Central Administrative Tribunal - Madras
S Chandrasekaran vs M/O Information And Broadcasting on 15 June, 2023
a te | OA 1214/2017 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH OA NO.1214/2017 Dated Thursday the 15" day of June Two Thousand Twenty Three CORUM: HON'BLE MS. LATA BASWARAI PATNE, JUDICIAL MEMBER 5. Chandrasekaran, S/o.N.Sunderasan, 44, Mangadiswami. Street, Nungambakkam,. Chennai ~ 600 054. .. Applicant By Advacate: Mr. Paul and Paul ¥s. i. The Union of India Rep, by the Secretary, Ministry of Information and Broadcasting A Wing, Shastri Bhavan, New Delhi ~ £10 GOL. 2. 'The Director General All India Racio, Akasvan! Bhavan, Parliament. Street,. New Delhi - 110 002 3, The Deputy Director (General (E) All india Radio & Doordarshan Kendra,. Chepauk, Chennal -.600 005, 4 The Pay and Accounts Officer, All Indla Radio, Chennai ~ 600 005. « Respondents By Advocate: Mr, Su. Srinivasan 2 QA 1214/2017 ORAL ORDER
{Pronounced by Hon'ble Smt. Lata Baswaraj Patne, Member (3))} This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"fo call for the records of the 4" respondent in its PAO/ATRICHN/PENASO17-1S/S5 dated 24.4.2017 and quash the same and refund the recovered amount of Bs. 4,06,628/- along with interest at 12% from 24,4.2017 and consequently direct the respondents to restore the applicant's pay fixation and grant him pension, pratuity, leave encashment and other terminal benefits with reference to the correct pay fixation admissible to hire along with arrears and pass such other order or orders as may be deemed fit and thus render justice."
2. The brief facts of the case in a nut shall are as follows:
The applicant joined as Lower Division Clerk in the year 1980, later he got promotion as UDC and as Head Cierk, The applicant was given 2° ACP on 07.01.2004 and his pay was fixed in the pay of Rs.5590-9000/-. Pursuant ta the recommendations of the 6" Pay Commission, the applicant's pay was fixed and with effect from 01.01.2004 and 07.01.2004, the applicant's pay was refixed in Rs.6000-10500/- Scale (later revised to Rs. 9300-24800 with Grade Pay of Rs. 4200/-}. Accordingly, all arrears paid to the applicant with effect from 01.01.2006, At the time of retiremant, the applicant's pay was reduced and a sum of Rs. 4,06,628/- was recovered fram the applicant's pay and this was dene at the time of applicant's retirement, Since the applicant came to be retired on 30.04.2017 as Head Clerk and this done without putting any notice to the applicant, hence, the applicant filed the present O.A. praying for the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel and fled detailed reply In. the matter and contended that when the applicant's pay has been fixed for the first Ume. after 6 Central Pay 3 OA 12142617 Commission recommendation, the applicant has accepted the same and has not raised any Issue or grievante over any anomaly. The respondents has further contended that a person 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 the Head Quarters. Hence, the Issue has been taken for consideration following with the Hlustration 4 A in accordance with note 2A below Rule 7 of 6" CPC Gazette notification. Thereby, the respondents authority have re-fixed the pay of the employees uniformly in the year 2012. The sare has been effected in the matter of applicant an 08.02.2013. 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 not fixed strictly in accordance with rule 4 (A) rin accordance with the note 2A below Rule 7 of the 6° CPC gazette notification. That is the. reason why the decision has been taken up to follow that guidelines issued by the Departmant'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, 20125 and instructed all the concerned Heads that the same may be informed to all concerned authority In re-fixation of pay carried out forthwith. After refixation affected, the applicant has submitted his grievances immediately In the year 2016 itself only. Moreover, the applicant has only prayed that not to refx his pay as well as no action in respect of recovery against the over payment to be made. Nowhere, he has justified how he is entitled for the said refixation. Hence, the respondents prayed for dismissal of the OA. 4, 'The respondents have filed additional reply stated on behalf of the respondents 1 to 3.
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5. Heard Learned counsel on both sides. Perused the records and relevant documents.
