Gauhati High Court
Page No.# 1/2 vs The State Of Assam And 7 Ors on 27 February, 2025
Page No.# 1/20
GAHC010254382024
2025:GAU-AS:2101-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/13/2025
SURENDRA NATH DIHINGIA
S/O- BONGSHIDHAR DIHINGIA, RETD. SENIOR METER READER, JORHAT
ELECTRICAL SUB- DIVISION, APDCL, R/O- JADU NATH BARUAH PATH,
TARAJAN GAYAN GAON, JORHAT EAST, DIST- JORHAT, ASSAM ,PIN-785001
VERSUS
THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF POWER, DISPUR, GUWAHATI, ASSAM, PIN-781006
2:THE ASSAM POWER DISTRIBUTION COMPANY LIMITED
TO BE REP. BY ITS CHAIRPERSON
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001
3:THJE MANAGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LIMITED
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001
4:THE CHIEF GENERAL MANAGER (AUDIT)
ASSAM POWER DISTRIBUTION COMPANY LIMITED
Page No.# 2/20
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001
5:THE CHIEF GENERAL MANAGER
(D AND S)
ASSAM POWER DISTRIBUTION COMPANY LIMITED
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001
6:THE CHIEF GENERAL MANAGER
(F AND A)
PENSION
ASSAM POWER DISTRIBUTION COMPANY LIMITED
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001
7:THE CHIEF GENERAL MANAGER
(HRA) ASSAM POWER DISTRIBUTION COMPANY LIMITED
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001
8:THE ASSISTANT GENERAL MANAGER
JORHAT
ELECT. DIVISION -I
(UAR)
ASSAM POWER DISTRIBUTION COMPANY LIMITED
DIST- JORHAT
ASSA
Advocate for the Petitioner : MR. B PURKAYASTHA, J.P. BARUAH,MR. B PURKAYASTHA
Advocate for the Respondent : SC, APDCL, GA, ASSAM
Page No.# 3/20
Linked Case : WA/11/2025
L IBOCHOW SINGHA
S/O. BINODE SINGHA
RETD. SENIOR METER READER
HAFLONG ELECTRICAL SUB-DIVISION
APDCL
R/O. 94
HAFLONG
DIMA HASAO
NORTH BAGETAR
LUNGKHOK
NORTH CACHAR HILLS
DIMA HASAO
ASSAM
PIN-788820.
VERSUS
THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMM. AND SECY.
TO THE GOVT. OF ASSAM
DEPTT. OF POWER
DISPUR
GUWAHATI
ASSAM
PIN-781006.
2:THE ASSAM POWER DISTRIBUTION COMPANY LTD.
TO BE REP. ITS CHAIRPERSON
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001.
3:THE MANAGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LTD.
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
Page No.# 4/20
GUWAHATI
ASSAM
PIN-781001.
4:THE CHIEF GENERAL MANAGER
(AUDIT)
ASSAM POWER DISTRIBUTION COMPANY LTD.
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001.
5:THE CHIEF GENERAL MANAGER
(D AND S)
ASSAM POWER DISTRIBUTION COMPANY LTD.
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001.
6:THE CHIEF GENERAL MANAGER
(F AND A)
PENSION
ASSAM POWER DISTRIBUTION COMPANY LTD.
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001.
7:THE CHIEF GENERAL MANAGER
(HRA)
ASSAM POWER DISTRIBUTION COMPANY LTD.
(CAR) BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI
ASSAM
PIN-781001.
8:THE ASSTT. GENERAL MANAGER
HAFLONG
Page No.# 5/20
ELECT. DIVISION
ASSAM POWER DISTRIBUTION COMPANY LTD.
(CAR)
HAFLONG
DIMA HASAO
ASSAM.
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
APDCL appearing for THE STATE OF ASSAM AND 7 ORS
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 27.02.2025
Date of Judgment: 27.02.2025
JUDGMENT & ORDER (Oral)
(N. Unni Krishnan Nair. J)
Heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. B.
Purkayastha, learned counsel appearing for the appellants in both the writ appeals.
