Sudha Saxena v. Union of India and Ors.

(D) It is true that creation of posts and grant of pay scales is an Executive function and it is not for the Court to direct either creation or upgradation of posts and/or prescribe pay scales for any post, however, it is equally true that ‘equal pay for equal work’ and ‘parity in pay scales’ are established doctrines and Courts have been enforcing these principles to ensure that employees performing same duties and carrying out similar functions with similar qualifications etc.are treated equally while determining pay structures.Reliance is placed on thejudgment of the Supreme Court in Union of India and Others v. Rajesh Kumar Gond, (2014) 13 SCC 588, wherein the Supreme Court in one of the SLPs was dealing with the case of a Junior Hindi Translator in the Office of Director General of Commercial Intelligence and Statistics under the Ministryof Commerce, who sought pay parity with Junior Translators working in CSOLS, on the principle of ‘equal pay for equal work’. The Supreme Court upheld theorder of the Tribunal challenged before it, where the plea of the employee was accepted by the Tribunal, finding no material to show anyfunctional difference in the job profiles of the employees in the respective Departments, carrying out the work of translation. Reliance was placed by the Supreme Court on an earlier judgment of the Supreme Court in Randhir Singh v. Union of India and Others, (1982) 1 SCC 618, elucidating that ‘equal pay for equal work’ is a fundamental right.

13.

CONTENTIONS RAISED ON BEHALF OF DPL: (A) DPL is an Autonomous Body under the Ministry of Cultureand is fully financed and funded by the Government of India. Cadre of DPL is different from Central Civil Services and CSOLS and the pay scales or nomenclatures of the latter are not automatically applicable to DPL. Traditionally and historically, posts in Central Secretariat have been higher than those in Subordinate offices/Autonomous Bodies,since thework in these services is more onerous than in organizations such as DPL; (B) There is a difference in the responsibilitiesshouldered by employees in CSOLS and those in Autonomous Bodies apart from differences in the duties and recruitment process. No doubt that DLB had resolved to convert the post in question and upgrade the pay scale, as stated by the Petitioner, however, once the Ministry of Culture tooka position that revised pay scales of Hindi Translators were applicable to CSOLSonly and would not automatically apply to DPL, the error in upgrading the post of Hindi Officer held by the Petitioner to Assistant Director, was rectified.

14. Mr. Gogna, learned Central Government Standing Counsel appearing on behalf of Respondents No.1 and 2/Union of India, emphasizes that DPL is an Autonomous Organization and the pay scales granted to theTranslators/Assistant Directors etc.in the Official Language Department of the Ministry of Home Affairs were not meant to apply automatically to Autonomous Organizations such as the DPL. The post of Hindi Officer held by the Petitioner was upgraded as Assistant Director (OL) and Petitioner was placed in PB-3 with Grade Pay Rs.5400/-, but this action of DPL was without the approval of Department of Expenditure, Ministry of Finance and the Petitioner was, therefore, rightly reverted to the post of Hindi Officer and placed in PB-2 with Grade Pay of Rs.4600/- w.e.f. 01.01.2006.In so far as recovery of Rs.9,59,744/-from the pension of the Petitioner is concerned, the argument is that if excess payments have been made on accountof erroneous pay-fixation, the same can always be recovered by an employer.

15. I have heard the learned counsels for theparties and looked into the respective submissions.

16. The heart of the dispute before this Court is whether the post of Hindi Officer, held by the Petitioner was rightlyconverted to Assistant Director in the upgraded pay scale PB-3 in Grade Pay of Rs.5400/and if the answer to the question is in the negative, can recovery be made from the Pension drawn by the Petitioner.

17. Before embarking on the journey to examine the rival contentions, it is relevant to understand the scope of judicial interference in issues relating to pay fixation and upgradation/ conversion of posts. It is trite and hardly needs a reiteration that revision of pay scales, post fixation, post creation or upgradation, equation of posts and determination of pay structures are matters within thedomain of the Executiveand expert Bodies such as the Pay Commissions and being complex matters are best left to them. It is beyond thescope and ambit of the Courts,exercising power of judicial review to sit in appeal over the wisdom of the experts in the field or substitute their views for those of the expertsor the Executive. Having said that,pertinent it is to mention that it is equally well settled that ‘equal pay for equal work’ is not an abstract doctrine andis capable of being enforcedin a Court of law examined on theanvil that ‘equal pay must be for equal work of equal value’, as recently observed by the Supreme Court in a judgment, which I shall advert to shortly.

