Central Administrative Tribunal - Delhi
Harbans Singh vs Govt. Of Nctd on 12 May, 2026
1
Item No.25(C-V)
O.A. No.2041/2015
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.2041/2015
MA No.1846/2015
Reserved on : 24.04.2026
Pronouncement on: 12.05.2026
Hon'ble Dr. Chhabilendra Roul, Member (A)
Hon'ble Mr. Rajveer Singh Verma, Member (J)
1.SHRI HARBANS SINGH
DESIGNATION- OT TECHNICIAN,
DATE OF JOINING- 01.09.2003,
S/0 LATE SHRI BUDHAN LAL,
AGE ABOUT 53 YEARS,
R/O 217, O~D SOHNA ROAD, PALWAL,
DISTRICT PALWAL, HARYANA-121102.
2. SHRI NIRDOSH
DESIGNATION- OT TECHNICIAN,
DATE OF JOINING- 17.09.2003,
S/O LATE SHRI SAMPAT SINGH,
AGE ABOUT 51 YEARS,
R/O HOUSE NO.B-177, B BLOCK,
DDA FLATS, BINDA PUR, DWARKA,
NEW DELHI-11 0059.
RACHNA KAPOOR
Digitally signed by
RACHNA KAPOOR
3. SHRI SANJAY KUMAR
DESIGNATION- OT TECHNICIAN,
DATE OF JOINING- 01.08.2003,
S/O SHRI SITA RAM RAI,
AGED ABOUT 37 YEARS,
R/O B-5/20, DDU CAMPUS,
HARI NAGAR, NEW DELHI-110064.
...Applicants
(None )
Versus
1. THE CHIEF SECRETARY
GOVT. OF NCT OF DELHI,
I.P. ESTATE, NEW DELHI.
2
Item No.25(C-V)
O.A. No.2041/2015
2. GOVT. OF NCT OF DELHI
THROUGH ITS SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
TECHNICAL RECRUITMENT CELL,
9TH LEVEL, A- WING, DELHI SECRETARIAT,
NEW DELHI-11 0002.
3. MEDICAL SUPERINTENDENT
G.B. PANT HOSPITAL,
1 JLM MARG,
NEW DELHI- 110002.
4. ADMINISTRATIVE OFFICER
G.B. PANT HOSPITAL,
1 JLM MARG,
NEW DELHI- 110002
... Respondents
(By Advocate : Ms. Purnima Maheshwari
Shri Amit Anand)
ORDER
Hon'ble Mr. Rajveer Singh Verma, Member (J):
MA No.1846/2015 Digitally signed by This Application has been moved by the RACHNA KAPOOR RACHNA KAPOOR applicants seeking permission of this Tribunal to file a single OA. For the reasons mentioned therein, MA is allowed.
3Item No.25(C-V) O.A. No.2041/2015 OA No.2041/2015 On 24.04.2026, when the matter was taken up for hearing, the OA was reserved for orders while observing as under :-
"1. None for the applicant.
2. When the matter was taken up, learned counsel for the respondents submitted that the issue involved in the present matter is no longer res integra, as the applicant had already approached the Hon'ble High Court by way of Writ Petition No. 4391 of 2010. The Hon'ble High Court, vide its order dated 27.11.2013, rejected the claim of the applicant.
3. Thereafter, the applicants filed a Review Application before the Hon'ble High Court, which was also decided on 26.05.2015.
4. When a query was put to the learned counsel for the respondents as to whether the orders of the Hon'ble High Court dated 27.11.2013 in Writ Petition No. 4391/2010 and the subsequent order dated 20.05.2015 in the Review Application are available on record, she RACHNA KAPOOR Digitally signed by submits that she would like to inspect the file. RACHNA KAPOOR
5. Upon perusal of the file, it is observed that the order dated 27.11.2013 is available on record as Annexure/R-2.
6. Learned counsel for the respondents seeks and is granted one weeks' time to produce on record the order dated 20.05.2015 passed in Review Application by the Hon'ble High Court.
