Delhi High Court
Sarita Bakshi vs Delhi University & Anr on 26 July, 2024
Author: Jyoti Singh
Bench: Jyoti Singh
$~86
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 26th July, 2024
+ W.P.(C) 5508/2018, CM APPLs. 21455/2018 and 43326/2018
SARITA BAKSHI .....Petitioner
Through: Mr. Amish Tandon and Ms. Anushree
Kulkarni, Advocates
versus
DELHI UNIVERSITY & ANR .....Respondents
Through: Mr. Santosh Kumar and Ms. Nidhi
Rani, Advocates for R-1.
Mr. R. Dhawan and Mr. B.S. Rana, Advocates for
R-2.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J. (ORAL)
1. This writ petition has been preferred on behalf of the Petitioner under
Articles 226 and 227 of the Constitution of India seeking the following
reliefs:-
"A. Issue a Writ of Certiorari or any other appropriate writ, order or
direction in the nature of certiorari quashing:
(i) the 1st impugned letter bearing Ref No. /Fin/Pen.Cell/2016/F-76
dated 19.08.2016 issued by Respondent No. 1 to Respondent No. 2;
(ii) the 2nd impugned letter bearing Ref No. CS-
SDC/111/SAC/2016/1073 dated 06.12.2016 issued by Respondent No.
(iii) the 3rd impugned letter bearing Ref No. SAC/2017/ 4158 dated
17.01.2017 issued by Respondent No. 2 to the Petitioner; and
(iv) the 4th impugned letter dated Ref. No. SAC/2017/4474 dated
7.6.2017 issued by Respondent No. 2 to the Petitioner;
AND
B. Issue a writ of Mandamus or any other appropriate writ, order or
direction directing the Respondents to:
(i) pay the Petitioner the arrears of her pension calculated with effect
from 31.07.2016 till date along with interest at the rate of 18% per
annum.
(ii) Continue to make payments of Pension to the Petitioner at the
above mentioned rates.
C. Pass such other and further orders as this Hon'ble court may deem fit
and proper in the facts and circumstances of the present case."
2. Brief facts to the extent relevant are that Petitioner joined as a
Lecturer in Maitreyi College, affiliated to the Delhi University/Respondent
No.1 in the year 1977 and was thereafter teaching in various colleges from
time to time. On 10.01.1990, Petitioner joined Sri Aurobindo
College/Respondent No.2 as a Lecturer and was promoted as a Reader w.e.f.
01.09.1996. During her employment with Respondent No.2, Ministry of
Human Resource Development, Government of India (MHRD) vide letter
dated 27.07.1998 revised the pay scales of employees of the University and
the colleges pursuant to recommendations of 5th CPC and accordingly
modified the existing scheme. MHRD subsequently issued clarifications in
connection with pay fixation of Readers/Lecturers (Selection Grade) vide
letter dated 06.11.1999 as follows:-
"Fixation of pay scales of Lecturers (Selection Grade)/Readers in the Pre-
revised scale of Rs. 3700 - 125 - 4950 - 150 - 5700/- who were selected
strictly in accordance with the rules and regulations framed by the UGC
and who were in position as lecturers (Selection Grade)/Readers as on
01.01.1996, will be made in a manner that they get their pay fixed at the
minimum of Rs. 14, 940/- in the revised scales of Rs. 12, 000 - 420 - 18,
300 as and when they complete five years in the grade."
3. It is averred by the Petitioner that in light of the MHRD letter dated
27.07.1998 and clarification dated 06.11.1999, Respondents stepped up the
pay of the Petitioner in a manner that her pay was fixed at minimum of
Rs.14,940/- in the revised pay scale of Rs.12,000-18,300 on completion of
five years in the Reader's grade. Petitioner retired on superannuation from
the post of Associate Professor on 31.07.2016 and became entitled to
pension, calculated on the basis of her last drawn salary as on 31.07.2016, as
per applicable Rules. On 19.08.2016, i.e., almost 20 years post the letters of
the MHRD, Respondent No.1 issued the impugned letter dated 19.08.2016
stating that since Petitioner was not in position as a Reader as on
01.01.1996, her pay was not required to be stepped up to Rs. 14,940/- on
completion of five years of service in the Reader grade w.e.f. 01.09.2001
and in this view sought to refix her pay w.e.f. 01.09.2001 and recover the
alleged over payment of pay and allowances, with suitable entry in the
service book. By letter dated 06.12.2016, Respondent No.2 was granted
approval for refixation of the pay of the Petitioner in the pay scale of
Rs.12,000-18,300 at Rs. 14,100/- w.e.f. 01.09.2001 under 5th CPC and at Rs.
