Allowed

K C Bakliwal v. National Council of Educationa

Rajasthan HC24 May 2024CW/2664/2005

Case brief

AI extract

What is this about?

Retired employee challenged Tribunal's dismissal of his application against retrospective refixation of pay after 22 years and recovery from retiral dues. The High Court held the fixation was made per NCERT directions and audited internally and externally, so it could not be altered without hearing.

What did the court decide?

Refixation and recovery orders quashed; wrongly deducted amount refunded with 9% interest within four weeks; pension recalculated on 24 months' average emoluments; Rs.50,000 cost on NCERT.

K C Bakliwal Vs National Council of… — Pension and Retirement Benefits | Rajasthan HC (2024)

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[2024:RJ-JP:23235-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No. 2664/2005

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K C Bakliwal son of Shri Poonam Chand Bakliwal, aged 63 years, retired Accounts Officer, N.C.E.R.T., resident of 14/38, Saraogi Mohalla, Ajmer.

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----Petitioner

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Versus

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National Council Of Education Research & training (NCERT), N.I.E. Campus, Shri Aurobindo Marg, New Delhi – 16 through its Director.

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The Secretary, N.C.E.R.T., N.I.E. Campus, Shri Aurobindo Marg, New Delhi – 16.

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Regional Institute of Education, Pushkar Road, Ajmer through its Principal.

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The Central Administrative Tribunal, Jaipur Bench, Jaipur through its Registrar.

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----Respondents

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For Petitioner(s)	: Mr. Ashish Saxena
For Respondent(s)	: Mr. Kapil Prakash Mathur with
	Mr. Ashutosh Udawat and
	Mr. Saurabh Vaishnav

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MRS. JUSTICE SHUBHA MEHTA

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Order

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RESERVED ON :: 15/05/2024 PRONOUNCED ON :: 24/05/2024

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(Per. Pankaj Bhandari, J)

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The petitioner has preferred this writ petition aggrieved by the order dated 28.02.2005 whereby the original application was dismissed, which was filed by the applicant-petitioner before the Central Administrative Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as “the Tribunal”) with the following prayers:-

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(2 of 9)

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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“i) that the applicant, therefore, humbly prays that the impugned order dated 21.8.2000 by which salary of the applicant has been refixed after 22 years from the earlier refixation dated 1.10.1980 and the letter dated 6.9.2002 by which a sum of Rs.49,946/- has been deducted from the retiral benefits of the applicant may be declared illegal and arbitrary and therefore be quashed.

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ii) The applicant be paid his pension on the basis of his average emoluments calculated after considering 24 months pay preceding his retirement which he was drawing prior to illegal refixation vide order dated 21.8.2002.

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iii) The sum of Rs.63,518/- which as per the applicant has been deducted be refunded to the applicant along with interest @ 12% per annum.”

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The respondents filed reply to the original application. In reply, it was stated that the amount was paid to the petitioner in excess, as such, the same was rightly recovered and his pay was properly fixed. It was further stated that the petitioner being an Accounts Officer of the Institution, it was his primary duty to point out that wrong fixation has been done. It is also submitted in the reply that fixation process was also gone through by the petitioner as he was working as an Accounts Officer. It was further stated in the reply that when the illegality committed by the Officials, inadvertently came to the knowledge of the authorities, directions were issued for refixation.

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The Tribunal while dismissing the original application observed that where excess amount has been paid erroneously to an employee, and in the payment of which he had no role to play, or committed no misrepresentation or fraud, in that event, (even though the pay and the emoluments had been reduced as a result

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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(3 of 9)

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of refixation/revision of pay scales), the amount so overpaid cannot be recovered from him, unless there are certain glaring facts and circumstances to take a different view. The Tribunal has further held that there was no dispute with regard to refixation and the error was committed earlier when the fixation was done.

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Learned counsel appearing for the petitioner has vehemently challenged the impugned order of the Tribunal. It is argued that the Tribunal has based its judgment on incorrect facts. It is contended that in reply to original application, the respondents have mentioned that the petitioner was an Accounts Officer. It is also contended that the Tribunal while deciding the original application held that the petitioner was not entitled to the relief as petitioner was working as an Accounts Officer and it was his duty to point out that wrong fixation was done and that the fixation was done at his behest. It is further contended by Mr. Ashish Saxena, Advocate, appearing for the petitioner that since the Tribunal has proceeded on wrong facts, the petitioner is entitled to the relief as claimed for.

