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.
18. Again, the judgment of the Supreme Court in Union of India vs. S.R.Dhingra [(2008) 2 SCC 229] relied upon by the learned counsel for the petitioner has no application. That was a case about the fixation of cut-off date for introducing pension pay under a retirement scheme and when the cut off date was arbitrarily fixed, the said clause depriving the right of getting pension, was held to be unreasonable. On the facts of the present case, when there is no such scale available on the Government side, there is no justification for the petitioner to demand the same as a matter of right. As stated above, in any event, the impugned Government order has nothing to do with the prospective or retrospective nature of the benefit conferred on the group of individuals, and it is only a matter of solatium given to the petitioner as a special case, whose pre-revised scale of pay does not find a place in the pay scales of the Government servants as per V Pay Commission the benefits of which were sought to be given to the petitioner and other common cadre officers of the second respondent sugar mills.
The learned Advocate General relied upon the
decision of Union of India Vs. S. R. Dhingra &
Ors.(supra) which in our opinion cannot be of any help to
the petitioners herein since the Hon'ble Supreme Court in
the aforesaid judgment specifically held :-