UNION OF INDIA AND ORS.versusSHRI BHANWAR LAL MUNDAN

                    [2013] 8 S.C.R. 559


               UNION OF INDIA AND ORS.                           A
                              v.
              SHRI BHANWAR LAL MUNDAN
              (Civil Appeal No. 7292 of 2013)

                     AUGUST 27, 2013
                                                                 B
        [ANIL R. DAVE AND DIPAK MISRA, JJ.]

    Service Law:

     Pay fixation - Repatriation of employee from deputation     C
post in parent department on promotional post - Pay on the
deputation post higher than the pay on promotional post -
Pay fixation on promotional post on the basis of the higher
pay on the deputation post - At the time of superannuation,
accounts department realizing that pay fixation was erroneous,   D
refixed the pay of the employee and directed to refund the
excess sum - Courts below quashed the order - Held:
Fixation of pay on the promotional post on the basis of higher
pay scale on the deputation post, was erroneous - Hence,
authorities were within domain to rectify it - However, there    E
shall be no recovery of the excess amount paid to the
employee.

    The respondent employee in JU Division of the
appellant-employer, was sent on deputation to                    f

Construction Organisation. He was called to participate
in selection process for promotional post in his parent
department. On being successful, he joined the
promotional post. Since his pay on the deputation post
was higher than the pay on the promotional post, his pay         G
on the promotional post was fixed on the basis of the pay
he was drawing on the deputation post. At the time of
determination of his pension, on superannuation, it was

                            559                                  H
    560      SUPREME COURT REPORTS                [2013] 8 S.C.R.


A realized that he had been given excess pay due to
  erroneous fixation of pay. Therefore, the respondent was
  sent a communication re-fixing his pay and directing
  recovery of excess sum.

B       The respondent challenged the order of re-fixation,
    and the Administrative Tribunal quashed the same. High
    Court confirmed the order of Tribunal. Hence the present
    appeal.

C         Partly allowing the appeal, the Court

         HEU): 1. The repatriation has to be to the original
    post and benefit of promotion in the department to which
    an employee is deputed is of no consequence subject to
    his entitlement of status otherwise available in the parent
0   department. When a deputationist is repatriated he
    cannot claim promotions in the parent department on the
    basis of officiation in a higher post in the borrower ·
    organization. (Paras 19 and 20] [570-C-D]

E      2. In the present case, the respondent was getting
  higher scale of pay in the post while he was holding a
  particular post as a deputationist. After his repatriation to
  the parent cadre on selection to a higher post, he was
  given higher scale of pay as it was fixed keeping in view _
F the pay scale drawn by him while he was working in the
  ex-cadre post. Such fixation of pay was erroneous and,
  therefore, the authorities were within their domain to
  rectify the same. Thus the tribunal and the High Court
  have fallen into error by opining that the respondent
G would be entitled to get the pension on the basis of the
  pay drawn by him before his retirement. (Para 22] (571-
  A-C]
   UNION OF INDIA v. BHANWAR LAL MUNDAN                561


    3. Orders passed by the tribunal as well as by the        A
High Court are set aside directing fixation of pension on
the basis of pay drawn by the respondent. However,
there shall be no recovery of the excess amount paid to
the respondent. [Para 23] [571-D]
                                                              B
     D.M. Bharati vs. L.M. Sud and Ors. 1991 Supp (2) SCC
162: 1990 (1) Suppl. SCR 580; Puranjit Singh vs. Union
Territory of Chandigarh 1994 Supp (3) SCC 471; State of
Punjab and Ors. vs. lnder Singh and Ors. (1997) 8 SCC 372:
1997 (4) Suppl. SCR 425 - relied on.                          c
     lnder Pal Yadav and Ors. vs. Union of India and Ors.
(2005) 11 SCC 301; Badri Prasad and Ors. vs. Union of India
and Ors. (2005) 11 SCC 304; Sayed Abdul Qadir and Ors.
vs. State of Bihar and Ors. (2009) 3 SCC 475: 2008 (17) SCR   D
917; Union of India and Anr. vs. P.N. Natarajan and Ors.
(2010) 12 SCC 405; State of Orissa vs. Or.Binapani Dei AIR
1967 SC 1269: 1967 SCR 625; Sayeedur Rehman vs. State
of Bihar (1973) 3 sec 333: 1973 (2) SCR 1043 -
distinguished.                                                E

                    Case Law Reference:

  (2005) 11 sec 301           distinguished      Para 10

  (2005) 11 sec 304           distinguished      Para 14      F

  2008 (17) SCR 917           distinguished      Para 14

  (201 O) 12 sec 405          distinguished      Para 16

  1967 SCR 625                distinguished      Para 16      G

  1973 (2) SCR 1043           distinguished      Para 16

  1990 (1) Suppl. SCR 580 relied on              Para 19
                                                              H
    562      SUPREME COURT REPORTS                  (2013] 8 S.C.R.


