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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7292 OF  2013 (Arising out of S.L.P. (C) No. 14007 of 2012)

Union of India and Ors. ... Appellants

Versus

Shri Bhanwar Lal Mundan          ...Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted,

2. This appeal by special leave is directed against the  

judgment and order  dated 9.5.2011 passed by the  

High Court of Judicature of Rajasthan at Jodhpur in  

D.B.  Civil  Writ  Petition No. 11838 of 2010 whereby  

the  Division  Bench  has  concurred  with  the  view

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expressed  by  the  Central  Administrative  Tribunal,  

Jodhpur Bench at Jodhpur (for short “the tribunal”) in  

O.A.  No.  109  of  2008  wherein  the  tribunal  had  

quashed  the  order  passed  by  the  competent  

authority re-fixing his pay prior to his retirement and  

directing  recovery  of  the  amount  paid  from  

3.12.1994 to 31.12.2007.

3. The  undisputed  facts  are  that  the  respondent  was  

appointed as a Gangman on JU Division on 15.1.1966  

as a substitute and was regularized in the year 1972.  

He  was  promoted  to  the  post  of  Store  Keeper  in  

October, 1977 and thereafter, he went on deputation  

to Construction Organization in December, 1977.  He  

was given the post of PW Mistry in the Construction  

Organization with effect  from 10.4.1981 in the pay  

scale of Rs.380-560.  On completion of the training  

he  came  in  the  grade  of  Rs.1400-2300  by  the  

Construction  Wing  of  the  railways.   Subsequently,  

when there was a regular selection for the post of JE-I  

in his parent department, he was called to participate  

in  the  selection  which  he  did  and  being  declared  

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successful, he joined in the said promotional post on  

3.12.1994.   While  giving  him  posting  in  the  year  

1994, his pay was fixed keeping in view the benefit  

he  had  availed  while  he  was  working  in  the  

Construction  Organization.   When  the  date  of  

superannuation approached and pension was going  

to  be  determined,  it  was  noticed  by  the  accounts  

department that he had been given excess pay due  

to erroneous fixation of pay scale and, accordingly, a  

communication was sent on 22.10.2007 refixing his  

pay and directing recovery of the excess sum.

4. Being  dissatisfied  with  the  said  action,  the  

respondent  approached  the  tribunal  which,  placing  

reliance on the authorities in Inder Pal Yadav and  

others  v.  Union  of  India  and  others1,  Badri  

Prasad and others v. Union of India and others2  

and  Sayed Abdul Qadir and others  v.  State of  

Bihar and others3, quashed the order of refixation  

and directed the benefit of pension be extended to  

him  on  the  basis  of  pay  he  was  actually  drawing  1 (2005) 11 SCC 301 2 (2005) 11 SCC 304 3 (2009) 3 SCC 475

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before  the  retirement  within  three  months  failing  

which the employer would be liable to pay interest at  

the rate of 15% per annum.

5. Grieved by the aforesaid  order,  the Union of  India  

and  its  functionaries  approached  the  High  Court,  

which, by the impugned judgment, came to hold as  

follows: -

“In  our  considered  opinion,  no  flaw  can  be  noticed in the reasoning arid the conclusion of  the  Tribunal  while  allowing  the  Original  Application.  In the first place, it is based on the  Supreme  Court  decision  quoted  in  the  order  itself.  Secondly, there is no distinction brought  about  the  facts  of  the  case  that  is  subject  matter of the case in hand the one before the  Supreme  Court.   Thirdly  the  impugned  directions  for  fixation  of  the  pension  on  the  basis  of  last  drawn pay cannot  be said to  be  either  illegal  or  arbitrary  or  against  any  provision of Act or/and rule made thereunder.”

6. On  the  basis  of  aforesaid  analysis  the  writ  court  

dismissed the petition.  

7. Criticising the orders passed by the tribunal as well  

as by the High Court Mr. S. P. Singh, learned senior  

counsel for the appellants has submitted that when  

the  respondent  was  sent  on  deputation  and  came  

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back to the parent department accepting promotion  

he was to be treated at par with other promotees and  

could  not  have  been  entitled  to  draw  higher  pay  

scale  solely  on  the  ground  that  he  was  getting  a  

better pay while he was on deputation.  It is urged by  

him when the respondent had no legal right to get a  

particular  pay  scale  and  it  was  wrongly  fixed  and  

could  only  be  noticed  prior  to  his  retirement  it  

became obligatory on the part of the authorities to  

refix the pay and accordingly determine the pension  

and hence,  the  action  of  the  authorities  could  not  

have  been  found  fault  with.   It  is  his  further  

submission  that  neither  the  tribunal  nor  the  High  

Court  has  addressed  the  issue  pertaining  to  the  

entitlement  of  the  respondent  but  directed  the  

pension to be paid on the basis of the pay drawn by  

him before the retirement.   Learned counsel would  

further contend that as far as recovery is concerned,  

the  petitioners  have  no  intention  to  recover  the  

same.  

