Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  9873   OF 2013 (Arising out of SLP(C) No.17881 of 2008)

U.T. CHANDIGARH & ORS.   …APPELLANTS

        VERSUS

GURCHARAN SINGH & ANR.           ...RESPONDENTS

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being  aggrieved  by  the  Judgment  delivered  in  Civil  Writ  Petition  

No.7006-CAT of 2003 dated 20th March, 2008 by the High Court of Punjab  

and Haryana at Chandigarh, this appeal has been filed by the employer –  

Union Territory of Chandigarh and others.

3. The facts  giving rise  to  the  present  litigation  in  a  nut-shell  are  as  

under:

The respondent was appointed as a Clerk by the appellant Chandigarh  

Transport  Undertaking  on  the  quota  reserved  for  ex-servicemen.   The  

1

Page 2

respondent had rendered his services to the Indian Army as a Combatant  

Clerk upto 31st January, 1990, till the date when he was discharged from the  

Indian Army.  

Upon  his  appointment  as  a  Clerk  under  an  office  order  dated  2nd  

September,  1992,  his  pay  had  been  fixed  and  he  was  paid  his  salary  

accordingly.  Only when he retired in 1997, it was brought to the notice of  

the employer, on getting an audit query, that his salary had been wrongly  

fixed under the order dated 2nd September, 1992.  The mistake committed in  

pay fixation had been rectified by an order dated 13th October, 1998.

4. Being  aggrieved  by the  re-fixation  of  his  pay,  the  respondent  had  

made several representations but as no change was effected by the appellant-

employer in the pay so re-fixed, the respondent had approached the Central  

Administrative Tribunal (hereinafter referred to as ‘ the Tribunal’) by filing  

Original Application No.975/CH/2000.  The said OA had been dismissed by  

the Tribunal by an order dated 4th January, 2002.  Being aggrieved by the  

order  rejecting  the  aforestated  O.A.,  the  respondent-employee  had  

approached the High Court by filing the aforestated petition which has been  

allowed by an order dated 20th March, 2008 and being aggrieved by the said  

order and judgment, this appeal has been filed by the employer.

2

Page 3

5. The learned counsel for the appellant had explained the circumstances  

in which the appellant was constrained to re-fix pay of the respondent so as  

to rectify the mistake committed while passing the pay fixation order dated  

2nd September, 1992.  The learned counsel had taken us through the relevant  

regulations with regard to pay fixation of re-employed pensioners and had  

taken us through the provisions of the Central Civil Services (Fixation of  

pay of Re-employed Pensioners) Orders, 1986 (hereinafter referred to as ‘the  

Orders’) under which pay of the respondent ought to have been fixed.      

6. The learned counsel for the appellant had submitted that there were  

several different notifications and orders in relation to the pay fixation of re-

employed pensioners,  including ex-servicemen.   So as to see that  all  the  

orders are available at one place, the orders had been compiled and notified  

in 1986 so that pay of the re-employed pensioners can be fixed only upon  

looking at the provisions of the compilation of the Orders instead of looking  

at several different orders or notifications which had been issued from time  

to  time.   Thus,  according  to  the  learned  counsel,  a  comprehensive  

compilation of all the relevant orders, which had been issued from time to  

time and which were operative in 1996 was duly considered for the purpose  

of re-fixation of the pay of the respondent.   

3

Page 4

7. As the respondent had been given appointment on 15th April, 1990 as  

a  Clerk  on  a  post  reserved  for  the  ex-servicemen,  the  provisions  of  the  

Orders  were  to  be  looked  into  for  the  purpose  of  pay  fixation  of  the  

respondent.   The learned counsel had further submitted that while fixing the  

pay  on  2nd September,  1992,  the  appellant  did  not  look  into  the  certain  

provisions  of  the  Orders  and  an  option  exercised  by  the  respondent  in  

relation to his pay fixation and therefore, incorrect pay had been fixed under  

the order dated 2nd September, 1992.  By virtue of the said pay fixation, the  

respondent  was  given benefit  of  his  past  services  rendered to  the  Indian  

Army and accordingly, he was also given increments which he would have  

got in the Indian Army.  As a result thereof, the respondent’s pay was fixed  

in a higher scale then what he ought to have been allowed.  As a matter of  

fact, as per the provisions of  Order 4 of the Orders, the respondent could not  

have been given benefit of his earlier services in the process of fixing his  

pay.   Order  4  of  the  Orders,  being  relevant  for  the  purpose,  has  been  

reproduced herein-below:

“4. Fixation of pay of re-employed pensions.

a) Re-employed  pensioners  shall  be  allowed to  draw pay  only in prescribed scales of pay for the posts in which  they are re-employed.  No protection of the scales of pay  of  the  post  held  by  them prior  to  retirement  shall  be  given.

4

Page 5

b) i) In all cases where the pension is fully ignored, the  initial  pay  on  re-employment  shall  be  fixed  at  the  minimum of the scales of pay of the re-employed post.

ii) In cases where the entire pension and pensionary  benefits are not ignored for pay fixation, the initial pay  on re-employment shall be fixed at the same stage as the  last  pay drawn before  retirement.   If  there  is  no  such  stage in the re-employed post, the pay shall be fixed at  the stage below that pay.   If  the maximum of the pay  scales in which a pensioner is re-employed is less than  the last pay drawn by him before retirement, his initial  pay shall be fixed at the maximum of the scales of the re- employed post.  Similarly, if the minimum of the scales  of the pay in which a pensioner is re-employed is more  than  the  last  pay  drawn  by  him before  retirement  his  initial pay shall be fixed at the minimum of the scales of  pay of the re-employed post.  However, in all these cases,  non ignorable past of the pension and pension equivalent  of retirement benefits shall be reduced from the pay so  fixed.

c) The re-employed pensioner will be in addition to pay as  fixed under para (b) above shall be permitted to drawn  separately and pension sanctioned to him and to retain  any other form of retirement benefits.

d) In the case of persons retiring before attaining the age of  55 years  and who are re-employed, pension (including  pension  equivalent  of  gratuity  and  other  forms  of  retirement  benefits)  shall  be  ignored  for  initial  pay  fixation to the following extent.

