Delhi High Court
Ved Parkash vs Director General, Department Of ... on 30 March, 2016
Author: Sanjiv Khanna
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11652/2015
Date of Decision : 30th March, 2016
VED PARKASH ..... Petitioner
Through: Ms. Rekha Palli, Senior
Advocate/Amicus Curiae with
Ms. Garima Sachdeva, Advocate with
Petitioner in person
Versus
DIRECTOR GENERAL, DEPARTMENT OF POST & ORS
..... Respondents
Through: Mr. Ruchir Mishra & Mr. Mukesh
Kumar Tiwari, Advocates
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
Ved Prakash impugns the order dated 8.9.2015 whereby his OA
No.3749/2014 has been dismissed.
2. The petitioner had joined service on 16.4.1965 at the post of Postal
Assistant. He retired on 30.6.2005 from the post of Postal Superintendent
(Service) Group 'B' Post.
3. At the time of retirement, the petitioner was facing disciplinary
proceedings, which were continued under Rule 9 of the Central Civil
Service (Pension) Rules, 1972.
4. By order dated 14.3.2011, penalty of withholding of 10% of monthly
pension for three years was imposed. This order has attained finality.
5. At the time of payment of retirement dues, an amount of about
Rs.50, 000/- was deducted. The respondents claim that the petitioner's pay
was wrongly fixed on 18.12.1991 on ad hoc promotion as Higher Selection
Grade-I (HSG-I), and then on 11.01.1992 on ad hoc promotion to PS Grade
WP(C) 11652/2016 Page | 1
B cadre. The pay fixation was contrary to Fundamental Rule 22(1).
Secondly, the petitioner was drawing pay of Rs.9000/-, as PS Group B in the
Office of the Post Master General, Dehradun but on his transfer to
Ghaziabad on 31.7.1998, his pay was erroneously fixed at Rs.9, 500/-. There
was no cause or justification why the pay was enhanced from Rs.9, 000/- to
Rs.9, 500/-. At best, the petitioner was entitled to one increment of Rs.250/-,
but the enhancement given was Rs.500/-.
6. The petitioner had earlier filed OA No.947/2013, as the respondents
had failed to finalise his pension and release retirement benefits, though he
had superannuated from service on 30.6.2005. During the pendency of the
said OA, the respondents had issued commuted value of pension ('CVP')
order, gratuity and Pension Payment Order ('PPO'), but these were not
accepted by the petitioner on the ground of wrong calculations. By the order
dated 11.10.2013, the tribunal had directed that the petitioner should accept
the terminal benefits as sanctioned, but these would not stand in his way of
raising grievance against the amount paid. Interest @ 8% p.a. was granted
on the gratuity amount for the period of delay. Thereupon, interest of Rs.47,
839/- was paid to the petitioner on 23.5.2014.
7. On the question of deductions made by the respondents, their order
dated 24.9.2014, reads:
"2. You were promoted to HSG-I Cadre w.e.f. 18.12.1991 on purely
temporary and adhoc basis. Further there is no record available to
confirm that you were regularized in HSG-I Cadre before your
regular promotion to PS Group 'B' with effect from 01.01.1994.
At time of fixation of your pay in PS Group 'B' Cadre on adhoc
basis, w.e.f 11.01.1992 and on regular promotion to PS Group 'B'
w.e.f. 01.01.1994, the pay has been fixed with reference to your
substantive pay in ASPO's cadre since the promotion in HSG-I
Cadre was made purely on temporary and adhoc basis.
3. It is further stated that the pensionary benefits were paid as per
approval of Office of the General Manager (Finance) Delhi - 110
WP(C) 11652/2016 Page | 2
054 as per record available and recovery was made of Government
dues against you.
4. As regard your contention in last para of the representation, it
is stated that there is no such Rule 22(19) in FR&SR Part-l
(Edition] 2004). At the time of fixation of pay in PS Group 'B'
Cadre on adhoc basis w.e.f 11.01.1992 and regular promotion in
PS Group'B' w.e.f 01.01.1994 (i.e.same cadre), the pay was fixed
w.r.t. your subsistence pay in ASPO's cadre and not in HSG-I
cadre as the promotion in HSG-I cadre was made on purely
temporary & adhoc basis."
