Bombay High Court
Suresh Kisan Gajbhiye vs The Union Of India Thr. Divisional ... on 12 February, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:1398-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3938 OF 2023
Suresh Kisan Gajbhiye,
Aged 64 yrs, Occ. Sub-Inspector (Retd.),
Railway Protection Force, South East
Central Railway, Nagpur,
Residing at New Mankapur Ambedkar
Society, near Budhs Vihar, Mankapur,
Nagpur 440 030 ...... PETITIONER
...V E R S U S...
1. The Union of India
through its Divisional Railway Manager,
South East Central Railway,
Kingsway, Nagpur 440 001
2. The Divisional Security Commissioner,
Railway Protection Force,
South East Central Railway,
Kingsway, Nagpur 440 001
3. The Senior Divisional Finance Manager,
South East Central Railway,
Kingsway, Nagpur 440 001
4. The Divisional Finance Manager,
South East Central Railway,
Kingsway, Nagpur 440 001 ,.....RESPONDENTS
---------------------------------------------------------------------------------------------
Ms. Sakshi Tiwari, Advocate h/f Mr. R.D. Dhande, Advocate for
Petitioner.
Mr. C.J. Dhumane, Advocate for Respondents.
---------------------------------------------------------------------------------------------
CORAM:- AVINASH G. GHAROTE & ABHAY J. MANTRI, JJ.
Closed for Judgment on :29.11.2024
Judgment pronounced on :12.02.2025
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JUDGMENT (Per : Abhay J. Mantri, J.)
Rule. Heard finally with the consent of the learned
Advocate for the parties.
2. The petitioner has invoked the jurisdiction of this Court
to declare that he is entitled to a salary of Rs. 50,500/- as per the
last drawn salary and also entitled to arrears based on the said
salary. Therefore, he challenges the revocation order dated
24.06.2019, passed by respondents Nos. 2 and 3, whereby they
revised his pay from Rs. 50,500/- to Rs. 49,000/- and directed the
respondents to refund/reimburse the said amount with 9% per
annum and other consequential reliefs.
3. The petitioner was appointed with respondent No. 2 on
28.09.1979 and promoted to the post of Naik on 12.03.1996. On
10.10.1997, the Naik post was merged with the post of Head
Constable. On 30.06.2020, the petitioner was granted the first
Assured Carrier Progression (for short - the "ACP"). On 28.09.2003,
he got a second ACP. On 08.09.2009, he was promoted to the post
of Assistant Sub-Inspector. On 06.12.2017, he was further promoted
to Sub-Inspector with a pay scale (new 9300-34800-Grade Pay
Rs.4200).
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4. With effect from 18.04.2005, the respondent No. 3
authority, after considering the rules for stepping up pay, passed an
order thereby enhancing the pay of the petitioner to Rs. 4600/- and
directed that the arrears of pay and allowances shall be paid to him.
Accordingly, communication was issued to him. It is pertinent to
note that vide communication dated 18.04.2019, the petitioner's
pay was mentioned as Rs. 50,500/- (pay matrix level-6 in 7 th pay
commission). The date of superannuation of the petitioner was
30.06.2019; however, a week ago, on 24.06.2019, respondent Nos.
2 and 3 authorities, without issuing any show cause notice or
following the principles of natural justice by giving an opportunity
to plead his side, passed speaking order, reviewed his service record
and thereby reduced his pay scale from Rs. 50,500/- to Rs. 49,000/-
and passed recovery order holding that there was overpayment of
Rs. 2,77,895/-. Accordingly, the overpayment of Rs. 1,05,728/- was
recovered from the petitioner. Therefore, the petitioner submits
that as per the last pay fixation of Rs. 50,500/-, he is entitled to
salary and allowances. However, respondent suo-motu changed his
pay behind his back. Therefore, passing the order of recovery and
actual recovery of the amount is illegal, arbitrary, and contrary to
the settled position of the law.
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5. On 10.07.2020, the petitioner made a representation to
respondent No. 2, making his grievance for recalling and reviewing
the order to reduce his pay scale. Respondent No. 2, vide
communication dated 04.08.2020, replied that by order dated
24.06.2020, the pay was reduced w.e.f. 28.09.2003, when the pay
scale was reduced from Rs. 4300/- to Rs. 4135/- and from
01.10.2005, it was reduced from Rs. 4700/- to Rs. 4600/- and from
01.07.2018, one increment was reduced. Hence, his pay scale was
reduced from Rs. 50,500/- to Rs. 49,000/-.
