Ankur Chhibber v. Union of India & Ors.

1. The present writ petition has been filed challenging the signals dated February 06, 2014 passed by the respondents No. 5 and 6 illegally and arbitrarily re-fixing the pay of the petitioner to his detriment; as well as the action of the respondents in seeking to recover amounts from his salary pursuant to the pay re-fixed vide the aforesaid signals. 2014:DHC:2859-DB

2. The relevant facts are that pursuant to the recruitment drive held in the year 2003, the petitioner joined the CRPF in the rank of Head Constable (RO) and upon joining the force, the petitioner was given a pay scale of Rs. 3200-85-4900 and accordingly the basic pay of the petitioner upon joining the force was fixed at Rs. 3200/-. However, pursuant to the recommendations of the 6th Central Pay Commission notified vide Gazette Notification No. F.1/1/2008-IC dated July 21, 2009, Pay Band-I in the pay scale S-6 of Rs. 3200-85- 4900 (i.e. petitioner’s pay scale) was revised to Rs. 5200-20200 with Grade Pay of Rs. 2000/-. Resultantly, the pay in the post pertaining to the petitioner, that is, the post of Head Constable in CPMFs was revised to Rs.4000-6000/- with Grade Pay of Rs. 2400/-. The aforementioned revised pay structure is set out in Part ‘C’ of the First Schedule of the CCS (Revised Pay) Rules, 2008.

3. The pay of the petitioner was accordingly re-fixed by the concerned Signal Unit and audited by IAP-III as Rs. 7510/- with Grade Pay of Rs. 2400/- thereby amounting to a sum of Rs. 9910/- (total Rs.7510+2400/-) with effect from January 01, 2006.

4. Suddenly and arbitrarily, without giving any show cause notice, respondents No. 5 and 6 passed the impugned signals dated February 06, 2014, stating that the petitioner had erroneously been granted annual increments with effect from July 01, 2006, which was not in order. Accordingly, the pay of the petitioner was revised as detailed in the order itself and fixed at Rs. 8630/- with effect from January 01,

2006.

5. Learned counsel for the petitioner contended that the pay of the petitioner could not be fixed at less than Rs. 9910/- on account of the fact that pursuant to the recommendations of the 6th Central Pay Commission and as reflected in the CCS (Revised Pay) Rules, 2008, the Entry Pay in the revised pay structure for direct recruits appointed on or after January 01, 2006 in Pay Band-1 (Rs. 5200-20200/-) was fixed at Rs. 7510/- with Grade Pay of Rs. 2400/- totaling to a sum of Rs. 9910/-.

6. Learned counsel for the petitioner highlighted the fact that no request was ever made by the petitioner seeking re-fixation of pay nor was there any mis-representation on his part at the time of the fixation of his pay and as such the respondents were bound to serve a notice upon the petitioner before again re-fixing the pay of the petitioner to the petitioner’s detriment. Even otherwise, once pay had been fixed by the respondents, no recovery could have been made except in accordance with law, which necessitated serving a show cause notice before effecting any recovery.

7. On the aspect that recovery has generally been prohibited by Courts where there is no misrepresentation or fraud on the part of the employee and excess payment has been made by applying a wrong principle in calculating the pay/allowance or on the basis of a particular interpretation of a rule/order, which is subsequently found to be erroneous, reliance was placed by learned counsel for the petitioner upon the decisions of the Apex Court reported as (2009) 3 SCC 475 Syed Abdul Qadir & Others vs. State of Bihar & Others; and (2006) 11 SCC 709 Col. B.J.Akkara (Retd.) vs. Government of India & Others.

8. The learned counsel for the petitioner also contended that the present case is squarely covered by a Division Bench judgment of this court in WP(C) No. 4295/2011 titled B.D. Dubey and Ors. Vs. Union of India and Ors. wherein the Court observed that if any action was intended by the respondents to place the petitioner in a lower pay band, a show cause notice was required to be issued containing the reasons for the tentative decision taken by the respondents. Only after affording an opportunity of hearing could any decision be taken and no recovery could be effected till then. The relevant paragraphs of the said judgment read as under:-

9. The primal question for consideration in the present case is: Whether the pay of the petitioner having been re-fixed pursuant to the recommendations made by the 6th Central Pay Commission could have been revised by the respondents to the detriment of the petitioner without even issuance of a show cause notice to the petitioner. The other question which requires consideration is: Whether the excess amount (if any) paid to the petitioner, not having been paid on account of any mis-representation or fraud on the part of the petitioner, but on account of mis-calculation of the pay of the petitioner, which was subsequently found to be erroneous, whether the respondents can recover the said amount unilaterally and even without issuance of show cause notice to the petitioner.

10. The answers to the aforesaid questions, in our considered opinion must be in the negative on both counts. The action of the respondents impugned in the present writ petition, in our view, cannot stand scrutiny and smacks of arbitrariness.

11. In the result, we allow the writ petition quashing the impugned signals dated February 06, 2014 with a direction to the respondents that the petitioner would continue to draw pay and allowances in Pay Band-I in the pay scale of Rs.5200-20200/- with Grade Pay of Rs. 2400/- thereby amounting to a sum of Rs. 9910/-, with effect from January 01, 2006.