. Lata Baswaraj Patne, Member (1)} This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"ayTo set aside the order of re-fixation dated 08.04.2016 and the speaking order dated 03.04.2019 passed by the 4" respondent as is contrary to Rule and directed the respondents to restore the fixation dated 05.06.2013 along with other attendants benefits, the including arrears of pension.
b)Altermnatively, direct the 4° and the 5" respondent to release the withheld Gratuity amount of the Applicant to the tune: of 460,077 to him. with 12% interest from the date of his retirement to till the date af payment.
ojfor such further or other relief or reliefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case and thus render justice."
2. 'The brief facts of the case in a nut shall are as follows:
The applicant was appointed as Lower Division Clerk on 05.12.1981 at AIR, Defhi. Thereafter he was promoted as UDC and posted at AIR, Tirunelveli with effect from 05.05.1991. On completion of 24 years, on 05.12.2005, the applicant was granted 2™ financial upgradation under ACP scheme in the pay scale of RS.5500-175-9000. On 05.12.2011, the applicant was granted 3° financial upgradation under MACP scheme in the pay band PB-2 (Rs.9300- 34800) with grade pay Rs.4600/-. After VI Pay commission, the applicant was fixed in pay band-2 of Rs¢.9300-34800 in the grade pay of Rs.4200/- in terms of 3% respondent's Order dated 03/04,10.2012.
Accordingly, the applicant's pay was revised by an order dated 05.06.2013 and applicant's pay was fixed as Rs,12090+-GP4200. Thereafter the applicant was promoted as Head Clerk at AIR, CBS, Chennai with effect from 65.02.2014. A communication dated 31.12.2015 issued by the 2nd respondent withdrawing the flxation already granted to the applicant In terms of the 3" respondent. On 08.04.2016, the pay of the applicant was refixed 3 OA 8472019 pursuant to the clarification dated 31.12.2015 and 05.01.2016 without any notice. The #pplicant made the representation dated 22.04.2016 to the respondents stating that the fixation is proper and also requested not to recover the alleged excess payment, The applicant on reaching the. age of superannuation. retired from service on 30.04.2018. Even after the representation, the said alleged amount of Rs.4,50,017/- excess paid was withheld from his Gratuity which is against the judgment passed by the Hon'ble Supreme Court in (2015) 4 SCC 334 in the matter of State of Punjab Vs. Rafiq Masih and the OM dated 02.03.2016 issued by the DoPT, Aggrieved by the action of the respondent the applicant filed an original application before the Hon'ble CAT In OA.No.1677 of 2018 and the same was disposed of vide order dated 24.12.2018, The respondent disposed of the applicant's representation by a speaking order rejecting the request made by the applicant. Being aggrieved, the applicant has filed the present O.A. praying for the aforesaid relief,
3. After notice, the respondents. have entered appearance through their counsel and filed detailed reply In the matter and contended that when the applicant's pay has been fixed for the first time after 6" Central Pay Commission recommendation, the applicant has accepted the same and has:
not raised any issue. or grievance over any anomaly. The respondents has further contended that persons who have been wrongly fixed their pay in the year 2008 after recommendation of the 6' CPC have raised their grievances and pointed out the anomaly before rhe Head Quarters. Hence, the issue has been taken for consideration following with fhe jiustration 4.4 in accordance with note 2A below Rule 7 of 6 CPC Gazette notification. hereby, the respondents authority have ré-fixed the pay of the employees unifarmly in the year 2012. The same. has been effected in the matter of applicant on
r) 4 OA 847/2019 03.06.2013. However, when the issue has been taken with the Ministry of Finance with the Expenditure Department it has been noticed that the pay of the employees in the Office of the Respondents have nat fixed strictly in accordance with rule 4 (A) r in accordance with Ehe nate 2A below Rule 7 of the 6" CPC gazette nobification. That is the reason why the decision has been teken up to follow that guidelines issued by the Department's OM dated 6.02.2014, In the cases of over payment made, recovery should be bearing few exceptions of extreme hardships therefore the respondents have issued Instructions in December, 2015 and instructed all the concerned Heads that the Same may be informed to all concerred authority in re-fixation of Pay carried. out forthwith and in the applicant's case, the pay was. refixed on 08.04.2016. After refixation effected, the applicant has submitted his grievances immediately in the year 2016 itseif 2 vide representation dated 22.04.2016 and prayed only for waiving of the recovery of the excess payment based an the Hon'ble Supreme court guidelines. Nowhere, he has justified how he is. entitled far the sald refixation, Further being fully aware of the mandatory requirement of "undertaking" to be submitted at the time of fixation of pay, the applicant had deliberately evaded from the responsibility of submission of undertaking and the applicant was the Accountant, a Group B Supervisory Non-Gazetted post at the time of refixation and was involved In his own pay refixation and is fully aware of the fact that the excess payment will be recovered from his retirement. benefits in case the overpayment is not settled during his service period. The pay fixation is not done according ta CCS(RP) Rules, 2008 but by wrong interpretation of rules which resulted in unlawful gains to tre applicant for which the applicant cannot stake claim, Hence, the respondents prayed for dismissal of the DA, g OA B472019
4. The applicant has fled a rejoinder reiterating the averments made in the O4.and for which the respondents have filed additional reply.
