L.N. Mittal, Member, (J).
1. Applicant Jagsir Singh has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 claiming the following relief:
'(i) Respondent’s order/letter dated 05.11.2015 and 04.11.2015 (Annexures A-1 and A-2) reducing his pay/pensionary benefits retrospectively with effect from 01.09.2001 and making consequent recovery may kindly be quashed and set aside being illegal, arbitrary and violative of principles of natural justice;
(ii) It may kindly be declared that applicant is entitled to fixation of pension and other benefits with reference to his officiating pay of the post of Senior Postmaster as already done (Annexure A-7) and directions be issued to respondents to pay him consequential arrears with effect from 01.01.2006 instead of 24.09.2012, and also to refund the amount already illegally recovered alongwith 18% interest for delayed payment'.
2. Facts in the case are not very much in dispute. The applicant joined the service of respondents in Department of Posts as Sorting Assistant on 20.11.1964. He was promoted as Inspector, RMS on 27.5.1980 and as Assistant Superintendent, RMS (ASRMS) in the pay scale of Rs. 6500-10,500/- w.e.f. 26.11.1988. In the year 2001, he was posted at Chandigarh and drawing basic pay of Rs. 8100/- p.m. Respondent no. 2 vide order dated 14.8.2001 (Annexure A-3) directed that the applicant will officiate as Senior Postmaster, Chandigarh Head Office during leave period of Avtar Singh, Senior Postmaster from 14.8.2001 to 31.8.2001. The applicant accordingly assumed charge of the said post on 14.8.2001 itself vide charge report dated 14.8.2001 (Annexure A-4). He retired while officiating on the said post on 31.8.2001. His pay for the period from 14.8.2001 to 31.8.2001 was fixed at Rs. 8500/- in pay scale of Rs. 7500-12000/- vide order dated 8.10.2001 (Annexure A-5). Thus he was drawing basic pay of Rs. 8500/- in the said scale at the time of his retirement. His retiral benefits were settled accordingly. His pension was fixed at Rs. 4032/- by giving him benefit of officiating pay from 14.8.2001 to 31.8.2001. Further on implementation of recommendations of 6th Central Pay Commission (CPC), his pension was revised from Rs. 4032/- to Rs. 9113/- w.e.f. 1.1.2006. Thereafter pursuant to O.M. dated 28.1.2013 (Annexure A-6), pension of the applicant was revised to Rs. 9375/- p.m. with reference to the pay scale of Rs. 7500-12000/- w.e.f. 24.9.2012 vide PPO dated 3.7.2014 (Annexure A-7) and arrears were paid accordingly. Vide O.M. dated 30.7.2015 (Annexure A-8), revised pension was made effective from 01.01.2006 instead of 24.9.2012 as earlier stated in O.M. dated 28.1.2013 (Annexure A-6). The applicant made representation dated 10.9.2015 (Annexure A-9) seeking revision of his pension to Rs. 9375/- w.e.f. 1.1.2006 instead of 24.9.2012. However, the respondents vide letter dated 4.11.2015 (Annexure A-2) and PPO dated 5.11.2015 (Annexure A-1) reduced the pension of the applicant to Rs. 4020/- w.e.f. 1.9.2001 and to Rs. 9086/- w.e.f. 1.1.2006 as well as w.e.f. 24.9.2012 Gratuity amount was reduced from Rs. 2,03,363/- to Rs. 1,91,120/- and commuted value of pension was reduced from Rs. 1,89,765/- to Rs. 1,89,294/-. Vide letter (Annexure A-2), the applicant was informed that he was not entitled to pay scale of Rs. 7500-12000/- as no formal order of his regular promotion was issued for grant of higher pay scale. Consequently, his retirement benefits including pension have been revised and recovery of excess payment made to him has been ordered. Respondents have started effecting recovery from the pension of the applicant from November, 2015 onwards @ Rs. 5000/- per month. The applicant made representation dated 8.3.2016 (Annexure A-10). Respondent no. 2 vide letter dated 11.3.2016 (Annexure A-11) requested respondent no. 3 to take necessary action. No further response was received from the respondents. Hence this O.A.
3. It is alleged that since the applicant was officiating as Senior Postmaster at the time of his retirement, he was rightly sanctioned pension of Rs. 4032/- w.e.f. 1.9.2001 and revised pension of Rs. 9375/- w.e.f. 24.9.2012 which was now required to be sanctioned w.e.f.1.1.2006 in view of O.M. dated 30.7.2015 (Annexure A-8). In view of rule 70 of the Central Civil Services (Pension) Rules, 1972 ( in short, the Pension Rules), the pension of the applicant could not be revised to his disadvantage. However, pension of the applicant has been reduced after 14 years and no approval of Department of Personnel and Administrative Reforms (DoPAR) was also obtained. It was also not a clerical error and, therefore, under Rule 70 of the Pension Rules, the pension of the applicant could not be reduced at all. Necessary recovery notice of two months was also not given.