18. There is indisputably a wealth of judicial precedents on the first principles on parity of pay scales and scope of judicial interference, however, in order to avoid prolixity,I may only refer to a very recent judgment of the Supreme Court on this issue in Union of India v. Indian Navy Civilian Design Officers Association and Another, 2023 SCC OnLine SC 173, relevant passageswhereof are as follow:- “9. Before adverting to the rival contentions raised by the learned counsels for the parties, it deserves to be noted that the power of judicial review of the High Courts in the matter of classification of posts and determination of pay scale is no more res integra. It has been consistently held by this Court in plethora of decisions that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and the interference of the Court was absolutely necessary to undo the injustice.

10. In State of U.P. v. J.P. Chaurasia[1], while answering the questions as to whether the Bench Secretaries in the High Court of Allahabad were entitled to pay scale admissible to the Section Officers and whether the creation of two grades with different scales in the cadre of Bench Secretaries who were doing the same and similar work was violative of the right to have “equal pay for equal work”. This Court observed as under:— “18. The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors.It does not just depend upon either the nature of work or volume of work done by Bench Secretaries.Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance.The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.”

11. The afore-stated ratio was followed by this Court in Union of India v. Makhan Chandra Roy[2]. Again, in Secretary, Finance Department v. West Bengal Registration Service Association[3], the claim of Sub-Registrars of West Bengal Registration Service claiming parity in pay scale with Munsiffs on the basis that Sub- Registrars were conferred gazetted status, was examined by this Court. It was elaborately observed in para 12 as under:— “12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time-consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v.) the extent of powers vested in him

(vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broad banding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made,

(iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v.) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice.”

12. In State of Haryana v. Charanjit Singh[4], a three-judge Bench in a referred matter considered whether the doctrine of “equal pay for equal work”, was an abstract doctrine, and observed thus:—

13. In Union of India through Secretary, Department of Personnel, Public Grievances and Pensions v. T.V.L.N Mallikarjuna Rao[5], this Court reiterated the said position:—

14. In view of the afore-stated legal position, it clearly emerges that though the doctrine “equal pay for equal work” is not an abstract doctrine and is capable of being enforced in a Court of Law, the equal pay must be for equal work of equal value. The equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Courts therefore should not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions which undertake rigorous exercise for job evaluation after taking into consideration several factors like the nature of work, the duties, accountability and responsibilities attached to the posts, the extent of powers conferred on the persons holding a particular post, the promotional avenues, the Statutory rules governing the conditions of service, the horizontal and vertical relativities with similar jobs etc. It may be true that the nature of work involved in two posts may sometimes appear to be more or less similar, however, if the classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved, namely, the efficiency in the administration, the Pay Commissions would be justified in recommending and the State would be justified in prescribing different pay scales for the seemingly similar posts. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues or frustration due to longer duration of promotional avenues is also an acceptable reason for pay differentiation. It is also a well-accepted position that there could be more than one grade in a particular service. The classification of posts and the determination of pay structure, thus falls within the exclusive domain of the Executive, and the Courts or Tribunals cannot sit in appeal over the wisdom of the Executive in prescribing certain pay structure and grade in a particular service.”

19. The present case would, therefore, require to be tested on the principles elucidatedin the aforesaid judgment by the Supreme Court. As observed by the Supreme Court, pay structures are evolved keeping in mind several factors, such as educational qualifications, hierarchy of posts, duties and responsibilities of the post, etc. It is also settled that it is beyond the domain of the Courts to determine the pay structures and the power to do so rests with the Executive/expert Bodies. But equally true it is that the doctrine of ‘equal pay for equal work’ is not an abstract doctrine and is capable of ‘enforcement in Courts’.