39,690/- w.e.f. 01.01.2006 with Academic Grade Pay Rs. 9,000/- on next
date of increment i.e., 01.07.2006 under 6th CPC. Respondent No.2 vide
letter dated 17.01.2017 informed the Petitioner of the refixation and the
recovery.
4. On receipt of the impugned letters, Petitioner gave a detailed
representation to the Respondents on 08.02.2017, pointing out that their
action of refixation and recovery was erroneous and that assuming that the
Respondents were correct, the stepping up was without any involvement of
and fraud or misrepresentation by the Petitioner and therefore the huge
recovery of Rs.4,28,006/- should not be made. The representation was
followed by several reminders and legal notice but the impugned letters
were not withdrawn. In the meantime, Petitioner sought information from
other colleges under Right to Information Act, 2005 with respect to pay
fixed for Readers on completion of five years who came in the pay scale
Rs.12,000-18,300 after 01.01.1996 as also if there were any recoveries and
as per the Petitioner, she learnt that this benefit had been given to similarly
placed Readers. As the Respondents persisted in their stand, Petitioner
approached this Court having no other option.
5. Learned counsel for the Petitioner submits that the impugned action of
the refixation and recovery is erroneous and against the letter and spirit of
the MHRD letters. At the relevant time, Respondents had themselves
interpreted the letters to mean that those who were already working as
Readers on 01.01.1996 would get a step up in their pay to Rs. 14,940/- after
completion of five years of service as Reader and so would all others who
were promoted on 01.01.1996 or thereafter. The only criteria for stepping up
was that the employee should have served as a Reader for five years.
However, contrary to their own understanding, after almost two decades
Respondents have taken a new stand. Reliance on the clarificatory letter of
MHRD dated 06.11.1999 is misplaced inasmuch as the clarification is silent
about fixation of pay for those who were promoted as Readers on or after
01.01.1996 and nowhere states that stepping up would be applicable only to
those who were in position as Readers on 01.01.1996 and not to the others.
6. Without prejudice to the aforesaid contention, it is argued that in any
case no recovery can be made of the alleged overpaid amount after nearly
two decades in view of the judgment of the Supreme Court in State of
Punjab and Others v. Rafiq Masih, (2015) 4 SCC 334, wherein the
Supreme Court has illustratively delineated categories/situations wherein
recoveries by employers would be impermissible in law and the Petitioner
falls under categories (ii) and (iii) of paragraph 18 of the judgment.
7. Learned counsel for Respondent No.1 per contra submits that
Petitioner completed five years of service as Reader on 01.09.2001 and
approached the college for benefit of stepping up of her pay. The
clarification given by the MHRD vide letter dated 06.11.1999 was misread
to mean that those lecturers who were promoted as Readers after 01.01.2001
will be given the benefit of stepping up of the pay to a minimum of Rs.
14,940/-, on completion of five years' service in Reader's grade. It was on
this erroneous interpretation that pay of the Petitioner was stepped up by the
college after approval by Respondent No.1. Petitioner retired on 31.07.2016
and her case was processed for pension. It is at this stage that the error was
detected that Petitioner was not entitled to the stepping up and refixation and
recovery orders were passed. In fact, the benefit of stepping up of the
minimum pay was available only to those who had been promoted as
Readers/Senior Lecturers prior to 01.01.1996 and not to those who were
promoted post the said cut-off date and therefore no fault can be found with
the impugned action.
8. It is further contended that the Petitioner knew or at least ought to
have known that the excess payment was being received by her, over and
above her entitlement and therefore she is not entitled to the benefit of the
judgment of the Supreme Court in Rafiq Masih (supra). Moreover, the
recovery will not be iniquitous to the Petitioner inasmuch as she has
received a huge amount of Rs.1,48,13,921/- from the college under various
heads on retirement.
9. Heard learned counsels for the parties and examined their rival
submissions.
10. The factual matrix emerging is that Petitioner joined the Delhi
University in 1977 as a Lecturer and worked in different colleges and lastly
with Respondent No.2 where she was promoted as a Reader on 01.09.1996
and wherefrom she superannuated on 31.07.2016. The case of the Petitioner
is that MHRD issued a letter on 27.07.1998 considering the revision of pay
scales of University and College Teachers in the Central Universities and
this was followed by a clarification on 06.11.1999. On the basis of these
letters, Respondents stepped up the pay of the Petitioner to bring it at a
minimum of Rs. 14,940/- per month w.e.f. 01.09.2001 vide letter dated
10.01.2002 as she had completed five years service in the Reader grade.
