* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 7911/2009
% Date of Decision: 24th February ,2010
# SHRI U.B. SAXENA
.....PETITIONER
! Through: Mr. M.K. Sreegesh, Advocate
.
VERSUS $ ADMINISTRATIVE OFFICER (HR) & ANOTHER .....RESPONDENTS ^ Through: Mr. S.N. Chaudhari , Advocate CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper may be allowed to see the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in the Digest? YES S.N.AGGARWAL, J (ORAL) The petitioner joined the service with Delhi Vidyut Board as a Fitter. In terms of promotion policy applicable to him, he was entitled to have three time bound promotions during his career. He got all three time bound promotions to which he was entitled and this is not in issue in the present proceedings. What is in issue is the pay scale to which the petitioner was entitled at the time of his third time bound promotion to the post of Foreman w.e.f. 09.06.2003.
2 At the time of his third time bound promotion to the post of Foreman w.e.f. 09.06.2003, he was placed by the respondents in the pay scale of Rs.7,750-13,700/- vide office order dated 10.02.2004 (Annexure P-3 at page 21 of the paper book). The petitioner thereafter took voluntary retirement from the service of the respondents w.e.f. W.P.(C) No.7911/2009 Page 1 of 4 31.12.2003 and he was paid terminal benefits by the respondents based upon his last pay as fixed vide office order dated 10.02.2004 at page 21 of the paper book. The terminal benefits were paid to him in March, 2008. 3 After payment of terminal benefits based upon last pay as fixed vide office order dated 10.02.2004 referred above, the respondents vide their letter dated 06.06.2008 (Annexure P-5 at page 25 of the paper book) informed the petitioner that his pay was wrongly fixed in the pay scale of Rs.7,750-13,700/- w.e.f. 09.06.2003 instead of Rs.8,000-13,225/- on account of some clerical mistake and asked him to refund the excess amount of Rs.1,76,874.90 paise paid to him in excess. The petitioner in order to avoid his liability for payment of interest claimed from him on the excess amount vide office order dated 06.06.2008 referred above and also concerned with his pension, deposited the alleged excess amount claimed from him without prejudice to his rights. A reference in this regard can be made to the letter of the petitioner dated 09.09.2008 sent by him to the respondents (Annexure P-9 at page 32 of the paper book).
4 The petitioner, aggrieved by the recovery of excess amount recovered from him by the respondents in terms of their letter dated 06.06.2008, has filed the present writ petition with the following prayers:-
"(a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to refund an amount of Rs.1,76,874.90 to the petitioner with interest at the rate of 12% from 29.06.2008 till the date of disbursement.
(b) Issue a writ of certiorari or any other appropriate writ, order of direction quashing annexure P-5 & P-7 orders issued by the respondent.
(c) Issue an appropriate writ, order or direction declaring that the petitioner's terminal benefits are to be computed in terms of the Annexure P-3 Office order dated 10.02.2004 as per the scale of pay of Rs.7,750-13,700/-W.P.(C) No.7911/2009 Page 2 of 4
(d) Pass such other and further order/orders as may be deemed fit and proper in the facts and circumstances of the present case."
5 In response to notice of this writ petition, the respondents have filed their counter affidavit and have reiterated their stand that the pay of the petitioner at the time of his third time bound promotion to the post of Foreman w.e.f. 09.06.2003 was wrongly fixed in the pay scale of Rs.7,750-13,700/- instead of Rs.8,000-13,225/-. They have reasserted their claim for recovery stating that the recovery was rightly made by the respondents from the petitioner in short span of time after realising the mistake in fixing the pay of the petitioner in wrong pay scale. 6 I have heard the arguments of the learned counsel for both the parties and have also perused the entire record.
7 The only short question that arises for consideration in the present writ petition is whether the petitioner at the time of his third time bound promotion to the post of Foreman w.e.f. 09.06.2003 was entitled to pay scale of Rs.7,750-13,700/- or Rs.8,000-13,225/-. 8 On the last date, this Court had directed the respondents to clarify on affidavit as to how the end pay of a pay scale can be less than the end pay of a pay scale of which starting pay is less than the starting pay of that scale. In compliance with the said direction of the Court, the respondents have filed an additional affidavit and have annexed copy of an office order dated 04.03.2002 issued by the erstwhile Delhi Vidyut Board which is at running page 57 of the paper book. A perusal of this office order filed by the respondents themselves along with their additional affidavit would show that the pay scale of Rs.8,000-13,225/- was revised to Rs.7,750-13,700/- w.e.f. 31.10.2001. In case the pay scale of Rs.8,000-13,225/- was revised to Rs.7,750-13,700/- w.e.f. 31.10.2001, W.P.(C) No.7911/2009 Page 3 of 4 then the pay of the petitioner at the time of his third time bound promotion to the post of Foreman w.e.f. 09.06.2003 was liable to be fixed in the revised pay scale of Rs.7,750-13,700/-. The pay scale of Rs.8,000- 13,225/- ceased to have any application w.e.f. 31.10.2001. Since the promotion of the petitioner was on a subsequent date, his pay was rightly fixed by the respondents vide their office order dated 10.02.2004 Annexure P-3 at page 21 of the paper book. There is absolutely no justification with the respondents to withdraw that order and say that his pay was wrongly fixed on account of some clerical mistake. The respondents have not placed any material on record to justify as to how the pay of the petitioner at the time of his third time bound promotion w.e.f. 09.06.2003 was to be fixed in the pay scale of Rs.8,000-13,225/- as alleged by them in the impugned office order dated 06.06.2008 at page 25 of the paper book.
9 In view of the foregoing, this writ petition is allowed. The impugned office order dated 06.06.2008 Annexure P-5 at page 25 of the paper book is quashed. The respondents are directed to return the amount of Rs.1,76,874.90 paise recovered by them from the petitioner pursuant to the impugned order dated 06.06.2008 to the petitioner within four weeks from today. In case the amount as directed is not returned within four weeks from today then the said amount shall carry interest @ 12% per annum till the date of actual payment.
This writ petition stands disposed of in terms referred above.
FEBRUARY 24, 2010 S.N.AGGARWAL, J
'A'
W.P.(C) No.7911/2009 Page 4 of 4