Uoi & Ors. vs Sh.B.D.Phulara
2011 Latest Caselaw 4975 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.6705/2011

%                       Date of Decision: 10.10.2011

UOI & Ors.                                                .... Petitioners

                     Through Mr. Rajinder Nishchal, Advocate

                                Versus

Sh. B.D.Phulara                                         .... Respondent

                     Through Ms. Jyoti Singh, Sr.Advocate with Ms.
                             Saahila Lamba and Mr. Amandeep Joshi
                             Advocates


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers may            YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?            NO
3.      Whether the judgment should be                    NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioners, Union of India through the Secretary, Ministry of

Home Affairs and Ors., have challenged the order dated 18th April, 2011

passed by the Central Administrative Tribunal, Principal Bench in OA

No.1882/2009 titled as „Sh.B.D.Phulara v. UOI and Ors.‟ allowing the

original application of the respondent and setting aside the show cause

notice dated 6th March, 2009 and order dated 26th March, 2009

whereby the pay of the petitioner was stepped down from the pay which

had been fixed as per the order dated 27th June, 2001. The Tribunal

upheld the order dated 27th June, 2001 and granted all the

consequential benefits accrued to the respondent on account of setting

aside the order dated 26th March, 2009.

2. Relevant facts to comprehend the disputes between the parties

are that the respondent was appointed to the post of LDC through

direct recruitment on 17th February, 1969 and he was posted at 2nd

Signal Bn., CRPF, in Rampur (UP). The respondent was thereafter

transferred to different places and promoted in the cadre to the post of

UDC on 16th June, 1975 pursuant to the departmental examination

conducted in the year 1974. On being promoted as UDC, the

respondent was transferred from 1 Signal Bn., to 3 Signal Bn., CRPF.

3. The respondent also became entitled for promotion to the post of

Inspector (Ministerial) in the cadre. As per rules applicable at the

relevant time, the respondent was required to exercise an option for

fixation of his pay in terms of OM dated 26th September, 1981 within 30

days from the date of promotion.

4. The respondent was promoted by order dated 24th May, 1988 and

therefore, in terms of OM dated 26th September, 1981 he had time to

exercise his option till 24th June, 1988.

5. The petitioners, however, without waiting for the option exercised

by the respondent in terms of OM dated 26th September, 1981, fixed his

pay on 16th June, 1988 as per FR 22 (c). Thereafter, the respondent

was again promoted to the post of Subedar Major/Office

Superintendent (SM/OS) on 31st October, 1994 and was transferred to

the Internal Audit Party (IAP) 5, Allahabad on 12th May, 1995.

6. While the respondent was posted at Allahabad, he came across

the service book of his junior, namely, Sh. K. Ramakrishnan who had

exercised his option within 30 days and consequently was drawing

more pay than the respondent. When the respondent came to know

about this fact, he made a representation to step up his pay as he had

been deprived from exercising his option within the stipulated 30 days

from 24th May, 1988 and instead his pay was fixed on 16th June, 1988.

Thus, depriving him of the pay which was equivalent to the pay being

drawn by his junior, Sh. K. Ramakrishnan.

7. The representation made by the respondent was accepted on 27th

June, 2001 and an order was passed holding that the respondent was

liable for increment of pay and antedating the same from 1st May, 1989

to 1st January, 1989 in order to bring his pay at par with the pay of his

junior i.e., Sh. K. Ramakrishnan.

8. Almost after 8 years, the respondent received a show cause notice

stipulating that his pay could not be stepped up as it was not

inconsonance with the instructions issued vide General Letter I.II-4/84-

Adm-III dated 21st September, 1984. Therefore, it was proposed that the

pay of the respondent ought to be stepped down in the rank of

Inspector (M). The respondent replied to the show cause notice by his

representation dated 19th March, 2009 contending categorically that the

said letter was regarding the anomaly under FR 22 (c) and not in

respect of FR 27 under which provision his pay had been stepped up by

the Competent Authority. He also submitted that in his case initially his

pay was straightaway fixed about 8 days before the completion of the

stipulated 30 days period within which he could exercise his option and

that the proposed action in the show cause notice has been taken after

a lapse of 7 years at a stage when his retirement is due on 31st March

2009, solely with the purpose of harassing him.

9. According to the respondent, despite his representation dated

19th March, 2009, the petitioners passed the order dated 26th March,

2009, arbitrarily withdrawing the increments which were antedated in

favor of the respondent by order dated 27th June, 2001 resulting in the

stepping down of the pay of the respondent and adversely affecting his

interest at the fag end of his career. Thereafter, the respondent had

superannuated on 31st March, 2009. Aggrieved by the order dated 26th

March, 2009, the respondent approached the Tribunal and filed an

original application under Section 19 of the Administrative Tribunal‟s

Act, 1985 bearing OA No. 1882/1009.