7. Heard.
Reserved for orders."4
Item No.25(C-V) O.A. No.2041/2015
2. The present O.A. has been filed by the applicants, three in number, under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"(a) quash the order dated 12.05.2015 passed by the Respondents and;
(b)direct the Respondents not to make an recovery of any alleged over payment and;
(c) pass any other orders of directions, as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
3. The present Original Application has been filed by the applicants who were appointed as Operation Theatre (OT) Technicians under the Department of Health and Family Welfare, Government of NCT of Delhi in the year 2003. The applicants were appointed pursuant to an Employment Notice issued by the RACHNA KAPOOR Digitally signed by RACHNA KAPOOR respondents for filling up the posts of OT Technicians in the pay scale of Rs.5000-8000/-. Since the date of their appointment, the applicants continuously discharged their duties as OT Technicians and were granted salary in the pay scale of Rs.5000-8000/-.
4. In the OA, it is submitted that under the recommendations of the 4th Central Pay Commission, 5 Item No.25(C-V) O.A. No.2041/2015 the post of OT Technician carried the pay scale of Rs.1200-2040/-. It was further contended that Laboratory Technicians were granted a higher pay scale of Rs.1320-2040/-, despite discharging similar duties. Consequently, representations were made before the 5th Central Pay Commission seeking parity in pay scales. The 5th Central Pay Commission thereafter recommended the revised pay scale of Rs.5000-8000/- for the post of OT Technician and the respondents themselves issued the advertisement offering the said pay scale. On the basis of such representation and appointment, the applicants accepted employment and continued to work uninterruptedly for more than twelve years.
5. It is further averred that by way of order dated 12.05.2015, the pay scale of the applicants was RACHNA KAPOOR Digitally signed by RACHNA KAPOOR reduced from Rs.5000-8000/- to Rs.4000-6000/- and directions were issued for recovery of alleged excess payments made after 14.05.2010. The applicants are stated to have received the said order on 20.05.2015. The order dated 12.05.2015 appears to be based on some clarification dated 13.05.2010, granting pay protection and waiver off recovery of over payment 6 Item No.25(C-V) O.A. No.2041/2015 already made upto 13.05.2010 to the Technical Assistant (OT/CSSD).
6. Pleadings further showed that the reduction in pay scale and consequential recovery were effected without issuing any show cause notice, granting any opportunity of hearing and in complete violation of the principles of natural justice. The applicants had acquired vested rights after serving continuously for more than twelve years on the said pay scale and the same could not be unilaterally withdrawn.
7. In support of their contentions, the applicants have relied heavily upon the judgment of the Hon'ble Supreme Court in State of Punjab & Others vs. Rafiq Masih (White Washer), Civil Appeal No.11527 of 2014 arising out of SLP (C) No.11684 of 2012, wherein the Hon'ble Supreme Court held that recovery Digitally signed by RACHNA KAPOOR RACHNA KAPOOR of excess payments made for a period exceeding five years would be iniquitous, arbitrary and violative of Article 14 of the Constitution of India. The Hon'ble Supreme Court further observed that employees belonging to lower categories of service spend their earnings for maintaining their families and recoveries after a long period would cause grave hardship. 7 Item No.25(C-V) O.A. No.2041/2015 Reliance was also placed upon the judgment in Col. B.J. Akkara vs. Government of India, (2006) 11 SCC 709, wherein the Hon'ble Supreme Court held that recoveries causing undue hardship to employees are liable to be restrained in exercise of equitable jurisdiction.
