U.T. CHANDIGARH & ORS.versusGURCHARAN SINGH & ANR.

                   [2013] 12 S.C.R. 853


                U.T. CHANDIGARH & ORS.                          A
                             v.
               GURCHARAN SINGH & ANR.
              (Civil Appeal No. 9873 of 2013)
                   NOVEMBER 01, 2013                            B
        [ANIL R. DAVE AND DIPAK MISRA, JJ.]

    Service Law:

     Pay - Pay-fixation of re-employed pensioners - Pay of C
re-employed ex-serviceman re-fixed finding that his initial pay
fixation was wrong - Administrative Tribunal held that
employer was right in rectifying the mistake - High Court held
that the re-fixation was wrong - Held: As per the provisions of
order regulating fixation of pay of re-employed pensioners o
and as per the option exercised by the employee, his previous
service would not be taken into account for the purposes of
his pay fixation - Hence, re-fixation of his pay was justified -
Central Civil Services (Fixation of Pay of Re-employed
Pensioners) Orders, 1986 - Order 4.                              E

    The respondent was appointed as a clerk by the
appellant, in the quota reserved for ex-servicemen. His
pay was fixed by order dated 2.9.1992. On his retirement,
by audit query it was brought to the notice of the
appellant that the pay of the respondent had been F
wrongly fixed. By order dated 13.10.1998, the mistake
committed in pay fixation was rectified. The application
challenging the re-fixation of salary was dismissed by
Central Administrative Tribunal. Writ petition against the
order of Tribunal was allowed. Hence the present appeal. G
    Allowing the appeal, the Court
    HELD: 1. The Tribunal was right in coming to the
                             853                                H
    854    SUPREME COURT REPORTS              (2013] 12 S.C.R.


A conclusion that the pay fixation under the order dated
  13th October, 1998 was correct because a mistake was
  committed in the earlier pay fixation under the order dated
  2nd September, 1992. The respondent had been given an
  option. It is clearly revealed from the option form that the
B respondent had agreed to get his pay fixed as per the
  minimum of pay in the pay-scale of the Clerk, the post to
  which he had been re-employed. As per the provisions
  of the Orders and as per the option exercised by the
  respondent, service rendered by the respondent to the
c Indian Army cannot be taken into account for the
  purposes of his pay fixation as the respondent would be
  getting his pension and there would not be any
  deduction from his pension or his salary on account of
  the pension received by him from the Indian Army. If
0 nothing has been deducted from the pension of the
  respondent upon being re-employed and as the
  respondent would continue to get his pension and other
  benefits from the Army for his past services, the High
  Court was not right while permitting the respondent to get
E his higher pay fixed by taking into account the services
  rendered by the respondent to the Indian Army. [Paras
  8, 10 and 11] [859-F-H; 860-A-C, E]

         2. If any amount had been paid due to mistake, the
    mistake must be rectified and the amount so paid in
F   pursuance of the mistake must be recovered. Upon
    settlement of the account, whatever amount has to be
    paid to the respondent employee or to the appellant
    employer shall be paid and the account shall be adjusted
    accordingly. [Para 12] [860-F-H]
G
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    9873 of 2013.
      From the Judgment & Order dated 20.03.2008 of the High
  Court of Punjab & Haryana at Chandigarh in Civil Writ Petition
H No. 7006-CAT of 2003.
  U.T. CHANDIGARH & ORS. v. GURCHARAf\! SINGH 855


      Kavita Wadia, Shashank Tripathi for the Appellants. ·               A

      H.S. Saini, Balbir Singh Gupta for the Respondents.

      The Judgment of the Court was delivered by

      ANILR. DAVE, J. 1. Leave granted.                                   B

      2. Being aggrieved by the Judgment delivered in Civil Writ
 Petition No.7006-CAT of 2003 dated 20th March, 2008 by the
 High Court of Punjab and Haryana at Chandigarh, this appeal
 has been filed by the employer - Union Territory of Chandigarh           C
 and others.

      3. The facts giving rise to the present litigation in a nut-shell
 are as under:

        The respondent was appointed as a Clerk by the appellant          D
  Chandigarh Transport Undertaking on the quota reserved for
 ex-servicemen. The respondent had rendered his services to
·the Indian Army as a Combatant Clerk upto 31st January, 1990,
 till the date when he was discharged from the Indian Army.

      Upon his appointment as a Clerk under an office order               E
dated 2nd September, 1992, his pay had been fixed and he
was paid his salary accordingly. Only when he retired in 1997,
it was brought to the notice of the employer, on getting an audit
query, that his salary had been wrongly fixed under the order
dated 2nd September, 1992. The mistake committed in pay                   F
fixation had been rectified by an order dated 13th October,
1998.