6 Learned Counsel for applicant has argued and raisad the issue that the applicant at the time of retirement 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 Delht, the 20° February, 2013 4 'No.N.1G/4/2013 -PPC- In Exercise of the powers conferred by Section 9 and Sub-Section (5) of Section ii read with clause (djof Sub-Section (2) of Section 33 of the Prasar Bharati (Broadcasting Corporation of India} Act, 1990 (25 of 1990} and in super-session of the Prasar Bharati ¢ Broadcasting Corporation of India) Gunier Administrative and Alfled posts} Service Regulations, 2002, in so far as It-relates to the post of Head Clerk / Assistant, except as respects things dene or omitted to be done before such supersession, the Prasar Bharati ( Broadcasting Corporation of Indiaj,. with the prior approval of the Central Government, hereby makes the following regulations, namety"="
By this Notification, this Head Clerk post has been upgraded as Group B. 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 employee who are on deamed deputation, The learned caunsel for the applicant has also railed upon Notification dated 05.12.2018 wherein the position of the Head Clerks has been reiterated and reconfirmed as Group 'C4
7. Moreover, the Learned Counsel for applicant has also relied upon the order passed by the Co-ordinate Bench at Bangaldre In O.A.No.399 of 2018 in the matter of A. Francis Royan Vs.Uinion of India, M/o. Information and others. Sy arder dated 18.01.2015, while considering the similar issue in the matter of L.D.C.s (Lower Division Clerk) totally relied upon the guidelines 5 OA 12142017 issued by the Hon''ble Apex Court of India In the matter of Rafiq Masih, The Court has observed thius:~ "The applicant is admittedly a low level employee, Assuming that he got a salary of Rs.10/- per month.
Then he will tive 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. 200/-, will lt not amount te burden on him and it wil be an unjust burden."
Therefore, granted the relief in favour of the applicant therein who is similarly situated the applicant therein,
8. Learned Counsel for the applicant further relied upon the order of the Han'ble High Court, Karnataka wherein the respondent department has challenged the said order of the co-ordinate bench of the Bangalore in WB No. 5557 of 2020 (S-CAT) connected with W.P. No. 13413 of 2020 (S-CAT) by its order dated 09.02.2024 and the said order has been confirmed. The earned counsel for the applicant has also pointed out that while considering the order of the Bangalore Bench, 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 cannat be any recovery from employee. belong to Class-IIT and [V, 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."
9, The Learned Counsel for applicant has also relied upon the order passed by Hon'ble Supreme Court.in Petitions (S) for Special Leave to Appal (C} No(s}. 16633/2021, wherein the order of the Tribunal as wall as Order of Hon'ble High Court Karnataka fas been challenged by the Respondent é OA 1214/2017 authority and the said order had attained finality since the respondents department petition has been dismissed by the Hon. Supreme court. On O8.11.2021,
10. The Learned Counsel for the applicant has alsa placed rellance upon the order passed by Principal Bench In O.A.No.290 of 2016 dated 29.3,2023 in the matter of Smt. Pushpa Dulani and i4 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, however, directed the respondents authority not to recover the amount.
ii. The Learned Counsel for applicant has also relied on the order passed by the Hon'ble Supreme Court of India in Civil Appeal No.S527 of 2022 in the case of M.P, Mecical 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 ofthe said Circular, the recovery is not justified.
12. The Learned Counsel for applicant has also relied upon the order passed by the Hon'ble High Court of Madras. Interim order was passed by Non'ble High Court in W.P.No.11074 of 2023 and WM.P.No.10946 of 2033 in the matter of C. Kamalakannan Vs.The Central Administrative Tribunal, 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 arder has been stayed as well as recovery also stayed by way of Interim measure and the matter is subjudiced before the Hon'ble High Court.