6. Similarly, on 03.11.2020, respondent No. 3 passed an
order, thereby holding that stepping up allowed to him was not in
order. He had also claimed that he was entitled to the benefit as
granted to one Mr. Babulal when he was holding the post of a
constable; his pay was fixed at Rs. 3965/- and said benefit does not
come within the purview of the grant of advance increment and
hence, it would not hit by any rule. Therefore, being aggrieved by
the communications, he has preferred this petition.
7. Having heard the learned Counsel for the parties and
perusal of the record and the judgments relied upon by the learned
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counsel for the petitioner, the following points arise for
determination: -
a) Whether the petitioner is entitled to seek a stepping
up of pay from Rs. 4400/- to Rs. 4600/- at par with his
junior colleague Mr. Babulal w.e.f. 18.04.2005?
b) Whether the petitioner, who retired on 30.06.2019,
is entitled to claim a notional increment that was
accrued after the next day of his superannuation on
01.07.2019?
c) Whether, in view of the law laid down in the case
of Rafiq Masih, the direction for recovery of arrears from
the petitioner's retiral dues required to be stopped and
quashed and set aside?
We have to deal with them one by one to appreciate the
rival contentions of the parties.
a) Whether the petitioner is entitled to seek a stepping
up of pay from Rs. 4400/- to Rs. 4600/- at par with his junior
colleague Mr. Babulal w.e.f. 18.04.2005?
8. Ms. Tiwari, the learned Counsel for the petitioner,
vehemently contended that respondent Nos. 2 and 3, without giving
an opportunity being heard to the petitioner, passed a revised
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fixation order one week before his superannuation and erred in
reducing his pay from Rs. 50,500/- to Rs. 49,000/- and therefore,
the said order is liable to be set aside. Respondent No. 3 on
08.02.2017 allowed stepping up of pay to the petitioner from Rs.
44,000/- to 46,000/- to be par with his junior batch-mate Babulal
w.e.f. 18.04.2005. The said order is never challenged nor set aside
and, therefore, attained finality based on the said fact; he is entitled
to the last pay fixation @ Rs. 50,500/- but respondent No. 3 has
committed an error while re-fixing his pay and reduced the same to
Rs. 49,000/-. The benefit of Rs. 400/- granted to Mr. Babulal
cannot be termed as an incremental benefit. Therefore, reducing the
pay scale is contrary to the provisions of the law and the facts on
record; hence, it is liable to be set aside.
To buttress his submissions, the learned Counsel for the
petitioner has relied upon the following judgments:
i) Union of India and Ors Vs. P. Jagdish and Ors, AIR
1997 SC 1783;
ii) Union of India and another Vs. R. Swaminathan
and Ors, (1997)7 SCC 690;
iii) S.C. Saxena and Ors. V/s Union of India and Ors.,
2003 (2) MPHT 355.
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The learned Counsel has argued that based on the
dictum laid down in the said judgments, the petitioner is entitled to
a step-up in his pay compared to that of Mr. Babulal.
9. As against above, Mr. Dhumane, the learned Counsel for
the respondents, vehemently contended that before the retirement
of the petitioner, the Finance Department had reviewed the service
record of the petitioner and found a discrepancy in stepping up with
his senior batch mate and advised for revise pay fixation.
Accordingly, pay was fixed to Rs. 49,000/- from Rs. 50,500/- from
01.07.2018 and also directed to recover an amount of Rs.
2,28,880/- from his death cum retiral gratuity at the time of
retirement. The respondents also recovered the overpayment of Rs.
1,05,728/- from the petitioner.
10. The learned Counsel further canvassed that while
granting the 2nd ACP on 28.09.2003, his pay was fixed at Rs.
4135/-; hence, stepping up was not allowed to him. He has also
drawn our attention to the modified pay fixation and submitted that
while fixing the pay, as per the 2nd ACP, instead of Rs. 46,00/- it was
granted to Rs. 47,00/- and therefore, the same was rectified to Rs.
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46,00/- as per grade pay of Rs. 100/- has to be increased over a
year and therefore, the calculation effected by respondents are
correct and proper. Thus, the petitioner is not entitled to any relief
as claimed in the extraordinary jurisdiction and, hence, prayed for
dismissal of the petition.