20. The case of the Petitioner is premisedon the doctrine of ‘equal pay for equal work’. The genesis of the case lies in the recommendations of 5th CPC, pursuant to which Department of Official Language,Ministry of Home Affairs, replaced the pay scale of Rs. 6500-10500 with a higherscale of Rs.7500-12000 for the post of Assistant Director in CSOLS by an order dated 27.02.2003. By a subsequent order dated 02.04.2004, the upgraded pay scales were extended to posts of Translators and were made applicable w.e.f. 01.01.1996,notionallyand from 11.02.2003,on actual payment basis.

21. This led to a Junior Hindi Translator working in EPFO to approach the Tribunal in O.A. No.505/2008, seeking parity in pay scales with his counterparts in CSOLS.Matter was re-examined by the Ministry concerned, and upgraded pay scale was granted to the Applicant.This was followed by another judgment of the Tribunal in T.A. No.353/2009in the case of Mahaveer Tripathi (supra), whereby the Hindi Translator Cadre in AIIMS was grantedparity in pay scales with thosein the Department of Official Language. In both the said cases reliance was placed by the Tribunal on the celebrated and landmark judgement on ‘equal pay for equal work’ in Randhir Singh (supra), where the Supreme Court held that when all relevant considerations are the same,persons holding identical posts must not be treateddifferently in thematter of their pay, merely because they belong to anotherDepartment. As aforenoted,both these judgements have been implemented.

22. Petitioner has also placed reliance on another judgment of the Supreme Court in Rajesh Kumar Gond (supra). In the said case, Respondent was a Junior Hindi Translator working in one of the Departmentsunder theCommerce Ministry and had sought parity of pay with Junior Translators working in CSOLS.TheTribunal allowed his application noting that there was no material to show how the functional requirements of the jobs in the Commerce Ministry and Central Secretariat were different as both involved the work of translation.Relying on the judgment in Randhir Singh (supra), the Special Leave Petition was dismissed by the Supreme Court, upholding the view of the Tribunal that there was no functional distinction in the twoposts in question. By the same judgment, the Supreme Court decided Civil Appeal No. 1119/2013 titled ‘Union of India and Ors. v. Dhananjay Singh’ and S.L.P.(C) No. 37255/2012. In S.L.P. (C) No. 37255/2012, Respondents were working as Senior Translators/Assistant Directors in Ministry of Defence and had sought parity with Translatorsin Central Secretariat, which was granted by the Tribunal by judgmentdated 18.05.2009,which was upheld by the Punjab and Haryana High Court in CWP No. 23126/2010. The Supreme Court held that nofault could be found with thejudgments in appeal, as no functional difference could be shown in the work performed by the concerned employees in the respective departments. In Civil Appeal No. 1119/2013, Respondent was working as Junior Hindi Translator in the Office of Commissionerof Central Excise and claimed parity with Junior Translators in Central Secretariat. The appeal was dismissed by the Supreme Court finding no functional distinction in the work of the Junior Translators in the two departments.

23. The relevance of referring to the aforementioned judgments is that Courts have been directing grant of pay scales to employees working in various Official Language departments with their counterpartsin CSOLS on parityand in many cases, the Applicants/ Petitioners were employeesof Autonomous Organizations. Petitioner has also placed on record documents to show that several other AutonomousOrganizations such as Sangeet Natak Academy, CCRT (Centre for Cultural Resources and Training), Films Division, Mumbai, etc. andmore particularly NSD, which is under Ministry of Culture, have granted the upgraded scales in the Official Language departments at par with CSOLS.Therefore, theposition that emerges is that several Autonomous Organizations have granted the pay scales of CSOLS to their employees in the concerned postseither on account of judicial orders or administrative decisions.

24. There can be no quarrel with thestand of the Respondents that the pay scales applicable to Central Government employeesor CSOLS in this case, are not ipso facto or automatically applicable to AutonomousBodies such as DPL and in fact, this is not even disputed by the Petitioner.In a nutshell,what thePetitioner contendsis that it is open to an Autonomous Organization to take a decision to adopt the pay structure of the CSOLSwith the approval of the Nodal Ministry.