13. Gn the other hand, the Learned Counsel for respondents vehemently 7 OA 1214/2017 apposed the contentions raised by the applicant. The Learned Counsel for respondents submits that the applicant has not raised any grievance over the first pay fixation carried after recommendation of the 6 CPC in the year 2008. Although the respondents have re-fixed and given the said benefits uniformly, While re-fixation has not been done as per illustration of 4(A) in accordance with Note 2 (A) below Rule 7 of the 6the CPC gazette notification, therefore, when this mistake has been rectified in the Ministry of Finance in consultation with the Department of expenditure, immediately, steps for recovery and corrected the re-fixation and recovery has been initiated accordingly not only te the applicants however; who is in receipt of the over payment under the said wrong re-fixation of pay, the recovery has been effected in the year 2016 itself. Therefore, the applicant has. raised his grievance, However it is exchequer funds, the public money, the respondents authority has rejected his request and the sald re-fixation as well as recovery has been Immediately effected from his retiral benefits,
14. The Learned Counsel for the respondent argued that the applicant has raised issue on the ground that he js holding the post of Head Clerk, wha was placed in the pre-revised pay scale of Rs. 4500-7000/5000-8000(the HC/Asst, Of Prasar Sharatl were granted the pay scale of Rs. 5500-9000 as:
per court order} may be upgraded to the pre-revised pay scale of Rs. $500- 10560 and granted the Grade pay of Rs. 4200/-. The said recommendation was accepted and notified in Part B, Section li of CCS €RP} Rules 2008. Therefore the in his representation dated 21.01.2016 in para.-7 it is stated that:-
"7. Inthe light of the above submission, it will bs clear that my pay-fixation has been done correctly in accordance with the Directorate's OM cited above In this regard. Therefore I request your geodself not to revise my fixation of pay and nok to recover the 8 OA 1214/2017 excess payment. I also request you to Instruct the concerned authorities not to resort to any revision/refixation of pay with effect from 01.01.2006."
15. However, the Learned Counsel for the respondents have relied upon the O.M. dated 17,04.2009 para -2 of which reads as under:-
"2, As per clause (4) of the Central Civil Services (Revised Pay) Rules, 2068 notified vide notification Ne. G.S.R. 622 (E} dated 29.08.2008, the pay band aid grade pay or the pay scales, as applicable, of every post/grade specified in column 2. of the First Schedule thereto shall be as specified against it In colurmins S & 6 thereof. Consequent upon the notification of the said rules, it has become necessary to prescribe revised norms for categerizatian of pasts into the above mentioned four categories based on the pay band and grade pay or the pay scales as applicable, as approved by the Government.
Accordingly, an order classifying the various Central Civil Services. posts Into Group "A", "BY, "C" and "Db"
based on the revised norms of pay has been notified in the Gazettee of India Extraordinary vide S.O, 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 relied upon S.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 09.04.2009. According to the said Order, the applicant falls under Group ~ B category and he has been benefited according to the Group -B pay scale therefore by order dated 13.06.2017 by effecting the recovery and the amount has been recovered from his pay.
17. The Learned Counsel for respondent relied upon the order dated 13.6.2017 wherein it has been specifically mentioned that 1,1.2025° to 30.04.2017, the applicant falls under Group 8 Insurance Scheme and accordingly benefit under the said Insurance has been paid and accepted the % OA 121472017 same. The Learned Counsel for the respondents has reliéd upon the order passed by this Tribunal in the matter of AC Seshadri Vs. UOI & Ors. In OA. Ne. 494 of 2020 dated 16.08.2022 and in the case of Mr RB. Ganesan Vs. UOT & Ors. In 0.A, NO. 543 of 20202 dated 13.01.2023.
i8. The Learned Counsel for respondent also relied upon the order passed by the Coordinate Bench of Eranakulam. Bench in O.A.No, 823 of 2019 in the matter of Xavier A.A. Vs. BSNL by its order dated 8.1.2021. The Court has considered the issue on the ground that as no undertaking {fs found recovery is nat 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 justifiéd the recavery of total amount of Rs.
12,17,980/- due to over payment of pay and allowances and the same has been recovered from the retiral benefits and leave ancashment.
19, The Learned Counsel for the respondent also relled upon the order passed by the Coordinate Bench at Bangalore in O.A.No.769 of 2019 by its order dated 27.01.2001. In the matter of N.M. 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 been initiated before the retirement, stl, 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 aiso 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 apoticant's case is falling. When there is no reason, the said order will not have to follow asa Precedent, More aver, in the matter of applicant the recevery has been effected within 3% years and hence the applicant's case is not covered VW OA 12142017 under Rafiq Masih guidelines as wellas OM subsequently issued by the DOPT as held by the Tribunal in the case of BR. Ganesan Vs. UOL in OA No. 543/2020 dated 13.01.2023 & AC Seshadri Vs. UOI in OA 494/2020 dated 16.08.2023, 20, itis notin 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 eccepted by the applicant as Ke knew the calculations are correct. He has not raised any grievances Over the said fixation of pay after the 6" 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 headquarter thereby the department has taken a decision te refix the pay of all the employees with a ryder that excess payment made If any would be recovered, Accordingly the 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 rute all the employees have to give an undertaking for adjustment or refund of the excess payment if any received by them. As per the directions of the Headquarters exercise for refixation has seen carried out and accordingly in the year 2013 refixation has been effected in the matter of not only fn 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 wie.f 2006.and the same has been released and paid to: the applicant:
22. It is to be noted that when the matter has been referred to the Department of Expenditure to verify the said refixation, the DOE after careful VW GA T1207 consideration has noticed the mistake and by its fetter dated 19.06.2015 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 wrong and need to be rectified immediately by taking necessary steps and 'by its fetter 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 PB, Secretary and the excess amount paid if any may be recovered Immediately, It is to be noted that Immediately after the knowledge of the said instructions, by letter dated 21.01.2016 the applicant has made request to the Director Gerieral, S-Il Section, AIR, New Delhi not to revise the fixation oF pay done. However the said exercise of refixation has been carried out according to the instructions dated 05.01.2016 and the same has been effected in the matter of the applicant on 21.01.2016 accordingly. Thereafter the applicant has not suémitted any representation so far since ik is not placed on recorc.