8. The applicants also relied upon the earlier proceedings before the Central Administrative Tribunal in O.A. Nos.521/2002 and 522/2002 relating to Technical Staff Operation Theatre Association, wherein anomalies in pay scales were noticed. Reference was also made to the judgment passed by the Hon'ble High Court of Delhi in W.P.(C) No.18037/2006 titled Sanjay Kumar vs. Secretary Health & Others, whereby directions were issued in favour of applicant No.3 regarding regularization of service from August, 2003. Digitally signed by RACHNA KAPOOR RACHNA KAPOOR
9. The respondents filed their counter reply opposing the Original Application. At the outset, learned counsel for the respondents raised preliminary objections regarding maintainability. Reliance is placed upon the judgment of the Tribunal in O.A. No.2184/2005 titled Raghubir Singh Bisht vs. Govt. of NCT of Delhi decided on 17.05.2007, wherein the 8 Item No.25(C-V) O.A. No.2041/2015 action of rolling back the pay scale of OT Technicians from Rs.5000-8000/- to Rs.4000-6000/- retrospectively with effect from 01.01.1996 was upheld. Learned counsel for the respondents contended that the applicants were similarly situated and therefore not entitled to relief claimed for.
10. Learned counsel for the respondents further relied upon the judgment dated 27.11.2013 passed by the Hon'ble High Court of Delhi in W.P.(C) No.4391/2010, Govt. of NCT of Delhi vs. Rajaram and connected matters including Uma Lohani and Gopal Singh Negi. In the said judgment, the Hon'ble High Court held that OT Technicians who did not possess the higher qualification of B.Sc. with Diploma in the relevant subject were not entitled to the pay scale of Rs.5000-8000/- under the recommendations RACHNA KAPOOR Digitally signed by RACHNA KAPOOR of the 5th Central Pay Commission. The Hon'ble High Court further held that though the pay already drawn could be protected personally, the revised scale was liable to be rolled back to Rs.4000-6000/-.
11. Learned counsel for the respondents also relied upon Government communications including letter dated 13.05.2010 and clarification dated 15.03.2013 9 Item No.25(C-V) O.A. No.2041/2015 issued by the Health and Family Welfare Department, GNCTD, whereby it was clarified that OT Technicians recruited after 01.01.1996 and wrongly placed in the scale of Rs.5000-8000/- were required to be regulated in the pay scale of Rs.4000-6000/-. It was further stated that recoveries already made till 20.09.2005 had been waived off, but pay protection was to be granted only from the date of promotion. The respondents contended that the order dated 12.05.2015 was issued pursuant to the aforesaid clarifications and after obtaining approval from the competent authority.
12. Learned counsel for the Respondents further contended that the judgment in Rafiq Masih was not applicable to the present case. Reliance was instead placed upon Union of India vs. S.R. Dhingra, (2008) RACHNA KAPOOR Digitally signed by RACHNA KAPOOR 2 SCC 229, wherein the Hon'ble Supreme Court held that clerical or erroneous fixation could be corrected and that a mistake does not confer any legal right. Reliance was also placed upon Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417, wherein the Hon'ble Supreme Court upheld recovery of excess payments wrongly made due to erroneous pay fixation. 10 Item No.25(C-V) O.A. No.2041/2015
13. We have heard the learned counsel for the respondents at length and have carefully perused the pleadings, documents, and case laws placed on record. The matter is reserved for orders. Having considered the contentions of both sides and the judgments cited, we now proceed to decide the Original Application.
14. At the threshold, learned counsel for the respondents raised a preliminary objection regarding the maintainability of the present O.A. on the ground that the very issue in question was no longer res integra, inasmuch as the Applicant No.1 had already approached the Hon'ble High Court of Delhi by way of Writ Petition No. 4391 of 2010, wherein the Hon'ble High Court, vide its order dated 27.11.2013, rejected the claim. Further, a Review Application filed before the Hon'ble High Court was also decided on 26.05.2015. It was contended that the present O.A. Digitally signed by RACHNA KAPOOR RACHNA KAPOOR constitutes a collateral attack upon the orders of the High Court and is therefore not maintainable.