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It is contended that there is no document produced by the respondents to substantiate their allegation that the fixation done in the year 1980 was done at the behest of the petitioner. It is also contended that the respondents just 10 days prior to the superannuation of the petitioner, proceeded without giving notice to the petitioner and have passed the orders whereby refixation has been done and recovery has been effected from the pensionary benefits of the petitioner. It is further contended that

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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(4 of 9)

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case of the petitioner was scrutinized in internal audit by NCERT and then by C.A.G. and no irregularity was observed. In spite of that, the respondents due to malice, have proceeded against the petitioner by refixation done after 22 years and the same was done at the behest of some Officer, who was having enmity with the petitioner.

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It is contended by Mr. Ashish Saxena, learned counsel for the petitioner that the Tribunal at many places in the impugned order has mentioned that the petitioner was working as an Accounts Officer and it was his duty and responsibility for proper pay fixation. The Tribunal has further erred in coming to the conclusion that the petitioner has drawn higher pay scale fraudulently. Thus, the Tribunal has committed error apparent on the face of record. Learned counsel, in support of his arguments, has placed reliance on State of Punjab & Ors. Versus Rafiq Masih (White Washer) & Ors.: (2015) 4 SCC 334, Smt. Pushp Lata Thada Versus State & Ors. : RLW 2001 (3) Raj.1555 , State of Rajasthan & Ors. Versus Smt. Sudarshan Goyal & Anr. : 2005 (3) CDR 2370 (Raj.) (DB) and Girdhar Gopal Jagrawal Versus State of Rajasthan : D.B. Special Appeal Writ No.1232/2019 decided by the Rajasthan High Court on 19.04.2021.

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Mr. Kapil Prakash Mathur, Advocate, appearing for the respondents has opposed the writ petition. It is contended that from the rejoinder to the reply of the original application, it was evident that the petitioner was the only staff working in the Accounts Department and it was at his behest that the fixation

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(5 of 9)

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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was done. It is also contended that since the petitioner was working in the Accounts Department, it was his duty to bring out any erroneous fixation and to get the same refixed. It is further contended that the petitioner has not challenged the fixation order and has not mentioned that the fixation was wrongly done.

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We have considered the contentions and have perused the material on record.

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The petitioner was initially appointed as L.D.C. (Cashier) on 29.05.1965. A joint disciplinary inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as “the CCA Rules”) was initiated against the petitioner on 20.08.1975. On the recommendations of the D.P.C., the petitioner was posted on the post of Cashier on 15.10.1980. Vide order dated 30.09.1980, the petitioner was exonerated from the charges as nothing was proved against the petitioner in the inquiry. Consequent to exoneration of the petitioner, he was promoted to the post of ‘Assistant’ in the pay scale of Rs.425-800 w.e.f. 11.06.1976 with further observation that his seniority, increments etc. would be admissible as per the provisions of Rule 10 of CCA Rules, 1965. On 02.05.1981, a note sheet was drawn by Regional Institute of Education, Ajmer (hereinafter referred to as ‘RIE, Ajmer’), which reads as under:-

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“On 01.10.1980, Shri Bakliwal was drawing his pay @ Rs.428/- as Account Clerk in the pay scale of Rs.330560. Accordingly, his pay should be fixed at Rs.515/p.m. on 01.10.1980 in the pay scale of Rs.425-800 in accordance with the FR 22(C). The benefits of increments for 4 years, 3 months and 20 days is also to be allowed as under:-

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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(6 of 9)

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01.10.1980 Actual Promotion - 11.06.1976 Date of Promotion - Rs.428 01.10.1980 - 428+12 = 440 + 15 = 455 - + 60 (04 increments) = 515

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The next date of increment will be 3 months earlier than 01.10.1980, 11.06.1981 (i.e. 01.06.1981). Thus, the pay of Shri Bakliwal should be fixed at Rs.515/- p.m. with next date of increment as 01.06.1981.”

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The petitioner continued to draw the above pay and consequent increments till the date of his retirement. Perusal of the writ petition reveals that on 08.06.1981, NCERT issued directions to the RIE regarding promotion of the petitioner to the post of Assistant with further observation to review the case of the petitioner as per Rule 10(14) of the CCA Rules, 1965 and grant him relief as under:-

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“The pay of such category Government Servants should, on promotion, be fixed by allowing the intervening period, during which the suspended officer could not be promoted due to his suspension, to be counted for increments in the higher grade, but no arrears would be admissible.”

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A note-sheet was also drawn on 22.09.1981 by RIE, Ajmer, which reads as under:-

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“The benefit of increment for 4 years, 3 months and 17 days is to be allowed by fixing his pay at Rs.515/on 01.10.1980 with next date of increment on 01.06.1981. His pay may be fixed at Rs.515/- p.m. on 01.10.1980 in the pay scale of Rs.425-800 in accordance with R.R. 22(c).”