       4. Being aggrieved by the re-fixation of his pay, the
respondent had made several representations but as no                     G
change was effected by the appellant-employer in the pay so
re-fixed, the respondent had approached the Central
Administrative Tribunal (hereinafter referred to as ' the Tribunal')
by filing Original Application No.975/CH/2000. The said OA had
been dismissed by the Tribunal by an order dated 4th January,             H
    856     SUPREME COURT REPORTS               [2013) 12 S.C.R.


A 2002. Being aggrieved by the order rejecting the aforestated
  0.A., the respondent-employee had approached the High Court
  by filing the aforestated petition which has been allowed by an
  order dated 20th March, 2008 and being aggrieved by the said
  order and judgment, this appeal has been filed by the employer. ·
B
       5. The learned counsel for the appellant had explained the
  circumstances in which the appellant was constrained to re-fix
  pay of the respondent so as to rectify the mistake committed
  while passing the pay fixation order dated 2nd September,
C 1992. The learned counsel had taken us through the relevant
  regulations with regard to pay fixation of re-employed
  pensioners and had taken us through the provisions of the
  Central Civil Services (Fixation of pay of Re-employed
  Pensioners) Orders, 1986 (hereinafter referred to as 'the
  Orders') under which pay of the respondent ought to have been
D fixed.

       6. The learned counsel for the appellant had submitted that
  there were several different notifications and orders in relation
  to the pay fixation of re-employed pensioners, including ex-
E servicemen. So as to see that all the orders are available at
  one place, the orders had been compiled and notified in 1986
  so that pay of the re-employed pensioners can be fixed only
  upon looking at the provisions of the compilation of the Orders
  instead of looking at several different orders or notifications
F which had been issued from time to time. Thus, according to
  the learned counsel, a comprehensive compilation of all the
  relevant orders, which had been issued from time to time and
  which were operative in 1996 was duly considered for the
  purpose of re-fixation of the pay of the respondent.
G       7. As the respondent had been given appointment on 15th
  April, 1990 as a Clerk on a post reserved for the ex-
  servicemen, the provisions of the Orders were to be looked into
  for the purpose of pay fixation of the respondent. The learned
  counsel had further submitted that while fixing the pay on 2nd
H September, 1992, the appellant did not look into the certain
 U.T. CHANDIGARH & ORS. v. GURCHARAN SINGH                     857
               [ANIL R. DAVE, J.)

provisions of the Orders and an option exercised by the                A
respondent in relation to his pay fixation and therefore, incorrect
pay had been fixed under the order dated 2nd September,
1992. By virtue of the said pay fixation, the respondentwas
given benefit of his past services rendered to the Indian Army
and accordingly, he was also given increments which he would           B
have got in the Indian Army. As a result thereof, the respondent's
pay was fixed in a higher scale then what he ought to have been
allowed. As a matter of fact, as per the provisions of Order 4
of the Orders, the respondent could not have been given benefit
 of his earlier services in the process of fixing his pay. Order 4     C
 of the Orders, being relevant for the purpose, has been
 reproduced herein-below:

      "4.     Fixation of pay of re-employed pensions.
      (a)      Re-employed pensioners shall be allowed to draw D
              pay only in prescribed scales of pay for the posts
               in which they are re-employed. No protection of the.
               scales of pay of the post held by them prior to
               retirement shall be given.
                                                                    E
       (b) (i) In all cases where the pension is fully ignored, the
               initial pay on re-employment shall be fixed at the
               minimum of the scales of pay of the re-employed
               post.

       (ii)   In cases where the entire pension and pensionary         F
              benefits are not ignored for pay fixation, the initial
              pay on re-employment shall be fixed at the same
              stage as the last pay drawn before retirement. If
              there is no such stage in the re-employed post, the
              pay shall be fixed at the stage below that pay. If the   G
              maximum of the pay scales in which a pensioner
              is re-employed is less than the last pay drawn by
              him before retirement, his initial pay shall be fixed
              at the maximum of the scales of the re-employed
               post. Similarly, if the minimum of the scales of the    H
     858         SUPREME COURT REPORTS               [2013] 12 S.C.R.

A                 pay in which a pensioner is re-employed is more
                  than the last pay drawn by him before retirement his
                  initial pay shall be fixed at the minimum of the
                  scales of pay of the re-employed post. However, in
                  all these cases, non ignorable past of the pension
B                 and pension equivalent of retirement benefits shall
                  be reduced from the pay so fixed.

           (c)    The re-employed pensioner will be in addition to pay
                  as fixed under para (b) above shall be permitted to
                  drawn separately and pension sanctioned to him
c                 and to retain any other form <lf retirement benefits.

           (d)    In the case of persons retiring before attaining the
                  age of 55 years and who are re-employed, pension
                  (including pension equivalent of gratuity and other
D                 forms of retirement benefits) shall be ignored for
                  initial pay fixation to the following extent.

                  (i) In the case of ex-servicemen who held posts
                  below commissioned office'r rank in the Defence
E                 Forces and in the case of Civilians who held posts
                  below Group (A) posts at thEl time of their retirement
                  benefits shall be ignored.

