Subhendu Mukhopadhyay vs State of West Bengal

Debasish Kar Gupta, J.—Two common questions of law relating to the actions of the respondent authorities (1) in recovery of overdrawal of pay from the terminal benefits of approved teaching and non-teaching staff of the Non-Government Aided Educational Institution and (2) fixation and/or re-fixation of their monthly pension on the ground of rectification of error relating to pay are taken up for adjudication after analogous hearing of these writ applications. The facts relating to recovery of alleged overdrawal from the terminal benefits of the petitioners and fixation and/or re-fixation of their monthly pension on the ground of rectification of error relating to pay are recorded in a nutshell as follows:

The appointments of the petitioners in the posts of teaching and/or non-teaching staff, as the case may be, of Non-Government Aided Educational Institutions were duly approved by the respondent authorities concerned. Their respective pays were re-fixed/enhanced during the tenures of their services. After their retirements on attaining the age of retirement on superannuation pension payment orders were issued in their favour fixing monthly pensions and other terminal benefits after recovery of alleged overdrawal amount of money. In some of the aforesaid cases undertakings were obtained from the concerned teaching and/or non teaching staff, as the case may be, expressing their "No objections" for recovery of the aforesaid amounts at the time of releasing the terminal benefits on the basis of the respective pension payment orders. It is noteworthy that opportunity of hearing was not given to any of the petitioners either during the tenure of service or after retirement for recovery of the alleged overdrawal from terminal benefits and/or for fixation/refixation of monthly pension.

It is submitted on behalf of the petitioners that their pays were refixed by the respondent authorities consequent upon introduction of Revision of Pay and Allowances Rules or for any other reason by the respondent authorities from time to time. Such revisions were duly approved by the competent authorities. According to them, no step was taken by the respondent authorities for recovery of alleged overdrawal from their pay and allowances and fixation of monthly pension thereof during their tenure of services. According to the petitioners, the above actions were not permissible in law.

It is also submitted on behalf of the petitioners that law did not permit the respondent authorities to obtain undertakings from the retired employees for recovery of alleged overdrawal at the time of releasing the terminal benefits on the basis of the pension payment orders.

Relying upon the provisions of paragraphs 19 and 20 of the West Bengal Non-Government Aided Educational Institutions (Death-cum-Retirement Benefits) Scheme 1981, (hereinafter referred to as the said Scheme, 1981,) it is submitted on behalf of the petitioners that recovery of any amount from the gratuity money was not permissible.

According to the petitioners, the objection of the respondents regarding delay in challenging the actions of the respondent authorities cannot be entertained in view of the proposition of law that unless a third party interest stands in the way there is no bar and/or impediment to entertain the delayed action of the petitioners.

It is submitted on behalf of the petitioners that fixation of pay entails consequences till last pay drawn by the petitioners which cannot be reopened after retirement from the services on attaining the age of retirement on superannuation.

It is further submitted on behalf of the petitioners that the petitioners are entitled to get interest on the refundable money due to withholding the aforesaid money for a long time without any authority under law.

The decisions of Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, , Bhagwan Shukla Vs. Union of India and others, , Union of India v. Indian Railway SAS Staff Association & Ors., reported in 1995 Supp (3) SCC 600, Syed Abdul Qadir and Others Vs. State of Bihar and Others, , Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , Kalyan Kumar Chattopadhyay v. The State of West Bengal & Ors., reported in (2006) 1 WBLR (Cal) 591, Sk. Md. Zakeria Vs. State of West Bengal and Others, , unreported judgment dated September 6, 2010 delivered in the matter of Ramendra Nath Mukherjee v. The State of West Bengal & Anr. (in Re. M.A.T. No. 933 of 2010), Monohar Mishra v. State of West Bengal & Ors., reported in 2009 (2) CLJ (Cal) 468, unreported judgment dated April 30, 2008 in the matter of Smt. Amita Kundu (Rana) v. State of West Bengal & Ors. (in Re. W.P. 23342 (W) of 2007), unreported judgment dated March 15, 2010 in the matter of Pulin Bihari Maity v. The State of West Bengal & Ors. (in Re. W.P. No. 20257 (W) of 2009, Normi Topno v. State of Jharkhand & Ors., reported in 2008 (6) SLR 397, State of Orissa and Others Vs. Adwait Charan Mohanty and Others, , Sahib Ram Vs. State of Haryana and Others, , Ranjit Kumar De Majumdar v. The Secretary, Higher Education, Government of West Bengal & Ors., reported in 1998 (1) CHN 304, Kamala Kant Jha v. State of West Bengal & Ors., reported in 2005 (1) CHN 54, Ram Naresh Singh v. State of Bihar & Ors., reported in (2012) 4 SCC 556, P.B. Roy Vs. Union of India (UOI), , State of West Bengal & Ors. v. Asis Das Gupta, reported in (2013) 4 CAL LT 94 (HC) are relied upon on behalf of the petitioners.

