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Judgment
ORAL ORDER
In the instant OA the applicant is seeking the following relief:
“(i)To call for the records relating to the impugned order bearing No. F.18(1547)/94/KVS/P&I/1128, dated 11.03.2019 issued by the 2nd respondent herein namely the Additional Commissioner (Admn), Kendriya Vidyalaya Sangathan (HQ), 18, Institutional Area, Shahid Jeet singh Marg, New Delhi 110 016, set aside the same as non-est in the eye of law and thus render justice;
(ii)To issue suitable directions to the 1st respondent herein namely the Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shahid Jeet Singh Marg, New Delhi 110 016, to re-fix the pension of the Applicant at Rs.14,960/-per month with usual dearness Relief and other admissible allowances from 1.1.2017 and continue to pay the same every month to the Applicant and thus render justice;
(iii)To issue suitable directions to the 1st respondent herein namely the Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shahid Jeet Singh Marg, New Delhi 110 016, to pay the difference amount from 1.1.2017 at Rs.1469 x 28 = Rs.41132/- plus usual Dearness Relief and other admissible allowances within a time-frame that may be fixed by this Hon'ble tribunal and thus render justice;
(iv)To issue suitable directions to the 1st respondent herein namely the Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shahid Jeet Singh Marg, New Delhi 110 016, not to effect any recovery from the pension of the Applicant and thus render justice;
(v)To issue suitable directions to the 1st respondent herein namely the Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shahid Jeet Singh Marg, New Delhi 110 016, to pay interst @ 18% per annum from 1.11.2016 being the reduced pension paid to the Applicant on the above said difference amount within a time-frame that may be fixed by this Hon'ble Tribunal and thus render justice;
(vi)To award exemplary costs payable by the Respondents to the Applicant herein and thus render justice. To grant such other relief which may be prayed for and/ or which this Tribunal may deem fit, proper and just to be granted in the facts and circumstances of the case and thus render justice.”
Brief facts of the case, as submitted by the applicant are as follows: The Applicant is a retired Headmaster/Principal of Kendriya Vidyalaya Sangathan, WAP–Yelahanka, Bengaluru, who retired from service on 31.03.1994 after rendering 29 years, 7 months and 21 days of service with the Respondent-Kendriya Vidyalaya Sangathan. Prior to joining the Kendriya Vidyalaya Sangathan, he served as a School Assistant in Mani Higher Secondary School, Coimbatore, from 26.09.1956 to 06.08.1963. The Applicant’s grievance was that his service rendered in the said school was not counted for pensionary benefits. He relied upon G.O. 3D No.31 dated 02.07.1993 issued by the Government of Tamil Nadu, the order of this Tribunal in OA No.899 of 2001, and the order of the Hon’ble High Court in W.P. No.46241 of 2002. However, the Respondents consistently rejected his request on the ground that service rendered in a private school aided by the Government of Tamil Nadu could not be counted for pension. Aggrieved, the Applicant filed OA Nos.1018 of 2009 and 1429 of 2010. By order dated 12.09.2026, the Tribunal directed the Respondents to count the Applicant’s service in Mani Higher Secondary School, Coimbatore, a fully aided school under the Government of Tamil Nadu, for pensionary benefits in terms of G.O. dated 02.07.1993, and to refix his pension and disburse the arrears within three months. The Respondents challenged the said order before the Hon’ble High Court in W.P. Nos.19450 and 19451 of 2013, which were dismissed. Despite the orders of the Tribunal and the Hon’ble High Court, the Respondents failed to implement the same, compelling the Applicant to file CA No.159 of 2013 in OA No.1429 of 2010. The said CA was closed upon production of the Office Order dated 27.02.2015, whereby the Respondents acknowledged and counted the Applicant’s service in Mani Higher Secondary School for pensionary benefits. Consequently, the Applicant had a total service of 37 years, 6 months and 20 days, which was restricted to 33 years as he had the requisite qualifying service for maximum pension. Thereafter, by order dated 15.05.2015, the Deputy Commissioner (Finance), Kendriya Vidyalaya Sangathan, fixed the Applicant’s pension at Rs.14,960/- per month with effect from 01.04.2014. However, by order