Admittedly, till the date of Petitioner's retirement from the post of Associate
Professor, no objection was raised by the Respondents with respect to the
stepping up and it was only post her superannuation that the impugned
letters were issued refixing her minimum pay at Rs. 14,100/- w.e.f.
01.09.2001 in the pay scale of Rs.12,000-18,300 and seeking recovery of
Rs.4,28,006/-.
11. It is undisputed that the minimum pay of the Petitioner was fixed at
Rs. 14,940/- w.e.f. 01.09.2001 vide University's letter dated 10.01.2002 and
she continued to draw this pay till 2016 uninterruptedly. In Rafiq Masih
(supra), the Supreme Court was adjudicating the issue as to whether the
Respondents against whom an order of recovery of the excess amount had
been made, should be exempted in law, from the reimbursement of the same
to the employer. Observing that it was 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 employers in excess of their
entitlement, the Supreme Court summarised a few situations where
recoveries by employers would be impermissible in law. The illustrative
categories are as follows:
"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 hereinabove, we may, as
a ready reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV
service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to
retire within one year, of the order of recovery.
(iii) Recovery from the 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."
12. The Supreme Court further observed as under:-
"7. Having examined a number of judgments rendered by this Court, we
are of the view, that orders passed by the employer seeking recovery of
monetary benefits wrongly extended to the employees, can only be
interfered with, in cases where such recovery would result in a hardship of
a nature, which would far outweigh, the equitable balance of the
employer's right to recover. In other words, interference would be called
for, only in such cases where, it would be iniquitous to recover the
payment made. In order to ascertain the parameters of the above
consideration, and the test to be applied, reference needs to be made to
situations when this Court exempted employees from such recovery, even
in exercise of its jurisdiction under Article 142 of the Constitution of India.
Repeated exercise of such power, "for doing complete justice in any
cause" would establish that the recovery being effected was iniquitous,
and therefore, arbitrary. And accordingly, the interference at the hands of
this Court.
8. As between two parties, if a determination is rendered in favour of the
party, which is the weaker of the two, without any serious detriment to the
other (which is truly a welfare State), the issue resolved would be in
consonance with the concept of justice, which is assured to the citizens of
India, even in the Preamble of the Constitution of India. The right to
recover being pursued by the employer, will have to be compared, with the
effect of the recovery on the employee concerned. If the effect of the
recovery from the employee concerned would be, more unfair, more
wrongful, more improper, and more unwarranted, than the corresponding
right of the employer to recover the amount, then it would be iniquitous
and arbitrary, to effect the recovery. In such a situation, the employee's
right would outbalance, and therefore eclipse, the right of the employer to
recover.
9. The doctrine of equality is a dynamic and evolving concept having many
dimensions. The embodiment of the doctrine of equality can be found in
Articles 14 to 18 contained in Part III of the Constitution of India, dealing
with "fundamental rights". These articles of the Constitution, besides
assuring equality before the law and equal protection of the laws, also
disallow discrimination with the object of achieving equality, in matters of
employment; abolish untouchability, to upgrade the social status of an
ostracised section of the society; and extinguish titles, to scale down the
status of a section of the society, with such appellations. The embodiment
of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43
and 46 contained in Part IV of the Constitution of India, dealing with the
"directive principles of State policy". These articles of the Constitution of
India contain a mandate to the State requiring it to assure a social order
providing justice--social, economic and political, by inter alia minimising
monetary inequalities, and by securing the right to adequate means of
livelihood, and by providing for adequate wages so as to ensure, an
appropriate standard of life, and by promoting economic interests of the
weaker sections.
10. In view of the aforestated constitutional mandate, equity and good
conscience in the matter of livelihood of the people of this country has to
be the basis of all governmental actions. An action of the State, ordering a
recovery from an employee, would be in order, so long as it is not
rendered iniquitous to the extent that the action of recovery would be more
unfair, more wrongful, more improper, and more unwarranted, than the
corresponding right of the employer, to recover the amount. Or in other
words, till such time as the recovery would have a harsh and arbitrary
effect on the employee, it would be permissible in law. Orders passed in
given situations repeatedly, even in exercise of the power vested in this
Court under Article 142 of the Constitution of India, will disclose the
parameters of the realm of an action of recovery (of an excess amount
paid to an employee) which would breach the obligations of the State, to
citizens of this country, and render the action arbitrary, and therefore,
violative of the mandate contained in Article 14 of the Constitution of
India."
