Hans Raj vs Union of India

O.P. Sharma, J.—The petitioner first joined Indian Army in January, 1957. He was sent on reserve category in the year 1967. In April,

1968 he joined Border Security Force as a Constable from where the superannuated as Head Constable on 30th June, 1993. His pension case

was forwarded to AAD BSF, New Delhi by respondent No. 3 vide letter dated 22.6.1993. The latter vide letter dated 7.7.1993 directed

refixation of petitioner's pay as a reemployed ex serviceman. These facts are not disputed by the respondents. His pay was accordingly refixed and

an amount of Rs. 40,307/ was found overpaid to him from January, 1986 to 30.6.1993, the date he superannuated. Consequently, the

respondents proceeded to recover this amount by adjusting it against the gratuity and leave encashment.

This action of the respondents is challenged by the petitioners interalia on the ground that it is arbitrary and illegal because he was never

intimated during 25 years of his service that any amount was due from him, on account of excess payment of salary.

The stand of the respondents is that overpayment of salary was noticed only by the Pay Accounts Division BSF, New Delhi who vide letter

dated 7.7.1993 raised an objection that pay of the petitioner be refixed treating him as a reemployed exarmy personnel. His pay was accordingly

got refixed from Frontier Head Quarters (Fin. Sec) New Delhi, vide letter dated 10.9.93. It was on account of this refixation that the petitioner

was found to have been overpaid salary to the tune of Rs. 40,307/.

The only question involved for determination is whether the respondents are empowered to recover the amount by refixation of the salary after

the petitioner was superannuated. The contention of Mr. Gupta is that it is not permissible after such a long time whereas according to Mr. Sharma

it is permitted under Rule 71 of C.C.S. Pension Rules. Let me first examine the Rule position. Rule 71 is an enabling provision, it reads as under:

Recovery and adjustment of Government dues

(a) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement.

(2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the

Government servant shall be adjusted against the amount of the retirement gratuity becoming payable.

(3) The expression `Government dues' includes :

(a) dues pertaining to Government accommodation including arrears of licence fee, if any:

(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance,

overpayment of pay and allowance or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1991).

So overpayment of pay and allowances is included (within) any goverment dues which can be recovered under this Rule. But this Rule is subject

to Rule 73 which reads as under:

Adjustment and recovery of dues other than dues pertaining to Government accommodation.

(1) For the dues other than the dues pertaining to occupation of Government accommodation as referred to in clause (b) of subrule (3) or Rule 71,

the Head of Office shall take steps to assess the dues two years before the date on which a Government servant is due to retire on superannuation;

or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.

(2) The assessment of Government dues referred to in subrule (1) shall be completed by the Head of office eight months prior to the date of the

retirement of the Government servant.

(3) The dues as assessed under subrule (2) including those dues which come to notice subsequently and which remain outstanding till the date of

retirement of the Government servant, shall be adjusted against the amount of retirement gratuity becoming payable to the Government servant on

his retirement.

There is thus a statutory obligation on the Head Office to assess the government dues two years prior to the date of retirement but in no case

later than eight months before his superannuation. Admittedly, the Head Office did not find overpayment of pay in this case. It was discovered by

the Pay Account Division while processing the pension case. This was also by taking a view that petitioner not a direct recruit but a reemployed

exarmy man. This is the clear stand of the respondents pleaded in para 5 of the counter, the release portion of which is extracted below:

The petitioner reported 107 BN NSF on 20.6.1993. Accordingly the pension papers were prepared and forwarded to PAD BSF New Delhi

vide letter No. ADM/Pen/107 BN/HR/93/5826 dated 22th June 1993. After getting the service verified from IAP South Bengal Frontier. PAD

BSF New Delhi vide their DO letter No. 29/37866(107) PDII/BSF/93 dated 7th July, 1993 raised an objection that his pay be got refixed from

SAD (Fin) New Delhi vide being reemployed ExArmy (man). Accordingly his pay has been got refixed from FHQ (Fin Sec) New Delhi vide their

O/No. 33/77/9394/Fin/BSF dated 10th Sept. 1993. The pension case of the individual was passed by PA vide their pension payment order No.

240559322868 dated 21.7.93 but payment of DCR and leave encashment was withheld by PAD for want of duedrawn statement after repay

fixation. With this refixation, due drawn statement was prepared and overpayment of Rs. 40,307/ was calculated against the petitioner.

Assuming that the petitioner's pay was wrongly fixed because he was re employed and not a direct recruit. It follows that the pay of a direct

recruit was higher than that of the reemployed exserviceman. If that be so as it really is, the petitioner should have been given the option either to

accept recruitment/appointment as reemployed exarmy man or refuse it. This option was not given to him as the dispute has been raised for the first

time after his retirement. This is evident from letter dated 6.9.1994 received by him from the respondents which reads as follows:

Sub: RELEASE OF DCRG, 131 DAYS EARNED LEAVE AND ARMY DISCHARGE CERTIFICATE.

Ref: Your application dated 26.8.94.

In this connection it is to inform you that you were reemployed in BSF and your pay fixation was not done in the BSF till your retirement. As

worked out after pay fixation a huge amount was to be recovered from you by PAD and the recovery has been adjusted from your DCRG and

leave encashment. Hence no payment on account of DCRG and leave encashment is due to you.

It is admitted that he has been paid salary as direct recruit from January, 1986 right upto June, 1993 when he retired. Such an action is not

permissible as he had no opportunity to accept the appointment on less pay. May be that given the option he would refuse employment and try

somewhere else. So the action of the respondent is arbitrary and without any legal backing.

This apart the object of Rule 73 is that all government dues should be assessed well in time before a person proceeds on retirement. Failure to

do so within the stipulated period fixed by the Rule makes recovery of the same from gratuity illegal and without authority of law because there is

no other enabling provision to do so in the manner it is being done. Since order of recovery is not warranted under Rule 73, CCS Pension Rules,

the order impugned is liable to be quashed.

Accordingly, this petition is allowed and the letter dated 6.9.1994 is quashed and respondents are directed to release gratuity and other retiral

benefits due to the petitioner within a period of two months failing which these shall be payable with 12% interest from July, 1993.