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Judgment
Justice L. Narasimha Reddy :
The applicant was working as the Junior Engineer in the Public Works Department of Govt. of NCT of Delhi. He was promoted to the post of Assistant Engineer(AE) on ad hoc basis vide order dated 08.06.2018 for a period of one year or until further orders, whichever is earlier. In the context of extending him the II increment, pass in the Departmental Accounts Examination becomes necessary. The applicant submitted a representation with a prayer to exempt him from appearing in that examination. It appears that pending consideration of such a representation, the II increment was allowed to him. The competent authority issued a memo declining him to grant exemption. Taking that into account, the department issued OM dated 12.07.2021 withdrawing the II increment extended to the applicant, and refixing his salary from Rs.99,500/- to Rs.96,600/-. It was also mentioned that the differential amount referable to the increment paid to the applicant between 01.07.2020 and 30.06.2021 would be recovered. This OA is filed challenging the order dated 12.07.2021.
The applicant contends that when the promotion to the post of Assistant Engineer is only on ad hoc basis, it was not legal on the part of the respondents to insist on passing of the test and there was no basis for withdrawing the increment. Certain other grounds are also urged. It is also pleaded that the recovery is untenable in law.
Today, we heard Mr. Vaibhav Anand, learned counsel for the applicant and Ms. Esha Mazumdar, learned counsel for the respondents.
It is no doubt true that the promotion of the applicant to the post of Assistant Engineer was on ad-hoc basis, for a limited period. The fact, however, remains that all the benefits attached to the post of AE were extended to the applicant and other incumbents. Even the applicant was aware that clearing the departmental accounts examination was essential for claiming the II increment. Not being able to clear that examination, the applicant requested for exemption. The respondents granted the benefit of increment awaiting the decision on the request for exemption. The request was rejected vide the impugned order. The respondents have not only withdrawn the II increment but also have directed recovery of the differential amount.
It is on the representation of the applicant for exemption, that the impugned order came to be passed. He cannot turn around and say that the passing of departmental accounts examination is not essential. Once the relevant rules provided for the passing of that examination as a condition for extension of the benefit of II increment, the applicant cannot ignore it. Therefore, no exception can be taken either for the denial of the exemption or for withdrawal of the increment that was granted to the applicant conditionally.
One aspect, however, is about the recovery. It is on their own accord, that the respondents granted the benefit of II increment and it remained for a period of one year. Recovery of that amount cannot be sustained particularly when it is done without issuing notice to the applicant and when it is not even mentioned that the increment was extended to him on account of any misrepresentation.
We, therefore, dispose of the OA upholding the withdrawal of the II increment through the impugned order, but setting aside the direction as to recovery. There shall be no order as to costs.