13. In the context of the present case, it would be relevant to allude to the
observations of the Supreme Court in Syed Abdul Qadir v. State of Bihar,
(2009) 3 SCC 475, to which reference is made by the Supreme Court in
Rafiq Masih (supra) and relevant paragraphs are as follows:
"58. The relief against recovery is granted by courts not because of any
right in the employees, but in equity, exercising judicial discretion to
relieve the employees from the hardship that will be caused if recovery is
ordered. But, if in a given case, it is proved that the employee had
knowledge that the payment received was in excess of what was due or
wrongly paid, or in cases where the error is detected or corrected within a
short time of wrong payment, the matter being in the realm of judicial
discretion, courts may, on the facts and circumstances of any particular
case, order for recovery of the amount paid in excess. See Sahib Ram v.
State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] , Shyam
Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 :
(1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 :
1996 SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6 SCC 139 :
1997 SCC (L&S) 1652] , Col. B.J. Akkara (Retd.) v. Govt. of India [(2006)
11 SCC 709 : (2007) 1 SCC (L&S) 529] , Purshottam Lal Das v. State of
Bihar [(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National
Bank v. Manjeet Singh [(2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16] and
Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 : 2000 SCC (L&S) 394] .
59. Undoubtedly, the excess amount that has been paid to the appellant
teachers was not because of any misrepresentation or fraud on their part
and the appellants also had no knowledge that the amount that was being
paid to them was more than what they were entitled to. It would not be out
of place to mention here that the Finance Department had, in its counter-
affidavit, admitted that it was a bona fide mistake on their part. The excess
payment made was the result of wrong interpretation of the Rule that was
applicable to them, for which the appellants cannot be held responsible.
Rather, the whole confusion was because of inaction, negligence and
carelessness of the officials concerned of the Government of Bihar.
Learned counsel appearing on behalf of the appellant teachers submitted
that majority of the beneficiaries have either retired or are on the verge of
it. Keeping in view the peculiar facts and circumstances of the case at
hand and to avoid any hardship to the appellant teachers, we are of the
view that no recovery of the amount that has been paid in excess to the
appellant teachers should be made."
14. In Rafiq Masih (supra), the Supreme Court referred to and relied on
two earlier judgments of the Supreme Court, which would be relevant to
highlight. In Shyam Babu Verma and Others v. Union of India and
Others, (1994) 2 SCC 521, the Supreme Court held as follows:
"11. Although we have held that the petitioners were entitled only to the
pay scale of Rs 330-480 in terms of the recommendations of the Third Pay
Commission w.e.f. January 1, 1973 and only after the period of 10 years,
they became entitled to the pay scale of Rs 330-560 but as they have
received the scale of Rs 330-560 since 1973 due to no fault of theirs and
that scale is being reduced in the year 1984 with effect from January 1,
1973, it shall only be just and proper not to recover any excess amount
which has already been paid to them. Accordingly, we direct that no steps
should be taken to recover or to adjust any excess amount paid to the
petitioners due to the fault of the respondents, the petitioners being in no
way responsible for the same."
15. In Col. B.J. Akkara (Retd.) v. Government of India and Others,
(2006) 11 SCC 709, the Supreme Court observed as under:-
"28. Such relief, restraining back recovery of excess payment, is granted
by courts not because of any right in the employees, but in equity, in
exercise of judicial discretion to relieve the employees from the hardship
that will be caused if recovery is implemented. A government servant,
particularly one in the lower rungs of service would spend whatever
emoluments he receives for the upkeep of his family. If he receives an
excess payment for a long period, he would spend it, genuinely believing
that he is entitled to it. As any subsequent action to recover the excess
payment will cause undue hardship to him, relief is granted in that behalf.
But where the employee had knowledge that the payment received was in
excess of what was due or wrongly paid, or where the error is detected or
corrected within a short time of wrong payment, courts will not grant
relief against recovery. The matter being in the realm of judicial
discretion, courts may on the facts and circumstances of any particular
case refuse to grant such relief against recovery."