(emphasis supplied)
8. With regard to recovery of arrears on account of wrong fixation of
salary at Rs. 9,500/-, instead of Rs. 9,250/-, the respondents had filed an
additional affidavit dated 1.9.2016 before the High Court, relying upon the
Memo dated 30.6.1998 issued by the PGMO, Dehradun, wherein the
petitioner's pay on 1.1.1998 has been shown as Rs.9, 000/-. Thus, it is
claimed that the pay of the petitioner, on his transfer to Ghaziabad on
31.7.1998, was wrongly fixed at Rs.9, 500/-.
9. On this aspect, learned counsel for the petitioner has drawn our
attention to the order dated 11.10.2013, partly allowing OA No.947/2013
filed by the petitioner. The said order specifically refers to the computation
made by the petitioner of gross pay of Rs.9,000/- as on 1.1.1996, and
consequently his pay in the year 1998 was rightly fixed at Rs.9,500/-.
Further, there was uncertainty and confusion in the latest inter-departmental
communications exchanged between the Senior Post Master, Ashok Vihar
Post Office, Delhi and Assistant Director (Postal Circle) Office, Meghdoot
Bhawan, Delhi. Accordingly, in the order dated 11.10.2013, the Tribunal
had recorded that the department was still in the process of reconciling
certain issues as the reduced pension mentioned in the CVP and the PPO did
not match.
10. We have noted the said contention as we find that the onus was on the
WP(C) 11652/2016 Page | 3
respondents to show and establish that the pay of the petitioner was wrongly
fixed at Rs.9,500/-, on transfer to the Ghaziabad Circle on 31.7.1998.
Instead, the respondents have merely relied upon the details received from
the Pay Bill Register of Post Master General, Dehradun. The computation
and calculations made by the Deputy Superintendent of Post Office
('DSPO'), Ghaziabad, where the petitioner had joined on 31.7.1998, have
not been filed. These details were not verified and examined. On the basis of
the aforesaid averments and documents, the respondents cannot claim and
state that the Office of the DSPO, Ghaziabad had wrongly fixed the
petitioner's pay at Rs.9,500/-, instead of Rs.9,250/-. The case set-up by the
respondents on the said aspect is rather vague and ambiguous.
11. Similarly, the case of wrong fixation of salary on 18.12.1991 and
11.1.1992 is problematic and perplexing. The respondents profess that the
petitioner, had continued to hold the substantive post in the ASPO cadre as
the promotions to the post of HSG-I on 18.12.1991 and then as PS Grade B
on 11.1.1992, were purely ad hoc. The respondents admit that they do not
have the full papers and records on the two promotions, confirmation etc.
They are not aware and conscious of the terms on which the petitioner was
promoted to HGS-I cadre and then, within two months, to PS Group B,
though it is stated that the said promotions were ad hoc. It will not be proper
and appropriate to allow recovery on the basis of assumptions, when papers
and details are not with the respondents. The Respondents have relied upon
two communications, dated 27.4.98 and 21.5.98, written by the Office of the
Director of Accounts (Postal), U.P. Circle, Lucknow asking the petitioner to
state whether ad hoc promotion as HSG-I was regularised. It is not indicated
what happened thereafter, and why and for what reason there was no follow
up after the letter dated 21.5.98. Moreover these letters do not pertain to
fixation of salary. It is not alleged or stated that excess payment had to be
WP(C) 11652/2016 Page | 4
made to the petitioner. The respondents unexpectedly raised a claim of over
payment after two decades. It was impossible for the petitioner to make a
factual challenge especially after he had demitted office in June 2005. The
onus was certainly and squarely on the respondents to establish and show
clearly and categorically that wrong payments or payments under mistake
had been made. There cannot be any assumption that the pay scale then
fixed was erroneous. On the other hand presumption would be that the pay
was correctly fixed.
12. For the aforesaid, we would allow the present writ petition and set
aside the order passed by the Tribunal. It is accordingly directed that the
adjustments made on the two accounts by the respondents are contrary to
law. The petitioner would be paid the entire amount within four weeks from
the date a copy of this order is received by the respondents. The petitioner
would also be paid interest @ 8% from the date this amount was withheld
till payment is made. No order as to costs.
We appreciate the efforts by Ms. Rekha Palli, Senior Advocate, who
has been appointed as amicus curiae and has assisted the Court.
SANJIV KHANNA, J.
NAJMI WAZIRI, J.
MARCH 30, 2016/tp
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