25. In the present case, DLB in its 365th Meeting held on 28.11.2011 resolved and approved the conversion of post of Hindi Officer to Assistant Director in PB-3 with Grade Pay of Rs.5400/-. Relevant part of the Minutes is as under:- “Item 5: Conversion of the post Hindi (Officer) to Assistant Director (OL) in the pay scale of Rs. 15600-39100 (PB) + 5400 G.P. The conversion of the post of Hindi Officer to Asstt. Director in the pay scale of Rs. 15600-39100 (PB-3) + 5400 G.P. which is as per the procedures and/or rules laid down was approved.”

26. Relevant would it be to note that the precursor to the said Resolution was a letter dated 06.12.2010, whereby DPL had sought approval from theMinistry of Culture,Government of India, its Nodal Ministry, for conversion of post of Hindi Officer to Assistant Director (OL) and its placement in the scale of PB-3 with Grade Pay of Rs.5400/- from PB-II with Grade Pay of Rs.4600/-. The contents of this letter are significant as it is categorically stated by DPL that the request of the Petitioner was premised on Ministry of Home Affairs, Raj Bhasha’s Office Order dated 27.02.2013 and NSD O.M dated 28.10.2013 andit was further statedthat all other Subordinate Bodies have granted upgradation,more particularly,NSD, which is under the same Ministry i.e. Ministry of Culture. Relevant part of the letter dated 06.12.2010 is as under:- “DELHI PUBLIC LIBRARY (Govt. of India Organization, Ministry of Culture) Ref. No. 12024/22/95-Estt./3713 Dated 6th Dec., 2010 The Under Secretary to the Govt. of India, Ministry of Culture, (Library Section) Shastri Bhawan, New Delhi-110 001. Subject: Upgradation of pay scale and posts from Hindi Officer pay scale of Rs. 9300-34800+4600 G.P. to Assistant Director (OL) of Rs. 15600-39l60+5400 G.P.-reg. Madam, I am directed to state that Smt. Sudha Saxena, Hindi Officer in the pay scale of Rs. 9300-34800+4600 G.P. in this Library has requested for upgradation of her post from Hindi Officer to Assistant Director (OL) and pay scale from Rs. 9300-34800+4600 G.P. to Rs. 15600-39100+5400 G.P. on the basis of Ministry of Home Affairs, Raj Bhasha's Office Order No. 12/2/97-Raj Bhasha (Sewa) dt. 27.2.03, 13/6/2002-Raj Bhasha (Sewa) -dt. 2.4.2004, 3-2/01-US (Akademies) dt. 24.10.2003 and National School of Drama, OM No. NSD/Admn./277/2003-2004 dt. 28.10.2003 (copy enclosed for ready reference). Further she has furnished copies of Ministry of Finance, Deptt. of Expenditure OM No. F.1/1/2008-IC dt. 24.11.2008 & 27.11.2008, Ministry of Culture's letter No. 5-2/2009-Hindi dt. 05.6.2009 and D.O. No. E.5-2/2009-Hindi dt. 30.10.2009 for support. In this regard it is informed that there is one post of Hindi Officer (Rs. 6500-10500)/pre-revised) is created and sanctioned in DPL and Smt. Sudha Saxena is appointed to the post of Hindi Officer since, 31.7.1995 by promotion.As per Sixth Pay Commission report, her pay scale is revised in PB-2 of Rs. 9300-34800+4600 G.P. with approval of Delhi Library Board and M/o Culture, along with others. Further it is also informed that out of 449 sanction posts in D.P.L. 260 posts are filled up and 189 posts are lying vacant at present. Out of 260 filled up posts, only 57 posts (Group A, B & C) are in Ministerial cadre. It is therefore, requested, that the requisite approval of Govt. of India, M/o Culture for upgradation of posts from Hindi Officer to Assistant Director (OL) as well pay scale from PB-2 Rs. 9300- 34800+4600 G.P. to PB-3, Rs. 15600-39100+5400 G.P. as it has been done in case of other subordinate bodies working under the Ministry of Culture (i.e. National School of Drama etc.) may please be provided. Yours faithfully, Sd/- (B.L. Meena), Dy. Director (Admn.) 02/12/10”