A      1994 Supp (3) sec 471         relied on             Para 20

       1997 (4) Suppl. SCR 425 relied on                   Para 21

        CIVIL APPELLATE JURISDICTION: Civil Appeal No.
B   7292 of 2013.

        From the Judgment and Order dated 09.05.2011 of the
    High Court of Rajasthan at Jodhpur in CWP No. 11838 of 2010.

        S.P. Singh, N.K. Karhail (for B. Krishna Prasad) for the
C   Appellants.

          Aishwarya Bhati for the Respondent

          The Judgment of the Court was delivered by
D         DIPAK MISRA, J. 1. Leave granted.

          2. This appeal by special leave is directed against the
    judgment and order dated 9.5.2011 passed by the High Court
    of Judicature of Rajasthan at Jodhpur in D.B. Civil Writ Petition
E   No. 11838 of 2010 whereby the Division Bench has concurred
    with the view expressed by the Central Administrative Tribunal,
    Jodhpur Bench at Jodhpur (for short "the tribunal") in O.A. No.
    109 of 2008 wherein the tribunal had quashed the order passed
    by the competent authority re-fixing his pay prior to his
F   retirement and directing recovery of the amount paid from
    3.12.1994 to 31.12.2007.

       3. The undisputed facts are that the respondent was
  appointed as a Gangman on JU Division on 15.1.1966 as a
G substitute and was regularized in the year 1972. He was
  promoted to the post of Store Keeper in October, 1977 and
  thereafter, he went on deputation to Construction Organization
  in December, 1977. He was given the post of PW Mistry in the
  Construction Organization with effect from 10.4.1981 in the pay
H
      UNION OF INDIA v. BHANWAR LAL MUNDAN                   563
                 [DIPAK MISRA, J.]
scale of Rs.380-560. On completion of the training he came in        A
the grade of Rs.1400-2300 by the Construction Wing of the
railways. Subsequently, when there was a regular selection for
the post of JE-1 in his parent department, he was called to
participate in the selection which he did and being declared
successful, he joined in the said promotional post on 3.12.1994.     B
While giving him posting in the year 1994, his pay was fixed
keeping in view the benefit he had availed while he was
working in the Construction Organization. When the date of
superannuation approached and pension was going to be
determined, it was noticed by the accounts department that he        C
had been given excess pay d.ue to erroneous fixation of pay
scale and, accordingly, a communication was sent on
22.10.2007 refixing his pay and directing recovery of the excess
sum.
                                                                     D
     4. Being dissatisfied with the said action, the respondent
approached the tribunal which, placing reliance on the
authorities in lnder Pal Yadav and others v. Union of India and
others1, Badri Prasad and others v. Union of India and others2
and Sayed Abdul Qadir and others v. State of Bihar and               E
others, quashed the order of refixation and directed the benefit
of pension be extended to him on the basis of pay he was
actually drawing before the retirement within three months failing
which the employer would be liable to pay interest at the rate
of 15% per annum.                                                    F

      5. Grieved by the aforesaid order, the Union of India and
its functionaries approached the High Court, which, by the
impugned judgment, came to hold as follows: -
                                                                     G
      "In our considered opinion, no flaw can be noticed in the

1.   (2005) 11 sec 301.
2.   (2005) 11 sec 304.
3.   (2009) 3 sec 475.                                               H
    564      SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A         reasoning arid the conclusion of the Tribunal while allowing
          the Original Application. In the first place, it is based on
          the Supreme Court decision quoted in the order itself.
          Secondly, there is no distinction brought about the facts
          of the case that is subject matter of the case in hand the
B         one before the Supreme Court. Thirdly the impugned
          directions for fixation of the pension on the basis of last
          drawn pay cannot be said to be either illegal or arbitrary
          or against any provision of Act or/and rule made
          thereunder."
c
        6. On the basis of aforesaid analysis the writ court
    dismissed the petition.