dated 31.05.2017, the pension was reduced to Rs.13,481/- per month. Challenging the reduction, the Applicant filed OA No.786 of 2017, which was disposed of on 07.06.2017 with a direction to submit a comprehensive representation, and to the Respondents to pass a reasoned and speaking order in accordance with law and the applicable rules. Meanwhile, the Applicant filed OA No.1555 of 2017 challenging the recovery of Rs.36,000/- from his pension for the period from 30.06.2017 to 30.08.2017. By order dated 17.12.2018, the Tribunal directed the Applicant to make a representation, particularly in view of the Respondents’ failure to indicate whether the proposed recovery had been considered in terms of the DoPT OM dated 02.03.2016, issued pursuant to the Hon’ble Supreme Court’s order dated 18.12.2014 in the White Washer case. The Respondents were directed to consider the representation and pass a reasoned and speaking order. CA No.124 of 2017 filed in OA No.786 of 2017 was also closed on the basis of the speaking order dated 17.11.2017 passed by the Respondents. While the Applicant expected his pension to be restored to Rs.14,960/- per month, the 2nd Respondent, by order dated 11.03.2019, reiterated that the pension of Rs.13,491/- per month with effect from 01.01.2006 was correctly fixed. Aggrieved by the said order and the continued denial of the pensionary benefits claimed by him, the Applicant has filed the present OA seeking the aforementioned reliefs.
When the matter was taken up for hearing, learned counsel for the applicant contended that the impugned order dated 11.03.2019 issued by the 2nd Respondent is highly arbitrary, illegal, unjust, and unfair. The said order constitutes a vindictive and colourable exercise of power, executed at the whims and fancies of the concerned officials, and directly violates the provisions of Article 21 of the Constitution of India. He also contends that the impugned order runs contrary to the Respondents' own prior orders as well as the established orders of this Tribunal. Furthermore, it is explicitly submitted that there was no misrepresentation or fraud on the part of the Applicant regarding the re-fixation of his pension. Therefore, the impugned order dated 11.03.2019 is non-est in the eyes of the law and is liable to be set aside.
The learned counsel for the Applicant submits that the Applicant is a senior citizen aged approximately 86 years and is in the evening of his life. Any recovery initiated pursuant to the impugned order dated 11.03.2019, especially without prior notice would cause undue hardship. The Applicant strongly relies on the landmark judgment of the Hon’ble Supreme Court in State of Punjab & Ors. v. Rafiq Masih (White Washer), which strictly prohibits recoveries from retired employees under such circumstances. It is further submitted that pension is the Applicant's sole source of income. A major portion of this income is spent on medical expenses due to his advanced age. The prolonged delay by the Respondents in issuing orders for the revision of his pension with effect from 01.01.2006 has severely impacted his financial position and well-being.
The Applicant states that he is similarly situated to the individuals covered under the relevant Official Memorandums (OMs) governing pension revision. In the interest of justice, equity, and fair play, the Applicant prays that this Tribunal may be pleased to direct the 1st Respondent to issue orders revising the Applicant's pension with effect from 01.01.2006 and disburse the consequential arrears within a time-bound period fixed by this Tribunal.
The learned counsel for the Respondents, strongly relying upon the reply statement filed on record, submits that the fixation of the Applicant’s pension is legally valid, accurate, and in strict compliance with governing directives. It is submitted that the Ministry of Human Resource Development (MHRD), vide Clarification Letter No. 3-44/2016-UT-2 dated 18.10.2016, explicitly clarified the pension mechanism for KVS Principals who retired prior to 01.01.2006. As per the said mandate, the pension and family pension must be fixed strictly in accordance with the amounts specified in Columns 9 and 10 of the Annexure to the Department of Pension & Pensioners' Welfare (DoP&PW) Official Memorandum (OM) dated 28.01.2013. This corresponds to the pre-01.01.2006 scale of pay—specifically Rs. 12,600/- and Rs. 7,560/- respectively, a criteria uniformly applicable across all matching employee categories.