Also heard Mr. P. N. Goswami, learned Advocate General appearing for the State of
Assam along with Mr. S. P. Sharma, learned counsel appearing for the respondents in
both the writ appeals.
2. The above noted Intra Court Appeals having been so instituted assailing a
common Judgment and Order dated 05.11.2024, passed by the learned Single Judge
in WP(C) No. 7109/2021, WP(C) No. 128/2022 and WP(C) No. 6901/2021, the writ
appeals have been taken up together for hearing analogously and are being disposed
of vide the present order.
3. The appellants, in both the writ appeals, were initially appointed as Meter
Readers (Grade-II) on 16.12.1980 in the erstwhile Assam State Electricity Board
(hereinafter referred to as the ASEB). The appellants were thereafter, on the creation
Page No.# 6/20
of the Assam Power Distribution Company Limited (hereinafter referred to as the
APDCL), absorbed in the said company. The appellant in WA No. 11/2025 was
appointed as a Meter Reader (Grade-II) on 16.12.1980 and thereafter, was promoted
as a Senior Meter Reader on 02.03.2016. The appellant, thereafter, retired from his
services on reaching the age of superannuation w.e.f., 30.09.2019. The appellant in
WA No. 13/2025, similarly, was appointed as a Meter Reader (Grade-II) in the
erstwhile Assam State Electricity Board and thereafter, on creation of the APDCL, was
absorbed in the company. The appellant was promoted as a Senior Meter Reader on
24.11.2014 and thereafter, the appellant retired from his services on reaching the age
of superannuation w.e.f., 31.12.2017.
4. The appellants herein, during their service tenure, on completion of 08 years of
service were given an up-gradation to the next higher scale of pay in terms of a
scheme so prevalent in the organization and thereafter, they were given further up-
gradation to the further higher scale of pay on completion of 20 years of service.
5. The ASEB vide an Office Memorandum (OM) dated 30.12.2006, had
implemented a financial up-gradation scheme for its employees as well as employees
of its successor entities and in terms of the said scheme, 02(two) financial up-
gradations during the entire service span of an employee was to be granted by way of
up-gradation to the next higher scale of pay, on completion of 10 years of service and
thereafter, on completion of 25 years of service. The said scheme was to be come into
effect w.e.f., 01.01.2007.
6. In the said scheme, under Para-6, it was stipulated that employees who had
received 02(two) regular promotions or two similar benefits of higher pay scales as of
01.01.2007, would not be entitled to the benefits of the financial up-gradation scheme
so formulated vide the OM dated 30.12.2006.
7. The appellants herein, were in terms of the financial up-gradation scheme as
implemented vide the OM dated 30.12.2006, granted two financial up-gradations vide
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an Office Order dated 24.10.2008. The said two financial up-gradations were so
granted to the appellants to the scale of pay of Rs. 4200-8000/- w.e.f., 01.01.2007
and Rs. 4300-9550/- also w.e.f., 01.01.2007.
8. The respondent authorities while issuing the Office Order dated 24.10.2008, had
not taken into account the provisions of Para-6 of the said OM dated 30.12.2006; and
had granted to the appellants further 02(two) financial up-gradations under the
provisions of the scheme so brought into operation vide the OM dated 30.12.2006.
The said aspect of the matter, coming to the notice of the authorities, the authorities
proceeded to recast the pay and allowances authorized to the appellants w.e.f.,
01.01.1997; and also withdrew the financial up-gradation benefits so extended to
them under the provisions of the scheme formulated vide the OM dated 30.12.2006
w.e.f., 01.01.2007. On such recasting being made, the pay of the appellants were re-
fixed. On the re-fixation of the pay of the appellants and the withdrawal of the
financial up-gradation granted to them in terms of the OM dated 30.12.2006, resulted
in a situation wherein it was found that the appellants have drawn pay in excess of
their entitlement.
9. The respondent authorities thereafter, vide a communication dated 10.09.2020
(in respect of the appellant in WA No. 11/2025) and 26.06.2021 (in respect of the
appellant in WA No. 13/2025), re-fixed the pay of the appellants and the excess of pay
so drawn by them, came to be recovered from their pension and pensionary
benefits.