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8. Ms.  Aishwarya  Bhati,  learned  counsel  for  the  

respondent  relying  on  the  authorities  which  have  

been  pressed  into  service  by  the  tribunal  and  

accepted by the High Court urged that pay protection  

was given when the respondent came back to the  

parent cadre on promotion and, therefore, the said  

protection  could  not  have  been  withdrawn  on  the  

foundation that  there was an erroneous fixation of  

pay.  It is argued by her that when a long time has  

lapsed from the date of repatriation on promotion to  

the  parent  cadre,  steps  for  refixation  immediately  

prior to superannuation of the respondent is neither  

permissible  in  law  nor  is  it  equitable.   Learned  

counsel has canvassed that in any case there cannot  

be  recovery  of  the  same  as  there  had  been  no  

misrepresentation by the respondent to avail the said  

benefit.  

9. From  the  aforesaid  rivalised  submissions  two  

questions,  namely,  (i)  whether  the  pay  of  the  

respondent  was  erroneously  fixed  and  (ii)  whether  

there could have been a direction for recovery of the  

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amount alleged to have been excessibly paid to the  

respondent, emerge for consideration.     

10. It  is  perceptible  from  the  orders  passed  by  the  

tribunal as well as by the High Court that they have  

set aside the order dated 22.10.2007 placing reliance  

on three authorities. In  Inder Pal Yadav  (supra), a  

two-Judge  Bench  dealt  with  regularization  and  

permanent  absorption.   It  also  dealt  with  the  

entitlement of the right of the employees to continue  

in the concerned project or to resist reversion back to  

the cadre or to enjoy a higher promotion merely on  

the basis of locally provisional promotion granted to  

them in the project in which they had been employed  

at a particular point of time.  The Court has observed  

that if the stand of the petitioners therein was to be  

accepted, it would operate inequitably so far as the  

regular employees in the open line department are  

concerned.   Thereafter,  the  learned  Judges  

proceeded to state as follows: -

“......while the petitioners cannot be granted the  reliefs as prayed for in the writ petition, namely,  that they should not be reverted to a lower post  or that they should be treated as having been  

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promoted by reason of  their  promotion in  the  projects,  nevertheless,  we wish to protect  the  petitioners against some of the anomalies which  may arise, if the petitioners are directed to join  their parent cadre or other project, in future. It  cannot be lost sight of that the petitioners have  passed trade tests to achieve the promotional  level  in  a  particular  project.  Therefore,  if  the  petitioners are posted back to the same project  they shall be entitled to the same pay as their  contemporaries unless the posts held by such  contemporary  employees  at  the  time  of  such  reposting  of  the  petitioners  is  based  on  selection.”

11. The learned counsel for the respondent would place  

reliance on the last part of above quoted paragraph  

but the same, we are inclined to think, does not in  

any  way  buttress  the  submission  put  forth  by  the  

learned counsel for the respondent.

12. In  Badri Prasad (supra) the issue was whether an  

employee  substantially  holding  Group  ‘D’  post  can  

claim regular promotional post, i.e., Group ‘C’.  The  

Court  in  that  context  observed  that  the  practice  

adopted  by  the  Railways  of  taking  work  from  

employees in Group ‘D’ post on higher Group ‘C’ post  

for unduly long period legitimately raises hopes and  

claims  for  higher  posts  by  those  working  in  such  

higher  posts.  As  the  Railways  is  utilising  for  long  

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periods the services of employees in Group ‘D’ post  