        7. Criticising the orders passed by the tribunal as well as
0 by the High Court Mr. S. P. Singh, learned senior counsel for
  the appellants has submitted that when the respondent was sent
  on deputation and came back to the parent department
  accepting promotion he was to be treated at par with other
  promotees and could not have been entitled to draw ~igher pay
E scale solely on the ground that he was getting a better pay while
  he was on deputation. It is urged by him when the respondent
  had no legal right to get a particular pay scale and it was
  wrongly fixed and could only be noticed prior to his retirement
  it became obligatory on the part of the authorities to refix the
F pay and accordingly determine the pension and hence, the
  action of the authorities could not have been found fault with. It
  is his further submission that neither the tribunal nor the High
  Court has addressed the issue pertaining to the entitlement of
  the respondent but directed the pension to be paid on the basis
G of the pay drawn by him before the retirement. Learned counsel
  would further contend that as far as recovery is concerned, the
  petitioners have no intention to recover the same.

        8. Ms. Aishwarya Bhati, learned counsel for the respondent
H relying on the authorities which have been pressed into service
    UNION OF INDIA v. BHANWAR LAL MUNDAN                      565
               [DIPAK MISRA, J.]
by the tribunal and accepted by the High Court urged that pay         A
protection was given when the respondent came back to the
parent cadre on promotion and, therefore, the said protection
could not have been withdrawn on the foundation that there was
an erroneous fixation of pay. It is argued by her that when a long
time has lapsed from the date of repatriation on promotion to         B
the parent cadre, steps for refixation immediately prior to
superannuation of the respondent is neither permissible in law
nor is it equitable. Learned counsel has canvassed that in any
case there cannot be recovery of the same as there had been
no misrepresentation by the respondent to avail the said              C
benefit.

     9. From the aforesaid rivalised submissions two
questions, namely, (i) whether the pay of the respondent was
erroneously fixed and (ii) whether there could have been a            0
direction for recovery of the amount alleged to have been
excessil:ily paid to the respondent, emerge for consideration.

     10. It is perceptible from the orders passed by the tribunal
as well as by the High Court that they have set aside the order       E
dated 22.10.2007 placing reliance on three authorities. In lnder
Pal Yadav (supra), a two-Judge Bench dealt with regularization
and permanent absorption. It also dealt with the entitlement of
the right of the employees to continue in the concerned project
or to resist reversion back to the cadre or to enjoy a higher         F
promotion merely on the basis of locally provisional promotion
granted to them in the project in which they had been employed
at a particular point of time. The Court has observed that if the
stand of the petitioners therein was to be accepted, it would
operate inequitably so far as the regular employees in the open       G
line department are concerned. Thereafter, the learned Judges
proceeded to state as follows: -

     "...... while the petitioners cannot be granted the reliefs as
     prayed for in the writ petition, namely, that they should not
                                                                      H
    566       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A         be reverted to a lower post or that they should be treated
          as having been promoted by reason of their promotion in
          the projects, nevertheless, we wish to protect the
          petitioners against some of the anomalies which may
          arise, if the petitioners are directed to join their parent
B         cadre or other project, in future. It cannot be lost sight of
          that the petitioners have passed trade tests to achieve the
          promotional level in a particular project. Therefore, if the
          petitioners are posted back to the same project they shall
          be entitled to the same pay as their contemporaries unless
C         the posts held by such contemporary employees at the
          time of such reposting of the petitioners is based on
          selection."

         11. The learned counsel for the respondent would place
o   reliance on the last part of above quoted paragraph but the
    same, we are inclined to think, does not in any way buttress
    the submission put forth by the learned counsel for the
    respondent.