4. Respondents in their written statement pleaded that the applicant was working as ASRMS in August, 2001 in the pay scale of Rs. 6500-10500/- and was drawing basic pay of Rs. 8100/-. On grant of leave to Avtar Singh, Senior Postmaster from 14.8.2001 to 31.8.2001, Senior Superintendent of Post Offices (SSPOs), Chandigarh was informed about sanction of leave of Avtar Singh and that the applicant being senior most at Chandigarh station will officiate as Senior Postmaster, Chandigarh during leave period of Avtar Singh from 14.8.2001 to 31.8.2001 only. It was simply leave arrangement/stopgap arrangement for 18 days only. No formal order of promotion of the applicant was issued nor he was entitled to promotion as Senior Postmaster because he was not senior most ASRMS in Punjab Circle. He retired on 31.8.2001. His pension case had been forwarded vide letter dated 21.3.2001 and his pension was accordingly settled at Rs. 4020/- on the basis of his average emoluments and last pay of Rs. 8100/- in the pay scale of Rs. 6500-10500/- and retirement benefits were also settled accordingly. Subsequently, after receiving charge report of the applicant as officiating Senior Postmaster, his pay was inadvertently fixed in higher scale of Rs. 7500-12000 to which he was not entitled. On the basis of this incorrect pay fixation, case of the applicant for revision of pension in the said wrong pay scale was forwarded. Accordingly his pension was incorrectly settled at Rs. 4032/-. On implementation of 6th Central Pay Commission (6th CPC) Report, his pension was erroneously revised to Rs. 9113/- corresponding to pre-revised pension of Rs. 4032/-. Pursuant to O.M. dated 28.1.2013 (Annexure A-6), his pay was further revised to Rs. 9375/- w.e.f. 24.9.2012. However, when irregularity in the grant of higher pension was noticed, the case was considered and examined and accordingly pension of the applicant was revised to original pension of Rs. 4020/- from Rs. 4032/- w.e.f. 01.09.2001 and further revision w.e.f. 1.1.2006 was accordingly made to Rs. 9086/- vide PPO dated 5.11.2015 (Annexure A-1). Accordingly letter dated 4.11.2015 (Annexure A-2) was issued for effecting recovery of excess payment from the applicant. It has thus been alleged that impugned letter dated 4.11.2015 (Annexure A-2) and PPO dated 5.11.2015 (Annexure A-1) have been correctly issued for recovery of excess payment from the Applicant.
5. The applicant filed rejoinder wherein he controverted the stand of the respondents and reiterated his own version.
6. We have heard learned counsel for the parties and perused the case file.
7. Counsel for the applicant relying on judgments in 2004(4) RSJ 599 –‘Pritam Singh Dhaliwal Vs. State of Punjab and Another’; 1998 SCC (L&S) 1127 – ‘Selvaraj Vs. Lt. Governor of Island, Port Blair and Ors.’, 1998 SCC (L & S) 1273- ‘Secretary-cum- Chief Engineer, Chandigarh Vs. Hari Om Sharma and Ors.’, 2006(2) ATJ 628- ‘Ganga Ram Vs. Union of India & Ors.’ and also judgment dated 9.9.2016 of Hon’ble High Court of Punjab and Haryana in CWP No. 17358 of 2015-‘Jagjit Singh and Ors. Vs. State of Punjab and Ors.’ contended that the applicant was entitled to pay of higher post of Senior Postmaster against which he was officiating from 14.8.2001 till his superannuation on 31.8.2001 and, therefore, his pay for the said period was rightly fixed in the higher pay scale of Rs. 7500-12000/- vide order dated 8.10.2001 (Annexure A-5) and his pension had also been rightly fixed at Rs. 4032/- w.e.f. 1.9.2001 and revised pension at Rs. 9113/- w.e.f. 1.1.2006, enhanced to 9375/- from 24.9.2012 and the said enhancement to Rs. 9375/- should be made effective from 1.1.2006 in view of O.M. dated 30.7.2015 (Annexure A-8). It was contended that the applicant was entitled to pay of higher officiating post and is entitled to pension according to pay of the said post because at the time of superannuation, he was officiating on the said post. It was also contended that in view of judgment of Hon’ble Supreme Court in SLP (C) No. 11684 of 2012 ‘ ‘State of Punjab and Ors., etc. Vs. Rafiq Masih etc.’(White Washer) and O.M. dated 2.3.2016 (Annexure A-13) issued on its basis, recovery cannot be effected from the applicant. Reference has also been made to rule 70 of the Pension Rules which is reproduced hereunder:
'70.Revision of pension after authorisation:
(1) Subject to the provisions of Rules 8 and 9, pension once authorised after final assessment shall not be revised to the disadvantage of government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently.
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years from the date of authorisation of pension.
(2) For the purpose of sub-rule (1), the retired Government servant concerned shall be served with notice by the Head of office requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him.
(3) In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment shall be adjusted in instalments by short payments of pension in future, in one or more instalments, as the Head of Office may direct.'