3. Heard MrMuthukumaran for the applicant and MrSu.Srinivasan, SCGSC for the respondents and perused the OA aleang with relevant records,
6. Learned Counsel for applicant has argued and raised the issue that the applicant at the time of retirement was holding the post of Head Clerk, Group C category only, The Learned Counsel for applicant has also relied upon the Notification issued by the respondent In year 2014, 'NOTIFICATION New Delhi, the 20% February, 2013 i "NO.N.10/4/2013 -PPC- In Exercise of the powers conferred by Section 9 and Sub-Section (5) of Section 14 read with clause {d)of Stb-Section (2) of Section 33 of the Prasar Bharay (Broadcasting Corporation of India) Act, 1990 (25 of 1990) and in super-session of the Prasar Bharati ¢ Broadcasting Corporation of India} Guntor Administrative and Allied posts} Service Regulations, 2002, In so far as it relates to the post of Head Clerk / Assistant, &xcept as respects things done or omitted to be done before such Supersession, the Prasar Bharati ¢ Groadcasting Corporation of India}, with the prior approval of the Central Government, hereby makes the following reguiations, namely"-"
By this Notification, this Head Clerk post has been upgraded as Group a, However, by letter dated 23.08.2013, It is clarified by the Head Office that the said amended regulations shall not be applicable to those amployee who are on deemed deputation. The learned counsel for the applicant has also relled upon Notification dated 05.12.2018 wherein the position of the Head Clerk has been reiterated and reconfirmed as Group 'C', #, Moreover, the Learned Counsel for applicant has also relied upon.the order passed by the Co-ordinate Bench at Bangalore In O.A.No.399 of 2018 in the matter of A. Francis Royan Vs.Union of India, M/fo. Information and others. By order dated 19.01.2019, while considering the similar issue in the 6 OA 8479019 matter of L.D.C.s (Lower Division Clerk) totally relied upon the. guidelines issued by the Hon'ble Apex Court of India in the matter of Rafiq Masih. The Court Khas observed thus:-
"The applicant is admittedly a low level employee.
Assuming that he got a salary of Rs.10/- per month.
Then he will live on it, But if he had got a salary of Rs. 9/-, he would have adjusted his life accordingly and after 10 years if he were to be told that you have drawn one rupee more, look we are going to take from you Rs. 100/-, will & not amount to burden on him and It will be an unjust burden."
Therefore, granted the relief in favour of the applicant therein who is similarly situated ke the applicant in the present OA, 8 Learned Counsel for the applicant further relied upon the order of the Hon'ble High Court, Karnataka wherein the respondent department has challenged the said order of the co-ordinate bench of the Bangalore in W.P. No. 5557 of 2020 (S-CAT) connected with W.P. No, 13113 of 2020 (S-CAT} by its order dated 09.02.2021 and the said order has been confirmed. The learned counsel for the applicant has also pointed out that while considering the order of the Bangalore Berich, the Hon'ble High Court has also considered the order passed by the Hon'ble Supreme Court In the case of High Court of Punjab & Haryana and Ors. v. Jagdev Singh in Civil Appeal No. 3500 of 2006 decided on 29.07.2016 and observed thus:~ "It has been reltereated that there cannot be any recovery from employee. belong to Class-III and Iv, that too, after retirement. In the light of the aforesaid judgment, this Court is of the considered opinion that the recovery order passed in respect of the respondent, in the peculair facts and circumstances of the case, has rightly been quashed by the Tribunal."
&, The Learned Counsel for applicant has also relied upon the order passed by Hon'ble Supreme Court In Petitions (S) for Special Leave to Appeal (C) No(s). 16633/2021, wherein the order of the Tribunal as well as Order of 7 OA 847/2019 Hon'ble High Court Karnataka has been challenged by .the Respondent authority and the said order had attained finality since the respondents dspartment's petition has been dismissed by the Hon, Supreme court on 08.11.2021.
i0. The Learned Counsel for the applicant has also placed reliance upon the order passed by Principal Bench of this Tribunal In O.A.No.290 of 2016 dated 29,3.2023 in the matter of Smt. Pushpa Dulani and 14 others Vs. Union of India, through the Secretary Ministry of Information and Broadcasting and others. After dealing Into the issue, though the Principal Bench has declined to interfere with the matter of re-fixation, hawever, it directed the respondents authority not to recaver the amount.. ii. The Learned Counsel for applicant has also relied on the order passed by the Hon'ble Suprame Court of India in Civil Appeal No.5527 of 2022 in the case of M.P. Medical Officers Association Vs.State of Madhya Pradesh and Others along with connected Civil Appeals, vide its order dated 26.08.2022, the Hon'ble Apex Court has observed that if the Government has granted the benefit under any of the Circular and subsequently the benefit has been withdrawn on the ground of withdrawal of the said Circular, the recovery is not justified,
12. The Legred Counsel for applicant has also relied upon the order passed by the Hon'ble High Court of Madras. Interim order was passed by Hon'ble High Court ir W.PNo.11074 of 2023 and W.M.P.No.10946 of 2023 in the matter of C. Kamalakannan Vs.The Central Administrative Trhbunal, Chennai Bench and Others wherein the order passed by this Tribunal in the month of April 2023 has been challenged by the employee and the said order has been stayed as well as recovery also stayed by way of Interim measure and the matter is subjudice before the Hon'ble High Court.