27. Petitioner has also placed on record Agenda Item No. 4 as Annexure P-14 to the writ petition which reflects that after the matter was referred to the Ministry of Culture vide letter dated 06.12.2010, the same was examined by theMinistry in consultation with Ministry of Home Affairs, Official Language Department. It is noted that as per recommendations of 5th CPC, all Assistant Director (OL) posts in Central Secretariat have been placed in PB-3 with Grade Pay of Rs.5400/-. Based on 5th CPC recommendation as well as that of Parliamentary CommitteeReports on the subject,Ministry of Culture communicated vide letter dated 14.06.2011that it had no objection in re-designating the post of Hindi Officer of DPL to Assistant Director (OL). The Agenda is extracted hereunder for ready reference:- “AGENDA Item 4: Conversion of the posts of Hindi (Officer) to Assistant Director (OL) in the pay scale of Rs. 15600-39100 (PB) +5400 G.P. Smt. Sudha Saxena,Hindi Officer has requested for revision of pay scale from 9300-34800 with (PB) +4600 to 15600-39100 (PB) + 5400 with effect from 1.1.2006 as per recommendation of 6th Pay Commission. In this regard, the matter has been referred to Ministry of Culture for clarification on 6.12.2010. The matter has been examined by Ministry of Culture in consultation on 6.12.2010. The matter has been examined by Ministry of Culture in consultation with Ministry of Home Affairs Official Language. As per recommendation of 5th Pay Commission all the Assistant Director Official Language exist in the Central Secretariat have been revised and placed in the Pay Band III with Grade Pay 5400/-. As per the recommendation of the Parliamentary Committee all the officials have to be brought into same category post i.e. Assistant Director (OL). Ministry of Culture vide letter No. 32-45/2010 Lib. Dated 14.6.2011 has communicated first Rajbhasha Vibhag has no objection in redesignated the post of Hindi Officer of DPL Assistant Director (OL). If any clarification is required in this regard the same can be correct to Ministry of Finance which is Nodal Ministry for pay scale etc. Submitted for consideration of the Board. Sd/- 29.4.13 Public Information Officer”

28. It is pursuantto this that DPL issued an Order dated 30.01.2012 upgrading the post of Hindi Officer as Assistant Director (OL) and fixing the pay of the Petitioner in PB-3 with Grade Pay of Rs.5400/w.e.f. 01.01.2006. The Order is as follows:- “Delhi Public Library Estt. Sect. Ref-12024/22/95/Estt./10 Dt. 30.01.2012 ORDER In pursuance of Ministry of Culture letter no. 32- 45/2016 dated 14.06.2010 and Delhi Library Board's Resolution No. 365(5) dated 28.11.2011,the post of Hindi Officer is hereby re-designated as Assistant Director (Official Language). According to the recommendations of 6th Pay Commission the pay band /pay scale of Hindi Officer Rs. 9300-34800/- + grade pay Rs. 4600/- is revised Rs 15600- 39100/- + Grade pay 5400/- we.f. 01.01.2006. Therefore the post of Hindi Officer, held by Smt. Sudha Saxena, in Delhi Public Library is re-designated as Assistant Director (OL) in the Pay Band of Rs. 15600 - 39100/- with Grade pay of 5400/- w. e. f. 01.01.2006. This, issues with the approval of the competent authority. Sd/- (Sudha Mukherjee) Deputy Director (Admn.)”

29. In view of the above, the contention of the Respondents that DPL being an Autonomous Body, the action of conversion/ upgradation of the post of Hindi Officer and the pay scale related thereto was erroneous, has no legs to stand. The very fact that a conscious decision was taken by the DLB by a Resolution of the Board, with the approval of the Ministry leads to the inevitable conclusion that the first objection in the impugnedorder has no merit and being an Autonomous Body, DPL has consciously upgraded the post of Hindi Officer in the higher pay scale equivalent to the counterpartsin CSOLS. In fact, theOrder dated 30.01.2012, whereby the Petitioner was placed in the higher pay scale itself states ‘In pursuance of Ministry of Culture letter No. 32-45/2016 dated 14.06.2010 and Delhi Library Board’s Resolution No. 365(5) dated 28.11.2011, the post of Hindi Officer is hereby re-designated as Assistant Director (Official Language)’ and ‘This issues with the approval of the competent authority’.