23. Itis also to be noted that admittedly the applicant is having pay scale of Group 6B pest. Moreover on his retirement as per the said pay scale, benefit of insurance scheme has been settled against Group B post and the applicant has accepted the same which is clear from the order dated 13.06,2017 placed on record by the respondents along with additional reply statement at Annexure A-IX. If Is to be noted that while dealing into similar issue. In the matter of AvGanesan who is a Group C employee as well as. in the matter of A.Seshadri whois a Group 8 employee working in the office of the same respondents this Tribunal after relying upon various 2 CA TMANN?
judgments/orders placed by both sides passed very detailed order and the rélevant portion of fhe said order is extracted hereunder:
"G) In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15,16, 1? itis held that : -
"15, We are. net convinced that this Court. in varions judgiients referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misyepresentation or fraud on the part of tke recipients of the excess pay, then only the amount paid could be recovered. On the ather hand, most of the cases referred to hereinbefore turned on the peculiar thers and circumstances of those cases either because the recipients had retired or oa the verge of retirement or were occupying lower posts in the administrative hierarchy,
15. 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 the concept of fraud or misrepresentation is being brought in such situations. Question to.be asked is whether excess: money hag been paid or not may be due to a bona dé mistake. Possibly, effecting excess payment of public money by Government officers, may ke due to various reasons like negligence, carelessness, collusion, favouritism ete, because. money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the tistake is mutual, Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment,
17. (We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. BJ. Aktkara (retd.) case {snpra), the exeess payment made due to wrong/isregutar pay fixation can always be recovered."
(il) The decision of Principal Bench of CAT in OA 1857 of 2014, wherein one of the similarly situated employee Mr. P. Chandra Sekhar has fled the OA against the very same respondents wherein plea has been taken that wrong fixation of pay, recovery thereof. While dealing into the issue, the CAT-Principal Bench have gone into the interpretation of Hlustration 4A in accordance with note 2A below Rule 7 of 6" cpr gazette notification. The relevant paras are reproduced as under:-
"2. According to the applicant, as per Section H of Part B of the Gazette Notification, notifying the CCS Mevieed Pay) Rules, 2008,. revised pay scale of "6500-10500 has been 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 below:-
"Note 2A- Where a post has been uperaded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable 3 OA 121472017 pay band will Se done.in the manner prescribed in accordance with Clause (A) (i) and (if) of Rule.7 by multiplying the existing basic pay as on 1.12006 by a factor of 1.86 and rounding the resultant figure to the next multiple of tun. The grade pay correapanding fo the upgraded seale as indicated in column 6 of Part B or C will be payable in addition, Iihustration 4A in this regard is in the Explanatory Memorandum to theas Rules."
3. Teds further stated in Rule 7 (1} (A) @ & ci), which reads as follows:-
"(Ain the case of all employees:
G) the pay im the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.36 ahd rounding off the resultant figure to the next nuuliiple of 10.
(i) 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 iy paragraph 4 (i) of the O.A,, the applicant has stated that the Government, vide their Notification, has recommended the benefit of ore 4 increment after bunching for every two stages so bunched, In fact, the applicant has alse purportedly quoted the abstract of the Repart 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 to say, gets fixed in the revised pay stricture at the same stage in the pay' band, then, for every Two stages so bunched, benefit of one inerement shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the gay band. Grade pay would not be taken into: account for the purpase of granting Increments to alleviate burichitg:"
5. 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-d, 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 Amnexnre A-10, the appheant has annexed a clarification Bom Ministry of Finance, Department of Expenditure issued.on 14.12.2009, in which the first point raised and the clarification given thereto read as follows:-
Paint raised .