"4 8 OA S47 2018
43. On the other hard, the Learned Counsel for respondents vehemently opposed the contentions raised by the applicant. The Learned Counsel for the respondents submits that the applicant has not raised any grievance over the first pay fixation carried after recommendation of the 6% Cpe in the year 2008, Although the respondents have re-fixed and given the sald benefits uniformly, when it was found that re-fixation has not been done as per illustration of 4(A) In accordance with Note 2 (A) below Rule 7 of the 6" CPC gazette notification, and when this mistake has been rectified as per the instructions of Ministry of Finance in consultation with the Department of Expenditure, Immediate steps have been taken for recovery and for re- fixation, and recovery has been inftiated not only from the applicant, but aiso from all employees who were in receipt of the over payment under the said wrong ré-fixation of pay and the said recovery has been effected In the year 2016 itself. Therefore, the applicant has raised his grievance. However since it is exchequer fund, public money, the respondents authority has rejected his request and the said re-fixation as well as recovery has been immediately effected from_his retiral benefits. 144, The Learned Counsel for the respondents argued that the applicant has raised issue on the ground that he is holding the post of Head Clerk, who was placed in the pre-revised pay scale of Rs. 4500-7000/5000-8000(the HC/Asst. Of Prasar Bharatl were granted the pay scale of Rs. 5500-9000 as per court order} may be upgraded to the pre-revised pay scale of Rs. 5500- 10500 and granted the Grace pay of Rs. 4200/-. Para 2 of the O.M. dated 17.04.2009 reads as under.-
"2, As per clause (4) of the Central Civil Services (Revised Pay) Rules, 2008 notified vide notification No. G.S.8. 622 (E) dated 29.08.2008, the pay band and grade pay or the pay scales, as applicable, of every post/grade specified in column 2 of the: First 9 OA 84772019 Schedule thereto shall be as specified against it in columns §& & 6 thereof. Consequent upon. the notification of the seid ruies, it has become necessary to prescribe revised norms for categorization of posts inte the above mentioned four categories based on the pay band and grade pay or the pay scales as applicable, as approved by the Governmient.
Accordingly, an order classifying the various Central Civil Services posts into. Group "AY, "8", "C", and "D* based on the revised norms of pay has been notified In the Gazattee of India Extraordinary vide S.0.
946(E) dated 09.04.2009. All the posts in the Central Civil Services would now stand classified strictly in accordance with the norms of pay band and grade pay or pay scales as prescribed. in the said order."
16. He has also reliad upon 5.0, 946(E) in respect of classification of posts Sl. No. 2 of Group B of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training }) Order dated 69.04.2009. According to the said Order, the applicant falls under Group ~ B category and he has been benefited accortiing to the Group-B pay scale therefore by order dated 24.04.2017 the excess ariount paki has been recovered from his pay.
17. The Learned Counsel for the respondents has relied upon the order passed by this Tribunal in the matter of AC Seshadri Vs. UOI & Ors. In O.A. No. 494 of 2020 dated 16.08.2022 and in the case of Mr. R. Ganesan Vs. UOI & Ors. INO.A, NO. 543 of 26202 dated 13.01.2023.
48. The Learned Counsel for respondents also relied upon the order passed by the Coordinate Bench of Ernakulam Sench in O.A.No, 823 of 2019 in the matter of Xavier A.A. Va. BSNL by its order dated $.1.2021. The Court has considered the issue on the ground thatas no undertaking Is found recovery is. not justified in the case, however, if the recovery is justified and this does not fall squarely in the guidelines issued In the Rafiq Masih (White washer). The respondents justified the recovery of total amount of Rs.
12,17,980/- due to over payment of pay and allowances and the same has 19 GA 8472019 peen recovered from the retiral benefits and leave encashment.
19. The Learned Counsel! for the respondents also relied upon the order passed by the Coordinate Bench at Bangalore in O.A.NG.769 of 2019 by its order dated 27.01.2001. In the matter of NLM. Mujawar Vs. Union of India Department of Post, the Court has observed that though the recovery of the over payment of pay and allowances has bean Initiated before the retirement, stil, the Tribunal holds that the action of the respondent Government is justified and the same has been rectified before his retirement in the Audit. Therefore, the coordinate Bench dismissed the OA of the applicant. The Learned Counsel for the respondent also argued that the order passed by the Principal Bench has not given any reason while following the order in the matter of Rafiq Masih under which category the applicant's case is falling. 'Wher there is no reason, the said order will not have to follow as a Precedent. More over, In the matter of applicant the recovery has heen effected within 3% years and hence the applicant's case is not covered under Rafiq Masih quidelines as well as OM subsequently Issued by the DOPT as held by the Tribunal in the case of R. Ganesan Vs. UOT In OA No, 543/2020 dated 13.01.2023 & AC Seshadri Vs. UOT in OA 494/2020 dated 16,08,2023.
20. it is not in dispute that after the 6" CPC's recommendation when for the first time pay fixation was carried out for the applicant in the year 2008 and his pay was fixed according to the illustration and 'the same has been accepted by the applicant as he knew the calculations are correct. he has net raised any grievances over the sald fixation of pay after the 8" CPC's recommendation.
21, It is to be noted that some of the employees who have raised their grievances in respect of the anomaly to the headquarters, thereby the ii OA B47/2019 department has taken a decision to refix the pay of all the employees with a rider that excess payment made if any. would be recovered. Accordingly undertaking has been given by the employees. It is also to be noted that after the recommendations by the CPC whenever the pay fixation has been carried out as per the rule, all the employees have to give an undertaking for adjustment or refund of the excess payment if any received by them. But in the present case the applicant conveniently evaded the same. As per the directions of the Headquarters exercise for refixation has been carried out and accordingly in the year 2013 refixation has been effected in the matter of not only in the applicant's case but also in the case of all the employees of the department. As per the refixation the applicant's pay has been refixed and arrears has been worked out w.e,f 2006 and the same has been released and paid to the applicant.