15. We have carefully considered this preliminary objection. It is noted that the O.A. before us has been filed by three applicants under Section 19 of the Administrative Tribunals Act, 1985, challenging the 11 Item No.25(C-V) O.A. No.2041/2015 order dated 12.05.2015 passed by the Respondents, which reduced the pay scale of the Applicants from Rs. 5000-8000/- to Rs. 4000-6000/- and directed recovery of alleged excess payments made after 14.05.2010. The Writ Petition No. 4391/2010 before the High Court titled Govt. of NCT of Delhi vs. Rajaram and connected matters was filed by the Government itself and the issues therein may not be entirely co-extensive with the issues in the present O.A. More importantly, the impugned order dated 12.05.2015 itself came into existence only after the Hon'ble High Court's order dated 27.11.2013. The applicants are entitled to challenge this subsequent order before this Tribunal. The preliminary objection, accordingly, deserves to be rejected and is hereby rejected. We proceed to examine the matter on merits.
Digitally signed by RACHNA KAPOOR RACHNA KAPOOR
16. The applicants were appointed as Operation Theatre (OT) Technicians in the year 2003 under the Department of Health and Family Welfare, Government of NCT of Delhi, pursuant to an Employment Notice issued by the Respondents offering the post in the pay scale of Rs. 5000-8000/-. Since their appointment, the applicants continuously discharged their duties as OT 12 Item No.25(C-V) O.A. No.2041/2015 Technicians and were paid salary in the said pay scale for over twelve (12) years, uninterruptedly and bona fide accepting the pay scale as their legitimate entitlement.
17. The post of OT Technician had originally carried the pay scale of Rs. 1200-2040/- under the 4th Central Pay Commission. Laboratory Technicians, performing similar duties, were granted a higher pay scale of Rs. 1320-2040/-. This disparity led to representations before the 5th Central Pay Commission (5th CPC). The 5th CPC recommended the revised pay scale of Rs. 5000-8000/- for OT Technicians, and the Respondents themselves published an Employment Notice offering appointments in the said scale, in pursuance of which the Applicants accepted employment and served for Digitally signed by RACHNA KAPOOR RACHNA KAPOOR over 12 years.
18. By order dated 12.05.2015, the Respondents abruptly and without any prior notice reduced the pay scale of the applicants from Rs. 5000-8000/- to Rs. 4000-6000/-, purportedly relying upon a clarification dated 13.05.2010. The order also directed recovery of 13 Item No.25(C-V) O.A. No.2041/2015 excess payments made after 14.05.2010 from the applicants. This O.A. challenges that order.
19. The learned counsel for the Applicants urged the following contentions:
(i) Vested Right in Pay Scale: The Applicants, having accepted employment in the pay scale of Rs. 5000-
8000/- on the basis of a specific Employment Notice issued by the respondents themselves, and having worked for over 12 years without objection, had acquired a vested right in the said pay scale which cannot be unilaterally taken away.
(ii) Violation of Natural Justice: The impugned order dated 12.05.2015 was passed without issuing any show cause notice to the Applicants, without affording any opportunity of hearing, and in complete violation of the principles of natural justice. This renders the order void and illegal.
Digitally signed byRACHNA KAPOOR RACHNA KAPOOR
(iii) Recovery Barred -- Rafiq Masih: The applicants placed heavy reliance upon the judgment of the Hon'ble Supreme Court in State of Punjab & Others vs. Rafiq Masih (White Washer) & Others, Civil Appeal No. 11527 of 2014, (2015) 4 SCC 334, wherein the Supreme Court held that recovery of excess payments made for a period exceeding five years is 14 Item No.25(C-V) O.A. No.2041/2015 iniquitous, arbitrary and violative of Article 14 of the Constitution of India.
(iv) Col. B.J. Akkara: Reliance was also placed upon Col. B.J. Akkara (Retd.) vs. Government of India, (2006) 11 SCC 709, wherein the Supreme Court held that recoveries causing undue hardship to employees are liable to be restrained in exercise of equitable jurisdiction.