10. It is to be noted that on the date of the issuance of the pay re-fixation orders,
the appellants had already superannuated from their respective services. The
appellants being aggrieved, by the re-fixation of their pay and by claiming that they
having been promoted to the post of Senior Meter Reader, much after completion of
30 years of service, had approached the this Court by way of instituting WP(C) No.
7109/2021 and WP(C) No. 128/2022, interalia; praying that re-fixation orders as so
Page No.# 8/20
made in their cases be interfered with and their pay be so considered by reckoning the
up-gradations so made in their cases, vide the Office Order dated 24.10.2008. The
appellants had also prayed for a direction for extension to them financial up-gradation
on completion of 30 years of service.
11. The learned Single Judge, on consideration of the issue arising in the writ
petition, noticing that the appellants had not seriously disputed the re-fixation of pay
so made in their case, proceeded to consider the claim made by the appellants for
being extended with the 3rd financial up-gradation of pay benefits. The learned Single
Judge by holding that the appellants were given the financial up-gradations, in terms
of the OM dated 30.12.2006 w.e.f., 01.01.2007 and they being subsequently promoted
to the post of Senior Meter Reader, proceeded to hold that the appellants herein, were
not eligible for being granted the 3 rd financial up-gradation, inasmuch as, they had
already availed the said benefits by way of two financial up-gradations w.e.f.,
01.01.2007; and they being promoted thereafter, to the post of Senior Meter Reader,
they would not be entitled to the 3rd financial up-gradation benefit.
12. Mr. K. N. Choudhury, learned Senior Counsel appearing for the appellants has
fairly submitted that given the materials available on record, the appellants already
having been granted two financial up-gradations under the "Next Higher Time Scale of
Pay Scheme" introduced in the year 1990, in view of the provisions of Para-6 of the
OM dated 13.12.2006; the appellants may not be entitled to the financial up-
gradations so brought into effect w.e.f., 01.01.2007; and accordingly, the re-fixation as
made in respect of the appellants cannot be held to be erroneous. However, Mr.
Choudhury has submitted that up-gradation so granted to the appellants vide the
order dated 24.10.2008, in terms of the OM dated 30.12.2006; was so done by the
respondent authorities and the appellants had got no role, therein. It was further
submitted that said up-gradations so made and the higher pay so drawn by the
appellants was not on account of any fault on their part or on account of any mis-
Page No.# 9/20
representation made by them in the matter. Mr. Choudhury, accordingly, submits that
while the re-fixation as made in respect of the appellants may be permitted to hold
the field, the recovery of the excess of pay so drawn by the appellants is required to
be interfered, in view of the decision of the Hon'ble Supreme Court in the case of
State of Punjab Vs Rafiq Mashih (white washer), reported in (2015) 4 SCC
334. Mr. Choudhury further submits that the appellants admittedly, having been
promoted to the post of Senior Meter Reader much after the completion of 30 years
regular service, the appellants would be entitled to the 3 rd financial up-gradation and
accordingly, submits that the same be directed to be granted to the appellants and
thereafter, the pay be re-fixed, which re-fixation would also mandate a re-fixation of
the pension and pensionary benefits authorized to the petitioner.
13. Per contra, Mr. P. N. Goswami, learned counsel appearing for the respondents in
both the writ appeals has submitted that on account of an error the appellants were
granted two further financial up-gradations in terms of the OM dated 30.12.2006, by
way of issuance of the Office Order dated 24.10.2008. Mr. Goswami submits that the
appellants already having been granted two financial up-gradations under the "Next
Higher Scale Scheme", introduced in the year 1990, the appellants, in terms of the
provisions of Para-6 of the OM dated 30.12.2006; were clearly ineligible for being
extended with the financial up-gradations introduced in terms of the OM dated
30.12.2006. Mr. Goswami, learned counsel submits that the said aspect of the matter,
coming to the notice of the authorities, the pay of the appellants were re-fixed w.e.f.,
01.04.1997; after withdrawing the financial up-gradations so granted to the appellants
vide the order dated 24.10.2008, in terms of the provisions of the OM dated
30.12.2006. Mr. Goswami submits that the appellants having been granted the
financial up-gradations in clear violation of the provisions of the OM dated 30.12.2006;
they would not be entitled to retain the excess of the pay so drawn by them in the
matter.