for  higher  post  in  Group  ‘C’  carrying  higher  

responsibilities,  benefit  of  pay  protection,  age  

relaxation and counting of their service on the higher  

post towards requisite minimum prescribed period of  

service, if any, for promotion to the higher post must  

be  granted  to  them  as  their  legitimate  claim.  But  

they  cannot be granted relief  of  regularising their  

services on the post of Storeman/Clerk merely on the  

basis  of  their  ad  hoc  promotion  from open  line  to  

higher post in the project or construction side.  After  

so stating the Court opined thus:-  

“Without disturbing, therefore, orders of the  Tribunal and the High Court the appellants  are held entitled to the following additional  reliefs. The pay last drawn by them in Group  ‘C’ post shall be protected even after their  repatriation to Group ‘D’ post in their parent  department.  They  shall  be  considered  in  their  turn for  promotion to Group ‘C’  post.  The period of service spent by them on ad  hoc basis  in  Group ‘C’  post  shall  be given  due weightage and counted towards length  of  requisite  service,  if  any,  prescribed  for  higher post in Group ‘C’. If there is any bar  of age that shall  be relaxed in the case of  the appellants.”

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13. Reading the decision in entirety we are persuaded to  

think that the directions were issued in the special  

fact- situation and, in any case, it does not pertain to  

a situation where someone gets repatriated on being  

selected  to  a  higher  post  and  on  that  foundation  

would claim pay protection and consequent fixation  

of pay in the selection post.  

14. In Syed Abdul Quadir (supra) the Court was dealing  

with  fixation of pay under FR 22-C and as there was  

a wrong fixation, the question of recovery arose.  The  

Court, relying on earlier decisions, opined thus:-

“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.   See  Sahib  Ram v.  State  of  Haryana4,  Shyam  Babu  Verma  v.  

4 1995 Supp (1) SCC 18

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Union of India5, Union of India v. M.  Bhaskar6, V. Gangaram v. Director7,  Col.  V.J.  Akkara  (Retd.)  v.  Govt  of  India8,  Purshottam Lal Das v. State  of  Bihar9,  Punjab  National  Bank  v.  Manjeet  Singh10 and  Bihar  SEB  v.  Bijay Bhadur11.”

15. From the aforesaid decision it is clear as day that it  

has been relied upon to by the tribunal as well as by  

the High Court for the purpose that there should be  

no recovery.  Mr. Singh has conceded that steps shall  

not be taken for any recovery, and we think that the  

concession has been justly given.  Be it noted, the  

aforesaid  decision  does  not  assist  the  respond  to  

pyramid the submission of pay fixation and grant of  

pension.

16. In Union of India and another v. P.N. Natarajan  

and  others12 the  Court  was  dealing  with  a  fact-

situation where there was withdrawal of pensionary  

benefits.  Adverting to the concept of natural justice  

and, relying on the decisions in  State of Orissa  v.  

5 (1994) 2 SCC 521 6 (1996) 4 SCC 416 7 (1997) 6 SCC 139 8 (2006) 11 SCC 709 9 (2006) 11 SCC 492 10 (2006) 8 SCC 647 11 (2000) 10 SCC 99 12 (2010) 12 SCC 405

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Dr.  Binapani  Dei13 and  Sayeedur  Rehman  v.  

State of Bihar14, the Court ruled thus: -

“16. It  is  not  in  dispute  that  before  directing  revision  of  the  pension,  etc.  payable  to  the  private  respondents,  the  Central  Government  did  not  give  them  action-oriented  notice  and  opportunity  of  showing  cause  against  the  proposed action. Therefore, it must be held that  the direction given by the Central Government  to  revise  the  retiral  benefits  including  the  pension payable to the respondents was nullity.

17. Dehors  the  above  conclusion,  we  are  convinced  that  the  action  taken  by  the  appellants  to  revise  and  reduce  the  retiral  benefits  payable  to  the  respondents  was  ex  facie  arbitrary,  unreasonable  and  unjustified  and  the  learned  Single  Judge  did  not  commit  any  error  by  declaring  that  the  Central  Government  did  not  have  the  jurisdiction  to  unilaterally alter/change the option exercised by  the  writ  petitioners  under  Section  12-A(4)(b)  read with Section 12-A(4-C).”

17. The aforesaid conclusion was arrived at as the Union  

of India as such could not have invoked the terms of  

the  memorandum  of  settlement  to  justify  the  

directives  and  retiral  benefits  payable  to  the  

respondents.  The aforesaid decision has to be read  

in the context of its facts and not to be construed as  

a precedent for the proposition that if  the pay has  

13 AIR 1967 SC 1269 14 (1973) 3 SCC 333

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been erroneously fixed that cannot be revised even if  

the facts are absolutely clear and undisputed.  