22. tt is to be noted that when the matter has been referred to the Department of Expenditure to verify the sald refixation, the DOE after careful consideration has noticed the mistake and by its letter dated 18.06.2015 observed that there is a mistake while releasing the said payment under the refixation and the same has not been carried out according to the illustration in view of the provisions of CCS Revised Pay Rules 2008 that the instruction issued by the PB, Secretary to give minimum of the corresponding stage of that pay in pre-revised scale of pay Is wrang and need to be rectified immediately by taking necessary steps and by its letter dated 05.01.2016 it has been Informed to the. All India Radio that all the AIR/DD officers may accordingly do the pay fixation as per the clarification provided by the PE, Secretary and the excess amount paid if any may be récavered immediately. and the said exercise of refivation has been carried out. according to the instructions dated 05.01.2016 and the same has been effected in the matter 12 OA 8472019 of the applicant.on 08.04.2016 accordingly.
23. It is also to be noted that admittedly the applicant is having pay scale of Group B post, While dealing into similar issue in the matter of A.Gariesan who is.a Group C employee as well as in the matter af A.Seshadri who is a Group 8 employee working in the office of the same respondents this Tribunal after relying upon various judgments/orders. placed by both sices passed very detailed order and the relevant portion of the said order is extracted hereunder:-
"(iy In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15, 16, 17 it is held that: -
"ES We are not convinced that this Court in various judgments referred to Yiereinbefore has aid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then oaly tie amount paid could be recovered: On the other hand, mostof the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases eliher because the recipients had retired.or on the verge of retirement or were oceupying lower posts in the administrative hierarchy.
76. Weare concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why ihe concept of fraud or misrepresentation is being brought in such situations. Question te be asked is whether excess money has been paid or not may be due to-a bona fide mistake. Passibly, effecting excess payment of public money by Government officers, may be due to various reasons. like negligence, carelessness, collusion, favouritism etc. because money in such situation does nat belong to. the payer or the. payee. Sinuations may also arise where both the payer and the payee are at fhult, then the mistake is mutual. Payments are being effected In many situations without any authority of law and payments have been received by the recipients qlso without any authority of law. Any amount paid/received without authority of law ean always be recovered barring few exceptions of extreme hardships but not a3 a matter of right, in such situations law implies an obligation on the payee to répay the money, othenvise it would amount to unjust enrichment.
17. Weare, therefpre, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col, BJ. Akicara (retdl.) case (supra), the excess payment made due to wrong/iregular pay fixation can always be recovered."
(ii) The decision of Principal Bench of CAT in OA 1857 of 2014, wherein one of the similarly situated employee Mr. P. Chandra Sekhar has filed the OA against the very same respondents wherein plea has been taken that wrang fixation of pay, recovery thereof. While dealing into the issue, the CAT-Principal Bench have gone into the interpretation o° 13 OA 842019 illustration 44 in. accordance with note 2A below Rule 7 of 6" CPC gazette notification. The relevant paras are reproduced as under:< "9 According to the applicant, as per Section I] of Part B of the Gazette Notification, notifying the CCS (Revised Pay} Rules, 2008, revised pay scale of "6500-10500 has beer recommended for Stenographer Grade Il in PB-2 + Grade Pay of "4200/-, It is also stated that the Government has provided the procedure for initial pay fixation as on 01.01.2006 in Note 2A, below Rule 7 of the Notification, which is reproduced Selow:-
"Note 2A- Where a post has been upgraded as a. result of the recommendations of the Sixth CPC as indicated in Part Boor Part C of the First Schedule-to these Rules, the fixation of pay in the applicable pay band will be done-in the manner prescribed in accordance vith Clause (A) (1) and Gil) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ien. The grade pay comesponding to the upgraded scale as indicated in column 6 of Part B or C will be payable in addition. ilinstration 4A in thig regard is In the Explanatory Memorandum. to these Rules." ,
4. It's further stated in Rule 7(1) (A) G) & Gi, which reads as follows:-
"(A) inthe case of all employees:
(i} the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
Gi) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale."
4, In paragraph 4 (1) of the O.A;, the applicant has stated that the Government, yide their Notification, has recommended the benefit of one 4 increment after bunching for every two stages so bunched. in fact, the applicant has aise purportedly quoted the abstract of the Report as follows:-
"Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing. scale gets bunched, that is te say, gets fixed in the revised pay struchire at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid buriching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken Inte account forthe purpose of granting increments to alleviate bunching."
3. First of all, what is contained in the Report is not important but the Notification of Government of India, based on the Report, is to be followed. Secondly, at Annexure A-4, the applicant has enclosed 'paragraphs 3.1.13 and 3.1.14, perhaps of the Report of 6th Central Pay Commission, which does not mention anything about bunching and as pointed out by the respondents in the impugned order, there is no provision for bunching in the Report. In fact, at Annexure A-10, the applicant has annexed 'a clarification from Ministry of Finance, Department of Expenditure issued on 14.12.2009, in which the first point raised and iti.