11. The petitioner's main grievance seems to be an
inaccurate re-fixation of his pay without affording him an
opportunity for a hearing.
12. On perusal of the order dated 24.06.2019 Annexure D
(page No.41), it reveals that on 01.10.2004 under the 2 nd ACP, his
pay was fixed to Rs. 4,000-100-6000/- (as per the option) instead of
from 01.10.2003. Row No. 3 of the said order shows that his grade
pay was Rs. 100/- when his pay was Rs. 4400/- on 01.10.2003, and
the same was increased in the next year as on 01.10.2004 to Rs.
4500/- (Rs. 4400+100) therefore, in view of the same, on
01.10.2005 it could have been Rs. 4400/-+Rs.100+Rs.100=
Rs.4600/-; however, inadvertently, in row No. 5 (column No.2), the
same was wrongly set up as Rs. 4700/- and pursuant to the said pay
fixation, further calculation was made. Accordingly, on
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01.07.2018, his pay was fixed at Rs. 50,500/-. However, during the
review of the service record by the Finance Department of the
respondents, it was noticed that inadvertently, the petitioner's pay
scale was fixed @ Rs. 4700/- on 01.10.2005 instead of Rs. 4600/-
(Rs. 4400+100+100) and therefore, the respondents have rightly
revised the same from 01.10.2005. Consequently, they revised the
petitioner's pay scale, and on 01.07.2018, his pay was fixed as Rs.
49000/- instead of Rs. 50,500/-. The petitioner has not raised any
grievance about the same but only canvassed that he should be
granted the benefit of pay as granted to Mr. Babulal. However, he
failed to point out from the record as to how he is entitled to get Rs.
200/- grade pay instead of Rs. 100/-. Therefore, we do not find any
substance in his contention that he was entitled to Rs. 200/- as
grade pay/incremental benefits. He has not produced any document
on record to substantiate his assertions.
13. On the contrary, the Order dated 24.06.2019 Annexure
'D' categorically shows that while fixing his pay on 01.10.2005, it
was inadvertently taken as Rs. 4700/- instead of Rs. 4600/- as
demonstrated above and therefore, further calculations based on the
said incorrect entry has occurred. In such eventuality, it cannot be
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said that the incorrect calculations may go on further. In the above
background, it was incumbent on the part of the petitioner to
demonstrate how the said calculation is erroneous. However, the
petitioner failed to point out that the modified pay fixation is
incorrect. Per Contra, it appears that the Finance Department has
accurately calculated the modified pay and held that on 01.07.2018,
the petitioner was entitled to a salary of Rs. 49,000/-. Therefore,
we do not find errors in the calculations as alleged by the petitioner.
Thus, the petitioner has failed to demonstrate that he is entitled to a
last pay-drawn salary of Rs. 50,500/- and is entitled to claim his
pensionary benefits based on the last-drawn salary.
14. By representation dated 03.11.2020, the petitioner
contended that Mr. Babulal was appointed as Rakshak/Constable on
a pay scale of Rs. 200-240 on 28.09.1979 and continues the same
designation. After 18.04.2005, the difference in pay of two staff
members arose as a result of allowing the benefit of Rs. 100/- (as
per RBE 244/99 effective from 05.07.99) during the fixation of pay
upon ACP to Shri. Babulal, on 01.10.99, and was granted a Stepping
up of the pay/ the benefit of Rs. 100/-. The said averment in the
application appears contrary to the facts on record. The petitioner
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has not produced a single document supporting his contention and
substantiating his claim. As against, the revised pay fixation order
dated 03.11.2020 categorically explained how the revised pay
fixation is accurate. It was also observed that " the petitioner and
Babulal do not belong to the same cadre, so seniority is not
comparable." Thus, we do not find substance in his contentions in
that regard. As a result, the petitioner has failed to demonstrate that
he was eligible for the last drawn salary of Rs. 50,500/-; on the
contrary, it reveals that based on the accurate calculations, on
01.07.2018, the petitioner was entitled to a pay scale of Rs.
49,000/- instead Rs. 50,500/-. Therefore, we do not find substance
in his contentions.
15. In R. Swaminathan and others (Supra), "The issue
involved in the said case was whether a senior employee who gets
regular promotion on all-India basis earlier than his junior is
entitled to get his pay stepped up with reference to pay of his junior
whose pay on regular promotion was fixed at a higher stage."