Clarification
(a) The manner in which pay of Assistants' Pas in position on. 1.1,2006 is to be fixed as per the provisions of CCS (RP) Rules, 2008.
Whether there vill be any bunching in this case, The pay iv the pay band. of Assistants/Pas working as on 11.2006. will be fixed with reference 1 the fitment table of the prereviged pay scale of Bs.5500-9000 annexed with this Department's OM, No, V/2008-IC dated 30th August, 2008 and they will i4 OA P2T42017 be granted the pradé pay of Rs.4600. Since the minimum pay in the pay 5 band in -the revised = pay structure corresponding to the stage of Rs.5500 (pre-revised) soale of Rs. 5300-9000) is more ihan the minimum of the pay band PB-2- Le, Rs.9300, no benefit of bunching js 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 i bad been done earlier, that was an error, which is rightly rectified by the respondents, 6, The pay of the Govermtient servant has to be fixed as per the recommendations of the 6th Central Pay Commission strictly according to the CCS (Revised Pay} Rules, 2008 where the provision is abschitely clear, which is thit the basic pay drawn by the employes in the earlier pry scale in the pre-revised scale will be multiplied 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 minimus of the revised pay grace. This is exactly what the respondents have clarified in their affidavit filed on 18.01.2016 and also placed before us an Office Memorandum dated 28.07.9015 {Annexure K-10) issued by the. Ministry of Finance, Department of Expenditure wherein it has been stuted that there is no quastion of fixing the pay taking the minimum 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 6 these are issued as pér 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 absolue misunderstanding of the Rules/instructions. It is aceardingly dismiisged, Respondents are at liberty to recover any excess amount paid to the applicant. No costs. * Ni. The Patna Bench of this Tribunal, in a similar context In OA 24 of 2016, reiterated the same ratio and cismissed the said OA.
iv. The Bangalore Bench of this Tribunal had dismissed the OA 867 of 2019 filed seeking a similar relief as under :-
"+1 be applicant would say ihat even at the time of erroneous fixation in 2012, he was a Group-B (Nor-Gavetted) officer and with effect from 2017, he became a Group-B (Gazetted) officer. The applicant would claim that since exroneous fixation ig swith eect from: 1.1,2006 and the excess has heen paid for more than 5 years, as per the White Washer judgment, this cannot be recovered from him. As already seen, the wrong fixation was done on. 13.12.2012 and this was corrected. on 23.2,2016. Therefore, it cannot be said thal he was drawing this exeass pay for more than 3 years since it had becn modified within four years of the original wrong fixation. Further, the Annexure-A13 which was issued in February 2016 was not 13 OA 12142017 challenged by the applicant at all. This leads tothe suspicion that the refixation was done correctly and that prima-facie the applicant had no objection to. it. We fail to widerstane as to how the respondents. did not take any action te 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 bad juncture in the nonrecovery also. Be thet as it may, His clear that he is clearly not eligible for nasrecovery based on the White Washer judgment. His other contentions relating to the higher Grade Pay vide Annexare-A9 and subsequent higher Grade Pay in 3rd MAC? eic., do not deserve any consideration since the concerned instructions are not relevant in his case, His citing the case of one more person also namely Sri Sadashiva has also been replied to by the respondents in para-25 of the reply statement wherein they hed shown that Sri Sadashiva was actually drawing the Basic Pay of Rs.7250 ag on 1.1,2006 while the applicant was drawing Rs. 675 on the sume date. Therefore, this also will not help the applicant.
7. The OA is therefore dismissed, No costs."
24, Admittedly for the first time against the 6" CPC's recommendation pay fixation has been carried out in the rnatter of applicant and he has accepted the same and he has not ralsed any grievances over the same. Other employees have raised the anomaly In respect of their pay fixation and in wiew of the decision taken by the headquarter that too subject to. ratification and corrections against the excess payment and after getting undertaking from 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 28.07.2015 from the Ministry of Finance Department of Expenditure wherein it has been instructed that in view of the anornaly, refixation has been carried out however the same has not been done In conformity with the CCS Revised Pay Rules 2008, accordingly steps have been taken and refixation has been dene in the matter of applicant and other employees who were given the benefit of the said wrong fixation. It Is te be noted that while dealing into the issue & observations in. the matter of Rafiq Masih, the Tribunal has held as under:
14, It fs 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 i6 OA P2142017 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'dle 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 entiliement has summarized the following few situations, wherein recaveries by the employers would be impermissible in law:-
{i} Recovery frori employees belonging to Class-IIl and Class-IV service (or Group "C and Group 'D' service), {iI} Recovery from retred employees, or employees who are due to retire within one year, of the order of recovery.
