Sangeeta Kanwal vs Bharat Sanchar Nigam Limited

Permod Kohli, J.—Petitioner is aggrieved of recovery of an amount of Rs. 95,661/- which is sought to be recovered from the emoluments

of the petitioner on account of excess payment made to her by the respondent department.

In brief the case of the parties is that the husband of the petitioner namely, Sh Romesh Kumar Kanwal who was serving as Telecom District

Manager in the Department of Telecommunications died in harness in the year 1993. Petitioner applied for compassionate appointment and she

being a Law Graduate was appointed as Legal Assistant against the post created in the pay scale of Rs. 1640-2900 by one post of Jr. Telecom

Officer in the same pay scale vide order dated 16-6-1994 by the Ministry of Tele-communication, Government of India. Pay Scale of Jr Telecom

Officer were revised vide 5th Pay Commission from Rs. 1640-2900 to Rs. 6500-10,500 w.e.f. January, 1996. It appears that the pay scale of the

petitioner also came to be revised and she was allowed the pay scale of Rs. 6500-10,500/- right from the revision of the pay scale till 12-11-

1999. Petitioner received communication dated 10-8-1999 whereby she was informed that she has been wrongly given the grade of Jr. Telecom

officer. She was further informed that the petitioner has been placed in the grade of Rs. 5500-9000. This communication was challenged by the

petitioner before the High Court claiming that she has been rightly placed in the pay scale of Rs. 6500-10,500 and appointed to the same pay scale

on the basis of equal pay for equal work as the Legal Assistant in the Ministry of Law and Justice and Company Affairs were in the same pay scale

which were revised from the earlier pay scale of Rs. 1640-2900 to which the petitioner was initially appointed. Writ petition filed by the petitioner

came to be dismissed. Petitioner remained un-successful upto Supreme Court when her SLP was also dismissed. After the dismissal of the writ

petition, the respondents have initiated the proceedings for recovery of Rs. 95,661/- on account of excess drawal of pay in the grade of Rs. 6500-

10,500/-. In the meanwhile on constitution of Bharat Sanchar Nigam Ltd. the services of the petitioner came to be transferred to said Corporation.

Petitioner claims that she is entitled to enhancement of grade w.e.f. 1-10-2000 and the present, grade in the Corporation for the post held by the

petitioner is Rs. 7500-12,500 and on account of this revision in the pay scale and she being in the service of B.S.N.L an amount of Rs. 52,367/-

became payable to the petitioner for which a statement has been prepared. It is however, alleged that this amount is sought to be adjusted against

the alleged recovery of Rs. 95, 661/- and that the recovery Bill dated 17-9-2002 and I.D.A Pay arrears bill has been prepared. It is further stated

that an amount of Rs. 2000/- has been deducted from the salary Bill for the month of April, 2003.

In sum and substance the grievance of the petitioner is that though she was entitled to the pay scale of Rs. 6500-10,500 which was the pay

scale meant for the Jr Telecom Officer which post was re-designated as Legal Assistant and the pay scale of Jr. Telecom Officer and the Legal

Assistant before the 5th Pay Commission was the same i.e. Rs. 1640-2900 and after the revision the petitioner was also entitled to the grade of

Rs. 6500-10, 500/- and the department having fixed the salary of the petitioner in the revised pay. scale, the same cannot be recovered or

adjusted against the amount payable to the petitioner.

In addition to the afore-said dispute raised in the present petition, the petitioner is also claiming promotion to the post of Assistant Engineer

(Law)/ Legal officer as according to the petitioner on the basis of her qualification she is entitled to be promoted to the post of Assistant Engineer

(Law) which post is now held by a non-law graduate.

