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Judgment
ORDER
Shri Dharmendra Tiwari, learned counsel for the applicant, and Shri Rajpal Singh, learned counsel for the respondents, are present and heard.
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
“(i)To issue a suitable order or direction of a suitable nature to quash and set-aside the impugned recovery order dated 26.12.2025 (Annexure No-1 of OA).
(ii)To issue a suitable order or direction to the answering respondents to pay the applicants salary as they received till December, 2025, without any deduction or recovery from the pay of the applicants.
(iii)To issue any other and further writ order or directions which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
(iv)That, this Hon’ble Tribunal be pleased to award the cost of this original application in favour of the applicant, throughout.”
The brief facts of the case are that all the applicants are working in the office of respondent no.3. The applicants were promoted to the post of Senior Storekeeper (SSK) in GP 2400/- w.e.f. 01.08.2008. Thereafter, the post of Senior Storekeeper was re-designated as Material Assistant w.e.f. 07.08.2015 carrying the GP-2800/- and, thereafter, some applicants were promoted to the post of Senior Material Assistant (SMA) in GP-4200/- w.e.f. 01.01.2019 and their pay was fixed accordingly. It is submitted by the applicants in the O.A. that after several years, the respondents arbitrarily, illegally and without any opportunity of hearing, re-fixed the pay of the applicants by alteration in the dates of promotion to the post of Senior Material Assistant from 01.01.2019 to 01.01.2021 vide re-fixation order dated 03.05.2024 and vide the impugned order dated 26.12.2025, recovery has been directed from the pay of the applicants.
Submission of learned counsel for the applicants is that without issuing any prior show-cause notice or without granting any opportunity of hearing, issued the impugned recovery order which is going to be affected from the pay of the applicants alleging that the pay fixation done in the year 2008 by granting entry pay against GP 2400/- was not correct. Thus, referring to the law laid down by the Hon’ble Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (2015) 4 SCC 334, learned counsel for the applicant argued that the impugned recovery order is wholly arbitrary, illegal and in complete violation of natural justice as well as contrary to the settled position of law as the same has been carried out after a considerable lapse of time and without attributing any misrepresentation or fraud on the part of the applicants.
Submission of learned counsel for the respondents is that Office Memorandum No 8-23/2017-ΕΙΙΙΑ Govt of India, Min of Finance, Department of Expenditure, New Delhi dt 28 Sep 2018 relates to CCS (Revised) Pay Rules 2008-Sec II of the first schedule entry pay for direct recruits appointed on or after Jan 2006 and pay fixation in the case of persons other than such direct recruits. Section II of part A of the first schedule of CCS (Revise) Pay Rules 2008 provides for entry pay in the revised pay, structure (pay structure effective from 01 Jan 2006 upto 31 Dec 2015) for direct recruits appointed on or after 01 Jan 2006 on a post and says that the pay in respect of persons appointed to the same post before 01 Jan 2006 i.e required to be fixed on 01 Jan 2006 under Rule 7(1) (A) (i) and pay in respect of persons appointed on the same post on promotion on or after 01 Jan 2006 is required to be fixed under Rule 13 thereof. The applicants in question were not appointed directly. Hence the provision to grant entry pay does not arise in case of applicants. The recovery order has been issued to recover the excess amount paid to the applicants.
I have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents record.
In the case of State of Punjab & Ors vs Rafiq Masih (White Washer) [AIR 2015 SUPREME COURT 696] decided on 18.12.2014, the Hon’ble Apex Court has held as under:-
12.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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, 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.
In the present case, the recovery has been made from the applicants against wrong fixation of pay done in the year 2008 by granting entry pay against GP 2400/-. Apparently, there was no misrepresentation or fault on part of the applicants in the wrong fixation of pay. Moreover, no show cause notice has been given to the applicant before refixing his pay and making the recovery which has been initiated at a very later stage in the year 2025 against the pay fixation done with respect to the entry pay in the year 2008. Under these circumstances, the recovery made from the applicants is arbitrary and, thus, de hors the law laid down by the Hon’ble Apex court in the case of Rafiq Masih (supra) as quoted in the preceding paragraph.
Accordingly, the O.A. is allowed. The impugned order dated 26.12.2025 is hereby set aside in respect of applicants. Recovery, if any, made from the applicants pursuant to the impugned order is hereby directed to be refunded to the applicants within a period of three months from the date of receipt of a certified copy of this order. It is further directed that the refixation made in the pay of the applicants without giving any show cause notice shall remain ineffective. First, following the principles of natural justice, the department must issue a written show-cause notice detailing the reasons for the proposed change and the specific calculations behind the erroneous pay fixation giving the applicants a reasonable opportunity to make their reply. After reviewing the employees’/applicants’ reply, the competent authority must pass a reasoned, speaking order either dropping the proposal or confirming the re-fixation.
All associated M.As. also stand disposed of. No order as to costs.