(v) Prior CAT Proceedings: The applicants also relied upon earlier proceedings before this Tribunal in O.A. Nos. 521/2002 and 522/2002 relating to Technical Staff Operation Theatre Association, and the judgment of the Hon'ble High Court of Delhi in W.P. (C) No. 18037/2006 -- Sanjay Kumar vs. Secretary Health & Others -- wherein directions were issued in favour of applicant No. 3 regarding regularization from August 2003.
Digitally signed byRACHNA KAPOOR RACHNA KAPOOR
20. The learned counsel for the Respondents urged the following contentions:
(i) Raghubir Singh Bisht: Primary reliance was placed upon the judgment of this Tribunal in O.A. No. 2184/2005 - Raghubir Singh Bisht vs. Govt. of NCT of Delhi - decided on 17.05.2007, wherein the action 15 Item No.25(C-V) O.A. No.2041/2015 of rolling back the pay scale of OT Technicians from Rs. 5000-8000/- to Rs. 4000-6000/- with retrospective effect from 01.01.1996 was upheld. It was contended that the Applicants are similarly situated and therefore not entitled to the relief claimed.
(ii) High Court Judgment: Reliance was placed upon the judgment dated 27.11.2013 of the Hon'ble High Court of Delhi in W.P. (C) No. 4391/2010, Govt. of NCT of Delhi vs. Rajaram and connected matters including Uma Lohani and Gopal Singh Negi. The High Court held that OT Technicians who did not possess the higher qualification of B.Sc. with Diploma in the relevant subject were not entitled to the pay scale of Rs. 5000-8000/- under the 5th CPC recommendations. The High Court further held that though the pay already drawn could be protected Digitally signed by RACHNA KAPOOR RACHNA KAPOOR personally, the revised scale was liable to be rolled back to Rs. 4000-6000/-.
(iii) Government Clarifications: The Respondents relied upon the letter dated 13.05.2010 and clarification dated 15.03.2013 issued by the Health and Family Welfare Department, GNCTD, whereby it was clarified that OT Technicians recruited after 16 Item No.25(C-V) O.A. No.2041/2015 01.01.1996 and wrongly placed in the scale of Rs.
5000-8000/- were required to be regulated in the pay scale of Rs. 4000-6000/-. The impugned order dated 12.05.2015 was stated to have been issued pursuant to these clarifications and after obtaining approval from the competent authority.
(iv) S.R. Dhingra and Chandi Prasad Uniyal: The judgment in Rafiq Masih was contended to be inapplicable. Reliance was placed upon Union of India vs. S.R. Dhingra, (2008) 2 SCC 229, wherein it was held that clerical or erroneous fixation can be corrected and a mistake does not confer any legal right, and upon Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417, upholding recovery of excess payments due to erroneous pay fixation. ANALYSIS AND DISCUSSION A. THE LAW ON PAY SCALE ENTITLEMENT Digitally signed by RACHNA KAPOOR RACHNA KAPOOR
21. The core question before us is whether the applicants, who were appointed in 2003 on the basis of an Employment Notice issued by the Respondents themselves in the pay scale of Rs. 5000-8000/-, and who worked for over 12 years without any objection, can have their pay scale reduced to Rs. 4000-6000/- 17 Item No.25(C-V) O.A. No.2041/2015 and be subjected to recovery of excess payments from 14.05.2010.
22. The first contention of the respondents rests on the decision of this Tribunal in Raghubir Singh Bisht. It is true that in that case, the rollback of OT Technicians' pay scale from Rs. 5000-8000/- to Rs. 4000-6000/- was upheld. However, a critical factual distinction must be drawn: in Raghubir Singh Bisht, the employees had been placed in the higher pay scale by administrative action under the 5th CPC recommendations, which required the qualification of B.Sc. with Diploma in the relevant subject, which they did not possess. The rollback in that case was with effect from 01.01.1996 - a period predating the present applicants' appointments.
