Sitab Singh vs Union Of India And Ors

K.N. Shrivastava, Member (A)

This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:

"(i) Restrain the respondents from taking further action pursuant to the impugned order like reducing applicant's pension."

The factual matrix of the case, as noticed from the records, is as under:

2.1 The applicant joined Government service as a Clerk on 30.11.1964. He secured his promotion as Auditor/Accountant in August, 1978. Thereafter, he was further promoted in January, 1986 as Junior Accounts Officer and then to the post of Assistant Accounts Officer w.e.f. 22.09.1990. He was promoted as Pay & Accounts Officer w.e.f. 03.03.2004 by order dated 05.04.2004 (Annexure B). He retired from service on 31.07.2006 on attaining the age of superannuation.

2.2 It is stated that as per the service rules, the applicant had become eligible for promotion to the post of Senior Accounts Officer w.e.f. 03.03.2006. The DPC process was set in motion in May, 2006 itself but before the DPC meeting could take place, the applicant retired from service on 31.07.2006. The DPC, however, met in August/September, 2006 and on the basis of its recommendations, the respondents promoted the applicant as Senior Accounts officer w.e.f. 01.04.2006 vide Annexure C order dated 19.10.2006. The applicant was accordingly granted pensionary benefits in terms of the pay of Senior Accounts officer.

The applicant is aggrieved of impugned Annexure A order dated 01.10.2015, which would read as under:

"Sub: Cancellation of retrospective promotion granted to Shri Sitab Singh to the post of Senior Accounts Officer in the scale of pay of Rs.8000-13500 (pre-revised).

In pursuance to Controller General of Accounts letter No.A-32014/2/2006/MF.CGA(A)/Gr.B/527 dated 17th September, 2015, the undersigned is directed to convey the Ministry of Finance, Deptt. of Expenditure in consultation with Department of Personnel & Training has vide I.D. No.A-12034/8//2014-AD.I(Pt.) dated 11 August 2015 has communicated the retrospective promotion of Shri Sitab Singh as Sr. AO w.e.f. 01.04.2006, who retired on 31.07.2006 i.e. prior to convening the DPC and issuance of promotion orders on 16.10.2006, has been withdrawn.

The promotion order of Shri Sitab Singh, Sr. AO (Retd.) to the post of Sr. Accounts Officer issued vide this office Order No.11013/Pr.AO/Admn/PAO/I/2006-07/1634-1638 dated 2ndNove, 2006 is hereby cancelled."

2.4 The applicant has assailed the Annexure A impugned order in this OA and has prayed for the relief as indicated in para-1 supra.

In support of the relief claimed, the applicant has pleaded the following important grounds:

3.1 The promotion granted to the applicant vide Annexure C order dated 19.10.2006 has been sought to be withdrawn vide impugned Annexure A order after 09 years and hence principle of estoppel will work against the impugned order.

3.2 No notice was given to the applicant before withdrawal of the promotion and thus principles of natural justice have not been followed.

3.3 The administrative delay in issuance of the impugned order is entirely attributable to the respondents and the applicant cannot be made to suffer on account of it. The applicant has not indulged in any act of misrepresentation for securing promotion to the post of Senior Accounts Officer and getting commensurate retiral-benefits.

The respondents in their reply have stated that the impugned Annexure A order dated 01.10.2015 was issued after due consultation with the concerned Ministries/Departments of the Government, namely Department of Personnel and Training and Department of Expenditure. In terms of the extant rules/orders, an officer who has retired from service prior to the convening of the DPC, cannot be granted promotion even if the DPC has made a recommendation to that effect. Placing reliance on the judgment of the Hon'ble Apex Court in Chandi Prasad Uniyal & Ors. V. State of Uttarakhand and Ors., [(2012) 8 SCC 417], it is submitted by the respondents that any excess payment made on account of wrong fixation, grant of scale without due approvals, promotions without due approvals, promotions without following the procedure etc., corrective action can be taken.

On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties on 20.08.2010. Arguments of Shri S.S. Tiwari, learned counsel for the applicant and that of Shri S.N. Verma, learned counsel for the respondents were heard.

We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. Admittedly, the applicant retired from the post of Pay & Accounts Officer on 31.07.2006 on attaining the age of superannuation. The DPC meeting, however, took place in August/September, 2006 for considering the eligible officers for promotion from the post of Pay & Accounts Officer to the post of Senior Accounts Officer. Since the applicant was eligible for such promotion, the DPC made a recommendation to that effect. However, in view of the fact that the applicant had retired from service on 31.07.2006, i.e., prior to convening the DPC meeting, he could not have been granted promotion to the post of Senior Accounts officer as per the rules. Thus, there was a mistake committed by the respondents in issuing the Annexure B promotion order dated 05.04.2004, granting him promotion to the post of Senior Accounts Officer and accordingly fixing his retiral benefits, including pension. This mistake was pointed out by the Audit. The respondents, however, took considerable amount of time in rectifying the mistake and finally issued the impugned Annexure A order, whereby the promotion of the applicant to the post of Senior Accounts Officer has been withdrawn and his pensionary benefits have been fixed retrospectively in the pay scale of Pay & Accounts Officer. This has resulted into recovery.

On the issue of wrong fixation of pay and scope of its correction subsequently, the Hon'ble Apex Court in U.T. Chandigarh & Ors. v. Gurcharan Singh & Anr., [Civil Appeal No.9873 of 2013 (Arising out of SLP (C) No.17881 of 2008), decided on 1st November, 2013] has held as under:

"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 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."

Further, the Hon'ble Apex Court in State of Punjab & Ors. etc. v. Rafiq Masih (White Washer), [(2015) 4 SCC 334] has held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:

"(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

Relying on the ratio of law laid down by the Hon'ble Apex Court in Gurcharan Singh and Rafiq Masih (supra), we are of the view that the respondents are fully justified in withdrawing the promotion of the applicant to the post of Senior Accounts officers and accordingly re-fixing his pensionary benefits. However, they are not justified in ordering recovery in terms of the ratio laid down by the Hon'ble Apex Court in Rafiq Masih (supra) since the applicant had not indulged in any act of misrepresentation in securing promotion/pensionary benefits.

In the conspectus, we dispose of the OA in the following terms:

i) No recovery shall be made by the respondents from the applicant pursuant to Annexure A order dated 01.10.2015 towards any excess payment made;

ii) The respondents are at liberty to re-fix the pension of the applicant in accordance with Annexure A order dated 01.10.2015 but with prospective effect.

There shall be no order as to costs.