14. As regards the claim of the appellants for being extended with the benefits of
Page No.# 10/20
the 3rd financial up-gradation, Mr. Goswami has submitted that the financial up-
gradations as introduced vide the OM dated 30.12.2006, was modified vide an OM
dated 04.05.2018 and OM dated 18.11.2019. The OMs dated 04.05.2018 and
18.11.2019 had come into force only w.e.f., 01.01.2018. The appellants herein, having
retired from their services on reaching the age of superannuation, prior to 01.01.2018,
the appellants herein, would not be entitled to the benefit of a 3 rd financial up-
gradation on completion of 30 years of service.
15. We have heard the learned counsel appearing for the parties and also perused
the materials available on record.
16. It is not disputed that the appellants herein, on completion of 08 years and 20
years of service by them, were extended with financial up-gradations under the "Next
Higher Scale Benefits Scheme", introduced in the organization in the year 1990.
Thereafter, on the introduction of a new financial up-gradation scheme vide the OM
dated 30.12.2006; and therein, a provision being made for grant of financial up-
gradation in respect of employees not extended with regular promotion and/or
covered by any similar scheme prevalent thereto before, on completion of 10 years
and 25 years of service, the appellants herein, having completed 25 years of service,
were vide order dated 24.10.2008; granted two financial up-gradations both w.e.f.,
01.01.2007 to the next higher scale of pay.
17. A perusal of the provisions of the OM dated 30.12.2006, introducing the financial
up-gradation scheme in the organization would go to reveal that the 1 st of such
financial up-gradation was admissible to an employee on completion of 10(ten) years
of regular satisfactory service without being extended with a promotion and the 2 nd of
such financial up-gradation was admissible after 25 years of service since the date of
initial engagement. The said scheme in Para-6 stipulated as follows: -
"6. As the scheme provides for only 2(two) benefits of Financial Up-
gradation in case of employees not getting at least two promotions
Page No.# 11/20
within the prescribed span of 25 years of service:-
(i) an employee who has already got one regular promotion or one
higher pay scale benefit (in case of isolated or blind alley post) shall be
entitled to get the benefit of 2nd Financial Up-gradation only, on
completion of 25 or more year of regular service from the date of initial
appointment.
(ii) an employee who has already got (under the next higher scale
scheme of 1990) two regular promotions or two similar benefits of
higher pay scales (in case of isolated or blind alley post) as on the date
of implementation of the Scheme shall not be entitled to get any further
benefit under this scheme."
18. A perusal of the provisions of Para-6, more particularly, Para-6 (2) would go to
reveal that the financial up-gradation benefits as introduced vide the OM dated
30.12.2006, would not be applicable in respect of employees who have already got
two regular promotions or two similar benefits of higher scales of pay under the 'Next
Higher Pay Scale' scheme of 1990. The appellants herein, having admittedly got two
financial up-gradations under the 'Next Higher Pay Scale' scheme of 1990, stood
excluded from the provisions of the financial up-gradations scheme as introduced vide
the OM dated 13.12.2006; however, the said position was not appreciated by the
respondent authorities and the appellants were granted the two financial up-
gradations vide the Office Order dated 24.10.2008 w.e.f., 01.01.2007. The said aspect
of the matter, on coming to the notice of the authorities, the pay of the appellants
came to be re-fixed w.e.f., 01.01.1997 vide the communications dated 10.09.2020 and
26.06.2021 respectively. On such re-fixation of pay being made and the benefit of two
financial up-gradations as granted vide the Office Order dated 24.10.2008 being
withdrawn, resulted in a situation wherein, the appellants were found to have drawn
excess pay.