E      12. In Badri Prasad (supra) the issue was whether an
  employee substantially holding Group 'D' post can claim regular
  promotional post, i.e., Group 'C'. The Court in that context
  observed that the practice adopted by the Railways of taking
  work from employees in Group 'D' post on higher Group 'C'
F post for unduly long period legitimately raises hopes and claims
  for higher posts by those working in such higher posts. As the
  Railways is utilising for long periods the services of employees
  in Group 'D' post for higher post in Group 'C' carrying higher
  responsibilities, benefit of pay protection, age relaxation and
G counting of their service on the higher post towards requisite
  minimum prescribed period of service, if any, for promotion to
  the higher post must be granted to them as their legitimate
  claim. But they cannot be granted relief of regularising their
  services on the post of Storeman/Clerk merely on the basis of
H their ad hoc promotion from open line to higher post in the

                                                                          ...
      UNION OF INDIA v. BHANWAR LAL MUNDAN                       567
                 [DIPAK MISRA, J.]

 project or construction side. After so stating the Court opined         A
 thus:-

      "Without disturbing, therefore, orders of the Tribunal and
      the High Court the appellants are held entitled to the
      following additional reliefs. The pay last drawn by them in        B
      Group 'C' post shall be protected even after their
      repatriation to Group 'D' post in their parent department.
      They shall be considered in their turn for promotion to
      Group 'C' post. The period of service spent by them on
      ad hoc basis in Group 'C' post shall be given due                  C
      weightage and counted towards length of requisite service,
      if any, prescribed for higher post in Group 'C'. If there is
      any bar of age that shall be relaxed in the case of the
      appellants."
                                                                         D
       13. Reading the decision in entirety we are persuaded to
  think that the directions were issued in the special fact- situation
. and, in any case, it, does not pertain to a situation where
  someone gets repatriated on being selected to a higher post
  and on that foundation would claim pay protection and                  E
  consequent fixation of pay in the selection post.

       14. In Syed Abdul Quadir (supra) the Court was dealing
 with fixation of pay under FR 22-C and as there was a wrong
 fixation, the question of recovery arose. The Court, relying on
                                                                         F
 earlier decisions, opined thus:-

      "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,      G
      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
                                                                         H
    568       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A         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 4, Shyam
          Babu Verma v. Union of lndia 5 , Union of India v. M.
B         Bhaskar6, V. Gangaram v. Director, Col. V.J. Akkara
          (Retd.) v. Govt of lndia 8 , Purshottam Lal Das v. State of
          Biha~, Punjab National Bank v. Manjeet Singh 10 and
          Bihar SEB v. Bijay Bhadur. 11 "

c      15. From the aforesaid decision it is clear as day that it
  has been relied upon to by the tribunal as well as by the High
  Court for the purpose that there should be no recovery. Mr.
  Singh has conceded that steps shall not be taken for any
  recovery, and we think that the concession has been justly
D given. Be it noted, the aforesaid decision does not assist the
  respond to pyramid the submission of pay fixation and grant
  of pension.

       16. In Union of India and another v. P.N. Natarajan and
E others12 the Court was dealing with a fact-situation where there
  was withdrawal of pensionary benefits. Adverting to the concept
  of natural justice and, relying on the decisions in State of Orissa
  v. Dr. Binapani Dei13 and Sayeedur Rehman v. State of
  Bihar14 , the Court ruled thus: -
F   4.    1995 Supp (1) sec 18.
    5.    (1994) 2 sec 521.
    6.    (1996) 4 sec 416.
    1.    (1997) 6 sec 139.
    8.    (2006) 11 sec 709.
G   9.    (2006) 11 sec 492.
    10. (2006) 8 sec 647.
    11. c2000) 10 sec 99.
    12. (2010) 12 sec 405.
    13. AIR 1967 SC 1269.
H   14. (1973) 3 sec 333.
            UNION OF INDIA v. BHANWAR LAL MUNDAN                      569
                       [DIPAK MISRA, J.]
            "16. It is not in dispute that before directing revision of the   A
            pension, etc. payable to the private respondents, the
            Central Government did not give them action-oriented
            notice and opportunity of showing cause against the
            proposed action. Therefore, it must be held that the
            direction given by the Central Government to revise the           B
            retiral benefits including the pension payable to the
            respondents was nullity.

            17. Dehors the above conclusion, we are convinced that
            the action taken by the appellants to revise and reduce the       c
            retiral benefits payable to the respondents was ex facie
            arbitrary, unreasonable and unjustified and the learned
            Single Judge did not commit any error by declaring that
            the Central Government did not have the jurisdiction to
            unilaterally alter/change the option exercised by the writ        D
            petitioners under Section 12-A(4)(b) read with Section 12-
            A(4-C)."

             17. The aforesaid conclusion was arrived at as the Union
        of India as such could not have invoked the terms of the              E
        memorandum of settlement to justify the directives and retiral
        benefits payable to the respondents. The aforesaid decision
        has to be read in the context of its facts and not to be construed
        as a precedent for the proposition that if the pay has been
        erroneously fixed that cannot be revised even if the facts are        F
        absolutely clear and undisputed.

