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HIGH COURT OF DELHI
W.P.(C) 787/2020
RAVINDER KUMAR .....Petitioner
Through: Mr. Padma Kumar S, Mr. Krishna Kumar Mishra and Mr. Gurpreet Singh, Advs.
Through: Mrs. Avnish Ahlawat, SC
HON’BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
21.11.2024 C. HARI SHANKAR, J.
1. The petitioner was appointed as Pharmacist with the Maulana Azad Medical College[1] on 25 October 1976 in the pay scale of ₹ 330- 560/-, which was revised to ₹ 4500-7000/- with effect from 1 January
1996. He was granted the first Financial upgradation under the Assured Career Progression[2] Scheme with effect from 9 August 1999 in the scale of ₹ 5000-8000/-. He was subsequently granted second upgradation under the Modified Assured Career Progression[3] scheme “MAMC” hereinafter “ACP” hereinafter “MACP” hereinafter in the grade pay of ₹ 4,800/- and a third upgradation in the grade pay of ₹ 5,400/-.
2. Subsequently, by an Office Memorandum dated 18 November 2009, consequent to the recommendations of the 6th Central Pay Commission, the aspect of fixation of pay scales inter alia of Pharmacists was referred by the Ministry of Finance to a Fast Track Committee. The Fast Track Committee recommended reduction of the pay scale of Pharmacist to a grade pay of ₹ 2,800/- with nonfunctional scale of ₹ 4,200/- after two years.
3. The enhanced pay scale of ₹ 4,800/- which had been granted to the petitioner under the third MACP with effect from 1 January 2006 was modified by corrigendum dated 24 November 2011, making the petitioner entitled to the scale of ₹ 9,300-34,800/- with grade pay of ₹ 4,600/-, 4,800/- and 5,400/- with effect from 1 September 2008.
4. As a result, according to the respondents, an amount of ₹ 6,13,773/- was found to have been paid to the petitioner in excess and was, therefore, recoverable from him.
5. A little over six months prior to his retirement which was to take place on 31 March 2015, the petitioner was visited with a Memorandum dated 3 September 2014 issued by the MAMC, which reads as under: “MEMORANDUM In pursuance of Health & Family Welfare Department, Govt. NCT of Delhi order no. F.6/30/TRC/H&FW/2010/9425-62 dated 20-09- 2013 the pay of Shri Ravinder Kumar, Pharmacist is re-fixed in the pay band-II Rs.9300-34800 with grade pay Rs.4200/- and Rs.4800/- on (3rd MACP) vide order no. F.11(06)/2011-MC/Estt.- I/14285 Dated 19-08-2014 vide which an amount of overpayment Rs.6,13,773/- is to be recovered. The official is hereby directed to deposit the amount of overpayment to Accounts Branch, MAMC at the earliest, in case of non depositing the same the recovery will be made as per Rules, as you are going on superannuation on 31-03-2015. ADMN.
OFFICER (ESTT.-I)”
6. The petitioner, thereafter, addressed the following communication to the MAMC on 8 September 2014, which read: “R/Sir, With due respect I say, I received a Memorandum No. F11(06)/2011/MC/Estt-15394 dated 03-09-2014, that my pay is refixed in the pay band-II ₹ 9300-34800 with grade of ₹ 4200-4800. My Date of Superannuation is 31-03-2015. So I request you please deduct the amount ₹ 6,13,373/- from my G.P.F. at the time of my superannuation. Thanking you Yours faithfully (Ravinder Kumar) (Pharamcist) UHC Gokulpuri Phone:- 8800687490 Date:- 8-9-2014”
7. The petitioner thereafter instituted OA 3146/2017 before the Tribunal, seeking setting aside of the order dated 3 September 2014. The Tribunal, by order dated 12 September 2017, disposed of the said OA with the direction to the respondent to consider the petitioner’s representation against the proposed recovery of ₹ 6,13,773/- and pass an appropriate speaking order thereon.
8. In compliance of the said order, the respondent passed order dated 8 November 2017, in which the decision on the petitioner’s representation reads thus:
official; had submitted an application on 08/09/2014 vide which a request was made by him to deduct the overpayment of Rs. 6,13,773/-from his GPF Account as he was going to retire on 31/03/2015. However, on the next day i.e. 09/10/2014, the then official deposited the said amount to Government treasury vide chailan no. 110.
