UNION OF INDIA Vs BHANWAR LAL MUNDAN
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-007292-007292 / 2013
Diary number: 7769 / 2012
Advocates: B. KRISHNA PRASAD Vs
AISHWARYA BHATI
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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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