10. The respondent challenged the show cause notice dated 6th

March, 2009 and the subsequent order dated 26th March, 2009

contending, inter alia, that the petitioners had hurriedly and arbitrarily

fixed the pay of the respondent in the rank of Inspector (M) on 16th

June, 1988 in terms of the provision contained in FR 22(c) without

giving the respondent an opportunity to exercise his option within thirty

days; that inspite of the fact that the respondent had been subsequently

granted a step up in his pay in order to bring him at par with the pay of

his junior, Sh. Ramakrishnan, under FR 27 by the Competent Authority

by order dated 27th June, 2001 and he was given all arrears due to him

since 1st January, 1989, after a lapse of more than 8 years the benefit

was withdrawn by placing reliance on OM dated 21st September 1984;

that the petitioners were not entitled to rely on OM dated 21st

September, 1984 as the petitioners had fixed the pay themselves

without waiting for the respondent to exercise his option within the

stipulated period of one month; and that the step down in the pay

imposed on the respondent at the fag end of his career after the lapse of

over 8 years has gravely prejudiced the respondent and he has suffered

immense financial loss. The respondent also placed reliance on the

judgment of the Supreme Court in the matter of Shyam Babu Verma v.

Union of India (1994) 2 SCC 521 holding that if a financial benefit has

accrued to a Govt. Servant because of the mistakes made by the Govt.,

then the Govt. shall be precluded from recovering such benefits from

the concerned Govt. servant. It was contended that in fact there was no

mistake in case of stepping up the pay of the respondent by order dated

27th June, 2001 taking into consideration his option which he was

entitled to make within thirty days.

11. The petitioners had filed their reply dated 24th November 2009

wherein they contented, inert alia, that in case the respondent was not

satisfied with the pay fixed by the petitioners in terms of the provision

contained in FR 22(c) when he was appointed as Inspector (M) then he

ought to have made a representation within the stipulated period of one

month, which was not done by the respondent; that while granting the

step up by order dated 27th June, 2001 the instructions issued by letter

dated 21st September, 1984 had been overlooked; that while dealing

with another case and noticing the alleged mistake committed during

stepping up of the pay of the respondent, the Dte. General CRPF, New

Delhi had issued instructions for stepping down the pay of the

respondent to the original stage that he had been drawing before being

allowed the benefits of the step up; and that it is a trite law that if there

has been a mistake in fixation of pay, the same can be rectified even at

a later stage.

12. The Tribunal carefully considered the pleas and contentions

raised by both the parties and also perused the record placed before it.

In the course of the submissions made by parties, the learned counsel

for the petitioner fairly conceded that a mistake had been made while

stepping down the pay of the respondent, which was recorded by the

Tribunal in the impugned order as well. The Tribunal had noted in its

order dated 18th April, 2011 as under:

" It was urged that because of the option given by the person junior to him, the pay of the junior was fixed to be higher that the pay of the Applicant, whereas he was deprived of the opportunity to exercise his own option. The argument of the learned senior counsel is unexceptionable. The learned counsel for the Respondents fairly conceded that a mistake had been made, while stepping down his pay.

13. Therefore, in light of the facts of the case and the submissions

made the Tribunal allowed the original application of the respondent

and quashed the show cause notice dated 6th March, 2009 as well as

the order dated 26th March, 2009 and further upheld the order dated

27th June, 2001 granting the step up in the pay of the respondent with

all consequential benefits.

14. It is against this order of the Tribunal that the petitioners have

invoked the writ jurisdiction of this Court. The counsel for the

respondent is also present pursuant to the advance notice. The counsel

for the parties contended that the record which was before the Tribunal

has been filed with the writ petition and the writ petition be finally

disposed off after hearing the parties.

15. The learned counsel for the petitioners has contended that the

Tribunal erred in observing that the petitioners had conceded that a

mistake had been made while stepping down the pay of the respondent,

while in fact the petitioners had accepted that they had made a mistake

in re-fixing the pay of the respondent so as to bring it at par with his

junior, Sh. Ramakrishnan. The learned counsel further contended that

the mistake was later rectified by the petitioners by stepping down the

pay of the respondent and that it is settled law that any mistake on the

administrative side could be rectified at any point of time subject to

certain conditions. It was also submitted that the impugned order of the

Tribunal if sustained, then it would establish a wrong precedent which

would in turn lead to the opening of a Pandora‟s Box in terms of

frivolous litigation. The respondent on the other hand, has reiterated

his stand made before the Tribunal.

16. This Court has considered the pleas and contentions made by

both the parties and perused in detail the record placed before the

Tribunal. This is not disputed that on respondent getting promoted to

the post of Inspector (M), he was entitled to exercise his option for

fixation of his pay as per OM dated 26th September 1981 and that the

option could be exercised within a period of 30 days. Therefore, the

respondent had time to exercise his option till 24th June, 1988. This is

also not disputed by the petitioners that instead of waiting for the

respondent to exercise his option within the stipulated period, the

petitioners straightaway fixed his pay as per FR 22 (c) on 16th June,

1988. In fact the petitioners have gone a step further and contended

that their act of fixing the pay of the respondent without waiting for him

to exercise his option is justified, since he did not represent against it.

