The Union Of India vs Donald Anil Kumar S/O Late Shri ...
2021 Latest Caselaw 2909 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 D.B. Civil Writ Petition No. 14050/2020

1.      The Union of India, through General Manager, North
        Western Zone, North Western Railway, Near Jawahar
        Circle, Jagatpura, Jaipur (Rajasthan) 302017.
2.      Chief Works Manager, Carriage Workshop, North Western
        Railway, Ajmer Division, Ajmer 305001.
3.      Deputy Chief Mechanical Engineer (Carriage Workshop),
        North Western Railway, Ajmer Division, Ajmer 305001
        (Raj.)
4.      Senior Divisional Finance Advisor and Accounts Officer,
        Carriage Workshop and Store, North Western Railway,
        Ajmer Division, Ajmer. 305001 (Raj).
                                                                    ----Petitioners
                                     Versus
        Donald Anil Kumar S/o Late Shri Barkat Salim Rao, Aged
        About 60 Years, R/o House No. 632/50, Behind Revenue
        Board, Civil Lines, Ajmer 305001 and Retired as Senior
        Technician Fitter (MCF) (Ticket No. 57680), Shop No. 31,
        Under      Deputy       Chief    Mechanical          Engineer    (Carriage
        Workshop), North Western Railway, Ajmer Division, Ajmer
        (Raj.) 305001.
1/1.    Renuka Rose W/o Donald Anil Kumar, R/o House No.
        632/50, Behind Revenue Board, Civil Lines, Ajmer-
        305001.
1/2.    Neha Donald D/o Donald Anil Kumar, R/o House No.
        632/50, Behind Revenue Board, Civil Lines, Ajmer-
        305001.
                                                                  ----Respondents

For Petitioner(s)           :    Shri Aslam Khan
For Respondent(s)           :    Shri Chandra Bhan Sharma



           HON'BLE MR. JUSTICE SANGEET LODHA
       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                                  Judgment

14/07/2021


                                        (2 of 6)                       [CW-14050/2020]

(PER HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL):

This writ petition assails the order dated 21.8.2020 passed

by the Central Administrative Tribunal, Jaipur Bench, Jaipur (for

brevity-`the Tribunal') whereby the Original Application (for short-

`the OA') filed by the predecessor-in-title of the respondents has

been allowed as well as the order dated 21.10.2020 whereby the

review application filed by the appellants/non-applicants (for

brevity-`the appellants') has been dismissed.

The facts in brief are that deceased respondent Donald Anil

Kumar (expired during pendency of the writ petition and being

represented by his legal representatives) (for brevity-`the

respondent') filed an OA assailing the order dated 24.8.2019

whereby his pay was revised and reduced with recovery of the

excess payment made to him holding that he came to be extended

benefit of higher pay on promotion in the year 2001 erroneously

as well as letter dated 20.9.2019 whereby his representation was

rejected. It was stated in the OA that the respondent was initially

appointed as Helper @ Khalasi on 6.9.1986 and was allowed pay

and allowances after due fixation from time to time. It was

averred that he was granted promotion, benefits of MACP, higher

grade pay as and when fell due and his service book was verified

by the Accounts Department from time to time in which no

discrepancy was noted. It was submitted that soon before his

retirement on attaining the age of superannuation, i.e. on

30.6.2020, the appellants revised and reduced his pay since the

year 2001 and has ordered recovery which being in violation of

settled principles of law, deserved to be quashed and set aside.

The appellants in their reply to the OA submitted that on re-

examination of his service book, it transpired that the respondent

(3 of 6) [CW-14050/2020]

was given benefit of higher pay erroneously on account of

bonafide error which has been corrected vide order dated

24.8.2019 which did not warrant any interference.

The learned Tribunal vide its order dated 21.8.2020 allowed

the OA recording a finding that the respondent neither was at any

fault nor, he has misrepresented and his case was squarely

covered by the judgement of the Hon'ble Apex Court of India in

the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer)

& Ors.-2015 (2) SCC (L&S) 33 and quashed the order dated

24.8.2019 as well as letter dated 20.9.2019. The review

application no.291/05/2020 filed by the appellants also came to

be rejected by the learned Tribunal vide its order dated

21.10.2020.

