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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5262 OF 2008

SUSHIL KUMAR SINGHAL   …APPELLANT

        VERSUS

PRAMUKH SACHIV IRRIGATION  DEPARTMENT & OTHERS   ....RESPONDENTS

J U D G M E N T

ANIL R. DAVE, J.

1. Being  aggrieved  by  the  judgment  delivered  in  Writ  

Petition No.95 of 2005 by the High Court of Uttarakhand  

at Nainital on 14th November, 2006, this appeal has been  

filed  by  the  appellant-employee,  from  whom  excess  

amount  of  salary,  which  had  been  paid  by  mistake  is  

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sought to be recovered and whose pension is also sought  

to be reduced.

2. The  appellant  retired  on  31st December,  2003  as  an  

Assistant  Engineer  and  on  the  basis  of  his  last  salary  

drawn,  his  pension  had  been  fixed.  At  the  time  of  his  

retirement, his salary was Rs.11,625/- and on the basis of  

the said salary, his pension had been fixed.

3. After a few years of his retirement, it was found by the  

respondent-employer that salary of the appellant had been  

wrongly fixed in 1986 and therefore, his salary had been  

re-fixed by an order dated 23.03.2005.  On the  basis of  

the re-fixed salary a sum of Rs.99,522/- was sought to be  

recovered and for that purpose a notice had been issued to  

the appellant on 23.04.2005.  In pursuance of the incorrect  

fixation of his salary in 1986,  his salary at the time of his  

retirement  had  also  been  reduced  from  Rs.11625/-  to  

Rs.10,975/-  and  therefore,  his  pension  had  also  been  

reduced.

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4. The  aforestated  action  of  the  respondent-employer  had  

been challenged by the appellant by filing the aforestated  

Writ Petition before the High Court.  The High Court was  

pleased  to  reject  the  petition  as  it  had  come  to  the  

conclusion that the pay of the appellant had been wrongly  

fixed  and  therefore,  the  impugned  action  of  the  

respondent-employer with regard to recovery of the excess  

salary paid and reduction in the pension was justified.

5. It had been submitted by the learned counsel appearing for  

the  appellant  employee  that  the  impugned  judgment  

delivered by the High Court is incorrect for the reason that  

the High Court did not consider the G.O. dated 16.1.2007  

bearing  No.S-3-35/10-07-101(6)/2005  which  reads  as  

under:

“[1]. Pension  Fixation  Authority  shall  

inquire  into  emoluments  of  only  last  10  

months  prior  to  retirement  and  for  that  

examine the records of only two years prior  

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thereto  i.e.  only  the  records  of  34 months  

would be examined for the purpose of grant  

of  pension,  as  has  been  provided  in  the  

aforesaid  Government  order  dated  

13.12.1977.

[2]. Pension Allowing Authority  shall  not  

be  entitled  to  correct  the  mistake  in  

determining  the  pay  during  service  tenure  

beyond  the  period  prescribed  in  para  (1)  

above.  Mistakes in pay determination of an  

employee  can  be  effectively  removed  

through the process of general inquiry/audit  

only when the employee is still in service.”

6. It  had  been  submitted  by  the  learned  counsel  that  the  

appellant  had  retired  on  31st December,  2003  and  

somewhere in the month of March, 2005 it was revealed  

that a mistake had been committed while fixing pay of the  

appellant in 1986.  It had been further submitted that by  

virtue of the aforestated G.O. dated 16th  January, 2007,  

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the mistake committed in pay fixation beyond period of 34  

months prior to retirement of the appellant could not have  

been taken into account by the respondent employer and  

therefore, neither any recovery could have been sought by  

the respondents nor there could have been any reduction in  

the pension on the basis of reduction of salary.

7. Upon perusal of the aforestated G.O. and the submission  

made by the learned counsel appearing for the appellant, it  

is  not  in  dispute  that  the  appellant  had  retired  on  31st  

December,  2003  and  at  the  time  of  his  retirement  his  

salary was Rs.11,625/- and on the basis of the said salary  

his pension had been fixed as Rs.9000/-.  Admittedly, if  

any  mistake  had  been  committed  in  pay  fixation,  the  

mistake had been committed in 1986, i.e.  much prior to  

the retirement of the appellant and therefore, by virtue of  

the aforestated G.O. dated 16th January, 2007, neither any  

salary paid by mistake to the appellant could have been  

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recovered nor pension of the appellant  could have been  

reduced.

8. The  learned  counsel  appearing  for  the  respondent  

employer  could  not  deny  any  of  the  facts  stated  

hereinabove.

9. In the aforestated circumstances, the High Court was not  

correct  while  permitting  the  respondent  authorities  to  

reduce the pension payable to the appellant by not setting  

aside  the order whereby excess amount of salary paid to  

the appellant was sought to be recovered.

10. For  the  aforestated  reasons,  we  quash  the  impugned  

judgment  delivered  by  the  High  Court  and  direct  the  

respondents  not  to  recover  any amount  of  salary  which  

had  been  paid  to  the  appellant  in  pursuance  of  some  

mistake committed in pay fixation in 1986.  The amount  

of pension shall also not be reduced and the appellant shall  

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be  paid  pension  as  fixed  earlier  at  the  time  of   his  

retirement.  It is pertinent to note that the Government had  

framed such a policy under its  G.O. dated 16th January,  

2007 and therefore,  the respondent authorities could not  

have  taken  a  different  view  in  the  matter  of  re-fixing  

pension of the appellant.

11. The  submission  made  on  behalf  of  the  learned  counsel  

appearing for the respondent that the appellant would be  

getting more amount than what he was entitled to cannot  

be  accepted  in  view  of  the  policy  laid  down  by  the  

Government  in  G.O.  dated  16th January,  2007.   If  the  

Government feels that mistakes are committed very often,  

it would be open to the Government to change its policy  

but as far as the G.O. dated 16th January, 2007 is in force,  

the respondent-employer could not have passed any order  

for recovery of the excess salary paid to the appellant or  

for reducing pension of the appellant.

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12. For the reasons recorded hereinabove, we quash and set  

aside the impugned judgment as well as the order  dated  

23.03.2005 whereby salary of the appellant was re-fixed  

and order dated 23.04.2005 whereby recovery of excess  

amount of Rs.99,522/- was ordered to be recovered from  

the appellant.   The appellant shall be paid pension which  

had  been  determined  at  the  time  of  his  retirement,  i.e.  

immediately  after  31st December,  2003.   The  appeal  is  

disposed of as allowed with no order as to costs.   

                                              .…..……………............J.                                                               (ANIL R. DAVE)

                                          .

……..............................J.                                                               (VIKRAMAJIT SEN)

New Delhi April 17,  2014.  

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