At the very outset, preliminary objection is raised on behalf of the State respondents with regard to maintainability of these writ applications due to inordinate delay in filing the writ applications.

It is submitted on behalf of the State respondents that once undertaking had been executed by the employee concerned it was binding upon the parties and dispute relating to recovery of overdrawal even after the retirement of the employee concerned cannot be entertained due to such undertaking. It is further submitted on behalf of the respondents that in some of the cases informations with regard to recovery of overdrawal in pay were supplied to the employee concerned by issuing pension payment order in favour of that employee before retirement.

The decisions of State of Madhya Pradesh Vs. Bhailal Bhai and Others, , Ashok alias Somanna Gowda and Another Vs. State of Karnataka by its Chief Secretary and Others, , M.R. Gupta Vs. Union of India and others, , A.P. Steel Re-Rolling Mill Ltd. Vs. State of Kerala and Others, , Shiv Dass Vs. Union of India (UOI) and Others, , New Delhi Municipal Council Vs. Pan Singh and Others, , State of Orissa and Another Vs. Mamata Mohanty, and Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, are relied upon by the respondent.

On merits of these cases it is submitted on behalf of the State respondents that sub-Rule (2) of Rule 140 of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971 authorised the respondent authority to recover the excess amount paid to an employee from the terminal benefits even after the retirement of the employee read with the provisions of paragraph 45 of the said Scheme, 1981.

Reliance is placed on Circular Nos. 739/DPPG dated July 19, 2010 and 147/DPPG dated March 6, 2013 in support of the above submissions made on behalf of the State respondents.

It is submitted by Mr. Kamalesh Bhattacharjee, learned Senior Government Advocate, High Court, Calcutta that even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioners to get some relief.

It is also submitted on behalf of the State respondents that the payment of pension on the basis of erroneous calculation of last pay drawn can be rectified so far as further payment of monthly pension is concerned.

It is also submitted by Mr. Bhattacharjee without prejudice to his above submissions that relief of refunding the recovered money, if any, should be restricted to a period of three years prior to the date of filing the writ petition.

Mr. Bhattarcharjee relied upon the decisions of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, and State of Orissa and Another Vs. Mamata Mohanty, in support of his above submissions.

Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances, the preliminary objection raised by the State respondents is taken up for adjudication at the very outset.

The tenure of employment of a teaching or non-teaching staff of an aided non-government educational institution comes to a compulsory end on attaining a terminal point on account of age as prescribed in service condition. It is usually referred to as retirement or superannuation. A staff belonging to above category is entitled to terminal benefits which are final entitlement of a staff of above category consequent upon superannuation.

Normally, a belated claim is liable to be rejected on the ground of delay and laches or limitation. But recovery of money from the terminal benefits of a retired teaching or non-teaching staff of the above category consequent upon re-fixation of pay is a single wrong causing continuing injury. A fresh cause of action arises every month when a staff of above category is paid monthly pension. Reference may be made to the decision of Balkrishna Savalram Pujari and Others Vs. Shree Dnyaneshwar Maharaj Sansthan and Others, and the relevant portions of the above decision are quoted below:-

"... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of constitutes a continuing wrong."

The evolution of this rule of laches or delay is premised upon another important factor. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under writ jurisdiction in a case where rights of third parties may intervene. Reference may be made to the decision of State of M.P. and Others Vs. Nandlal Jaiswal and Others, and relevant portions of the above decision are quoted below:-

"24. Now, it is well settled that the power of the High court to issue an appropriate, writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High in deciding whether or not to exercise such jurisdiction."

(Emphasis supplied)

In these cases in hand the impugned actions of the respondents resulted in continuing source of injury till payment of last monthly pension. No material is available on record relating to creation of third party interest during the intervening periods. Therefore, preliminary objection on the aforesaid grounds cannot be accepted.