                  (ii) In the case of service officers belonging to the
                  Defence Forces and Civilian Pensioners who hold
F                 Group 'A' posts at the timEl of their retirement, the
                  first Rs.500/- of the pension and pension equivalent
                  of retirement benefits shall be ignored."
       8. The respondent had been givEm an option whereby he
G had opted for the minimum scale of pay, which was paid to the
  Clerk and therefore, his pay had been rightly fixed as per the
  option read with Order 4(a) of the Rules. The learned counsel
  had further submitted that while allowing the writ petition, the
  High Court had not considered the aforestated facts at all. The
H High Court did not look into the fact that an option had been
 U.T. CHANDIGARH & ORS. v. GURCHARAN SINGH                 859
               [ANIL R. DAVE, J.]

given to the respondent-employee and his pay had been fixed        A
only as per the option exercised by him and as per the
provisions of Order 4 of the Orders. It had, therefore, been
submitted that the view taken by the Tribunal, confirming re-
fixation of pay was correct and the High Court ought not to have
disturbed the same by allowing the writ petition. It was,          B
therefore, submitted that the order dated 20th March, 2009 of
the High Court should be quashed by allowing the appeal.

     9. On the other hand, the learned counsel appearing for
the respondent-employee had at the first instance submitted that C
the respondent was not having a copy of the option and he was
not aware about the option so exercised. He had submitted that
the pay had rightly been fixed by the order dated 2nd
September, 1992 and it ought not to have been re-fixed to the
 prejudice of the employee after six years. He had, therefore,
submitted that the view taken by the High Court was correct. D
 He had further submitted that perhaps the respondent might
 have to make some payment to the appellant-employer as
 according to the employer, the respondent had been paid more
 salary on account of incorrect pay fixation. He had also
 submitted that recovering the salary so paid would be unjust E
 and therefore, in any case, nothing should be recovered from
 the respondent-employee.

     10. Upon hearing the learned counsel and upon perusal
of the option form dated 18-7-1990, in our opinion, the High       F
Court was in error while allowing the petition because it is
clearly revealed from the option form that the respondent had
agreed to get his pay fixed as per the minimum of pay in the
pay-scale of the Clerk, the post to which he had been re-
employed. It is pertinent to note that the respondent has been     G
getting regular pension from the Indian Army for his past
services rendered to the Indian Army. As per the provisions of
the Orders and as per the option exercised by the respondent,
service rendered by the respondent to the Indian Army cannot
be taken into account for the purposes of his pay fixation as      H
    860      SUPREME COURT REPORTS                 [2013) 12 S.C.R.


A  the respondent would be getting his pensior and there would
   not be any deduction from his pension or his salary on account
   of the pension received by him from the Indian Army. If nothing
   has been deducted from the pension of the respondent upon
   being re-employed and as the respondent would continue to
B get his pension and other benefits from the Army for his past
  services, in our opinion, the High Court was not right while
  permitting the respondent to get his higher pay fixed by taking
  into account the services rendered by the respondent to the
  Indian Army. Even from sound common sense, it can be seen
c that for the past service rendered to the Indian Army, the
  respondent is getting pension and other perquisites which a
  retired or discharged soldier is entitled to even after being re-
  employed. The respondent would, therefore, not have any right
  to get any further advantage in the nature of higher salary or a
  higher pay scale, especially when nothing from his salary was
0
  being deducted on account of his getting pension or perquisites
  from the earlier employer.

          11. In view of the aforestated position, in our opinion, the
    Tribunal was absolutely right in coming to the conclusion that
E   the pay fixation under the order dated 13th October, 1998 was
    correct because a mistake was committed in the earlier pay
    fixation under the order dated 2nd Septeimber, 1992.

       12. Though a submission had been made on behalf of the
F respondent that no amount should be recovered from the salary
  paid to the respondent, the said submission can not be
  accepted because if any amount had been paid due to mistake,
  the mistake must be rectified and the amount so paid in
  pursuance of the mistake must be recovered. It might also
G happen that the employer might have to pay some amount to
  the respondent as a result of some mistake and in such an
  event, even the appellant might have to pay to the respondent.
  Be that as it may, upon settlement of the account, whatever
  amount has to be paid to the respondent employee or to the
H appellant employer shall be paid and the account shall be
  adjusted accordingly.
 U.T. CHANDIGARH & ORS. v. GURCHARAN SINGH                  861
               [ANIL R. DAVE, J.]

     13. For the aforestated reasons, we are of the view that      A
the High Court was not correct in allowing the writ petition. We
quash and set aside the order passed by the High Court so
as to restore the order passed by the Tribunal and give effect
to the pay fixation order dated 13th October, 1998. The appeal
stands disposed of as allowed with no order as to costs.           9-

K.K.T.                                        Appeal allowed.