In the reply filed by the respondents, the stand taken is that at the time of initial appointment of the petitioner as Legal Assistant the pay scale of

Legal Assistant and Jr. Telecom Officer was the same i.e. 1640-2900. However, after the revision of pay grade by 5th Pay Commission the grade

of Jr. Telecom Officer was revised to Rs. 6500-10,500, whereas that of the Legal Assistant to Rs. 5500-9000. Petitioner was never appointed as

Jr. Telecom Officer as claimed by her and therefore, she has been wrongly paid the excess amount of Rs. 95,661/-. Petitioner filed a writ petition

claiming the pay scale of Jr. Telecom officer, but failed upto the Supreme Court. The excess amount was sought to be recovered from the

petitioner, who submitted an application for suspension of the recovery to enable her to represent to the CGMT J&K Circle for waiver of the

recovery. Ultimately she further made an application dated 14-1-2002 for recovering the amount in instalments of Rs. 1000/- per month.

However, keeping in view the heavy outstanding the amount was sought to be recovered in instalments of Rs. 2000/- per month by the GMT,

Jammu.

Regarding the promotion of the petitioner, it is stated that she will be considered for promotion in accordance with the promotion policy of the

Corporation after completion of 12 years of service under ACP Scheme.

In so far as the claim of the petitioner for promotion is concerned, she is entitled to be considered for promotion in accordance with the policy,

scheme and norms as may be prevalent in BSNL as presently the petitioner is admittedly an employee of the Corporation. Respondents have

undertaken to consider her for promotion in accordance with the rules invogue.

The main contention of the petitioner is the quashment of the recovery proceedings against her. According to her no recovery can be effected

from her as the respondents had placed her in the higher pay scale and which amount was paid to her. Admittedly, there is nothing in the reply of

the respondents that it is the petitioner, who mis-represented the respondents for release of the higher pay scale or he has committed any act of

mis-conduct to draw that amount.

Mr. Khajuria has relied upon the judgment of the Apex Court in case P.V. Papanna and others Vs. K. Padmanabhaiah, . In this case an excess

amount was paid to Class IV employees under the interim orders of the Supreme Court. At the time of passing of the final decision same was

found to be un-justified. However, a direction was issued by the Apex Court that the excess amount paid to the employees be not recovered. This

judgment does not lay down a proposition of law. The Apex Court has exercised the jurisdiction under Article 142 of the Constitution of India to

issue a direction restraining the State from recovering an excess amount paid under the interim orders of the Court. This judgment does not come

to the rescue of the petitioner.

Reliance is also placed on another judgment of the Apex Court reported in case Bhagwan Shukla v. Union of India and Ors. 1994 (4) SLR

In this case the emoluments of the petitioner therein were fixed at Rs. 190/- PM in the year 1970 which was reduced to Rs. 181/- in the year

1991 retrospectively w.e.f. 18-12-1970.. While considering the question of right of the employee where he had enjoyed the benefit of fixation of

the pay though wrongly for a period of 20 years, the Apex Court held that the reduction in emoluments retrospectively visit the civil consequences

and the order has been passed in violation of the principles of natural justice. State was accordingly restrained from making any recovery. The facts

of this case are also different and has no application to the present case. In the instant case admittedly an order of reduction in pay was challenged

by the petitioner and she failed upto the Supreme Court and the order of reduction of pay was up-held.

The short question is whether the respondents are entitled to recover the excess amount paid to the petitioner under law. None of the

judgments referred to above laid down any abstract proposition of law that where the excess amount is made even without representation of the

petitioner same cannot be recovered. Apart from the legal position, the petitioner herself represented to the respondents to recover excess amount

in installments of Rs. 1000/- per month. This is not only an admission on the part of the petitioner of the liability but she is also estopped from

pleading that the amount is not recoverable.

In view of the above, I am unable to grant any relief to the petitioner. However, keeping in view the fact that the wrong fixation was not

because of any mis-representation on the part of the petitioner, I direct the recovery of the excess amount to be made from the petitioner by

adjusting the amount payable to her as noticed above and the balance amount be recovered in instalments of Rs. 1000/- PM.

Petition is disposed of.