With regard to the other ground of execution of undertakings by the petitioners of some of the cases in hand, it is obvious that retired persons always eager to get their retiral dues settled at an early date. Retired persons often give such undertaking with usual anxieties and worries with the hope of early settlement of their retiral dues. The State should not take undue advantage of disproportionate bargaining power in obtaining undertaking from retired persons in absence of any statutory provision. It is not in dispute that the attention of this Court has not been drawn to any statutory provision of obtaining undertaking from the petitioners to use it as a shield in support of such action.

In the matter of Bhailal Bhai (supra), the issue for consideration was an order of repayment of sales tax consequent upon re-assessment of such tax. The above issue was decided by the Hon''ble Supreme Court applying general rule of dealing with the question of unreasonable delay. In view of the discussions and observations made hereinabove, the above decision has no manner of application in these cases in hand applying settled proposition of law on the distinguished facts and circumstances involved in these cases. Similarly the decisions of Sri Ashok alias Somanna Gowala (supra), M.R. Gupta (supra), A.P. Steel Re-rolling Ltd. (supra), Shiv Das (supra) and New Delhi Municipal Council (supra) are of no help to the respondents due to the distinguished facts and circumstances of these cases in hand and the settled proposition of law which are applicable in these matters.

The preliminary objections raised by the respondents are rejected. For the purpose of considering the propriety of the decision making process of the respondents in the matter on merit, the provisions of Rule 140 of the West Bengal Services (Death-cum-Retirement Benefits) Rules, 1971, (hereinafter referred to as the said Rules, 1971) are quoted below:

"Recovery of Government dues.- (1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.

Compiler''s Note: Power of Audit Officer under this sub-rule has been restricted consequent on issue of F.D. Memo, No. 10000 dated 13.9.82 under which concurrence of Finance Deptt, is required in case of continuance of Provisional pension be 12 months. Compare with Compiler''s Note at page 88.

(2) where a retiring Government servant does not clear Government dues and these are ascertainable an equivalent cash deposit may be taken from him, or, out of the gratuity payable to him an amount equal to that recoverable on account of ascertainable Government dues, such as, balance of House Building or Conveyance Advance, arrears of rent and other charges pertaining to occupation of Government accommodation, overpayment of pay and allowance and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961) shall be deducted there from".

According to the provisions of paragraph 45 said Scheme, 1981, in respect of matters for which provision has not been made in the said Scheme, 1981, the relevant provisions of the said Rules, 1971, should apply mutatis mutandis subject to approval of the State Government.

In terms of sub-rule (1) of Rule 140 of the said Rules, 1971, it should be the duty of every retiring Government servant to clear all Government dues before the date of retirement. No material is produced before this Court showing that at the time of retirements of the petitioners any amount was due and payable to the respondents by the petitioners. Therefore, provisions of Sub-Rules (1) and (2) of Rule 140 of the said Rules, 1971, cannot help the respondents. For the same reason, the provision of Rule 45 of the said Scheme, 1981 does not support the impugned actions of the respondents in these cases.

It is the settled proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. In the case of a statutory authority, it is just the other way. Such authority is not empowered to do any thing unless those powers are conferred on such authority by the statute, which creates it. Reference may be made to the decision of Asian Leather Limited and Another Vs. Kolkata Municipal Corporation and Others, and relevant portion of the above decision is quoted below:-

"12. At this juncture, it will be profitable to refer to the well-known proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory corporation, it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the statutes, which creates it."

Therefore, the decision making process of the respondents for recovery of overdrawal from the terminal benefits of the petitioners taking recourse to Rule 140 of the said Rules, 1971 read with paragraph 45 of the said Scheme, 1981 cannot be sustained in law.

It is not in dispute that revision/enhancements pay of petitioners had been fixed during the tenure of their services. Such revisions/enhancements were approved by the competent authorities. No due was ascertained by the authority in any of these cases in accordance with the provisions of Rule 140 of the said Rules, 1971 read with the provisions of paragraph 45 of the said Scheme, 1981 during the tenure of service of any of the petitioners.

The proposition of law with regard to suffering huge financial loss of a staff in the facts and circumstances as discussed here has already been settled. Reduction of pay without giving any opportunity to the staff concerned cannot be sustained in law on the ground of flagrant violation of the principles of natural justice. Reference may be made to the decision of Bhagwan Shukla Vs. Union of India and others, and the relevant portion of the above decision is quoted below:-

".... The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter."...