{il} Recovery from employees, when the excess payment has been made fora peried in excess of five years, before the order of racovery 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 fram the employee, would. be iniquitous or harsh or arbitrary to such an extent, as would far oubveigh the equitable balance of the employer's right te recover."
15. AS far as concermed to the recavery alsa 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 22.10.2039 verification of qualification of service in respect of the applicant has been dane wherein a Senior Accounts: Officer has specifically remarked that "Excess drawn pay and allowances on grarit of Rs.6500-200-10500 pay scale may be recovered from 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 also admitted. It was well within the knowledge of the applicant that after refixation recovery was going to ba effected. Therefore on 23.12.2019 he has submitted a detailed réprasentation through proper channel to the Chief Executive Officer and raised. his grievances over the action of the respondents in effecting recovery on fast tract. He has aiso placed reliance upon the order passed by this Tribunal in the matter of K.Kannan. It ls 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 te revise his pay and not to recovery any amount.
16. It is to be noted that by letter dated 14.02.2020 fram the office of the Directorate General AIR it has been informed to the lower 17 OA 12142017 authorities by returning the representations they themselves have to examine the matter at thefrend. Even after the knowledge of the said action on the part of the respondents, the applicant submitted repeated representations to the authorities. However finally recovery has been effected from his retiral benefits, The total retiral benefits cue to the applicant is Rs.31,48,029 from which the respondents have withheld an amount of Rs.4,50,382 towards the excess amount 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 said mistake has been rectified and action has been initlated in the year 2015 Itself and the recovery of excess payment has been. initlated in the year 2016.
i7. It is to. be noted that as observed by the Hon. Apex court of India In Rafiq Masih's case while dealing into the said 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 seeking recovery of monetary benefits 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 of the employer's right fo 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 parameters of the above consideration, and the:test to be applicd, reference needs to be made te-situations when this Court exempted employees from 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 is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right fo recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery fom the concemdd.
employee would be, more unfair, more wrongful, more improper, and more' unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and. arbitrary, to effect the recovery, In such a situation, the employee's right would cuibalance, and therefore eclipse, the right of the employer to recover.
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 14 to 18, contained in Part IH of the Constitution of India, dealing with "Fundamental Rights", These Articles of ihe Constitution, besides assuring equatity before the law:and equal pratection of the laws:
also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, te upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a seetion of the Sdciety, with such appollations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Artistes of the Constitution of India gomtain a mandate to the State requiring tf to-assute a social order providing justice ~ social, economic and political, by inter alia minimizing monetary inequalities, and by securing 'the tight ta adequate means of livelihood, and by providing for adequate Wages 80 asice ensure, aa appropriate standard of life, and by promoting economic interests of the weaker sections, 18 OA 1214/9017
10. in view of the afbre-stated constitutional mandate, equity and sood conscience, in ths matter of livelihood of the people of this country, bas to be the basis of all governmental actions, An solion of the State, ordering a recovery from an employee, would be in order, sa long as itis not rendered iniquitous to the extent, that the action of recovery would be more unfhir, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer. to recaver the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employes, it would be permissiblecin. favs Orders passed in given simations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will diselase the parameters of the realm ofan action of recovery (of an excess-amount paid to an employee) which would breach the obligations of the 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,
11. 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 are situations, in which High Courts all over the country, repeutedly 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, (2609) 3 SCC 475, wherein this Court recorded the following observation th parseraph $8:
"38. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion te relieve the employees from ihe hardship that will be caused if recavery is ordered, But, if in. a given case, it is proved that the employee had knowledge that the payment reseived was in excess of 'what was duc or wrongly paid, or in cases where the ertor is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial 'discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess, See Sahib Ram v. State of Haryana, 1995 Supp.