30. A very relevant fact that needs a mention at this stage is that although DPL is an AutonomousBody under the Ministryof Culture, but it is fully funded by the Government of India and historically, as and when theCentral Pay Commissions have revised the pay scales, the employees of DPL have been granted thepay revisions albeit with the approval of the Ministryof Culture and after examination by the Department of Expenditure, Ministryof Finance. Petitioner has placed the relevant Orders in this regard before this Court and therefore, one finds that there has been a historical parity in pay scales of DPL with pay scales in the Central Government Offices.

31. The only other impediment in the way of the Petitioner is the stand of the Respondents that the matter was not examined by the Department of Expenditure, Ministryof Finance, before the post and the pay scale were upgraded. The Court finds merit in this stand of the Respondentsas the documentson record indicate that whenever the Central pay scales were extended to DPL, it was after the matter was examined by the Department of Expenditure.

32. In this view of the matter,this Court deems it appropriate that the matter be placed by the Respondents before the Department of Expenditure, Ministry of Finance for examining the issue of upgradation of thepost of Hindi Officer to Assistant Director (OL) in PB-3 Grade Pay of Rs.5400/-. Before drawing thecurtains, it needs to be observed that while taking a decision, the Department of Expenditure, Ministry of Finance must take into consideration the stand of DPL, theBoard Resolution dated 28.11.2011, Agenda Item No. 4 and the ‘no objection’ conveyed by theMinistry of Culture and Ministry of Home Affairs, Official Language Department, as aforenoted.The Department should also keep in the background the various judgments referred to above on pay parity as well as the observationsof the Supreme Court in Rajesh Kumar Gond (supra) and most recentlyin Indian Navy (supra), where the Supreme Court has held that ‘equal pay for equal work’ is not an abstract doctrine and depending on facts of a case can be enforced in a Court of law. Needless to state that the decision shall be taken in accordance with law.

33. The last plank of the argument of the Petitioner is that she was placed in the pay scale of PB-3 with Grade Pay of Rs.5400/without any fault of hers and she was not instrumental in any misrepresentation or fraud and therefore,in view of the settledlaw, no recovery should be effected from her Pension towards the alleged excess payments in the higher pay scale. The stand of the Petitioner is correct in this regard. The Order granting higher pay scale to the Petitioner was passed on 30.01.2012 andshe retired on superannuation on 29.02.2016,whereafter she is drawing Pension. In the earlier round of litigation in W.P.(C) No. 1550/2017, filed by the Petitioner, this Court while disposing of thewrit petition on 02.04.2018 had directed DPL to pass a fresh order after hearing thePetitioner and had further directed that no recoverywill be made till a fresh order was passed in view of the dictum of Supreme Court in Rafiq Masih (White Washer) & Ors. (supra). When the present writ petition was filed by the Petitioner, this Court had, by order dated 19.09.2018, stayed the recovery from the pension of the Petitioner.

34. The law on recovery from a pensioner is fairly well settled and I may allude to a recent judgment of the Supreme Court in Thomas Daniel v. State of Kerala & Ors., 2022 SCC OnLine SC 536, wherein it was held as under:-

11. In Col. B.J. Akkara (Retd.) v. Government of India this Court considered an identical question as under:

12. In Syed Abdul Qadir v. State of Bihar excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excesspayment should not be ordered, especially when the employee hassubsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/understanding of a Rule or Order. It was held thus:

13. In State of Punjab v. Rafiq Masih (White Washer) wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery.It was held thus:

35. Applying the dictum of the Supreme Court in the aforementioned judgments, it is directed that the Respondents shall not make recoveries from the amounts already disbursed to the Petitioner pursuant to upgradation of the post of Hindi Officer to Assistant Director (OL) in PB-3 with Grade Pay of Rs.5400/-.

36. The writ petition is, accordingly, disposed of along with the pendingapplication, directing the Respondents to place the matter before the Department of Expenditure, Ministry of Finance, Governmentof India, for consideration of upgradation of the post of Hindi Officer to Assistant Director (OL) in PB-3 with Grade Pay of Rs.5400/- in DPL. The entire exercise shall be completed within two months from today. In case of any surviving grievance, Petitioner is at liberty to take recourse to remedies available in law.