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Judgment
Brief facts of the case are that the applicant applied for the post of Constable in Delhi Police mentioning his caste as "DOM" category as "SC". He qualified the test under "SC" category and was appointed on 22.10.1975. His "SC" category certificate was verified and found to be correct by the authorities. The applicant qualified the Promotion List "A" w.e.f. 29.09.1979 and was promoted to the rank of Head Constable w.e.f. 01.09.1981. The applicant was promoted to the post of Asstt. Sub Inspector on 28.12.1988 and Sub Inspector on 17.09.1997 along with his batchmates.
A disciplinary enquiry was initiated against the applicant on 24.10.2005, on the allegation that though the applicant was aware of his original category to be "SC" yet he knowingly concealed the fact to gain undue benefits in "ST" category in government service. The Disciplinary Authority held the charges against the applicant as proved and awarded him penalty of dismissal from service vide order dated 08.06.2007. The appeal against this order was also rejected by the Appellate Authority vide order dated 01.02.2008.
The applicant challenged the order of dismissal by filing OA-967/2008 before the Tribunal, which was allowed vide order dated 30.06.2009. Para-12 of the said order reads as under:-
"On the basis of the above discussion, the OA succeeds. The impugned orders at Annex A-3 and A-4 are quashed and set aside. The Applicant should be reinstated in service forthwith. He shall be eligible for all consequential benefits, which would accrue to him under the rules, including payment of wages for the period from his dismissal to his reinstatement, increments if due and promotions if due. The consequential benefits would be made available to the Applicant as early as possible but not later than three months from the date of receipt of certified copy of this order. No costs."
The applicant states that the judgment dated 30.06.2009 was implemented by the respondents vide order dated 09.10.2009. He was reinstated with immediate effect and granted annual increments vide order dated 29.10.2009 for the period of dismissal, and his pay was also fixed accordingly.
When the particulars of eligible Sub Inspectors (Executive) were called for admission of their names to Promotion List "F" and Promotion to the rank of Inspector, the respondents in violation of judgment dated 30.06.2009 in OA-967/2008 and to deny the applicant his promotion to the rank of Inspector, issued him a show cause notice dated 19.12.2013. The applicant was asked to show cause as to why he should not be reverted to the rank of Constable on the ground that he had not qualified for Promotion List "A" w.e.f. 29.09.1979, removal of his name from Promotion List "A", and why his seniority should not be refixed from the rank of Head Constable onwards in SC category.
The applicant again filed OA-8/2014 against the show cause notice dated 19.12.2013. The same was disposed of on 02.01.2014 giving liberty to the applicant to submit the representation against the show cause notice dated 19.12.2013 within two weeks. The respondents were directed to decide the same by way of a reasoned and speaking order. Pursuant to judgment dated 02.01.2014, the applicant submitted his representation on 16.01.2014 taking all the legal and factual grounds. The respondents passed a non speaking and cryptic order on 20.02.2014 whereby the orders regarding admission of his name to Promotion List "B" w.e.f. 27.11.1980 and all consequent promotions were cancelled. The applicant's name was admitted to Promotion List "B" w.e.f. 14.05.1982 and he was promoted to the rank of Head Constable w.e.f. 14.05.1982, fixing his seniority below the then Head Constable Mangat Ram, in compliance of the judgment dated 12.09.2007 in OA-88/2007, upheld by Hon'ble High Court of Delhi vide judgment dated 16.01.2008 and upheld by the Hon'ble Supreme Court on 22.01.2010.
The applicant filed another OA-816/2014 before the Tribunal against the show cause notice dated 19.12.2013 and order dated 20.02.2014. The impugned orders were stayed vide order dated 06.03.2014 and the O.A. is still pending final adjudication.
The applicant states that during the pendency of the O.A., the respondents passed orders dated 09.07.2015, 25.08.2015 & 31.08.2015 (Annexure A-1) whereby the applicant was promoted to the rank of Head Constable w.e.f. 14.05.1982, Asstt. Sub Inspector w.e.f. 14.11.1990 and Sub Inspector w.e.f. 07.04.2003. However, none of these orders mentioned recovery of any amount from the applicant.
The applicant was given pay for the post of Sub Inspector till the month of June, 2015 but for the months of July and August, 2015 he was given the pay in the post of Asstt. Sub Inspector. Thereafter, the applicant was again given pay in the post of Sub Inspector since September, 2015. The applicant states that all of a sudden Rs.15000/- has been deducted from his pay for the month of November, 2015 out of the total amount of recovery due to refixation of his pay. This has been done without any show cause notice for recovery and without following the dicta of Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih, 2015(4) SCC 334. Relying upon the aforesaid judgment, the applicant states that recoveries by the respondents from the applicant are impermissible in law since he is squarely covered on all fours by the aforementioned judgment.