16. In P. Jagdish ( Supra), " The issue involved in the said
case was whether the respondent can claim for stepping up of their
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pay in the promoted cadre of head clerks when their juniors who
were later promoted were fixed up at a higher slab in the cadre of
head clerks taking into account the special pay which they are
drawing in the lower category of senior clerks."
17. In S.C. Saxena and Ors (Supra), "It was held that "If any
junior has received higher pay solely based on the grant of special
pay in the feeder cadre, the senior employee will be entitled to
stepping up of the pay."
18. However, in the case at hand, the facts are different
than the above-cited judgments, as the order (on page 41 clearly
demonstrates that on 28.09.2003, petitioner was granted 2 nd ACP
with a pay scale of (4000-100-6000) and his pay was fixed at
Rs.4400 on 01.10.2003, on 01.10.2004 it was increased by grade
pay of Rs. 100, i.e. Rs.4500/- (i.e. Rs.4400+100= 4500). On
01.10.2005, it was increased by grade pay of Rs. 100, i.e.Rs.4600
(i.e. Rs.4500+100= 4600); however, by earlier pay fixation, on
01.10.2004, his pay was fixed at Rs.4400/- and on 01.10.2005, it
was shown as Rs.4700/-(set-up) instead of Rs.4600/- as
demonstrated above, no reason has been assigned in the order
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about the increase of the same from Rs.4400/- to Rs.4700/-.
Moreover, except for one communication dated 08.02.2007, nothing
has been brought on record to demonstrate as to how the pay scale
of Mr. Babulal was determined so as to claim the stepping up of the
pay scale as law laid down in the above-cited judgments. As against,
the revised pay fixation order dated 03.11.2020 categorically
explained how the revised pay fixation is accurate. It was also
observed that "the petitioner and Babulal do not belong to the same
cadre, so seniority is not comparable. " In such an eventuality, the
law laid down in the above-cited judgments is hardly of any
assistance to the petitioner. Thus, we do not find substance in the
submissions of learned counsel for the petitioner in that regard.
Hence, we answer this question in the negative.
19. The Next question that arises for determination is,
b) Whether the petitioner is entitled to claim a notional
increment that was accrued after the next day of his superannuation
on 01.07.2019?
20. The learned Counsel for the petitioner to substantiate his
contention has relied upon the judgment of the Hon'ble Apex Court
in the Director (Admn.and HR) KPTCL and Others v/s C. P. Mundinamani
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and Others, 2023 SCC OnLine SC 401, which was affirmed in All India
Judges Association, and Union of India and Anr Vs. M. Siddaraj (Misc.
Application Diary No. 2400/2024), the petitioner, is entitled to get a
notional increment on the next day of his retirement, i.e. on
01.07.2019. He further submitted that the petitioner superannuated
on 30.06.2019, and his increment fell on 01.07.2019; therefore, as
per the mandate laid down in the above-cited judgments, the
petitioner is entitled to one notional increment for the year 2018-
19, as he has completed one-year full service on 30.06.2019.
21. In response, the learned Counsel for respondents has not
disputed the said proposition. Furthermore, it is not disputed that
the petitioner was superannuated on 30.06.2019, and his annual
increment would fall on 01.07.2019. So, as per the mandate laid
down in the above-cited judgments, the petitioner has completed
one year of full service and, therefore, is entitled to a notional
increment due on 01.07.2019. Thus, we find substance in the
contention of learned Counsel for the petitioner in that regard. As a
sequel, the petitioner is entitled to all consequential benefits,
including pensionary benefits for the notional increment for 2018-
19. Accordingly, we answer this question in the affirmative.
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22. The further question that arises for determination is,
c) Whether, in view of the law laid down in the case of
Rafiq Masih, the direction for recovery of arrears from
the petitioner's retiral dues required to be stopped and
quashed and set aside?
23. Ms. Tiwari, the learned Counsel for the petitioner,
canvassed that the petitioner is a Class-C employee and, therefore,
in view of the law laid down in the State of Punjab and Ors Vs. Rafiq
Masih (white washer), 2015 AIR (sc) 696 ; recovery of the arrears from
the petitioner who was due to retire within one year is
impermissible. So, he urged to stop further recovery from the retiral
benefits of the petitioner and also urged for repayment of
overpayment, which was deducted by respondents from his retiral
benefits one week ago of his retirement.