Point raised _ 14 the clarification given thereto read as follows:-
Clarification OA 847/219 '(ay The manner in which pay of Assistants' Pas in position on 1.12006 iste be fixed as per the provisions of CCS (RP} Rules, 2008.
Whether there will be any bunching in this case.
The pay in the pay band of Agssistenis/Pas working as on 1.1.2006 will be fixed with reference to the fitment table of the prerevised pay stale of Rs.$500-9000 annexed with this Department's O.M. No. H1/2008-1C dated 30th August, 2008 and they will be granted the grade pay of Rs.4600, Since the minizaum pay In the pay 5 band in the revised pay structure corresponding to the stage of Rs.S500 {pre-revised) scale af Rs.5500-9000) is more 'than the minimum of the pay band PB-2 Le, Rs.9900, na benefit of bunching 'is admissible n this ease, \ Therefore, from the above, it is clear that there is no provision of bunching while fixing the pay as per the recommendations of the 6th Central Pay Commission, and if it had been done earlier, that wag an error, which is rightly rectified by the respondents.
é. The pay. of the Government servant has to be fixed as per the recommendations of the 6th Central Pay Commigsion strictly acvording to the CCS (Revised Pay) Rules, 2608 where the provision is absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre-revised scale will be mittiplied by a factor of 1.86 and rounding off the resultant figure to. the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade. This is exactly what the respondents have clarified in their affidavit Med on 18.01.2016 and also placed before us'an Office Memorandum dated 28.07.2015 (Annexure R-10) issued by the Ministry of Finance, Department of Expenditure wherein it hag been stated that there is no question of fixing the pay taking the minimuni of the corresponding stage of "6500/- of the pre-revised scale of pay of *6500-10500.
We are, therefore, clear in our opinion that there is no Inconsistency or error in the impugned orders dated 12.04.2014 and 21/22.04.2014 and & these are issued as per the instructions of the Government of India contained in CCS (Revised Pay) Rules, 2008.
7. The O.A. is, therefore, completely misplaced and on an absolute misunderstanding of the Ruleafinstructions. It is accordingly dismissed. Respondents are at liberty to recover any excess amount paid to the applicant. No costs. © The Patna Bench of this Tribunal, in a similar context in OA 24 of i5 ; OA 847/2019 2016, reiterated the same ratio and dismissed the said OA.
fv. The Bangalore Bench of this THbunal had dismissed the OA 867 of 2019 filed seeking a similar relfef as under :-
sw The applicant would say that even at the time of erroneaus fixation in 2012, he was a Group-B. (Non-Gazetted) officer and with effect from 2017, he became a Group-B(Gazetted) officer. The applicant would claim that since erroneous fixation is with effect from 1.1,2006 and the excess has been paid for more than 5 years, as per the White Washer judgment, this cannot be seeovered from him. As already seen, the wrong fixation was done on 13.12.2012 and this was. corrected on ¥3,3,2016. Therefore, it cannot be said that he was drawing this excess pay for more than 5 years since it had been modified within four years of the original wrong fixation. Further, the Annexure-Al3 which was issued in February 2016. was not challenged by the applicant at all. This leads to the suspicion that the refixation was:
done correctly and that prima-facie the applicant had no objection to i. We fail to understand.as io how the respondents did not take any action to recover whatever the excess that had been paid to him between 2012 and 2016. It is possible that being an. Accountant in the same office, the applicant could have had juncture in the nonrecovery also, Be that ag it may, itis clear that he is clearly not eligible for nonrecovery based on the White Washer judgment, His other contentions relating id the higher Grade Pay vide Annexure-A9 and subsequent higher Grade Pay in 3rd MAC? etc., do not deserve any consideration since the concerned instructions are. not relevant in his case. His citing the case of one mare person also namely Sri Sadashiva has also been replied to by the respondents in para-25 of the reply statement wherein they had shown that Sr Sadashiva was actually drawing the Basic Pay of Bs.7250 as on 1.12006 while the applicant was drawing Rs.5675 on the same date. Therefore, this also will not help the applicant,
7. ThE OA is therefore distiissed. Mo costs: * 24, Admittedly for the first time against the 6" CPC's recommendation pay fixation has been carried out in the matter of applicant and he has accepted the same and he has not raised any grievances over the same. Other employees have raised the anomaly in respect of thelr pay fixation and In view of the decision taken by the headquarters, that too, subject to ratification and corrections against the excess payment and after getting undertaking fram the employees, the department has refixed the pay under which the applicant was one of the beneficiaries. Immediately within a short span of time approximately two to three years after receipt of the OM dated 26.07.2015 from the Ministry of Finance Department of Expenditure wherein it has been instructed that In view of the anomaly, refixation has been carried out however the same has not been done in confermity with the Ccs 6) QA 847/2019 Revised Pay Rules. 2008, and accordingly steps have been taken and refixation has been done in the matter of applicant and other employees wite were given the benefit of the sald wrong fixation. It is to be noted that while dealing into the issue & observations in the matter of Rafiq Masih, the Tribunal has held as under:
tq, Itls to be noted that after the direction of the Hon. Apex court in the matter of Rafiq Masih, DOPT by their OM dated 02,03.2016 have Instructed to the authorities in respect of recovery of wrongful excess payment made to the Government servants wherein considering the all observations of the Hon'ble Supreme court as under:
"4. The Hon'ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situatians, wherein recoveries by the employers would be irpermissibie in law:-
(i) Recavery from employees belonging te Class-Ili and Class-IV service (or Group.'C' and Group 'D" service).