             18. We may note with profit that Mr. Singh, learned senior
        counsel, has submitted that the respondent was holding an ex-
   •    cadre post and it was the duty of the employer to ask him to
        participate in the selection in the promotional post, in the parent   G
        cadre. The respondent, being conscious of his position and to
""
'"I'.
        have the status, appeared in the selection process, got
        selected and joined the parent cadre. The learned senior
        counsel would submit that under a mistaken pression his pay
                                                                              H
     570       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A     was fixed in the promotional post in the parent cadre as a
      consequence of which he got more than the promotees in his
      batch and, hence, the same was required to be rectified and
    . the employer was within its right to do so.

B      19. It is not in dispute that the respondent was sent on
  deputation and his lien in the parent department continued and
  hence, it was obligatory on the part of the authorities in the
  parent department to intimate him when the selection process
  for the higher post was undertaken as he had already come
c within the zone of consideration. In this context, we may refer
  with profit to the authority in D. M. Bharati v. L. M. Sud and
  Others15 wherein the Court was dealing with a case whether
  the employee had got a promotion in the department to which
  he was sent on deputation. While considering the effect of the
D said promotion after repatriation the Court observed thus:-

           "that the appellant's promotion as junior draftsman and
           proposed promotion as Surveyor-cum-Draftsman in the
           Town Planning Establishment cannot confer any rights on
           him in his parent department. When he left the Municipal
E
           Corporation and joined the Town Planning Establishment
           he was a tracer and he can go back to the Estate
           Department or any other department of the Municipal
           Corporation only to his original post i.e. as tracer, subject
           to the modification that, if in the meantime he had qualified
F
           for promotion to a higher post, that benefit cannot be
           denied to him. "

       Thus, the repatriation has to be to the original post and
  benefit of promotion in the department to which an employee
G is deputed is of no consequence subject to his entitlement of
  status otherwise available in the parent department.



H    15. 1991 Supp (2) sec 162.
    UNION OF INDIA v. BHANWAR LAL MUNDAN                      571
               [DIPAK MISRA, J.]
      20. In Puranjit Singh v. Union Territory of Chandigarh 16 it    A
has been held that when a deputationist is repatriated he cannot
claim promotions in the parent department on the b~is on
officiation in a higher post in the borrower organization.

     21. In State of Punjab and others v. lnder Singh and             B
       11
others , the learned Judges elaborately adverted to the
concept of deputation and the right of a deputationist and in
that context opined thus:-

     "The concept of "deputation" is well understood in service       C
     law and has a recognised meaning. "Deputation" has a
     different connotation in service law and the dictionary
     meaning of the word "deputation" is of no help. In simple
     words "deputation" means service outside the cadre or
     outside the parent department. Deputation is deputing or         D
     transferring an employee to a post outside his cadre, that
     is to say, to another department on a temporary basis.
     After the expiry period of deputation the employee has to
     come back to his parent department to occupy the same
     position unless in the meanwhile he has earned promotion         E
     in his parent department as per the Recruitment Rules."

     22. In the case at hand, as stated earlier, the respondent
was getting higher scale of pay in the post while he was holding
a particular post as a deputationist. After his repatriation to the
                                                                      F
parent cadre on selection to a higher post he was given higher
scale of pay as it was fixed keeping in view the pay scale drawn
by him while he was working in the ex-cadre post. Such fixation
of pay, needless to say, was erroneous and, therefore, the
authorities were within their domain to rectify the same. Thus        G
analysed, the;irresistible conclusion is that the tribunal and the
High Court have fallen into error by opining that the respondent
would be entitled to get the pension on the basis of the pay

16. 1994 Supp (3) sec 471.
11. (1997) s sec 372.                                                 H
    572      SUPREME COURT REPORTS                [2013] 8 S.C.R.


A   drawn by him before his retirement.

         23. Consequently, the appeal is allowed in part and the
    orders passed by the tribunal as well as by the High Court are
    set aside directing fixation of pension on the base of pay drawn
B   by the respondent. However, as conceded to by Mr. Singh,
    there shall be no recovery from the excess amount paid to the
    respondent. There shall be no order as to costs.

    K.K.T.                                  Appeal Partly allowed.
c