(vi) Whereas Sh. Ravinder Kumar, (retired on
31/03/2015) has submitted representation on 20/02/2017 seeking release of Rs. 6,13,773/- which was sent to the H & FW Deptt. for their comments. The comments are still awaited. In the light of directions of Hon'ble CAT for passing, a reasonable and speaking, order in the light of judgment given in OA NO. 98/2015 and 2083/2015, the matter of Sh. Ravinder Kumar had been examined and it has been found that the material facts of this case are not similar to the cases under reference as in those two cases where recoveries were made after the officials had retired, which was also after the delivery of the judgment of Hon’ble Supreme Court of India, in the matter of State of Punjab and others v Rafiq Masih in CA no 11527/2014, and the hardship postulated existed before the recoveries, thus making the judgment of Hon'ble Supreme Court applicable. Whereas, the material facts of the case of Sh Ravinder Kumar (Ex- Pharmacist), the Petitioner, are completely different as Sh. Ravinder Kumar was asked to deposit tine amount of excess payment on account of wrong fixation of Grade pay on 03/09/2014, which the official deposited in Government treasury on 09/10/2014, whereas the Hon'ble Supreme Court had delivered judgment in the matter of State of Punjab and others v Rafiq Masih on 18/12/2024. It is not out of place to mention that Hon'ble CAT in OA no. 98/2015 and 2083/2015 had based its orders on the observations that the judgment of Hon'ble Supreme Court was passed well before recoveries in those cases. Hon'ble CAT has considered the clarification with regard to applicability of the Grade Pay in case of MACP to Pharmacist as Grade pay of Rs. 4200/- and Rs..4800/- legal per se and not found any infirmity in the said clarification and sustained the same. Hence there is no disput with regard to applicability of G.P. 4800/- in place of 5400/-. Only question is whether hardship clauses postulated in matter of State of Punjab v Rafiq Masih are applicable or not. Sh. Ravinder Kumar (Ex-Pharmacist) Petitioner, had never come with the hardship issue as vide his request submitted on 08/10/2014 wherever he had requested, to recover the excess-payment of amount Rs. 6,17,773/- from his GPF A/C as, he was going to retire on 3,1/03/2015. But-the then official, had deposited the whole amount in Government Treasury on the next day i.e. 09/10/2014. Thereafter he never came with this issue till his representation filed on 20.02.2017. In view of the above, the representation of Sh Ravinder Kumar, is disposed off as rejected, as facts and circumstances of the case of Sh. Ravinder Kumar are completely different to the judgment of the Hon'ble CAT given in O.A. No. 98/2015 and 2083/2015 and analogy cannot be drawn on the basis of those cases as the basis taken for granting relief by Hon'ble CAT was the order of Hon'ble Supreme Court of India in matter of State of Punjab and others v Rafiq Masih being passed before the recovery, but the instant case is prior to the same. Further, Sh. Ravinder Kumar had never come with the issue of hardship till 20/02/2017 which was more than two years after the recovery.”
9. Aggrieved by the aforesaid order, the petitioner re-approached the tribunal by way of OA 4145/2017. Before the Tribunal, the petitioner placed reliance on the well-known decision of the Supreme Court, on the aspect of permissible recoveries which could be made from Government Officials, in State of Punjab v Rafiq Masih[4]. We may note, here, that para 18 of the said judgment, in which the Supreme Court issued the following directions on the aspect of recovery, read thus:
(iii) Recovery from the 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.”
10. The respondent, on the other hand, placed reliance on judgment of the Supreme Court in High Court of Punjab and Haryana v Jagdev Singh[5], to contend that, as the petitioner has himself undertaken to repay the excess payment, if any, made to him while upwardly fixing his pay under the third MACP, the petitioner could not now seek to challenge the said recovery.
11. The Tribunal has accepted the stand of the respondent and has, by order dated 8 August 2019, dismissed the Original Application.
12. Paras 6, 6.1, 9, 10 and 11 of the said order read thus:
Apex Court in the case of Rafiq Masih (supra) was a decision which came much after the applicant has already made the payment of excess amount. It is not the case of the applicant that the said recovery was illegal but he has not pointed out what was the basis for treating it as illegal. 6.[1] Counsel further submitted that the issue of recovery again has also been adjudicated by the Hon’ble Apex Court in High Court of Punjab and Haryana & others vs. Jagdev Singh, wherein the Court made a reference to Rafiq Masih (supra) judgment and thereafter decided that if the officer to whom the payment was made, was clearly placed' on notice in the first instance that any payment found to have been made in excess would, be required to be refunded and if the officer had furnished such an undertaking while opting for-the revised pay scale, he is bound by such an undertaking and recoveries shall be admissible. In the present case applicant himself has given a request/undertaking for recovery of overpayment from his GPF account, therefore, the case of Rafiq Masih (supra) is not applicable to him. In view of the above, counsel for the respondents submitted that OA deserves to be dismissed by this Tribunal. *****
9. It is admitted that the applicant was granted first ACP w.e.f. 09.08.1999 in the scale of Rs.5000-8000, 2nd MACP in the Grade Pay of Rs.4800 and 3rd MACP in the Grade Pay of Rs.5400. It is also admitted that Ministry of Finance vide OM dated 18.11.2009 modified the recommendations of 6th Central Pay Commission by referring the matter to a Fast Track Committee whereby the pay scale of Pharmacist was made at the entry grade with Grade Pay of Rs.2800 with a non-functional scale of Rs.4200 after two years. Therefore, as per the recommendations of Fast Track Committee, respondents modified the grant of MACP of the applicant restricting the same to the Grade pay of ₹4200 for 1st MACP, Rs.4600 for 2nd MACP and Rs.4800 for 3rd MACP.