The learned counsel further submit that the pension of the Applicant (an Ex-Principal) was reviewed de novo in thorough alignment with DoP&PW OM No. 38/37/08-P&PW(A) dated 06.04.2016, alongside the MHRD clarification dated 18.10.2016. Following this comprehensive re-examination, the Applicant's revised pension was legally fixed at Rs. 13,491/- per month, effective from 01.01.2006. It is submitted that this lawful revision was duly executed via Pension Payment Order (PPO) No. F.18(1547)1448/94/KVS/P&I dated 31.10.2016, grounded firmly in the DoP&PW OM dated 22.01.2013. The fixation is entirely in order, free from error, and requires no judicial interference. With respect to the specific issue of recovery raised by the Applicant, the learned counsel for the Respondents has no further submission.
Heard the submissions made by the learned counsel for the parties, perused the pleadings and the materials available on record.
The issue that arises for our consideration in the OA is whether the alleged recovery advice including re- fixation of pension issued to the applicant, especially after the retirement of the applicant, is legally sustainable or not.
At the time admission of this OA on 29.03.2019, this Tribunal observed that the grievance of the applicant that his request was not considered in terms of the OM dated 02.03.2016 of the DOPT, in respect of recovery of excess payment alone, the following interim order was passed:
“Accordingly, it is directed that no recovery shall be made from the pension of the applicant in terms of the impugned order dated 11.03.2019 or any order issued before such date till the next date of hearing.”
The Applicant, having already superannuated on 31.03.1994, was not in a position to withstand or mitigate such an abrupt financial burden. Moreover, the impugned recovery is contrary to the law laid down by the Hon’ble Supreme Court in Thomas Daniel vs. State of Kerala & Others (Civil Appeal No. 7115 of 2010, judgment dated 02.05.2022). In the said decision, the Apex Court, after considering the settled principles governing recovery, held that recovery from retired employees, or those due to retire within one year from the date of the recovery order, is impermissible. It was further observed that attempting recovery after a prolonged lapse of time is unjustified. The relevant extract of the judgment is reproduced below:
“9.This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.
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13.In State of Punjab Vs Rafiq Masih (White Washer) (2015) 4 SCC 334)wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
“8.As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
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18.It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(I)Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii)Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from the 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.”
In view of the foregoing discussion, the present case squarely falls within the categories identified by the Hon’ble Supreme Court wherein recovery of excess payment is impermissible. It is also brought to our notice that, prior to effecting the recovery, no notice was issued to the applicant, thereby denying him an opportunity to put forth his case.
As regards the revision of the applicant’s pension, we find that the competent authorities have examined the matter afresh in terms of the Government of India, Department of Pension & Pensioners’ Welfare, O.M. No. 38/37/08-P&PW(A) dated 06.04.2016, and the clarification issued by the Ministry of Human Resource Development vide letter No. 3-44/2016-UT-2 dated 18.10.2016. Pursuant thereto, the applicant’s pension was revised to Rs.13,491/- per month with effect from 01.01.2006, vide PPO No. F.18(1547)1448/94/KVS/P&I dated 31.10.2016, in accordance with the Government of India, Department of Pension & Pensioners’ Welfare, O.M. dated 22.01.2013. We find the said revision to be in order and do not find any infirmity in the impugned order dated 11.03.2019 insofar as it relates to the revision of pension.
In the aforesaid circumstances, and having regard to the judgment of the Hon’ble Apex Court cited supra, the impugned order dated 11.03.2019 is hereby quashed and set aside to the extent it directs recovery from the applicant. The interim order passed by this Tribunal is accordingly made absolute insofar as the recovery is concerned. The respondents are directed to refund to the applicant the amount, if any, already recovered pursuant to the impugned order, without interest, within a period of three months from the date of receipt of a copy of this order. However, insofar as the revision of pension is concerned, the impugned order dated 11.03.2019 is upheld, there being no infirmity warranting interference by this Tribunal.
In the result, the OA is disposed of on the terms indicated above. There shall be no order as to costs.