The applicant avers that he has been performing his duties upto the rank of Asstt. Sub Inspector and Sub Inspector with full satisfaction of his superiors. To bring him to the stage of 1981 after more than 34 years of service for the purpose of pay and allowances, would be highly unfair and mortifying. He states that he actually discharged the functions and duties of a Head Constable, Asstt. Sub Inspector and Sub Inspector at the relevant time, hence there is no question of any recovery of payment for the posts agains which he actually worked. His representation against order dated 09.07.2015 stands rejected as is evident from the deductions made from his pay in the month of November, 2015. Aggrieved, the applicant has filed the current O.A. seeking the following reliefs:-
"(i) To quash and set aside the impugned Orders dated 9.7.2015, 25.8.2015 & 31.8.2015 (Ann A-1) and Pay Slip for the month of Nov, 2015 (AnnA-2) to the extent recovery is being made from the salary of the applicant.
(ii) To direct the respondents not to make any recovery from the pay, allowances and payments due to the applicant and protect his last pay drawn i.e. June, 2015 before passing of the impugned Orders with all consequential benefits."
The respondents in their counter affidavit submit that during the year 1979, the Promotion List "A" test was held in which the applicant participated. Though he is an SC candidate, he was shown as ST candidate in the promotion list "A" test drawn in 1979. It is stated that the applicant secured a total of 136 marks in "A" list test of 1979 and got promoted w.e.f. 29.09.1979 against ST category, whereas the merit to qualify the "A" list 1979 in SC category was fixed at 160 marks. As such, he was not qualified for the "A" list test (1979) in his actual category i.e. SC. Thus, the applicant gained the benefit of ST category wrongly. He was promoted as officiating Head Constable on 01.09.1981 against ST category and promoted as Asstt. Sub Inspector w.e.f. 28.12.1988 and Sub Inspector on 17.09.1997 against ST category. He did not disclose these facts during his promotion despite the fact that category in his promotion order was shown as ST thus getting undue benefits of ST category by suppressing these facts, knowingly.
The applicant was dismissed from service on 08.06.2007 but was reinstated on 08.10.2009 in pursuance of judgment dated 30.06.2009 in OA-967/2008. Later, in pursuance of Tribunal's order dated 12.09.2007 in OA-88/2007 and order dated 22.01.2010 passed by Hon'ble Supreme Court in SLP-12389/2008, his promotion in the rank of Head Constable (Executive) against ST category was cancelled and he was granted promotion to the rank of Head Constable (Executive) against SC category and his inter-se-seniority was refixed vide Police Headquarters order dated 19.02.2014. Due to the change in seniority of the applicant in the rank of Head Constable (Executive) as well as Asstt. Sub Inspector (Executive due to change of his category from ST to SC, his name was reconsidered by the review DPC for admission to Promotion List E-I (Executive) w.e.f. 15.03.2002 for which he was fit. He was promoted to the rank of Sub Inspector (Executive) on officiating basis w.e.f. 08.04.2003, after cancelling the previous promotion orders vide PHQ's Notification No. 49493-517/CB-II/PHQ dated 25.08.2015. The respondents state that the applicant was issued a show cause notice for cancellation of his earlier promotion w.e.f. 29.09.1979 and for refixing his seniority from the rank of Head Constable (Executive) onwards in SC category w.e.f. 29.09.1979. The category was corrected as SC vide PHQ's U.O. No. 32955-58/CB-I(PHQ) dated 28.05.2013. The respondents then go on to explain as to how and why the fixation of seniority against SC category of the applicant was cancelled vide Notification dated 20.02.2014.
Consequent upon reversion and promotion as Head Constable (Executive), ASI (Executive) and Sub Inspector (Executive) the pay of the applicant was refixed vide order dated 09.07.2015 and Office Order dated 31.08.2015. The respondents state that the recovery of excess payment calculated as Rs.6,21,832/- is legitimate as a result of his reversion and revised promotion and there is no ground for the Tribunal to interfere in these orders.
During the course of hearing, learned counsel for the applicant Sh. Anil Singal painstakingly took the Bench through the facts of the case. The main thrust of his argument was that the respondents have erred by refixing the promotion and pay of the applicant w.e.f. 14.05.1982. He argued that fixing his seniority under SC category from ST category was in contradiction of their own orders dated 09.10.2009 and 25.10.2009 (both orders being issued in compliance of Tribunal's order dated 30.06.2009). Sh. Singal emphasized that the respondents had chosen not to avail the option of challenging the order issued in OA-967/2008 by granting him all the consequential benefits, post his dismissal. During the intervening period, the applicant actually discharged his duties of the higher posts where he worked and was paid accordingly. Recovery of such amount, more than 03 decades later for the purpose of pay and allowances, is not only extremely harsh but is also legally not tenable. The learned counsel went through the law laid down by the Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors., 2014(8)SCALE 613, hammering the point that the recoveries sought to be made by the respondents from the applicant, are impermissible in law.