Digitally signed by RACHNA KAPOOR RACHNA KAPOOR
23. In the present case, the applicants were expressly recruited in 2003 through an Employment Notice that specifically stated the pay scale to be Rs. 5000-8000/-. This is fundamentally different from employees who were unilaterally upgraded in pay by administrative error. The applicants had a contractual and statutory right to the pay scale in which they were appointed. 18 Item No.25(C-V) O.A. No.2041/2015 The respondents have not specifically demonstrated, on the pleadings available, that the present applicants lack the stated qualifications, nor has any show cause notice been issued to them in that regard. This distinction is of critical significance. B. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE
24. The Applicants' submission that the impugned order was passed in total violation of principles of natural justice is well-founded and deserves acceptance. The pleadings clearly reveal that the reduction in pay scale and the consequential direction for recovery were effected without issuing any show cause notice to the applicants, and without granting any opportunity of hearing.
25. An order adversely affecting the civil and service rights of an employee - particularly one involving Digitally signed by RACHNA KAPOOR RACHNA KAPOOR reduction of pay scale and recovery of excess payments
- necessarily attracts the mandatory principles of audi alteram partem. Such action directly impacts the livelihood and financial security of the employee and cannot be taken mechanically by administrative fiat without hearing the persons affected. 19 Item No.25(C-V) O.A. No.2041/2015
26. The respondents' own DOPT guidelines, issued in the context of the law declared by the Supreme Court, direct that before any recovery is effected, a show cause notice must be issued conveying reasons clearly so as to enable the employee to represent against the same. The impugned order dated 12.05.2015 was passed in complete defiance of this basic procedural fairness. The impugned order is therefore liable to be set aside on this ground alone.
C. THE LAW ON RECOVERY - DISCUSSION OF CASE LAWS
27. Since the respondents seek recovery of alleged excess payments and have already initiated deductions, it is necessary to examine the settled law on this point in detail.
28. Col. B.J. Akkara (Retd.) vs. Government of Digitally signed by RACHNA KAPOOR RACHNA KAPOOR India, (2006) 11 SCC 709 (relied upon by applicants):
This judgment succinctly captures the equitable principle governing recovery of excess payments. The Hon'ble Supreme Court held in paragraph 27 as follows:
"27. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled: (a) The excess 20 Item No.25(C-V) O.A. No.2041/2015 payment was not made on account of any misrepresentation or fraud on the part of the employee; (b) The excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on a wrong interpretation of rule/order. Such relief, restraining 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 is implemented. A government servant, particularly one in the lower rungs 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 is granted in that behalf."
The present Applicants, being OT Technicians (Group 'C' employees), are within the class of employees who would be gravely prejudiced by recovery of payments bona fide received over many years. There is no allegation whatsoever of any misrepresentation or fraud on their part.
Digitally signed byRACHNA KAPOOR RACHNA KAPOOR
29. Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417 (relied upon by Respondents): The Hon'ble Supreme Court in paragraph 9 of this judgment held that :
"9. We are of the considered view, after going through various judgments cited at the bar, that this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the 21 Item No.25(C-V) O.A. No.2041/2015 recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered."
While the respondents relied on this judgment to contend that recovery is permissible even in the absence of fraud, this submission requires careful examination. The Hon'ble Supreme Court in Chandi Prasad Uniyal (supra) was dealing with teachers wrongly given pay scales for a relatively limited period and who were still in service. More crucially, Chandi Prasad Uniyal was itself considered by the Hon'ble Supreme Court in Rafiq Masih (infra) and was harmonized with the earlier decisions. The law as it now stands has been definitively settled in Rafiq Masih, which is the binding precedent to be applied.