19. It is to be noted that on the date when the re-fixation of the appellants were so
Page No.# 12/20
effected, they have already superannuated from their respective services. Further, the
provisions of Para-6 of the OM dated 30.12.2006 has not been challenged by the
appellants.
20. It is stated at the Bar that on account of the excess drawal of pay by the
appellants now coming into the forefront on withdrawal of the financial up-gradation
benefits so granted to them vide the Office Order dated 24.10.2008, as well as the re-
fixation of their pay w.e.f., 01.04.1997 by ignoring the said financial benefits, the
excess amounts so drawn have been recovered from the pension and pensionary
benefits of the appellants.
21. In view of the facts and circumstances as existing in the matter, we are of the
considered view that the withdrawal of the benefits of two financial up-gradations as
granted to the appellants vide the Office Order dated 24.10.2008, is not erroneous
and the same is in consonance with the provisions of the OM dated 30.12.2006,
inasmuch as, the appellants were clearly ineligible for being considered for the
financial up-gradations under the scheme brought into operation vide the OM dated
30.12.2006. However, the appellants, not being in any manner responsible for the
grant of two financial up-gradations in their case by the respondent authorities and it
not being alleged that such financial up-gradation so granted to the appellants vide
the Office Order dated 24.10.2008 was on account of any misrepresentation or fraud
played by the appellants, the recovery of the excess amount of pay so drawn by the
appellants being iniquitous, would mandate an interference.
22. The Hon'ble Supreme Court, in the case of Sahib Ram Vs State of Haryana,
reported in 1995 Suppl. (1) SCC 18, had restrained the authorities from effecting
the recovery of payment, which was given under the upgraded pay scale on account
of wrong construction of the relevant order by the authority concerned, without any
misrepresentation on the part of the employees, the Hon'ble Supreme Court had in
the matter, held as follows: -
Page No.# 13/20
"5. Admittedly, the appellant does not possess the required
educational qualifications. Under the circumstances the appellant
would not be entitled to the relaxation. The Principal erred in granting
him the relaxation. Since the date of relaxation, the appellant had been
paid his salary on the revised scale. However, it is not on account of
any misrepresentation made by the appellant that the benefit of the
higher pay scale was given to him but by wrong construction made by
the Principal for which the appellant cannot be held to be at fault.
Under the circumstances the amount paid till date may not be
recovered from the appellant. The principle of equal pay for equal work
would not apply to the scales prescribed by the University Grants
Commission. The appeal is allowed partly without any order as to
costs."
23. The Hon'ble Supreme Court, in the case of Colonel B. J. Akkara (retired) Vs Govt.
of India, reported in (2006) 11 SCC 709, on consideration of an identical question as
arising in the proceeding has held as under: -
"27. The last question to be considered is whether relief should be
granted against the recovery of the excess payments made on account
of the wrong interpretation/ misunderstanding of the circular dated 7-6-
1999. This Court has consistently granted relief against recovery of
excess wrong payment of emoluments/allowances from an employee, if
the following conditions are fulfilled (vide 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 1211, Union of India v. M. Bhaskar [(1996) 4 SCC 416 1996 SCC
(L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139:
1997 SCC (L&S) 1652]):
(a) The excess payment was not made on account of any
misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong
principle for calculating the pay/allowance or on the basis of a
particular interpretation of rule/order, which is subsequently found to
be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted
Page No.# 14/20
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.
29. On the same principle, pensioners can also seek a direction that
wrong payments should uld not be recovered, as pensioners are in a
more disadvantageous position when compared to in-service employees.
Any attempt to recover excess wrong payment would cause undue
hardship to them. The petitioners are not guilty of any
misrepresentation or fraud in regard to the excess payment. NPA was
added to minimum pay, for purposes of stepping up, due to a wrong
understanding by the implementing departments. We are therefore of
the view that the respondents shall not recover any excess payments
made towards pension in pursuance of the circular dated 7-6-1999 till
the issue of the clarificatory circular dated 11-9-2001. Insofar as any
excess payment made after the circular dated 11-9-2001, obviously the
Union of India will be entitled to recover the excess as the validity of
the said circular has been upheld and as pensioners have been put on
notice in regard to the wrong calculations earlier made."