{i) 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 vy. Birector, (1997) 6 SCC 139, Col. BJ. Aldeara Reta.) v, Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2606) 11 SCC 492, Puniab National Bank -v; Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."Yemphasis 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 action being iniquitous. Dealing with the subject of the action being iniquitous, it wag sought to be concluded, that when the excess imauthorised payment is detected within'a short period of time, iowould be open for the employer to. recover the same, Conversely, if the payment had been made for a long duration of time, it would he iniquitous to make any recovery. Interference because an action is iniquitews, must really be perceived as, interference because the action is arbitrary. AH 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 Indis, beeause it would. be almost impossible for an employee to bear the financial borden, of a reflind.of payment received wrongfully for a long span of time. [is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made 'from hissher wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides fead, clothing and shelter, an employee has fo cater, not only to the education needs of those dependent upon him, but also. their medical requirements, and a variety of sundry expenses, Based on the above consideration, we are. af the view, that if the mistake of making a wrongfil payment is. detected within five years, it would be opsa 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 ihe employer to correct 19 OA 1214/2017 the mistake, if would be extremely iniquitous and arbitrary to seek a refiind of the payments mistakenly made to the employee.
i4In this context, reference may also 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 ag under:
"IL. Although we have held that the petitioners were entitled only to the pay scale 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 became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 390-560 since 1973 due to.no fault of theirs and that seale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount whieh has already been paid to them. Accordingly, we direct that no Steps should he 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 résponsible: fer the same."(eniphasis is ours) IL is apparent, that in Shyam Habu Verma's case (supra), the higher pay~ scale commented to be paid erroncously in 1973, The same was sought to be recovered in 1984, Le., after a period of f1 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-seale would not be just and proper. We tnerelore 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.
L5, Examining a similar proposition, this Court in Col. BJ. Akkara v, Goverment of India, (3008) 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 af judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower runes of service would spend whatever emoluments he receives for the upkeep of his family. if he receives an excess payment fora long period, he would epend 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 is granted in that behalf. But where the employee bad knowledge that the payment received was in excess of what was due or wrongly paid, or where the eror is detected or corrected within 4 short time of wrong payment, courts will not grant relief apainst recovery, The matter being in the realm. of judicial discretion, courls may on the facts and elrcumstances of any particular case refuse to. grant such refief against recovery."
A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra; reveals a reiteration of the legal position recorded in the earlier: judgments tendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long ss 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 te them. The apparent explanation for the aforeszid conclusion is, that-employees in lower rung of service would Spend thelr entire camings in the upkeep and welfare of their family, and if such excess payment is alowed. 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 rom employees belonging to the lower rungs (i.¢., Class-I[] and Class-['V - sometimes denoted as Group 'C' and Group 'D') of service, should not bs subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were dag to them. Such recovery would be iniquitous and arbitrary and therefore would also:
breach the mandate contained in Article14 of the Constitution of India,
16. This. Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:20 OA 1214/2017
"39. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on thelr part and the appellants also had no knowledge that the amount that was being psid 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 ifs 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 confnsion was because of inaction, negligence and carelessness of the officials concemed of the Goyernment of Bihar, Leamed counsel appearing on behalf of the appellant teachers submitted that thajority of the beneficiaries have either retired of are on the verge of i. Keeping tn view the peculiar fiols and circurhstances of the case at hand and te 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 legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. {tis apparent from the conclusions drawn in Syed Abdul Oadir's osse (supra), that recovery of excess payments, made from employees who have retired from service, or are close io their retirement, would entail extremely harsh consequences oulweighing the monetary gains by the employer. It cannot be forgotien, that a retired employes: of ar employee about to retire, is a class:apart from those who have sufficient service to their exedit, 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 earnings have substantially dwindled (or would substantially be vedueed on his:
retirement). Keeping the aforesaid circumstances in mind,-we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon befre 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 meat an order of recovery, on. account of wrongful payment made.fo 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 retirement on superannvation, i7.Last of all, reference may be made to the decision in Sahib Ram Verma -y. Union of India, (1995) Supp. 1 SCC 15, wherein it was concluded as under:
"4. Mr Prem Malhotra, learned counsel for the appellant, contended that the previous soale of Rs 220-550 to which the appellant was entitled besame Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of 'the educational qualification, The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. Jt is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges 16 Rs 700-1600 but they insisted upon the misimem educational qualification of first or second class M.A, M.Sc., M.Com, plus a first or 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 but not relaxation in the edueational qualification imelf