24. The learned Counsel for the respondents, on the other
hand, vehemently contended that before the retirement of the
petitioner, the respondents had conducted a review of the pay of the
petitioner, during which it was noticed that the petitioner's pay
fixation was done inaccurately from 2005. The same has been
rectified by the order dated 24.06.2019, i.e. prior to the retirement
of the petitioner, and the respondent has rightly recovered the
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overpayment made to him. In such an eventuality, the petitioner is
not entitled to reimbursement for said overpayment.
25. While determining this issue, it is necessary to consider
the mandate laid down in the case of ' Rafiq Masih' (supra), wherein
the Hon'ble Apex Court, after considering the various decisions, has
summarised how the recoveries by the employer would be
impermissible in law in paragraph 18 which reads thus:
"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 employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees or employees who 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."
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26. In light of the above mandate, we have to scrutinise the
petitioner's claim to determine whether he is entitled to claim the
relief as framed above. In view of clause (v) of paragraph 18 in
Rafiq Masih (supra), if the Court arrives at the conclusion that the
recovery made from the employees' is found to be iniquitous, harsh,
or arbitrary, in that case, it would be impermissible for the employer
to recover the same.
27. It is evident from the record that prior to the retirement
of the petitioner by order dated 24.06.2019, the respondent has
revised the pay fixation of the petitioner from Rs. 50,500/- to Rs.
49,000/- on the ground that the same was incorrectly fixed earlier.
It also seems that the respondent has already recovered the
overpayment of Rs. 1,05,728/- made to the petitioner from his
retiral benefits. It is not in dispute that the petitioner is a Class-C
employee. Therefore, as per the mandate in the ' Rafiq Masih' (supra)
case, the respondents were not entitled to recover the overpayment
made to him after his retirement or within one year of his
retirement is impermissible.
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28. Having considered the discussion above, in our view,
the respondent was empowered to revise the pay fixation and has
rightly revised it from the Finance Department before the retirement
of the petitioner, and by order dated 24.06.2019, the respondent
authority has revised the pay fixation and recovered part of the
excess payment which was undisputedly overpayment made to him
before his retirement. Though, as per the law laid down in ' Rafiq
Masih' (supra), the respondents were not entitled to recover the
same, the record shows that they have already recovered part of the
same, which was undoubtedly made the overpayment to the
petitioner, therefore, in our opinion, the recovery of the part of the
overpayment by the authority cannot be said as iniquitous, harsh, or
arbitrary action so that petitioner is not entitled to claim
reimbursement, but as per the mandate laid down in the case of
Rafiq Masih (supra), further recovery of overpayment could be
stopped. Besides, we have already held that the petitioner is entitled
to the increment, which would fall on 01.07.2018, and the said
order would also compensate the employee. However, to that
extent, the recovery order is liable to be quashed and set aside. As
such, we answer question No. 3 accordingly.
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29. To sum up the above discussion, it appears that the
petitioner is not entitled to claim to step up the pay scale with his
junior batch mate, Mr. Babulal, as both of them were posted on
different cadres and different footing and, therefore, his seniority is
not comparable with Babulal. On the contrary, it seems that the
respondent has rightly revised his pay scale. We do not find any
illegality in the order of pay fixation dated 24.06.2019 in that
regard. Similarly, the petitioner was superannuated on 30.06.2019.
Therefore, he is entitled to a notional increment, which fell due on
01.07.2019, and the petitioner is not entitled to reimbursement,
which overpayment was already recovered from his retirement
benefits before his retirement. However, as per the mandate in Rafiq
Masih (Supra), further recovery from his retiral benefit could stop,
as the respondent is not entitled to recover the said arrears or
overpayment made to him as the petitioner was a 'Class-C'
employee. As a result, we answered question No. (a) in the
negative, (b) in the affirmative and (c) in the partly affirmative, as
discussed above.
30. In the aforesaid background, the petition is partly
allowed in terms of the prayer clause (vi). As a sequel, the petitioner
is entitled to all consequential benefits, including pensionary
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benefits for the notional increment for 2018-19. The respondents
hereinafter are restrained from recovering the remaining
overpayment made to the petitioner from his further retiral benefits.
To that extent, the recovery order is quashed and set aside.
The rule is made partly absolute in the above terms. No
costs.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
Belkhede
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 12/02/2025 19:29:07