It was pointed out that the alleged error was not a clerical error and rather it was administrative error and, therefore, pension of the applicant could not be revised to his disadvantage. It was also argued that even assuming it to be clerical error, the pension could be reduced after two years only with concurrence of DoPAR, but no such approval was obtained. Recovery notice of two months was also not issued to the applicant. Details of the excess amount have also not been communicated nor any order for recovery of excess amount has been passed as per rule 70 of the Pension Rules.
8. On the other hand, counsel for respondents contended that it was only local leave arrangement whereby the applicant was asked to officiate as Senior Postmaster for limited period of 18 days being leave period of Avtar Singh, Senior Postmaster and, therefore, the applicant is not entitled to pensionary benefits on the basis of the said officiating higher post.
9. We have carefully considered the matter. The contention that details of amounts to be recovered from the applicant have not been mentioned and that order for recovery of the amount in instalments has not been passed as required vide rule 70 of the Pension Rule, is completely untenable. The details of excess amounts of Gratuity and Commuted Value of Pension have been given in revised PPO dated 5.11.2015 (Annexure A-1) whereas recovery in instalments has been ordered vide order dated 4.11.2015 (Annexure A-2). Error in fixing the pension of the applicant at higher rate was obviously a clerical error and, therefore, under rule 70 of the Pension Rules, the pension could be revised even to the disadvantage of the applicant to rectify the clerical error.
10. As regards the entitlement of the applicant, it is undisputed that the applicant officiated as Senior Postmaster for 18 days from 14.8.2001 till his superannuation on 31.8.2001. Consequently, for that limited period, he was entitled to pay of that post. However, on the basis of said pay, he is not entitled to pensionary benefits at higher rates. Reason for the same is that even if the applicant had not superannuated on 31.8.2001, he would not have continued to officiate as Senior Postmaster because he was asked to officiate as such for the limited period of 18 days from 14.8.2001 to 31.8.2001 only because Avtar Singh, Senior Postmaster was on leave for that period only. Consequently, said officiation was ordered for the limited period of 18 days. In view thereof, judgments in Pritam Singh Dhaliwal (supra), Selvaraj (supra), Hari Om Sharma (supra), Ganga Ram (supra) and Jagjit Singh (supra) cited by the counsel for the applicant are completely distinguishable on facts. In those cases, the concerned employees were officiating on higher posts for years together against regular vacancies. In the instant case, however, the applicant officiated only during the leave period of the regular incumbent for 18 days only. It was only local leave arrangement. Jagjit Singh (supra) rather demolishes the case of the applicant. According to said judgment, if A Govt. employee is asked to officiate on a higher post for a limited time period only, then he is not entitled to pension of that post. In the instant case, the applicant was asked to officiate as Senior Postmaster for limited period of 18 days only. Consequently, he is not entitled to pensionary benefits on the basis of said officiation. In Jagjit Singh (Supra), the petitioners had been officiating on higher post for long years and in their officiating appointments, NO time limit was prescribed. For this reason, they were held entitled to pensionary benefits on the basis of pay of concerned officiating posts. However, observation in the said judgment reveals that if such officiation is for limited period only, then this benefit would not be available. Consequently, in the instant case, the applicant is not entitled to retiral benefits on the basis of pay or pay scale of officiating post of Senior Postmaster held by him for limited period of 18 days from 14.8.2001 to 31.8.2001.
11. As regards the recovery of excess amount from the applicant, keeping in view the peculiar facts and circumstances of this cas
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e, we are of the considered opinion that recovery should not be effected from the applicant. Reason for the same is that pension of the applicant was fixed at Rs. 4032/- in the year 2001 and has now been revised to Rs.4020/- in the year 2015 i.e. after 14 years. In the same manner, Gratuity and Commuted Value of Pension had been revised after 14 years. There was no fraud or misrepresentation on the part of the applicant in payment of said excess amount to him. His revised pension w.e.f. 1.1.2006 was also fixed somewhere in the year 2008 pursuant to acceptance of recommendations of 6th CPC. The same has now been reduced after seven years. There was no fault, fraud or misrepresentation on the part of the applicant. After issuance of O.M. dated 21.8.2013 (Annexure A-6), pension of the applicant was further revised to Rs. 9375/- w.e.f. 24.9.2012 vide PPO dated 3.7.2014 (Annexure A-7), again without any fraud or misrepresentation on the part of the applicant. Keeping in view all these peculiar facts and circumstances of the case, we direct that the recovery should not be made from the applicant. However, it shall not be treated as precedent. 12. Keeping in view the aforesaid, the O.A. is allowed partly. Respondents are directed not to make any recovery pursuant to impugned letter dated 4.11.2015 (Annexure A-2) and impugned revised PPO dated 4.11.2015 (Annexure A-1). However, the same shall be effective prospectively for the pension payable from November, 2015 onwards. Recovery, if any already made, shall be refunded to the applicant. The O.A. is disposed of accordingly with no order as to costs.