24. The Hon'ble Supreme Court, in its decision in the case of Syed Abdul Qadir Vs
State of Bihar, reported in (2009) 3 SCC 475, on noticing that the excess payment
so made to the appellants therein, which was sought to be recovered was so made on
account of a mistake and wrong interpretation of the rules holding the field, held that
the appellants therein, cannot be held responsible in such a situation and the recovery
of the excess amount should not be ordered, especially, when the employees had
subsequently retired from their services. The Court further observed that in general
parlance, recovery is prohibited by Courts where there exists no mis-representation or
fraud played on the part of the employee and the excess payment has been made by
Page No.# 15/20
applying a wrong interpretation of a rule or order. The Hon'ble Supreme Court had
held as under: -
"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."
25. The Hon'ble Supreme Court in the case of Rafiq Mashih (white washer)
(supra), examined the validity of an order passed by the State to recover the
monetary gains wrongly extended to the employees drawing in excess of their
entitlements without any fault or misrepresentation on the part of such employees.
The Hon'ble Supreme Court, upon considering the situation of hardship caused to an
employee, if recovery is directed to reimburse the employee and accordingly,
disallowed the same, exempting the beneficiary employees from such recovery, it was
held thus: -
"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
Page No.# 16/20
situation, the employee's right would outbalance, and therefore eclipse,
the right of the employer to recover.
XXX XXX XXX
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:
(1) 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."
26. Applying the decisions of the Hon'ble Supreme Court as noticed herein above, to
the facts of the present case, it is clear that the excess pay so drawn by the appellants
on account of a wrong interpretation of the provisions of the OM dated 30.12.2006, by
the respondent authorities and the appellants were not at fault for the same. Further,
it is not alleged by the respondent authorities that the appellants had misrepresented
or played a fraud upon the respondent authorities, leading to the issuance of the
Office Order dated 24.10.2008, extending to them two further financial up-gradation
Page No.# 17/20
benefits w.e.f., 01.01.2007, in terms of the OM dated 30.12.2006.
27. In such view of the matter, the excess payment drawn by the appellants herein,
being on account of a wrong interpretation of the provisions of the OM dated
30.12.2006 by the respondent authorities; we are of the considered view that the
excess payment so drawn by the appellant would not be permissible to be recovered.
28. Having arrived at the above conclusion with regard to the re-fixation of the pay
of the appellants and the consequent recovery of the excess pay so drawn, this Court
would now consider the claim of the appellants herein, for being extended with the
benefits of 3rd financial up-gradation.
29. As noticed herein above, the appellants had retired from their services on
30.09.2014 and 31.12.2017. It is an admitted position that the 'Modified Assured
Career Progression' scheme, wherein the 3rd financial up-gradation was so introduced,
had come into force only w.e.f., 01.01.2018. The appellants having retired prior to the
said date on reaching their respective ages of superannuation, it is held that the
appellants would not be entitled to the 3rd financial up-gradation scheme.
30. Having drawn the above conclusion, this Court would now examine the
Judgment and Order dated 05.11.2024, passed by the learned Single Judge in WP(C)
No. 7109/2021, WP(C) No. 128/2022 and WP(C) No. 6901/2021.
31. The operative portion of the Judgment and Order dated 05.11.2024, being
relevant is extracted herein below: -
"13. As regards, the claim for interference with the adjustment being
made upon the re-fixation/re-casting of the pay of the petitioners, it
may be seen that according to the respondents when the 1st and 2nd
financial upgradation benefit was given to them w.e.f. 01.01.2007,
proper fixation of their pay was not done leading to excess drawal of
pay. Accordingly, the respondent authority concerned intimated the
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Controller Officers concerned under whom the petitioners were working
to make the rectification in their respective service books. However, the
same was not done. It is seen that the re-fixation of pay was done by
calculating the pay scale benefit as per completion of the prescribed
years of service. Under the circumstance and in the absence of any
serious dispute raised by the petitioners, the re-fixation of pay of the
petitioners appears to be in order. It is also a settled law that matters
relating to pay fixation should be left to those who are experts in the
field as the Courts lack the expertise and the resource.