The relevant ground raised in the reply of the petitioners before the

Tribunal is as follows:

"5.2 That the pay of the applicant was fixed without waiting for his option or otherwise. But in case the petitioner was not satisfied with the pay fixation, in terms of provision contained in FR-22(c), done on his promotion as Inspector he could have represented or submitted the option within one month"

17. However, this is not disputed that as soon as the respondent

realized that his pay is less than his junior Sh. Ramakrishnan, on

account of not obtaining his option within the time permitted, he had

made his representation. The representation of the respondent was

accepted and the order dated 27th June, 2001 was passed stepping up

the pay of the respondent and rectifying the mistake committed by the

petitioners in fixing the pay before the expiry of thirty days period. By

order dated 27th June 2001 the pay of the respondent was stepped up

to bring him at par with the pay of his junior and that the necessary

order was issued under FR 27. The learned counsel for the petitioners is

unable to show any rule or provision under which the respondent had

to make the representation in 30 days after his pay was fixed on 15th

June, 1988 before expiry of the period of thirty days for the respondent

to exercise his option.

18. According to the petitioners, it was subsequently noticed that

while stepping up the pay of the respondent, the instructions issued in

the Dte General‟s letter No I.II-4/84-Adm-II dated 21st September, 1984

were overlooked. Letter dated 21st September, 1984 clarified that the

benefits of stepping up of pay is not available in those cases where

different options for fixation of pay on promotion have been exercised by

the Govt. Servants. The said instructions, however, will not be relevant

for the respondent as his pay was fixed prior to expiry of time for

exercising option by the respondent and the respondent had not

exercised different options for fixation of pay on promotion. The

difference of pay of a senior person vis-a vis his junior due to senior

employee not allowed to exercise his option cannot be equated with

exercising different options by the employee and thus on the

instructions in letter dated 21st September, 1984, the respondent could

not be denied higher pay which the respondent would have been

entitled on exercising his option. According to said instruction, the

Govt. employees were also expected to exercise their option individually.

However, in the present matter this option was not allowed to be

exercised by the respondent and the plea of the petitioners is not that

the respondent exercised his option with other employees. Had the

respondent been allowed to exercise his option within the specified

period of one month as per the OM dated 26th September, 1981, then

the pay being fixed by the petitioners would have been at par with the

pay of his junior who was allowed to exercise his option. However, as

the petitioners had fixed the pay of the respondent straightaway without

waiting for the respondent to exercise his option within the stipulated

period of one month, the respondent cannot be held liable for the same.

Therefore, the admitted mistake on the part of the petitioners cannot be

a ground for withholding the benefits due to the respondent. In any

case, after rectifying their mistake in 2001, the petitioners could not

step down the pay of the respondent after eight years. Also, the action

taken by the petitioners after the lapse of 8 years just before the

respondent superannuated is reflective of penalizing the respondent for

their own mistake. The Tribunal has noted the facts and circumstances

and the admission of the part of the petitioners by their counsel and

has allowed the original application of the respondent.

19. The learned counsel for the petitioners has conceded that had the

respondent exercised his option within 30 days during which the

respondent was entitled to exercise his option, then his pay would have

been as was given to his junior. The counsel has also admitted that the

pay of the junior of the respondent was not higher on account of any

mistake committed in his case but because of the fact that the junior of

the respondent had exercised his option whereas the respondent was

deprived of his right to exercise his option on account of lapses on the

part of the petitioners, imputable to them. The learned counsel has

also admitted that had the respondent exercised his option, his pay

would have been as was fixed by the petitioners in 2001 in order to

rectify their mistake. In the circumstances, the respondent cannot be

held liable for the omission on the part of the petitioners by fixing his

pay before the expiry of the period available to the respondent in

accordance with the rules and regulation. In any case, after rectifying

the mistake in 2001, the petitioners were not entitled in law and in the

facts and circumstances to step down the pay of the respondent just

before his retirement. Thus, the order of the petitioners dated 26th

March, 2009 could not be sustained and the Tribunal has not

committed any illegality or irregularity in setting aside the same and

allowing the original application of the respondent.

20. In the circumstances, the petitioners have failed to make out any

such ground which would entail any inferences by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India

against the order dated 18th April, 2011 passed by the Central

Administrative Tribunal in OA No.1882/2001. The writ petition is

without any merit, and it is dismissed. Considering the facts and

circumstances, the petitioners shall also be liable to pay cost of

Rs.10,000/- to the respondent. Cost be paid to the respondent within

four weeks.

CM Nos. 13555/2011

In view of the orders passed in the main petition, this application

does not survive and the same is disposed of as such.

Caveat No. 841/2011

Since the writ petition has been dismissed after hearing the

counsel for the respondent, the caveat is discharged.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

OCTOBER 10, 2011.

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