(i) In the case of ex-servicemen who held posts below  commissioned officer rank in the Defence Forces and in  the case of Civilians who held posts below Group (A)  posts  at  the  time  of  their  retirement  benefits  shall  be  ignored.   

5

Page 6

(ii) In  the  case  of  service  officers  belonging  to  the  Defence Forces and Civilian Pensioners who hold Group  ‘A’ posts at the time of their retirement, the first Rs.500/-  of  the  pension  and  pension  equivalent  of  retirement  benefits shall be ignored.”

8. The respondent had been given an option whereby he had opted for  

the minimum scale of pay, which was paid to the Clerk and therefore, his  

pay had been rightly fixed as per the option read with Order 4(a) of the  

Rules.  The learned counsel had further submitted that while allowing the  

writ petition, the High Court had not considered the aforestated facts at all.  

The High Court did  not look into the fact that an option had been given to  

the respondent-employee and his pay had been fixed only as per the option  

exercised by him and as per the provisions of Order 4 of the Orders.  It had,  

therefore, been submitted that the view taken by the Tribunal, confirming re-

fixation of pay was correct and the High Court ought not to have disturbed  

the same by allowing the writ petition.  It was, therefore, submitted that the  

order  dated  20th March,  2009  of  the  High  Court  should  be  quashed  by  

allowing the appeal.   

9. On the other hand, the learned counsel appearing for the respondent-

employee had at  the first  instance submitted that  the respondent  was not  

having  a  copy of  the  option  and  he  was  not  aware  about  the  option  so  

exercised.  He had submitted that the pay had rightly been fixed by the order  

6

Page 7

dated 2nd September,  1992 and it  ought  not  to  have been re-fixed to the  

prejudice of the employee after six years.   He had, therefore, submitted that  

the view taken by the High Court was correct.  He had further submitted that  

perhaps the respondent might have to make some payment to the appellant-

employer as according to the employer, the respondent had been paid more  

salary  on account  of  incorrect  pay fixation.   He had also  submitted  that  

recovering the salary so paid would be unjust and therefore, in any case,  

nothing should be recovered from the respondent-employee.

10. Upon hearing the learned counsel and upon perusal of the option form  

dated 18-7-1990, in our opinion, the High Court was in error while allowing  

the  petition  because  it  is  clearly  revealed  from the  option  form that  the  

respondent had agreed to get his pay fixed as per the minimum of pay in the  

pay-scale of the Clerk, the post to which he had been re-employed.  It is  

pertinent to note that the respondent has been getting regular pension from  

the Indian Army for his past services rendered to the Indian Army.  As per  

the  provisions  of  the  Orders  and  as  per  the  option  exercised  by  the  

respondent, service rendered by the respondent to the Indian Army cannot be  

taken into account for the purposes of his pay fixation as the respondent  

would be getting his pension and there would not be any deduction from his  

pension or his salary on account of the pension received by him from the  

7

Page 8

Indian  Army.   If  nothing  has  been  deducted  from  the  pension  of  the  

respondent upon being re-employed and  as the respondent would continue  

to get his pension and other benefits from the Army for his past services, in  

our opinion, the High Court was not right  while permitting the respondent  

to get his higher pay fixed by taking into account the services rendered by  

the respondent to the Indian Army.  Even from sound common sense, it can  

be seen that for the past service rendered to the Indian Army, the respondent  

is getting pension and other perquisites which a retired or discharged soldier  

is  entitled  to  even  after  being  re-employed.   The  respondent  would,  

therefore, not have any right to get any further advantage in the nature of  

higher salary or a higher pay scale, especially when nothing from his salary  

was being deducted on account of his getting pension or perquisites from the  

earlier employer.

11. In view of the aforestated position, in our opinion, the Tribunal was  

absolutely right in coming to the conclusion that the pay fixation under the  

order dated 13th October, 1998 was correct because a mistake was committed  

in the earlier pay fixation under the order dated 2nd September, 1992.

12. Though a submission had been made on behalf of the respondent that  

no amount should be recovered from the salary paid to the respondent, the  

8

Page 9

said submission can not be accepted because if any amount had been paid  

due to mistake,  the mistake must  be rectified and the amount so paid in  

pursuance of the mistake must be recovered.  It might also happen that the  

employer might have to pay some amount to the respondent as a result of  

some mistake and in such an event, even the appellant might have to pay to  

the respondent.  Be that as it may, upon settlement of the account, whatever  

amount  has  to  be  paid  to  the  respondent  employee  or  to  the  appellant  

employer shall be paid and the account shall be adjusted accordingly.

13. For the aforestated reasons, we are of the view that the High Court  

was not correct in allowing the writ petition.  We quash and set aside the  

order passed by the High Court  so as  to restore the order passed by the  

Tribunal and give effect to the pay fixation order dated 13 th October, 1998.  

The appeal stands disposed of as allowed with no order as to costs.

                                                  ……..…………......................J.  

        (ANIL R. DAVE)

                          …….........................................J           (DIPAK MISRA)

New Delhi November 01 ,  2013.  

9