30. State of Punjab & Others vs. Rafiq Masih (White Washer) & Others, (2015) 4 SCC 334 - Civil Digitally signed by RACHNA KAPOOR RACHNA KAPOOR Appeal No. 11527 of 2014 (relied upon by Applicants): This is the binding judgment of the Hon'ble Supreme Court, per Jagdish Singh Khehar, J. (as His Lordship then was), which definitively settled the law on recovery of excess payments from Government employees. Paragraph 8 of the said judgment reads as under:
22
Item No.25(C-V) O.A. No.2041/2015 "8. 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 to 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 from the concerned 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."
The Hon'ble Supreme Court further laid down the five- year rule and the parameters for impermissibility of recovery, as summarized in paragraph 12 of the judgment (as extracted in the DOPT OM dated 02.03.2016):
"12. 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. Be that as it may, based on the decisions referred to hereinabove, Digitally signed by RACHNA KAPOOR RACHNA KAPOOR 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-
III and Class-IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
23Item No.25(C-V) O.A. No.2041/2015
(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, would be iniquitous and arbitrary."
The Supreme Court further added:
"The relief against 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 if recovery is ordered. But, if in a given 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 error 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."
31. Applying the law in Rafiq Masih to the present case: The Applicants are OT Technicians - Group 'C' employees. They have been paid the scale of Rs. 5000- 8000/- from their appointment in 2003. The impugned order dated 12.05.2015, seeking recovery, was issued more than twelve (12) years after their appointment. Digitally signed by RACHNA KAPOOR RACHNA KAPOOR There is no allegation of misrepresentation or fraud on the part of the applicants. The excess payment, if any, has been made for a period far in excess of five years. The applicants fall squarely within proposition (i) [Group 'C' employees] and proposition (iii) [excess payment for more than five years] as summarized in 24 Item No.25(C-V) O.A. No.2041/2015 Rafiq Masih. Recovery is therefore impermissible in law.
32. Union of India vs. S.R. Dhingra, (2008) 2 SCC 229 (relied upon by Respondents): The respondents contend that a mistake does not confer any legal right and erroneous fixation can be corrected. While this is correct in the abstract, it must be noted that the correction of pay scale for the future may be permissible in appropriate cases, but that does not automatically justify recovery of amounts already paid to innocent employees over many years. Moreover, S.R. Dhingra was dealing with erroneous promotion based on wrong interpretation of rules. In the present case, the applicants were not promoted to a higher grade - they were recruited in the very pay scale that the respondents had offered. The propositions in S.R. Digitally signed by RACHNA KAPOOR RACHNA KAPOOR Dhingra do not assist the respondents so far as recovery is concerned, which is squarely governed by the constitutional principles enunciated in Rafiq Masih.
D. THE QUESTION OF RES INTEGRA
33. The respondents urged that in view of the Hon'ble High Court's judgment dated 27.11.2013 in W.P. (C) 25 Item No.25(C-V) O.A. No.2041/2015 No. 4391/2010, the issue is no longer res integra. The Hon'ble High Court held that OT Technicians without B.Sc. + Diploma qualification were not entitled to the pay scale of Rs. 5000-8000/-. However, the Hon'ble High Court itself protected the pay already drawn personally. The impugned order dated 12.05.2015 goes a step further and seeks recovery of amounts paid after 14.05.2010. Even accepting the correctness of the pay scale rollback, the question of recovery - squarely governed by Rafiq Masih - is a distinct and separate issue which survived the Hon'ble High Court's judgment and was not adjudicated upon therein.
