Suraj Singh vs State Of U.P. & Ors.

"i)

Issue a writ, order or direction in the nature of certiorari to quash the impugned Order dated 24.02.2023 passed by the Commandant 9th Battalion P.A.C. Moradabad a copy whereof is contained in Annexure-1 to the writ petition;

ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to refund the amount of Rs. 6,74,404 / in the light of the order dated 25.08.2021 passed in writ petition no. 11827 of 2019, the order passed in Special Appeal as well as the order dated 05.04.2022 passed by the Hon'ble Supreme Court in Special Leave Petition which has been recovered arom the Petitioner's Rashikaran towards the alleged excess payment of salary made to the Petitioner, alongwith interest at the rate of 12%;

iii) issue any other and further writ, order or direction as this Hon'ble Court may deem fit and proper, in the facts and circumstances of the case,

iv) award the costs to the Petitioner;

v)

Issue a writ order or direction in the nature of certiorari to quash the impugned order No. पत्रां क-व-13/2022 dated 22.08.2022 passed by the Commandant 08th Battalion P.A.C. Moradabad, copy whereof is contained in Anneuxre-4 to the writ petition;

vi) Issue a writ, order or direction in the nature of mandamus commanding the respondents to refix salary of the petitioner as Rs. 58,500/- in place of Rs. 47,600/-

vii) Issue a writ, order or direction in the of mandamus commanding nature the respondents to pay all post retiral benefits and regular pension to the petitioner on the last pay drawn by the petitioner i.e. Rs. 56,300/-alongwith interest admissible in law."

"[1]. Pension Fixation Authority shall inquire into emoluments of only last 10 months prior to retirement and for that examine the records of only two years prior thereto i.e. only the records of 34 months would be examined for the purpose of grant of pension, as has been provided in the aforesaid Government order dated 13.12.1977.

[2]. Pension Allowing Authority shall not be entitled to correct the mistake in determining the pay during service tenure beyond the period prescribed in para (1) above. Mistakes in pay determination of an employee can be effectively removed through the process of general inquiry/audit only when the employee is still in service."

"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."

"Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which appellant cannot be held to be fault. Under the circumstances the amount paid till date may not be recovered from the appellant."

"16.

We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

17.

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

"9.

In our view, the law laid down in Chandi Prasad Uniyal's case, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Article 136 and 142 of the Constitution of India. Distinctively, although the words employed under the two aforesaid provision speak of the powers of this Court, the former vest a plenary jurisdiction in supreme court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing· 'complete justice' in any cause or matter. The word 'complete justice' was fraught with uncertainty until Article 142 of the Constitution received its first interpretation in Prem Chand Garg v. Excise Commissioner, U.P., AIR (1963) SC 996 which. added a rider to the exercise of wide extraordinary powers by laying down that though the powers are wide, the same is an ancillary power and can be used when not expressly in conflict with the substantive provisions of law. This view was endorsed by a Nine-Judges Bench in Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744 reiterated by a Seven Judge Bench in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC , 602 and finally settled in the Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409

10.

Article 136 of the Constitution of India, confers a wide discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction and can be best described in the words of this Court in Ramakant Rai v. Madab Rai, (2003) 12 SCC 395, “It is a residuary power, it is extraordinary in its amplitude, its limits when it chases injustice, is the sky itself”. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in the case of Union of India v. Karnail Singh, (1995) 2 SCC 728, it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution.

11.

Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the court can normally be categorized into one, in the nature of moulding of relief and the other, as the declaration of law. ‘Declaration of Law’ as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of Indian Bank v. ABS Marine Products (P) Ltd., 2006 5 SCC 72, Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and in State of U.P. v. Neeraj Awasthi (2006) 1 SCC 667, has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court have compartmentalized and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.

12.

Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment.

13.

In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for its appropriate disposal."

"18.

It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i)

Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii)

Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii)

Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv)

Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v)

In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. "

"7.

Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the Appellant, it is not in dispute that the Appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs. 11,625/- and on the basis of the said salary his pension had been fixed as Rs. 9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the Appellant could have been recovered nor pension of the Appellant could have been reduced.

8.

The learned counsel appearing for the respondent employer could not deny any of the facts stated hereinabove.

9.

In the aforestated circumstances, the High Court was not correct while permitting the respondent authorities to reduce the pension payable to the appellant by not setting aside the order whereby excess amount of salary paid to the appellant was sought to be recovered.

10.

For the aforestated reasons, we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant.

11.

The submission made on behalf of the learned Counsel appearing for the Respondent that the Appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the Respondent-employer could not have passed any order for recovery of the excess salary paid to the Appellant or for reducing pension of the Appellant."

"5.