16. From a reading of the judgment of the Supreme Court in Rafiq Masih
(supra), this Court finds merit in the contention of the Petitioner that her
case is squarely covered by the said judgment as she falls in category (ii)
i.e., 'recovery from a retired employee' as also in category (iii) i.e.,
'recovery from the employees, when the excess payments has been made for
a period in excess of five years, before the order of recovery is issued',
inasmuch as the impugned recovery was initiated post the retirement of the
Petitioner and the allegedly excess payments were made to her w.e.f.
01.09.2001 and are in excess of five years before the order of recovery was
issued.
17. Learned counsel for the University sought to oppose the petition on
the ground that Petitioner knew or ought to have known that she was
receiving payment in excess of her entitlement as she was not a Reader as on
01.01.1996 and the MHRD letters envisaged the stepping up of pay to a
minimum of Rs.14,940/- in case of those Readers/Lecturers (Selection
Grade), who were in position as on 01.01.1996 but did not have five years of
service in the grade, on completion of five years of service in the grade. In
my view, this contention is wholly misplaced and factually incorrect
inasmuch as the college in its counter affidavit filed before this Court has
clearly stated that MHRD vide its letter dated 27.07.1998, on
recommendations of the University Grants Commission, decided to revise
the pay scales of Teachers in the Central Universities. MHRD subsequently
clarified vide letter dated 06.11.1999 that fixation of pay of Lecturers
(Selection Grade)/Readers in the pre-revised scale of Rs. 3700-5700, who
were selected strictly in accordance with Rules and Regulations framed by
the UGC and who were in position as on 01.01.1996, will be made in a
manner that their pay is fixed at the minimum of Rs. 14,940/- in the revised
scale of Rs.12,000-18,300, as and when they complete five years in the
grade. Petitioner was promoted as a Reader on 01.09.1996 and with the
approval of the University her pay was fixed in the revised scale of
Rs.12,000-18,300. She completed five years as a Reader on 01.09.2001 and
on a misreading/misinterpretation of the MHRD letter dated 06.11.1999, her
pay was stepped up. It is thus evident that the Respondents admit that they
had misread the letters and granted the benefit to the Petitioner. While the
Petitioner refutes that there was an erroneous fixation or excess payment and
cites examples of Readers in other colleges who were granted the same
stepping up, however, this Court without prejudice to the said contention, is
unable to agree with the Respondents that the Petitioner had knowledge of
the alleged excess payment, when their own understanding was that the
stepping up was permissible.
18. A similar situation had arisen before the Supreme Court in Syed
Abdul Qadir (supra) and the Supreme Court observed in paragraph 58 that
relief against recovery is granted by Courts not because of any right in the
employees, but in equity, exercising judicial discretion to relieve the
employees from the hardship caused, if recovery was ordered. The
observations in paragraph 59 are significant, where the Supreme Court
observed that the excess amount paid to the Teachers was not because of any
misrepresentation or fraud on their part and the Appellants therein had no
knowledge that the amount that was being paid was more than what they
were entitled to. To come to this conclusion the Supreme Court referred to
the counter affidavit of the Finance Department, wherein it was admitted
that it was a bona fide mistake on their part and the excess payment was
made as a result of wrong interpretation of the applicable Rule and thus the
Appellants could not be held responsible. In the present case also as noted
above, the college has candidly stated that the stepping up in the case of the
Petitioner was on a misreading/misinterpretation of the MHRD letters.
Nothing has been placed on record by the Respondents which would even
remotely indicate that in the long period of nearly two decades, Petitioner
had any knowledge that her pay was allegedly erroneously stepped up. It
would be wholly iniquitous in the present circumstances to permit the
Respondents to refix the pay from 01.09.2001 and uphold the order of
recovery. It needs to be noted here that when the writ petition was listed for
admission on 22.05.2018, the Court had directed the Respondents to release
the pensionary benefits to the Petitioner after adjusting the outstanding
amount sought to be recovered, after approval from the University and the
Court is apprised that an amount of Rs.4,28,006/- stands adjusted.
19. In view of the aforesaid, the writ petition is allowed, quashing the
impugned letters dated 19.08.2016, 06.12.2016, 17.01.2017 and 07.06.2017,
holding that Respondents are not entitled to recover a sum of Rs.4,28,006/-
from the Petitioner. The said amount shall be refunded to the Petitioner
within two months from today with interest @ 8% per annum from
19.08.2016 till the date of refund.
20. Petition stands disposed of in the aforesaid terms along with pending
applications.
JYOTI SINGH, J
JULY 26, 2024/kks