34. Moreover, the impugned order dated 12.05.2015 was passed after the Hon'ble High Court's judgment, constituting a fresh cause of action. The applicants are, therefore, entitled to challenge this subsequent Digitally signed by RACHNA KAPOOR RACHNA KAPOOR order before this Tribunal. The plea of res integra fails. E. ABSENCE OF SHOW CAUSE NOTICE
35. We have already noted that the impugned order dated 12.05.2015 was passed without issuing any show cause notice to the applicants. The applicants served the respondents for over twelve years in the pay 26 Item No.25(C-V) O.A. No.2041/2015 scale of Rs. 5000-8000/-. Without any show cause notice, hearing or opportunity to represent, an order was passed (i) reducing their pay scale and (ii) directing recovery of substantial amounts. This is violative of Article 14 of the Constitution of India. The Hon'ble Supreme Court has consistently held that where civil consequences follow from an administrative decision, the principles of natural justice are mandatory. The impugned order is liable to be set aside on this ground alone.
36. In view of the foregoing discussion, we reach the following findings and conclusions:
(i) The applicants were appointed as OT Technicians in 2003 pursuant to an Employment Notice specifically offering the post in the pay scale of Rs. 5000-8000/-, as recommended by the 5th Central Pay Commission. Digitally signed by
RACHNA KAPOOR RACHNA KAPOOR They served for over 12 years in the said pay scale, continuously and without interruption.
(ii) The impugned order dated 12.05.2015, directing recovery of excess payments made after 14.05.2010, was passed in complete violation of the principles of natural justice, without issuing any show cause notice 27 Item No.25(C-V) O.A. No.2041/2015 and without granting any opportunity of hearing to the applicants.
(iii) Even assuming that the applicants were not entitled to the pay scale of Rs. 5000-8000/- in view of the law declared by the Hon'ble High Court of Delhi, the respondents are not entitled to seek recovery of excess amounts paid to these Group 'C' employees for a period far in excess of five years, by virtue of the law laid down by the Hon'ble Supreme Court in State of Punjab & Others vs. Rafiq Masih (White Washer) & Others, (2015) 4 SCC 334. The applicants fall squarely within propositions (i) and (iii) of the summary of impermissible recoveries laid down in that judgment.
(iv) The reliance placed by the respondents on Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417, and Union of India vs. S.R. Dhingra, (2008) 2 SCC 229, is misplaced in the facts and Digitally signed by RACHNA KAPOOR RACHNA KAPOOR circumstances of the present case, for the reasons discussed above.
(v) The equitable principle enunciated by the Hon'ble Supreme Court in Col. B.J. Akkara (Retd.) vs. Government of India, (2006) 11 SCC 709, to the effect that relief against recovery is granted not because of any right in the employees but in equity to 28 Item No.25(C-V) O.A. No.2041/2015 relieve them from undue hardship caused by recovery of payments bona fide received over a long period, equally supports the applicants' case. ORDER
37. In light of the above, the Original Application is allowed in part in the following terms:
(a) The impugned order dated 12.05.2015 passed by the Respondents, in so far as it directs recovery of excess payments alleged to have been paid to the applicants after 14.05.2010, is hereby quashed and set aside. The respondents shall not make recovery of any alleged excess payments from the applicants in respect of the pay scale of Rs. 5000-8000/-, whether past, present or future.
(b) If any amounts have already been recovered from the applicants pursuant to the impugned order, the Digitally signed by RACHNA KAPOOR RACHNA KAPOOR same shall be refunded to the respective Applicants within a period of three months from the date of this order, without interest.
(c) The question of correctness of the pay scale rollback from Rs. 5000-8000/- to Rs. 4000-6000/-
with prospective effect, having been dealt with by the Hon'ble High Court in W.P. (C) No. 4391/2010, is not 29 Item No.25(C-V) O.A. No.2041/2015 disturbed by this order. However, personal pay protection as directed by the Hon'ble High Court shall be extended to the Applicants, to the extent not already given.
(d) All pending MAs, if any, shall stand disposed of. There shall be no order as to costs.
(Rajveer Singh Verma) (Dr.Chhabilendra Roul)
Member (J) Member (A)
'rk'
Digitally signed by
RACHNA KAPOOR
RACHNA KAPOOR