Assailing the impugned orders dated 21.8.2020 and

21.10.2020, learned counsel for the appellants submitted that the

appellants were well within their right to correct the inadvertent

error committed by their officials bonafidely whereby the

respondent came to be extended benefit of higher pay

erroneously. He submitted that no estoppel applies against the law

and the respondent could not have been permitted to avail a

benefit for which he was not legally entitled citing the reason that

the same came to be extended to him without his fault or

misrepresentation by him. Learned counsel submitted that in D.B.

Civil Writ Petition No1774/2020, UOI & Ors. vs. Norat Lal involving

identical controversy, a coordinate bench of this Court has, vide its

order dated 19.2.2020, held that the appellants therein could pass

a fresh order rectifying the mistake after affording an opportunity

of hearing to the respondent which will have prospective operation

only, if adverse to him with no recovery right to the appellants. He

(4 of 6) [CW-14050/2020]

submitted that relying on the aforesaid judgement dated

19.2.2020, the learned Tribunal vide its order dated 24.11.2020

passed in OA No.291/214/2020, quashed the order passed by the

appellants revising and reducing the pay of the applicant therein

with direction to pass order afresh after giving an opportunity of

hearing to the applicant which will have prospective effect only

from the date of passing of such order. He prayed that the present

writ petition may be allowed in similar terms.

Learned counsel for the respondent supporting the findings

recorded by the learned Tribunal submitted that the appellants

could not have been permitted to pass the order dated 24.8.2019

seeking to rectify the order passed almost 19 years ago that too

when he was on the verge of retirement on attaining the age of

superannuation. He submitted that any reduction in the pay of the

respondent would adversely affect the family pension his legal

representatives are getting. He, therefore, prayed for dismissal of

the writ petition.

Heard learned counsels for the parties and perused the

record.

The Tribunal has not recorded any finding that the

respondent was rightly extended the benefit of higher pay in the

year 2001. It is trite law that no estoppel applies against law and

a person cannot be permitted to continue to avail a benefit

erroneously extended for which he is not legally entitled. However,

since, the order impugned dated 24.8.2019 adversely affecting

civil rights of the respondent came to be passed in violation of the

principles of natural justice inasmuch as he was neither given any

show cause notice nor any opportunity of hearing before it was

passed, this Court deems it just and proper to remand the matter

(5 of 6) [CW-14050/2020]

back to the appellants to pass order afresh in the light of a

coordinate bench judgement of this Court in D.B. Civil Writ Petition

No1774/2020, UOI & Ors. vs. Norat Lal. In that case, this Court

vide order dated 19.2.2020 upheld the order of the learned

Tribunal whereby the similar order passed in respect of applicant

therein, was quashed and set aside with direction to the

respondents to re-visit the impugned order, pass fresh order with

regard to re-fixation of the applicant's pay after giving him due

notice and opportunity of hearing. It was held that if any order is

passed thereafter effecting any reduction in pay, no recovery shall

be made and it will have prospective operation only from the date

of the order. Learned counsel for the respondent also did not

dispute the aforesaid legal position.

Therefore, this writ petition is disposed of in the following

terms:

1) the order dated 21.8.2020 in OA No.291/621/2019 as well as

the order dated 21.10.2020 in review application no.291/05/2020

passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur

are quashed and set aside;

2) the order impugned dated 24.8.2019 as well as the letter dated

20.9.2019 impugned in the OA No.291/621/2019 are also

quashed and set aside. The appellants herein shall be at liberty to

pass the order afresh with regard to revision of pay of the

respondent after issuing show cause notice and affording the legal

representatives of the deceased respondent an opportunity of

hearing and if such order results into reduction of the pay of the

respondent, no recovery shall be effected either from the salary

paid to the deceased respondent or from the retiral benefits/family

(6 of 6) [CW-14050/2020]

pension already paid and it shall have prospective operation only

from the date it is passed.

                                   (MAHENDAR KUMAR GOYAL),J                                   (SANGEET LODHA),J

                                   RAVI SHARMA /47









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