(ii) Recovery from retired employees, or employees who are due:
to retire within one year, of the order of recovery.
(ili) 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 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, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the aquitable balance of the employer's right to recover."
15. AS far as concerned to the recovery also if matter is covered under the Rafiq Masih in a plain reading, then the matter has to be referred to the Department of Expenditure. It is also to be noted that on 22.10.2019 verification of qualification of service in respect of the applicant has been done wherein a Senior Accounts Officer has specifically remarked that "Excess drawn pay and allowances on grant of Rs.6506-200-10500 pay scale may be recovered fram DCRG. Due drawn statement may be prepared along with pension papers." It is also submitted that the copy has been served upon the applicant and the same fact Is aise admitted, It was well within the knowledge of the applicant that after refixation recovery was going to, be effected. Therefore on. 23.12.2019 he has submitted a detailed representation through proper channel to the Chief Executive Officer and raised his 17 OA. 84772019 grievances over the action of the respondents in effecting recovery on fast tract. He has also placed reliance upon the order passed by this Tribunal in the matter of K.Kannan. It is to be noted that in the matter of K. Kannan recovery has been effected from his retiral benefits so: far the action of the respondents to Initlate the recovery has not been attempted likewise in the applicant's case still his representation has been processed to the higher authorities. By representation dated 07.02.2020 again the applicant has agitated to the respondent authority not to revise his pay-and not to recovery any amount.
i6. Ibis to be nated that by letter dated 14.02.2020 from the office of the Directorate General AIR it has been informed to the lower authorities by returning the representations they themselves have to examine the matter at theirend, Even after the knowledge of the said action on the part of the respondents, the applicant submitted repeated rapresentations to the authorities. However, finally recovery has been effected from his retiral benefits. The total retiral benefits due to the applicant is Rs.31,48,029 from which the respondents have withheld an amount of Rs.4,50,382 towards the excess ammount paid under the said refixation effected In the year 2013 against the direction dated 03/04.10.2012. However subsequently within a very short period the sald mistake has been rectified and action has been initlated in the year 2015 itself and the recovery of excess payment has been initieted in the year 2016.
17. Itis ta be noted that.as observed by the Hon. Apex court of India in Rafiq Masih's case while dealing into the sald issue by considering the orders passed by the predecessor In various pronouncements, the Hon'ble Apex court of India has considered the issue at length and observed thus:
7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer secking recovery of monetary bensfits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance 6° the employer's right ta recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the paranieters of the above consideration, and the test to be applied, reference needs 10 be made to situations when this Court exempted employces fiom such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause"
would. establish that the recovery being effected was iniquitous, and. therefore, arbitrary, And accordingly, the interference at the hands of this Court.
&, As between two parties, if a determination is rendered in favour of the party, which 4s the weaker of the two, without any serious detriment to the other (which is traly a welfare State), the issue resolved would be in consonance with the concept of justice, which is-ascured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employes. If the effect of the recovery from the concemed employee would be, snore unfadr, more wrongful, more improper, and more unwarranted, than. the corresponding right of the employer fo recover the amount; then it would be iniquitous and arbitrary. to effect the recovery. In such a. situation; the employet's right would outhalance, and therefore eclipse, the right of the employer to recover.
i8 OA 8472019 9, The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles I io 48, contained in Patt I of the Constitution of India, dealing with "Fundamental Rights", These Articles of the Constitution, besides assuring equality before the law and equal protection of the faws; also disallow, discrimination with the object of , achieving equality, in matters of employment; abolish untouchability, to upgrade. the social status of an ostracized scetion of the society: and extinguish titles, lo scale down the status of a section. of the society, with such appellations. The entbodiment of the doetring of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part TV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles. of the Constitution of India contain a mandate to the State gequiring ito assure a.social order providing justice - social, economie and political, hy inter alla minimizing monetary inequalities, and by securing the right to adequate mieans: of Uvelizood, and by providing for adequate wages so as {to ensure; an appropriate standard of life, and by promoting economic interests of the weaker sections.
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all aovermental actions. Ant action of the State, ordering a recovery from an employee, would be in ordey, so fang ag it is not rendered fniquitous fo the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would havea harsh and arbitrary effect on the employee, ic would be permissible in law. Orders passed. in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of she Constitution of lodia, will disclose the parameters of the realm ofan action of recovery (of an excegs amount paid to an employee) which would breach the obligations of che State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
ll. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same, These sre situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters, 12, Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein. this Court recorded the following observation in paragraph 58:
"58. The relief apainst recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused ifrecovery-is ordered. But, if'in apiven.case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the axror is detested or corrected within a short time of wrong payment, the matter heing in the realm of judicial discretion, courts may, on. the facts and circumstances of amy particular case, order for recovery of the amount paid in excess, See Sahib Rani v, State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2. SCC 521, Union of India-v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram wv. Director, (1997) 6 SCC 139, Col, BLT.
Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshettam Lal Das v, State of Biker, (2006) IL SCC 492, Punjab Nationa! Bank v. Manjest Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC
99."(emphasis is.ours)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the 19 OA 847/2019.
action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short periad of time, it would be open for the employer to recover the same. Conversely, if the payment had been mnde-for'a long-duration of time, it: vould be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived ag, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee te bear the financial burden, of a refund of payment received wrongfully for a long span of time. His apparent, that a government employes is primarily dependent on his wages, and if a deduction. is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to eater, not only to the education needs of those dependent upon him, but alse their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that ifthe mistake of making a wrongfil payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refirid of the payments mistakenly made to the eraployes.