10. It follows that applicant was very well aware of the recommendations of the Fast Track Committee, therefore, he has chosen not to agitate the matter and consented to subsequent correction and recoveries from his GPF account which has already been refunded by the applicant himself before his date of retirement.
11. So far as reliance placed by the applicant on the judgment of the Apex Court in the case of Rafiq Masih (supra) is concerned, the same is not applicant to his case, as the applicant himself refunded the said excess payment well before the aforesaid decision of the Apex Court in Rafiq Masih (supra).”
13. Aggrieved by the aforesaid decision, the petitioner has filed the present writ petition before this Court.
14. We have heard Mr. Padma Kumar, learned Counsel for the petitioner and Mr. N K Singh, learned Counsel for the respondent at length.
15. Mr. Singh submits that as the petitioner had himself, in his letter dated 8 September 2014, agreed for recovery of the excess payment from his GPF, the petitioner could not thereafter seek to challenge the recovery. Reliance has been placed, by Mr. Singh, on the judgment of the Supreme Court in Jagdev Singh.
16. We are unable to accept the submissions of Mr. Singh or the impugned order passed by the Tribunal.
17. Rafiq Masih is clear and categorical in its directions. There is an absolute proscription, in Rafiq Masih, from effecting recoveries from employees belonging to Group-C and Group-B services, recoveries from retired employees, recoveries from employees who are due to retire within one year or recoveries beyond five years from the date of excess payment. The petitioner was admittedly a Group-C employee. Again, equally admittedly, the recovery was being sought to be made from the petitioner within a period of one year of his retirement. As such, the recovery was straightaway hit by clauses (i) and (ii) in para 18 of Rafiq Masih.
18. The decision in Jagdev Singh, on which the Tribunal has relied and which Mr. N K Singh also presses into service is, in our considered opinion, inapplicable. The reason is apparent from para 9 of the said decision. Paras 2, 3 and 9 of the said decision may be reproduced thus:
19. Thus, the Supreme Court in Jagdev Singh has carved out an exception to the Rafiq Masih principles only in two situations. The first situation is where there is an undertaking by the officer, at the time of initial upward revision of the officers’ pay, accepting that any excess payment would be refunded by him. The second situation in which the Rafiq Masih principles would not apply is where, at the time of opting for the benefit of the revised pay scale, the employee was put on notice of the fact that future refixation or revision could warrant an adjustment of the excess payment.
20. The orders upwardly revising the petitioner’s pay scale under the third MACP were passed on 10 August 2011 and, thereafter, on 24 November 2011. There is nothing to indicate that, at that time or even at any proximate time thereto, the petitioner gave an undertaking that any excess payment, if made to him, could be recovered or undertook to refund any such excess payment if made. Rather, by the order dated 3 September 2014, it was the respondents who called upon the petitioner to refund the amount of ₹ 6,13,773/- on 8 September 2014. Pursuant thereto, obviously for the reason that, if the said amount was not paid, the retiral benefits of the petitioner would be likely to be held up, the petitioner, vide letter dated 8 September 2014, agreed to pay the said amount from his GPF account.
21. There was, therefore, no undertaking by the petitioner to refund any excess payment, at the time when the pay was upwardly fixed, within the meaning of para 9 of the decision in Jagdev Singh.
22. Nor was the petitioner put on notice, at the time of the fixation of his pay under the third MACP, that future refixation could warrant an adjustment of any overpayment made.
23. Neither of the circumstances in which recovery of overpayment could be permitted, as envisaged in para 9 of Jagdev Singh, therefore, existed in the present case.
24. That being so, we are of the opinion that the case is squarely covered by clauses (i) and (ii) in para 18 of the decision of the Supreme Court in Rafiq Masih.
25. The impugned judgment of the Tribunal, which holds to the contrary, cannot sustain. It is accordingly quashed and set aside.
26. Any recoveries made from the petitioner are directed to be released to him within four weeks, failing which the amount would carry interest at the current GPF rates from the expiry of four weeks from today, till the date of payment.
27. The writ petition stands allowed accordingly.
C. HARI SHANKAR, J.