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4.3. Thereafter, the DoE vide another O.M. dated 29.08.2008, modified the O.M. dated 03.10.1997 and extended the option of availing either the car facility or TA at the rate of ₹ 7,000/- per month, to the officers drawing GP of ₹ 10,000/- and ₹ 12,000/- and also those in HAG + Scale, who are entitled to the use of official car in terms of O.M. dated 28.01.1994.

5. Now adverting to the facts of this case, the Respondent herein, with the approval of Appointments Committee of the Cabinet ('ACC') on 29.06.2013, was promoted to the post of Scientist 'G' in the scale of ₹ 37,000 - 67,000 + 10,000 Grade Pay ('GP') with effect from 01.07.2013 under the Modified Flexible Complementing Scheme ('MFCS'). The Respondent herein on promotion started drawing the monthly TA of ₹ 7,000/- + Dearness Allowance i.e., w.e.f. 01.07.2013. 5.1. Since, the post of Scientist 'G' falls under the pre-revised scale of PB- 4 with ₹ 10,000/- GP, the Petitioner, in view of O.M. dated 29.08.2008, extended the facility of availing either staff car or TA at the rate of ₹ 7,000/- + Dearness Allowance per month to the Respondent herein w.e.f. July, 2013. 5.2. However, the Audit team of the office of Principal Director of Audit, Scientific Departments, New Delhi, vide audit memo No. 39 dated 12.08.2016 raised an issue of over payment of TA to the Scientists/officers of the level of Joint Secretary; having GP of ₹ 10,000/- and above in the Department and advised recovery of overpaid amount from the non-entitled officers.

5.7. As stated earlier, the said benefit of availing TA was extended to the Scientists 'G' only with effect from 01.09.2017 and therefore, the excess payment made prior to the said period was recoverable. The Petitioner however, in view of the fact that the Scientists 'G' are promoted under the Modified Flexible Complementing Scheme with approval of ACC and are the divisional heads holding higher responsibilities, decided to refer the matter to DoE with a request to grant the TA to Scientists G from the date of their promotion. However, the said proposal for waiving off recovery of the overpaid amount towards the TA was expressly turned down by DoE. 5.8. It is pertinent to note here that Supreme Court in its landmark judgement of State of Punjab and Ors. v. Rafiq Masih (White Washer) & Ors., (2015) 4 SCC 334, passed on 18.12.2014, and more specifically at paragraph '18' therein, after considering all its previous decisions summarized few situations, wherein recoveries by the employer would be impermissible in law.

(i) The Respondent is a Senior Administrative Grade ('SAG') officer who was promoted to the post of Scientist 'G' under the Modified Flexible Complementing Scheme ('MFCS') with effect from 01.07.2013. The Respondent is an officer of the level of the Joint Secretary.