14.Jn this context, reference may alac be made to the decision rendered by this Court in Shyam Babu Verma v. Union. of India {1994} 2 SCC 521, wherein this Court observed asunder "Eq, Although we have held that the petitioners were entitled only to. the pay stale of Rs 330-480 in terms of the recommendations of the Third Pay Commission wef. January 1, 1973 and only after the period of 10 years, they hecamie entifled to the pay scale of Rs 330-360. but as they have received the scale of Re 330-560 since 1973 due to no-fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just andl proper not to recever any excess amount which has already been paid to them, Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same,"(ernphasis is oiirs) It is apparent, that in Shyam Babu 'Verma's cas¢ (supra), the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, Lc., aflera periad of 11 years, In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15, Examining a similar proposition, this Court in Col. BJ. Akkara v, Government of India, 72006) 11 SCC 709, observed as under:
"28 Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in-exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery js implemented. A government servant, particularly one in the lower rings of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it, As any subsequent action to recover the excess payment will cause undue hardship to him, relief ig gratited in that behalf, But where the employee had knowledge 20 OA 847/219 that the payment received was in excess of what was duc or wrongly paid, or where the error is detected or corcected within a short time of wrong payment, courts wall not grant relief against recovery. The matier being in the realin- of judicial discretion, courts may on the facts and circumstances of any particular case refiise to grant such relief against recovery."
A perusal of the aforesaid observations made by this Court in Col. BJ. Akkara's case {supra} reveals a reiteration of the legal position recorded in thesearlier judgements rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so tong as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them, The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery fom employees belonging to the lower rungs (.¢., Class-I1] and Class-[V - somtimes denoted as Group °C' and Group 'D') of service, should not be subjected to the ordeal of aby recovery, even though they were beneficiaries of receiving higher emoluments, than were due to. them. Such recovery would be iniquitous and arblwary and therefore would also breach the mandate contained in-Article 14 ofthe Constitution of India.
16. This Court in Syed Abdu! Qadir v, State of Bihar (supra) held as follows:
459. Undoubtedly, the excess amount that has been pald to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also. had uo knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was bacause of inaction, negligence and carelessness 'of the officials concemed of the Government of Bihar, Learned counsel appearing on behalf of the appellant teachers submitied that majority of the beneficlaries have either retired-or are on the verge of it, Keeping in view the peculiar facts and circumstances of the casé at hand and ta avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
Premised on the legel proposition considered above, namely, whether on the touchstane of equity and arbitrariness, the extract of the judgment reproduced abave, culls out' yet another consideration, which would make the process of recovery iniquitous and arbitmry. It is apparent from 'the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the menetary gains by the employer. [t cannot be forgotten, that aretired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement, Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his eamings have substantially dwindled (or would substantially be seduced on his retirement). Keeping the aforesaid circumstances in mind, we aré satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous, Therefore, it would be justified to treat an order of recavary, on 2] . OA 8477/2019 account of wrongful payrnent made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his rélirement on superannuation, "7.Last of all, reference may be made to the decision in Sahib Ram Verma v, Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:
"4. Mr: Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-350 to which the appellant was entitled became Rs 700- 1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, net right in dismissing the writ petition. We do not find any force in this contention. It is seen that. the Government in conguttation with the University. Grants Commission, had revised the pay scale of a Librasien working in the colleges to Rs 700-1606 but they insisted upon the minimum educational qualification of first or second class M.A, MSe., M.Com. plus a first of second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed. educational qualification bur net relaxation. in the educational qualification. itself, 5, Admittedly the appellant does not possess the required. educational, qualifications, Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in pranting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of ihe higher pay scale was given to him but by wrong construction made by the Principal. for which the appellant cannot be held to be at fault. Under the oireumstances the amount paid tl date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal fs allowed partly without any order aso costs,"
It would be pertinent to mention, that Librarians were equated swith-Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition thet they possessed the prescribed minimum educations] qualification (first or second class M.A., M.Sc., M.Com. plus:a. first or second class B.Lb. Selence ora Diploma in Library Science, the degree of M-LIb. Science being a preferential qualification). For those. Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verme's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay stale, by relaxing the prescribed educational qualifications, ever though: the concerned appellants were ineligible for the same. The eoncemed appellants were held not eligible for the higher seale, by applying the principle of "cqual pay for equal work", This. Court, inthe above elrcumistances, did not allaw the recovery-of the excess payment. This was apparently done because this Court felt that the employees were entitled ta wages, for the post against which they had discharged their duties. In the above Wew of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to yefund ihe wages of a higher post, against which he had wrongfully been. permitted tw work, though. he should have rightfully been required to work against an inferior post.