14. In respect of the claim of the petitioners to be given the 3rd
financial upgradation of their pay, it may be seen that the 1st financial
upgradation was introduced vide O.M dated 30.12.2006 which was
applied w.e.f. 01.01.2007. Under the said scheme, only those employees
who did not already get two regular promotions or two similar benefits
of higher pay scales as on the date of implementation of the scheme
were eligible to avail the benefit of the financial upgradation. By that
time, the petitioners admittedly had not earned any promotions and
therefore, they were given two financial upgradations w.e.f.
01.01.2007. The MACPS was introduced vide O.M dated 12.12.2017 and
it was subsequently implemented by the issuance of O.M dated
04.05.2018, which further provided that the financial benefit of the
scheme shall be given w.e.f. 01.01.2018. The MACPS no doubt provides
for three financial upgradation in the entire service period on
completion of 10 years, 20 years and 30 years. However, such
upgradation are meant for those employees who do not get one regular
promotion within the the first 10 years of their appointment or two
regular promotions/ACPS benefit within 20 years or three
promotions/ACPS benefit within the 30 years of regular service. In the
present case, as already noted herein above, the petitioners were given
two upgradation w.e.f. 01.01.2007 and thereafter, they were promoted
Page No.# 19/20
to the Senior Meter Reader post on 24.11.2014 in respect of the
petitioners in WP(C) No. 6901/2021 & WP(C) No. 128/2022. The
petitioner in WP(C) No. 7109/2021 was promoted on 02.06.2016.
Therefore, the petitioners in all have availed for one regular promotion
and two financial upgradation benefits. Under the circumstance, it only
appears that they already having availed three benefits whether by
promotion or by financial upgradation and therefore, they are not
eligible to get the three financial upgradation as contemplated by the
MACPS. Therefore, no relief can be granted as claimed by the
petitioners."
32. On a perusal of the conclusions drawn in the Judgment and Order dated
05.11.2024; the learned Single Judge had proceeded to reject the claim of the
appellants herein, by holding that the appellants were given two financial up-
gradations w.e.f., 01.01.2007 and thereafter, they were promoted to the post of Senior
Meter Reader on 24.11.2014 and 02.06.2016 respectively. Accordingly, it was held that
the appellants having availed one regular promotion and two financial up-gradations,
they could not be entitled to a 3rd financial up-gradation.
33. The discussions made herein above, would go to reveal that the said conclusions
drawn by the learned Single Judge is factually incorrect and the financial up-
gradations granted to the appellants were the financial up-gradations granted to them,
prior to the coming of the force of the scheme introduced vide the OM dated
30.12.2006. Further, the financial up-gradations so granted to the appellants herein,
vide the Office Order dated 24.10.2008 was subsequently withdrawn. Further, the
appellants would not be entitled to the said financial up-gradations on account of the
fact that before introduction of the same, the appellants herein had superannuated
from their services.
34. In view of the above, we are of the considered view that the conclusions drawn
by the learned Single Judge being factually incorrect, would call for an interference.
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Accordingly, the Judgment and Order dated 05.11.2024 would not be sustainable and
the same is set aside and quashed.
35. Having interfered with the Judgment and Order dated 05.11.2024, the following
directions are hereby issued: -
(i) The withdrawal of the financial up-gradation benefits so extended to the
appellants vide the Office Order dated 24.10.2008, is upheld.
(ii) The re-fixation of the pay and allowances of the appellants vide the re-
fixation orders dated 10.09.2020 and 26.06.2021, are also upheld.
(iii) The recovery of the excess pay drawn by the appellants on account of the
grant of the two financial up-gradations vide the Office Order dated
24.10.2008 having already being held to be iniquitous, the respondent
authorities are hereby directed to refund to the appellants herein, the
amounts recovered from their pay, pension and pensionary benefits
towards the excess payment of pay drawn by them, within a period of
3(three) months from the date of receipt of a certified copy of this order.
36. With the above observations and directions, the present writ appeals stands
disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