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Admittedly, there is nothing on record to show that petitioner

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was the Accounts Officer or was holding the charge of Accounts

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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(7 of 9)

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Officer. The Tribunal has erroneously decided the original application considering the petitioner to be an Accounts Officer. There is noting on record to show that the fixation of the petitioner after he was exonerated from the charges, was done by the petitioner, rather from the various letters produced by the petitioner, it is evident that the NCERT issued directions to RIE and RIE as per the directions issued by the NCERT, did fixation of the petitioner.

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Prior to the retirement of the petitioner, the C.A.G. had conducted regular audit and has not found any error in the records. Thereafter, just 10 days prior to the date of the retirement of the petitioner, the impugned order was passed without issuing notice to the petitioner and his fixation done way back in the year 1980 was changed without providing him any opportunity of hearing. The excess amount paid to him has also been deducted from his retiral benefits, which is contrary to the law laid down by the Apex Court. The fixation of the petitioner was subjected to internal audit by NCERT and thereafter, external audit by Director of Audit, Central Revenue TACR, which found the fixation to be correct.

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The Apex Court in State of Punjab & Ors. Versus Rafiq Masih (White Washer) & Ors. : (2015) 4 SCC 334 , has held that recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery; or recovery from the employees to whom excess payment has been made for a period in excess of five years, before the order of recovery is

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(8 of 9)

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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made, is impermissible. In Smt. Pushp Lata Thada Versus State & Ors. : RLW 2001 (3) Raj.1555 , the Division Bench of the Rajasthan High Court has held that withdrawal of selection grade without show cause notice cannot be sustained as it involves the basic rights, involving civil consequences, the selection grade cannot be withdrawn except by issuing a show cause notice. In State of Rajasthan & Ors. Versus Smt. Sudarshan Goyal & Anr. : 2005 (3) CDR 2370 (Raj.) (DB) , the Division Bench of the Rajasthan High Court has held that retrospective recovery of excess amount cannot be permitted, if opportunity of hearing is not provided. In Para 3 of the said judgment, it has been held as under:-

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“3. Since, the impugned orders are not adverse to the appellants, we refrain from entering into the merit of the case, more wo when the impugned orders have been made in the light of the settled proposition of law that no adverse orders without affording opportunity can be passed which may occasion civil consequences against the employees. In the instant case, the appellant State almost penalized the respondent employee with retrospective recovery on account of excess amount paid to her allegedly due to wrong fixation which the State is trying to justify as only a rectification of error. This is fallacious. No consequential order can be passed without affording opportunity of hearing. We are, therefore, of the opinion that the impugned orders are just and proper and do not call for any interference.”

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In light of the above, we are of the considered view that once fixation has been done and that too way back in the year 1980 and the fact that it has been subject to internal audit by NCERT and external audit by Director of Audit, Central Revenue, there was no reason for reassessing the petitioner’s fixation and

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(9 of 9)

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[2024:RJ-JP:23235-DB]

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[CW-2664/2005]

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that too, ten days prior to his date of retirement with retrospective effect for more than 22 years. The fixation done on 01.10.1980 cannot be said to be erroneous and the same cannot be changed by the department without giving any opportunity of hearing to the petitioner.

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We find no justification in passing of the impugned orders and the writ petition preferred by the petitioner deserves to be and is accordingly, allowed. Consequently, the impugned order dated 21.08.2000 by which the salary of the petitioner has been refixed after 22 years; the letter dated 06.09.2002 and impugned order dated 28.02.2005 passed by the Tribunal are quashed and set side. The respondents are directed to refund the amount, which has been wrongly deducted as a consequence of refixation, to the petitioner along with interest @ 9% per annum. The respondents are further directed to calculate the pension of the petitioner on the basis of the average emoluments calculated after considering 24 months pay preceding his retirement. Considering the fact that petitioner is a senior citizen aged 82 years, the amount wrongly deducted along with interest @ 9% per annum and all pension dues be paid to him within four weeks of the receipt of this order.

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In the facts and circumstances of the case, we deem it proper to impose a cost of Rs.50,000/- on respondent – NCERT payable to the petitioner, which has done refixation after 22 years and has wrongly deducted amount from the retiral benefits.

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(SHUBHA MEHTA),J

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(PANKAJ BHANDARI),J

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SUNIL SOLANKI /PS

K C Bakliwal v. National Council of Educationa

Case brief

What is this about?

What did the court decide?

K C Bakliwal v. National Council of Educationa

Case brief

What is this about?

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