Learned Standing Counsel submitted that the issue was already considered by High Court. However, we find that thereafter a fresh order has been passed by State rectifying alleged mistake committed in 1979, i.e., after almost 19 years, which was not permissible in view of Government Order dated 16.1.2007 as also law laid down by Supreme Court in Civil Appeal No. 5262 of 2008, decided on 17.4.2014. The order of Supreme Court has been referred to in Tribunal’s order, which reads as under:

“7.

Upon perusal of the afore-stated G.O. and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs. 11,625/- and on the basis of the said salary his pension had been fixed as Rs. 9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced. xxxxx xxxxxx xxxxx

10.

For the aforestated reasons, we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant.”

6.

Besides, this Court in Writ Petition No. 3137 of 2017 (State of U.P. and another v. Ram Naresh and another), decided on 10.2.2017 has also taken a view that if there is any error or mistake committed by authorities, after an indefinite or long period and that too after retirement of Government servant, Government cannot reduce benefits by rectifying said mistake since even if mistake has been committed, same cannot be rectified after a long period. It is true that there is a power of rectification but when a power is there, it must be exercised within a reasonable period. Court in paras 5 to 10 said:

"5.

It is not in dispute that in revised pay-scale, basic pay of petitioner was found to be fixed at Rs. 7580/-. That being so pay band granted to him by Tribunal, in our view, is in accordance with relevant Government order. This is evident from page 44 of the paper book of writ petition.

6.

Be that as it may, even if there is some error in fixation of pay committed almost more than a decade back, fundamental question which needs be examined in this matter is, how long it is open to State and its authorities to re-open the issue and put a retired Government servant in jeopardy, financial scarcity and other difficulties, particularly when he has no access to Government record, retired long back and has arranged his funds and maintenance of family in the light of ultimate retiral benefits already determined, computed and being paid to him."

7.

Learned Standing Counsel could not dispute that alleged one increment was wrongly granted in 1979 and pension of claimant-respondent No. 1 was sought to be fixed by rectifying said mistake only after almost 19 years and more. It is clearly barred in view of the law laid down as referred to hereinabove, as also Government Orders dated 13.12.1977, 5.12.2001 and 16.1.2007. "

"6.

Be that as it may, even if there is some error in fixation of pay committed almost more than a decade back, fundamental question which needs be examined in this matter is, how long it is open to State and its authorities to re-open the issue and put a retired Government servant in jeopardy, financial scarcity and other difficulties, particularly when he has no access to Government record, retired long back and has arranged his funds and maintenance of family in the light of ultimate retiral benefits already determined, computed and being paid to him.

7.

This Court has experience of similar matters coming in large numbers, where, after 10 or 20 or 30 years, irrespective of any time limit, and that too after retirement of Government servant, this type of alleged wrong fixation is claimed and for entire long period of decades, pay is reduced and recovery is ordered. This ultimately results in large number of litigation before this Court and mostly this Court has directed in such matters, not to make any recovery of the amount, already paid.

8.

Learned Standing Counsel stated that there is no bar for review or rectification of mistake and there is no time limit prescribed anywhere, therefore, it can be done at any point of time.

9.

However, we do not find ourselves in agreement with aforesaid submission. Whenever any action prejudicial to interest of a Government servant is taken, Competent Authority must exercise its power within a reasonable time and it cannot be appreciated that such power should be exercised after decades and that too after retirement of Government servant. In the present case, impugned order has been passed after almost 6 years from the date of retirement.

10.

It is well established that when a power is there and there is no period prescribed under law, power should be exercised reasonably and within a reasonable period also and not after a very long time or at any time. In these facts and circumstances, we are of the view that if there is any error in pay fixation etc., Competent Authority is entitled to rectify mistake within a period of three years. We further provide that in case such a mistake is detected after three years in that case instead of taking action against the person who is benefited with such wrong fixation, Competent Authority must take action against the person who caused such mistake and is responsible and recover loss suffered by department."

"12.

Thereafter, vide impugned order dating 28.06.2014 the State has sought to revise and reduce the pay-scale, which was already granted to the petitioner. The Government Order dated 16.01.2007 specifically provides that all revision/correction with regard to pay-scale ought to have been done while a Government Servant is in service and the same cannot be done after his retirement and the provisions of the aforesaid identical Government Order issued by the Government of Uttrakhand had been interpreted by the Apex Court, wherein the Apex Court has held that neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced subsequent after his retirement. 13. In such view the matter, the impugned order which has been passed after about two years of the retirement of the petitioner, whereby the pay-scale of the petitioner is being sought to be reduced after the retirement of the petitioner is not sustainable in the light of the aforesaid Government Order as interpreted by the Apex Court in Sushil Kumar Singhal(supra)"

"11.

The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."