18. We  may  note  with  profit  that  Mr.  Singh,  learned  

senior  counsel,  has  submitted  that  the  respondent  

was holding an ex-cadre post and it was the duty of  

the  employer  to  ask  him  to  participate  in  the  

selection  in  the  promotional  post,  in  the  parent  

cadre.   The  respondent,  being  conscious  of  his  

position  and  to  have  the  status,  appeared  in  the  

selection process, got selected and joined the parent  

cadre.  The learned senior counsel would submit that  

under a mistaken pression his pay was fixed in the  

promotional  post  in  the  parent  cadre  as  a  

consequence  of  which  he  got  more  than  the  

promotees  in  his  batch and,  hence,  the  same was  

required to be rectified and the employer was within  

its right to do so.    

19. It is not in dispute that the respondent was sent on  

deputation  and  his  lien  in  the  parent  department  

continued and hence, it was obligatory on the part of  

the authorities in the parent department to intimate  

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him when the selection process for the higher post  

was undertaken as he had already come within the  

zone of consideration.  In this context, we may refer  

with profit to the authority in D.M. Bharati v. L.M.  

Sud and others15 wherein  the  Court  was  dealing  

with  a  case  whether  the  employee  had  got  a  

promotion in the department to which he was sent on  

deputation.  While considering the effect of the said  

promotion  after  repatriation  the  Court  observed  

thus:-  

“that the appellant’s promotion as junior  draftsman  and  proposed  promotion  as  Surveyor-cum-Draftsman  in  the  Town  Planning Establishment cannot confer any  rights  on  him in  his  parent  department.  When  he  left  the  Municipal  Corporation  and  joined  the  Town  Planning  Establishment he was a tracer and he can  go back to the Estate Department or any  other  department  of  the  Municipal  Corporation only to his original post i.e. as  tracer, subject to the modification that, if  in  the  meantime  he  had  qualified  for  promotion to a  higher  post,  that  benefit  cannot be denied to him. ”

Thus, the repatriation has to be to the original post  

and benefit of promotion in the department to which an  

employee is deputed is of no consequence subject to his  

15 1991 Supp (2) SCC 162

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entitlement  of  status  otherwise  available  in  the  parent  

department.   

20. In  Puranjit  Singh  v.  Union  Territory  of  

Chandigarh16 it has been held that when a deputationist  

is repatriated he cannot claim promotions in the parent  

department on the basis on officiation in a higher post in  

the borrower organization.

21.  In  State of Punjab and others v. Inder Singh  

and others17, the learned Judges elaborately adverted to  

the concept of deputation and the right of a deputationist  

and in that context opined thus:-  

“The  concept  of  “deputation”  is  well  understood  in  service  law  and  has  a  recognised meaning. “Deputation” has a  different connotation in service law and  the  dictionary  meaning  of  the  word  “deputation”  is  of  no  help.  In  simple  words  “deputation”  means  service  outside the cadre or outside the parent  department.  Deputation  is  deputing  or  transferring  an  employee  to  a  post  outside  his  cadre,  that  is  to  say,  to  another  department  on  a  temporary  basis.  After  the  expiry  period  of  deputation  the  employee  has  to  come  back to his parent department to occupy  the  same  position  unless  in  the  meanwhile he has earned promotion in  

16 1994 Supp (3) SCC 471 17 (1997) 8 SCC 372

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his  parent  department  as  per  the  Recruitment Rules.”  

22.  In  the  case  at  hand,  as  stated  earlier,  the  

respondent was getting higher  scale of  pay in  the post  

while he was holding a particular post as a deputationist.  

After his repatriation to the parent cadre on selection to a  

higher post he was given higher scale of pay as it  was  

fixed keeping in view the pay scale drawn by him while he  

was working in the ex-cadre post.  Such fixation of pay,  

needless  to  say,  was  erroneous  and,  therefore,  the  

authorities were within their domain to rectify the same.  

Thus  analysed,  the  irresistible  conclusion  is  that  the  

tribunal  and  the  High  Court  have  fallen  into  error  by  

opining that the respondent would be entitled to get the  

pension on the basis of the pay drawn by him before his  

retirement.  

23. Consequently, the appeal is allowed in part and the  

orders passed by the tribunal as well as by the High Court  

are set aside directing fixation of pension on the base of  

pay drawn by the respondent.  However, as conceded to  

by Mr. Singh, there shall be no recovery from the excess  

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amount paid to the respondent.  There shall be no order  

as to costs.

.................................J. [Anil R. Dave]

.................................J. [Dipak Misra]  

New Delhi August 27, 2013.  

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