While concluding the Issue the court considered various pronouncements under the facts and circumstances of the particular case and came. to the conclusion and issued various directions and has noted that "We are of tha opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an Inferior post." Tt was concluded that in the cases where excess unauthorized payment is 3 22 OA 847/2019 deducted within a short period of me it would be open for the employer to recover the same. Conversely, if the payment had been made fora tong duration of time, it would be iniquitous to make any recovery. After observing all these aspects considering the facts and circumstances, the Hon. Apex court passed the order:
18. Te as not possible to postulate all situations.of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the eraployer, in excess.of their entitlement, Be that as it may, based on. the decisions referred to herein above, we may, as.a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law;
(i) Recovery from employees belonging to Class-IIT and Class-IV service (or Group 'C' and Group 'D* service},
(ii) Recovery from retired ermployees, or employees who are'dile to retire within one year, of the order of recovery.
fill) Recovery from employees, when the excess payment has been made for a period inexcess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required ta, 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, would be iniguitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's sight ta recover,
18. It is to be noted that the case of the applicant is not covered by the order passed by the Hon'ble Supreme court in the matter of Rafiq Masih on the ground that merely saying the applicant belongs to Group C, admittedly he himself being involved in the said fixation of pay, it Is well within the knowledge of the applicant, and it may not be correct that he has done unintentionally or by mistakenly he was fully aware that what is rnean by pay fixation, When first time against the 6 Ccpc recommendation his pay has been fixed at Rs.10230 on 17.09.2008 he has accepted as it is correctly fixed, even today he has ne grievances over the same. However, subsequently the pay fixation has been done by the respondents against the instructions issued in the. year 2012 and his pay has been refixed om 31.03.2012, at Rs.12090, The applicant was aware that it is the excess payment made to him and according to the clarification issued by the Department of Expenditure dated 28.07.2015, the same has been corrected and refixation has been effected on 23.01.2016 within a short period of time and accordingly excess payment made to the applicant to the tune of Rs.4,50,382. was recovered from his retiral benefit of Rs.31,48,029/- and hence recovery is justified by the respondents. But the applicant just kept placing his grievances through repeated representations to the respondert authorities simply stating that for said pay fixation he is not at fault at any time. However, nowhere he has stated that he is entitled for this refixation of pay-2012, Finally, he has accepted that refixation has been done properly ultimately the effect of the refixation is to correct his pay and if he is in receipt of any excess payment that has to be recovered, since it is exchequer's/tax payer's money and in the interest of public at large and to run the administration, it is necessary that the respondents have to give effect to the recovery. Moreover, in the applicant's case, 23 . OA. 847/2019 only on the clear clarification issued by the Department of Expenditure in the year 2015, the refixation of pay and recovery of excess payment has been ordered.
19. While applying the ratio laid down by the Hon'ble Supreme court in tye matter o* Rafiq Masih, it is necessary to look into the facts and circumstances of the case and as recorded above the same is not applicable in the present case, since excess amount which was received under said refixation and paid in the year 2012 has been revised and refixed after consultation with the Minlsiry of Expenditure in 2015. Therefore in my considered opinion, the action on the part of the respondents Is justified and hence no interference ts called for."
25. tis to be noted that orders relied upon by the learned counsel! for the applicant passed by the Bangalore Bench of this Tribunal, the court has observed that after 10 years if recovery has been initiated that too In the matter of pensioner {ff will Jead to hardship, the same order has been confirmed by the Hon.High court of Karnataka as well as attained finality before the Hon.Supreme court. Moreover the employee has not given any undertaking. It is to be noted that tha order passed by the Principal Bench of this Tribunal at New Defhl though the Principal Bench has declined the relief against the refixation, however set aside the recovery. It is to be noted that as rightly pointed out by the learned counsel for the respondents, the Principal Bench has though accepted the decision of refixation, however while setting aside the order of recovery not given any specific reason to specify that how the case of the applicant therein covered under the guidelines of the Rafiq Masih's case and fails under which category. Therefore order without reasoning has to be per incurlam. It is to be noted that when the respondent authority has justified their recovery within three and a half year more particularly when the person who is hoiding the Group B post as per the pay scale and just for the recovery the applicant is claiming that he is under Group C category, which is totally contradictory to the documents on record. If is to be noted that whether the person belongs {*} a4 OARS 2019 to Group C or Group B or Group A category when he has been benefited under the wrong calculation for which he is not eligible & entitled for, this is the exchequer's fund, tax payer's money and as and when within a short period the same has been rectified, the respondents are having a right to recover the same, ft Is to be noted that aowhere in the pleadings In the OA as well as in the representation of the applicant he has submitted that he is aligible & entitled for the said refixation. Further, admittedly the applicant himself is directly involved in his own fixation and he conveniently skipped from submitting the undertaking at the time of carrying out fixation by self which shows that tne applicant is very well aware that for any excess payment made due to wrong fixation, he has te repay the same.
26. In view of the above I am of the considered opinion, the respondents have justified the refixation as the same has been effected withia short period of three and a half years, hence the applicant's case is neither covered under the guidelines Issued in the matter of Rafiq Masih nor under the subsequent OM of DOPT and facts and ratio of orders passed by the Principal Bench & Bangalore Bench of this Tribunal, Hon.High court of Karnataka are not applicable to the facts of the present case.
27. tis to be noted that in the matter of financial implications each and every matter has to be considered and scrutinized in its own facts and on merit. Since the applicant has nowhere pleaded that the applicant's pay was wrongly fixed in the year 2008 and for the refixation he is not one of the employees who has raised the anomaly. Just because the other employees raised thelr grievances and the applicant is benefited under the refixation for which he is not otherwise eligible and entitled for and the recavery has been Oe es 25 OA S47/2019 initiated within a short span of time. In view of the same there is no merit in the matter, hence no Interference Is called for Accordingly the OA fs dismissed, No order-as to costs,