Varghese K T v. Union of India and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 ## WP(C) NO. 12270 OF 2021 ## PETITIONER: VARGHESE K T AGED 61 YEARS CISF NO.8712310447, EX-HEAD CONSTABLE, FORMERLY OF CISF UNIT SALRJUNG MUSEUM, JUBILEE POST, HYDERABAD, TELENGANA, PIN500002,PRESENTLY RESIDING AT KUNNILETHU HOUSE, PALLIKKUTHU P.O., CHUNGATHARA, MALAPPURAM DISTRICT, KERALA STATE,PIN-679 334 BY ADVS. T.SANJAY SANIL KUMAR G. MIDHUN R. ## RESPONDENTS: - 1 DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE CISF HEAD QUARTERS, CGO COMPLEX, LODHI ROAD, NEW DELHI, PIN-110 003 - 2 THE INSPECTOR GENERAL /CISF SOUTH SECTOR HEAD QUARTERS, CHPT CAMPUS, CHENNAI,PIN-600013 - 3 THE DEPUTY INSPECTOR OF GENERAL/CISF CISF SOUTH ZONE 1, HEAD QUARTERS, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI, PIN-600 090 - 4 THE DEPUTY INSPECTOR OF GENERAL/CISF SZ-2 HEAD QUARTERS, NISA CAMPUS, HAKKIMPETT P.O., HYDERABAD, TELENGANA,PIN-500078 - 5 THE GROUP COMMANDANT CISF GROUP HEAD QUARTERS, HYDERABAD, NISA CAMPUS, HAKKIMPETT P.O., HYDERABAD, TELENGANA,PIN-500078 - 6 THE DEPUTY COMMANDANT CISF UNIT SALARJUNG SALARJUNG MUSEUM, JUBILEE POST, HYDERABAD, TELENGARA, PIN-500002 - 7 THE REGIONAL PAY & ACCOUNTS OFFICER, CENTRAL INDUSTRIAL SECURITY FORCE, 3RD FLOOR, "D" WING, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI, PIN-600090 - 8 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, WPC 12270/2021 -2- NORTH BLOCK, NEW DELHI-110 001 BY ADV SMT.H.SUBHALEKSHMI, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 12270/2021 -3- ## JUDGMENT (Dated this the 13[th] day of February 2024) The petitioner joined the CISF in the year 1981 as a Constable. He retired on superannuation on 31.05.2020 on attaining the age of 60 years. Ext.P1 was issued on 22.10.2019 for recovery of an amount of Rs.,1,29,652/being the excess pay he has drawn while he was in service from 10.10.1997 to 30.09.2019. The petitioner submitted a representation against the recovery, which was declined by Ext.P2 and there was an order for recovery of the same from his salary. The petitioner, therefore, filed Ext.P3 representation before the 1[st] respondent pointing out the judgment of the Apex Court in State of Punjab v. Rafiq Masih ((2014) 8 SCC 883). Taking note of the judgment of the Apex Court, Ext.P5 Circular was issued on 08.01.2019 by the 1[st] respondent, which reads as follows: WPC 12270/2021 -4- “3. Keeping in view the guidelines of Hon’ble Apex Court, as well as CCS rules, all the Heads of Offices under your jurisdiction may be advised to strictly adhere to the rules while fixing the pay of personnel so that no cases of over payments are reported in future since it is extremely difficult to effect recoveries in view of the above mentioned GOI guidelines. 4. Officers and men involved in wrong fixation of pay leading to over payments need to be dealt with suitably for their lapses. 5. furthermore, it is apparent that recoveries of excess payments are unlikely to materialise in case they are challenged in the courts which make it imperative that all such payments are made with due care and caution. Failure to observe the instructions scrupulously should be dealt seriously by all concerned”. 2. The representation submitted by the petitioner before the 1[st] respondent was rejected by Ext.P6, confirming the recovery. Accordingly, the amount was recovered from the salary of the petitioner from November 2019 to May 2020. 3. The petitioner, therefore, filed this Writ Petition to declare that the petitioner is entitled to the basic pay of WPC 12270/2021 -5- Rs.3425/- with effect from 01.01.1997 and also the refund of the amount recovered from his salary with 12% interest as per the judgment of the Apex Court. 4. A counter-affidavit is filed on behalf of respondents 1 to 8, in which it is contended that the petitioner was promoted to the rank of Lance Naik on 24.01.1995 with the notional date of promotion with effect from 11.10.1993 for the purpose of seniority. He was further promoted to the rank of Naik with effect from 30.09.1996 and on rationalization of rank structure in CISF, the petitioner’s rank has rationalized to the rank of Head Constable (GD) with effect from 10.10.1997. The petitioner’s pay was Rs.3540/- with effect from 10.10.1997 in the pay scale of Rs.3200-85-4900/- available for Head Constable (GD) and the above pay fixation was found to be not in order in accordance with provisions of FR-22(I)(a)(2) WPC 12270/2021 **==> picture [16 x 8] intentionally omitted <==** as the petitioner was drawing Rs.3425/- only prior to 10.10.1997 in the pay scale available in the rank of Naik and he was entitled to get his pay fixed at Rs.3455/- only i.e. the