The issue of recovery of overdrawal from the terminal benefits on the basis of erroneous revision/enhancement of pay without any fault on the part of a staff concerned has been settled in the matter of Shyambabu Verma v. Union of India (supra) and the relevant portions of the above decision are quoted below:-

"11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (Emphasis supplied)

The above issue was taken up by the Hon''ble Supreme Court once again in the matter of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, . This time the Hon''ble Supreme Court repeated and reiterated the ratio laid down by the Apex Court in the matter of Shyambabu Verma (supra) with further observation that the deduction of any amount of money from the terminal benefits from an employee was not permissible in absence of any fault and/or laches and/or misrepresentation and/or fraud on the part of the employee concerned. The relevant portion of the above decision is quoted below:-

"Para-12. Later, a three-Judge Bench in Syed Abdul Qadir Case, after referring to Shyam Babu Verma, Col. B.J. Akkara, etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case, SCC pp. 491-22, para 59)

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

(emphasis added)

"Para-15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered."

(Emphasis supplied)

Relying upon the above settled proposition of law a Division Bench of this High Court delivered a judgment dated September 9, 2013 in the matter of State of West Bengal & Ors. v. Asis Das Gupta (In re: W.P.S.T. 216 of 2013) and the relevant portion of the above decision is quoted below:-

"The learned Tribunal passed the impugned order upon placing reliance on a three-Judge Bench judgment of the Supreme Court in the case of Shyam Babu Verma & Ors. v. Union of India & Ors. (supra) which has been consistently followed by the Supreme Court in the subsequent decisions including the decisions cited on behalf of the petitioners herein. The aforesaid three-Judge Bench judgment in the case of Shyam Babu Verma & Ors. Vs. Union of India & Ors. (supra) is operative and binding till today since the said decision has not yet been overruled by the Supreme Court in any subsequent decision. The learned Tribunal, therefore, committed no error by allowing the prayer of the applicant namely, the respondent here, upon placing reliance on the aforesaid decision of the Supreme Court in the case of Shyam Babu Verma & Ors. v. Union of India & Ors. (supra).

For the reasons discussed hereinabove, we do not find any merit in the present writ petition. Therefore, we affirm the decision of the learned Tribunal and dismiss this writ petition without awarding any costs."

(Emphasis supplied)

For adjudication of the propriety of decision making process of the respondents, another aspect of the matter has to be borne in mind. The provision of sub-para (o) of paragraph 5 of the said Scheme, 1981, is quoted below:

"''Pension'' except when the term ''Pension'' is used in contra-distinction to gratuity, pension includes gratuity."

The power of the pension sanctioning gratuity to withhold pension to reduce the same is prescribed in paragraph 19 of the said Scheme, 1981, and the above provision is quoted below:-

"19. (1) The full pension admissible under this scheme is not be given as a matter of course or unless the services rendered has really been approved by the competent authority.

(2) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper.

Provided that in cases where the authority sanctioning pension is other than the appointing authority, no order regarding reduction of the amount of pension shall be made without the approval of the appointing authority.

Note: No pension shall be liable to seizure, attachment or sequestration by process of Court in India at the instance of the creditor, for any demand against the pensioner.

(3) The measure in the reduction in the amount of pension under this Scheme should be the extent by which the employee''s service as a whole has failed to reach a thoroughly satisfactory standard, and any attempt to equate the amount of reduction with the amount of loss caused to the Institutions is incorrect.

(4) The service of an employee against whom a charge of corruption has been proved whether in a specific case or by any presumption based on recorded facts cannot be considered to be thoroughly satisfactory within the meaning of this Scheme, Any action under this Scheme should, however, be taken only after a charge of corruption has been proved.

(5) Final pension, gratuity etc, shall not be sanctioned to an employee against whom departmental/judicial/proceedings have been instituted/continued. In case of misconduct of the pensioner, the pension sanctioning authority has the power to withhold pension or reduce the pension.

Where any departmental or judicial proceeding is instituted or where a departmental proceedings is continued against an employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying services upto the date of retirement, or if he was under suspension on the date of retirement up to the date immediately proceeding the date on which he was placed on suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.

Payment of this provisional pension shall be adjusted against the final retirement benefits sanctioned to such employee upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.

Note: The grant of pension under this sub-para shall not Prejudice the operation of sub-para 2 when final pension is sanctioned upon conclusion of the proceeding."

No material is brought on record or produced before the Court that departmental/judicial/proceedings have been instituted/continued against any petitioner at the time of retirement of that petitioner. Therefore, no recovery can be made from the terminal benefits of the petitioners considering the above facts in the light of the provisions of paragraph 19 of the said Scheme, 1981 and the provisions of Rule 140 of the said Rules, 1971 read with the provisions of paragraph 45 of the said Scheme, 1981.