Per contra, the learned proxy counsel for the respondents Ms. Asiya for Ms. Rashmi Chopra stated that the department has only rectified the incorrect fixation of pay and seniority granted to the applicant as per his SC category. She stated that recovery of the excess amount paid to him is a natural corollary of the promotion and seniority granted to the applicant, wrongly treating him in the ST category. She argued that to allow the applicant to retain the excess financial benefits, over and above his actual entitlement, would tantamount to unjust enrichment. In support of her contention, she relied upon the judgment of Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and Ors. Vs. Jagdev Singh, (Civil Appeal No. 3500/2006) dated 29.07.2016.
I have gone through the facts of the case carefully and heard rival submissions of both sides. It is not in dispute that the applicant actually belongs to SC category but had been getting his promotion and (consequently) his pay fixation as an ST candidate w.e.f. 1981. Based on these allegations, the applicant was charge sheeted. Finding him guilty, the respondents dismissed him from service holding him responsible for knowingly concealing and getting undue benefit under ST category. This issue was adjudicated in OA-967/2008 by the Tribunal and decided on 30.06.2009. It was held that the charges of willful concealment against the applicant are unjustified. He was found not guilty and the respondents were directed to reinstate the applicant in service by granting consequential benefits including payment of wages from the period of his dismissal to reinstatement, increments and promotion etc. This order of the Tribunal was not challenged and implemented in toto by the respondents.
Now the respondents vide their order dated 09.07.2015 have reversed the entire process by fixing the pay of the applicant w.e.f. 14.05.1982 instead of 01.09.1981 starting from his promotion as Head Constable onwards in respective grades and pay scales. All the earlier promotion orders, pay and grant of increment on or after 1980 to the applicant have been cancelled. This entire exercise has led to lessening/refixing of his pay, and accruing of demand of Rs. 6,21,832/- from the applicant paid to him in excess of his entitlement during the past 30-34 years.
The change in seniority of the applicant in the rank of Head Constable (Executive) as well as Asstt. Sub Inspector (Executive) on change of category from ST to SC is a service correction. It was long overdue and should have been carried out by the respondents, the moment this discrepancy came to their notice. The rectification carried out in service record of the applicant as per orders dated 09.07.2015 & 31.08.2015 has led to a chain of changes in his inter se seniority and obviously affected the pay and allowances of the applicant at different points of time. The correctness of refixation of seniority (as an SC candidate) and pay (grade pay and allowances etc.) of the applicant cannot be questioned. The respondents have issued a show cause notice and duly adhered to principle of natural justice before issuing the impugned orders. There is thus no ground for the Tribunal to interfere as far as this decision goes.
What remains to be decided is whether the respondents are correct in ordering recovery of excess payment which the applicant received on account of getting promotions (based on wrong facts). The applicant would have the Court believe that he is squarely covered by the parameters laid down in the judgment of Rafiq Masih (supra), since he belongs to Group-C service; has been receiving the alleged excess payments for almost 03 decades before the order of recovery was issued, and was due to retire within one year from the date of order of recovery (31.08.2015). The applicant has also averred that he was not at fault in receiving the alleged excess payments made to him (now sought to be recovered). Further, the possibility of his complicity in the wrong promotions granted to him by treating him as a ST candidates has been ruled out by the Tribunal in the order dated 30.06.2009 (Paras-11 & 12 of OA-967/2008).
Undoubtedly, the applicant is covered by the three parameters prescribed in the judgment of Hon'ble Supreme Court in the case of Rafiq Masih (supra). However, the facts of the present case are rather peculiar and cannot be over simplified. It is not disputed that the applicant was aware that he belonged to SC category and had declared as such, at the time of his entry in service. When the respondents, erroneously promoted him in ST category, along with other ST colleagues, he chose the convenient option of remaining silent. Though the applicant did not deliberately misrepresent the fact of his being an SC but he continued to derive the benefits of ST category by getting promoted/selected alongwith other ST candidates. Belonging to a Disciplined Force, he ought to have brought this to the notice of the concerned authorities (of the respondents department) that he actually belongs to SC category. Had he done so, at the initial stage, this entire mess could have been averted.
I am not impressed by the arguments of the learned counsel for the applicant that since he actually functioned in the higher posts for a particular duration and discharged the duties assigned to that post, the pay and allowances so received by him can be legally retained by him.
Though technically, there has been no misrepresentation of facts by the applicant in writing but the applicant kept enjoying the social and financial benefits for which he was not entitled by keeping mum. It is not possible to believe that the applicant did not know the mistake being (continuously) made by the respondents. To keep quiet and enjoy the benefits of incorrect orders of promotion/pay fixation, (undoubtedly the results of negligence of the respondents) can by no stretch of imagination be termed as innocent - ignorance. The applicant cannot be allowed to wriggle out of responsibility in the entire sequence of events. This, in my view, is akin to misrepresentation of facts and takes him out of the protection granted to certain situations by the Hon'ble Supreme Court in the case of Rafiq Masih (supra). In view of the same, I feel that the excess pay and allowances drawn by the applicant amounting to Rs. 6,21,832/-are recoverable and may be recovered from him in easy installments. O.A. is dismissed. No costs.