next level available in the Head Constable’s pay scale of Rs.3200-85-4900/-. Accordingly, his pay was amended and re-fixed at Rs.3455/- with effect from 10.10.1997. Consequent to re-fixation of petitioner’s pay, the subsequent increments/pay up to the year 2019 was also amended and it resulted in revising his pay to a lower stage than the stages which he had been drawing till the year 2019. consequently, Rs.1,29,652/- was quantified to be recovered from the petitioner’s salary with effect from 10.10.1997 to 30.09.2019. The was petitioner duly informed of the re-fixation of pay and the recovery due. The filed the was representation by petitioner duly examined in detail, and it was directed to take the WPC 12270/2021 -7- necessary action on the representation and give a reply accordingly. Therefore, pray for the dismissal of the writ petition. 5. Heard the counsel for the petitioner as well as the Central Government Counsel for respondents. 6. The counsel for the petitioner relies on the Division Bench judgment of the Apex Court in State of Punjab v. Rafiq Masih (2015) 4 SCC 334, after the reference, especially paragraph 18 of the judgment, which is stated as follows: “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 the employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service). - (ii)Recovery from retired employees, or employees who WPC 12270/2021 -8- 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. He submits that as far as the petitioner is concerned, he was working in Group-C, so clause (i) would squarely apply. The second clause deals with the recovery of retired employees or employees who are due to retire within one year. This clause is also applicable as the recovery was effected within one year of the order of recovery. He also points out that since a pay revision was in the year 1997 that is five years prior to the order of recovery, clause (iii) is also applicable. So, at no stretch of imagination it can WPC 12270/2021 -9- be said that no amount can be recovered from the salary of the petitioner, as the Apex Court held that recovery from the salary is impermissible in law. 8. The counsel for the respondents submits that it is a wrong fixation of pay that the petitioner happened to receive the excess amount. This was found out only when the pension papers were processed, and she also submitted that, as far as the CISF is concerned, the pension papers are processed only six months prior to the date of superannuation, and therefore, the judgment of the Apex Court is not applicable to this case. 9. Whatever that may be, the Apex Court has clearly held that the recovery is impermissible in law in the five categories enumerated in the judgment applies. The petitioner squarely falls within the first three conditions. Therefore, the recovery effected pursuant to Ext.P1 is not in WPC 12270/2021 -10- order. In the result, the Writ Petition is allowed, and the respondents are directed to pay the amount of Rs.1,29,652/to the petitioner recovered from his salary within a period of two months from the date of receipt of a copy of the judgment. Necessary orders shall be passed in this regard within a period of one month from today. The request for payment of interest is declined. Sd/- BASANT BALAJI JUDGE JS -11- WPC 12270/2021 ## APPENDIX OF WP(C) 12270/2021 PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF OFFICE MEMORANDUM NO.(3448) DATED 22.10.2019 ISSUED BY THE 6TH RESPONDENT - Exhibit P2 TRUE COPY OF THE OFFICE MEMORANDUM NO.(729) DATED 01.11.2019 ISSUED BY THE 6TH RESPONDENT - Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 08.11.2019 ADDRESSED TO THE 1ST RESPONDENT PREFERRED BY THE PETITIONER - Exhibit P4 TRUE COPY OF THE OFFICE MEMORANDUM NO.F.NO.18/03/20 1 5 -ESTT (PAY-I) DATED 02.03.2016 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING - Exhibit P5 TRUE COPY OF THE CIRCULAR NO.(114) DATED 08.01.2019 ISSUED BY THE 1ST RESPONDENT - Exhibit P6 TRUE COPY OF THE LETTER NO (4829) DATED 13.12.2019 ISSUED BY THE 6TH RESPONDENT - Exhibit P7 TRUE COPY OF THE COMMUNICATION NO.(693) DATED 29.02.2020 ISSUED BY THE 6THR ESPONDENT - Exhibit P8 TRUE COPY OF THE PENSION PAYMENT ORDER OF THE PETITIONER DATED 15.07.2020 ## RESPONDENT’S EXHIBITS - EXHIBIT R5(A) TRUE COPY OF THE SERVICE ORDER PART I NO.23/1995 DATED 31.01.1995. - EXHIBIT R5(B) TRUE COPY OF THE CISF HQRS., NEW DELHI LETTER NO.(107) DATED 23.05.2019 - EXHIBIT R5(C) TRUE COPY OF WHICH IS PRODUCED HEREWITH HYDERABAD SERVICE ORDER PART II NO.882/2019 DATED 26.09.2019 - EXHIBIT R5(D) TRUE COPY OF THE UNIT SERVICE ORDER PART I NO.56/96 DA TED 08.10.96 - EXHIBIT R5(E) TRUE COPY OF THE UNIT SERVICE ORDER PART I NO.14/98 DATED 24.05.98.