The provisions of Rule 140 of the said Rules, 1971 read with the provisions of paragraph 45 of the said Scheme as also the provisions of paragraph 19 of the said scheme, 1981 are taken into consideration once again for examining the power of the pension sanctioning authority to fix and/or re-fix the monthly pension of the petitioners with prospective effect. I have no hesitation to repeat and reiterate that in absence of pendency of departmental/judicial/any other proceeding against any petitioner at the time of his retirement as also drewal of last pay on the basis of approval of the competent authority, no prospective effect can be given to a decision fixation/re-fixation of his monthly pension after his retirement or superannuation.

With regard to the submissions made by Mr. Bhattacharjee of conferring no legal right on the petitioners in case of enjoying above benefits by some other similarly situated persons, I am of the view that it is an answer to a begging question in absence of any pleading the writ petitions in hand.

In course of considering the prayer of the petitioners for awarding interest on the principal amount of recovery, I find that interest is not a penalty or punishment. It is the normal accretion on capital in the light of the decision of Aloke Shanker Pandey v. Union of India, reported in AIR 2007 SC 1958 and the relevant portions of the above decision are quoted below:-

"It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he was pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."

In an appeal interest was awarded by a Division Bench of this High Court in favour of a similarly circumstanced teaching staff (Headmaster). Reference may be made to the decision of State of West Bengal v. Sri Sheo Ram Giri, reported in (2011) 1 WBLR (Cal) 486 and the relevant portions of the above decision are quoted below:-

"5. After hearing the learned Counsel for the parties and after going through the materials on record, we find that the appellants did not, of their own, pay the amount of arrears and gratuity immediately after his retirement, but the writ-petitioner had to move more than one writ-application to get the amount and ultimately, on an application for contempt direction was given to pay the amount in the year 2009.

Thus, the amount which was payable immediately on retirement on July 1, 2001 was paid to the writ-petitioner on 3rd August, 2009 as the outcome of the litigations initiated by the writ-petitioner.

At this stage, it will be apposite to refer to the following observations of the Supreme Court in the case of Aloke Shanker Pandey v. Union of India reported in AIR 2007 SC 1958 about the concept of grant of interest."

In so far as consequential relief of recovery of arrear for a past period is concerned, it should be restricted to a period of three years prior to the date of filing of a writ petition on the settled proposition of law decided in the matter of Union of India (UOI) and Others Vs. Tarsem Singh, and the relevant portion of the above judgment is quoted below:-

"7. To summarise, normally, a belated claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim state and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequences, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

(Emphasis supplied)

The decision of Chandi Prasad Uniyal (supra) does not help the respondents in view of the distinguishable facts of the instant cases that the respondents could recover the overdrawal amount from the terminal benefits and fix and/or re-fix monthly pension in a case pendency of judicial/departmental or any other proceeding as observed in Rule 140 of the said Rules, 1971 read with the provisions of paragraph 45 of the said Scheme, 1981 or paragraph 19 of the said Scheme, 1981. For the same reasons the decision of Mamata Mohanty does not help the petitioner.

In view of the discussions and observations made hereinabove, the actions of the respondents for recovery of money from the terminal benefits of the petitioners and calculation and/or re-calculation of their monthly pensions either with retrospective or prospective effect in absence of pendency of judicial/departmental/any other proceedings at the time of their retirements, are quashed and set aside.

The respondent authorities are directed to refund the aforesaid money with interest @ 9% per annum as a consequential relief thereof for a period of three years prior to filing of the respective writ petition or from the date of retirement, whichever is lesser, within three months. The respondent authorities are also restrained from fixing or re-fixing the pay of any petitioner either with retrospective or prospective effect.

It is, however, made clear that if any petitioner is not entitled to get the benefit of refund due to pendency of judicial/departmental or any other proceeding as observed in Rule 140 of the said Rules, 1971 read with the provisions of paragraph 45 of the said Scheme, 1981, or under the provisions of paragraph 19 of the said Scheme, 1981, the respondent authority concerned is directed to communicate the reason therefore to that petitioner within the period mentioned in foregoing paragraph instead of complying with the direction made in the above paragraph.

It further made clear that the rate of interest is fixed at 9% per annum taking in to consideration prevailing highest rate of interest payable on fixed deposit by a nationalized bank.

These writ applications are, thus, disposed of. There will be, however, no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.