Mohammed Shafi M.K vs U.T. Of Lakshadweep & Ors.

The applicant, aggrieved by Annexure A-8 communication and consequential pay fixation order and the recovery of a sum of Rs.4,45,477/-from the gratuity payable to him, has approached this Tribunal.

The applicant, while holding the post of Headmaster under the Lakshadweep Administration sought voluntary retirement on 30.09.2023. At the time of verifying the records, the Accounts Officer, by Annexure A-8 communication held that the pay fixation on promotion to the post of Assistant Headmaster after awarding Senior Scale SR at Page 9 Vol. II was incorrect. Accordingly, it was directed that his pay shall be revised with effect from 10.07.2005 and subsequent pay fixations of 6^th CPC/7^th CPC may also be revised with proper record in SR and attestation. It was further directed that excess amount, if any, may be recovered from the retirement gratuity. Consequently, Annexure A-9 Office Order dated 04.11.2023 was issued, by which, it was held that the applicant had received a sum of Rs.4,45,477/- in excess and recovered it.

Challenging Annexures A-8 and A-9, the applicant has approached the Tribunal. The relief sought in the OA is for a direction to declare that Annexure A-8 is null and void and consequently to set aside Annexure A-9 pay fixation. The relief in the nature of a direction to the respondents to release a sum of Rs. 4,45,457/- was also sought.

Respondents appeared and filed reply statement, wherein recovery was justified. It was contended that the pay fixation to the post of Assistant Headmaster, after awarding Senior Scale was bad. Accordingly, the applicant's pay was revised and fixed with effect from 10.07.2005 and the excess amount of Rs. 4,45,477/- was recovered from his retirement benefits. Accordingly, the applicant is not entitled to any relief, it was contended.

Learned Counsel for the applicant contended that he is entitled to the benefit of Annexure A-12 O.M issued by the DoPT consequent to the decision of the Hon'ble Supreme Court in State of Punjab and others v Rafiq Masih [Civil Appeal No. 11527/2014]. Learned Counsel contended that clause (ii) and (iii) of paragraph 4 of Annexure A-12 will apply to the facts of the case.

Vehemently opposing the contention, the learned Standing Counsel for the Lakshadweep Administration contended that the applicant was in the Senior Scale prior to his promotion as Assistant Headmaster, He was, thereafter, promoted as Assistant Headmaster and there was a consequential pay fixation. This pay fixation, on promotion to the post of Assistant Headmaster after availing Senior Scale was found to be incorrect. That being the legal position, the contention of the applicant should fail, it was contended. Learned Counsel also contended that in the light of the decision of the Hon'ble Supreme Court in Chandi Prasad Uniyal and Others v State of Uttarakhand and Others [AIR (2012) SC 2951], reliance on Annexure A-12 was was of no consequence.

Answering this, learned Counsel for the applicant contended that the disputed pay fixation was in the year 2005. The applicant enjoyed the benefit for a period of 18 years. In the interregnum, the audit department as well as the CAG's audit had verified the records and approved it. It was in that background the law laid down in Rafiq Masih case followed in Annexure A-12. Hence, the learned Counsel contended that the applicant is entitled for the benefit of pargaraph 4(ii) and (iii) of Annexure A-12. Clause (ii) of paragraph 4 refers to the recovery from retired employees or employees who are due to retire within one year, of the order of recovery.

Learned Standing Counsel for the Lakshadweep Administration contended that, that para 4(ii) will not apply to the facts of this case. It was pointed out that the applicant had availed voluntary retirement two years prior to the actual date of superannuation. The Hon'ble Supreme Court in Rafiq Masih's case and consequently the DoPT in Annexure A-12, has consciously used the word 'retired employees'. Otherwise, according to the Counsel, any employee, being aware of the fact that there is a mistake in the pay fixation may seek voluntary retirement and attempt to get over the benefit of pay fixation.

There is substance in the contention of the learned Counsel for the respondents. The term has used is 'retired employees' and cannot be extended to the case of a person who avails volunatary retirement prior to his actual date of superannuation. However, the clause (iii) will come to play in the case at hand. Definitely, the amount sought to be recovered exceeds a period of five years before the date of voluntary retirement and actual date of superannuation.

There is yet another reason, as to why the claim of applicant is to be upheld, the applicant virtually retired on 30.09.2023. Annexure A-8 was issued thereafter. Pay fixation consequent to it was much subsequent to the date of volunatary retirement. He was also not issued with any notice prior to passing the order causing substantial financial implication. On that ground alone, Annexure A-9 has to go. I am not inclined to quash Annexure A-8, being an internal communication. However, Annexure A-9 to the extent of re-fixing the salary with effect from 2005 and the consequential recovery are held to be bad. Accordingly, Annexure A-9 is quashed. Respondents are directed to release the withheld sum of Rs. 4,45,457/-, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of the order, failing which, it will carry 8% interest till payment.

The OA is allowed as above. No costs.