3. Admittedly the appellant does not possess the required educational qualifications, Under the circumstances the appellant would not be entitled w the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid bis salary on the revised scale. However; iris nat on account of any misrépresentation male by the appellant that the benefit af the higher pay scale was given ta iim but by wrong construction made by the Principal for which the appellant carmot be held to bs at fault. Under the circumstances the amount paid til! date may not bs recovered from the appellant, The principle of esual pay for equal 21 OA 1214/2017 work would net apply to the scales preseribed by: the University Grants Comuiission: The appeal is allowed partly without any order as to costs,"
it would be pertinent to mention, that. Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (rst or second class M.A., M.Sc., M.Com. plus a first or second 'class BLib, Seience. or a Diploma in Library Science, the degree of M.Lib. Scierice being a preferential qualification), For those Librarlans appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sakib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing. the prescribed educational qualifications, even though the concemed appellants were ineligible for the same. The concemed appellants were held not tligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the past against which they had discharged their duties. In the above view of the matter, we are of the 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 peemitted to work, though he should have rightiaily 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 the opinion, that it would be Iniquitous and arbitrary for an employer to require an employee ta 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." it was conciuded that in the cases where excess unauthorized payment is deducted within a.shaort period of time it would be open for the employer to recover the same, Conversely, if the payment had been made for a jong 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:
i8. Itis 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, 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:
Q) Recovery from employees belonging to Class-Ill and Class-IV service for Group 'C' and Group 'TD' service).
Gi) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(ii) 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 employes 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 af the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, ag would far outweigh the equitable balance of the employer's right to recover.
22 OA T2142017
18. tis 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 sald fixation of pay, It is. well within the knowledge of the applicant, and it may mot be correct that he has done unintentionally or by mistakenly he was fully aware that what is mean by pay fixation, When first time against the 6 cpc recommendation his pay has been fixed at Rs.i0230 on 17.09.2008 he has accepted as it is correctly fixed, even today he has no grievances over the same. However, subsequently the pay fixation has been done by the respondents against the instructions issued in the year 2032 and his pay has been refixed on 31.03.2012, at R5.12090, 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 29.01.2016 within a short period of time and accordingly excess payment made to the applicant to the tune of Rs.4,50,382 was recovered frarn his retiral benefit of Rs.31,48,629/- and Hence recovery Is justified by the respondents, But the applicant just kept placing his grievances through repeated representations to the respondent authorities simply stating that for said pay fixation hé 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 respandents have to give effect to the recovery. Moreover, In the applicant's case, 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 the matter of Rafiq Masih, it ts necessary toe look into the facts and circumstances of the case and as recorded above the same ig not applicable in the present case, since excess armount which was received under said refixation and paid in the year 2012 has been revised and refixed after consultation with the Ministry of Expenditure In 20125. Therefore in my considered opinion, the action on the part of the respondents is justified and hence ne interference is 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 inithated that too-in the matter of pensioner it will lead 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 ~e a 23 OA 124207 undertaking. It is to be noted-that the order passed by the Principal Bench of this Tribunal at New Delhi 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 fas theugh accepted the decision of 'refixation, however while setting aside the order of recavery not given any specific reason fo specify that how the case of the applicant therein covered under the guidelines of the Rafiq Masih's case and falls under which category. Therefore order without reasoning has to be per incuriam. 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 holding the Group B post as per the pay scale and enjoying the benefits like Insurance scheme of Group B category and just for the recovery the appilcant is claiming that he is under Group C category, which is totally contradictary to the documents on record. It is to be noted that whether the person belongs to Group Cor Group B or Group A category when he has been benefited under the wrong calculation for which he fs 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 nowhere in the pleadings In the OA as well as in the representation of the applicant has submitted that he is eligible & entitled for the said refivation,
26. In view of the above I am of the considered opinion, the respondents have justified the refixation as the same has been effected within 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 ia nm Etta wei ty ee cele ana ee aa Oo nee 24 OAT MAG Banch & Bangalore Bench of this Tribunal, Hon.High court of Karnataka are not applicable to the facts of the present case.
27. It is 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 newhere pleaded that the applicant's. pay wes 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 their grievances and the applicant is benefited under the refixation for which fe is not otherwise eligible and entitled for and the recovery has been initiated within a short span of time. In view of the same there is no merit in the matter, hance no interference is called for. Accordingly the OA is dismissed. No order as tatcosts.