Mr. Gaurav Serawat, Mr. M.K. Gaur, Mr. Anoop Kumar and Mr. U Srivastava, Advs v. UNION OF INDIA AND ORS

CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD HON'BLE MR. JUSTICE VIMAL KUMAR YADAV JUDGMENT (ORAL) SUBRAMONIUM PRASAD, J. 1. The Petitioner has approached this Court challenging the actions of the Respondents effecting recovery of Rs. 2,38,000/- out of Rs.2,56,000/- (Rs.18,000/- adjusted as income tax) vide Orders dated 03.07.2019 and

05.07.2019. 2. According to the Petitioner, the said amounts were granted to the Petitioner while implementing the decisions of the government and the decisions taken in the implementation of CCS (Revised) Pay Rules, 2008. 3. It is stated that apart from the fact that the said recovery is contrary to law laid down by the Apex Court in various judgments, recoveries have W.P.(C) 9037/2019 Page 1 of 12 Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 been made without giving the Petitioner any kind of notice which is in violation of Article 14 of the Constitution of India. 4. Shorn of unnecessary details, the facts of the case reveal that in compliance of the orders of this Court, the CISF Directorate decided to implement the Office Memorandum being O.M. No.8-23/2017-E.IIIA dated

28.09.2018 issued by the Ministry of Finance, Department of Expenditure. The said O.M. reads as under:- "No. 8-23/2017-EIIIA Government of India Ministry of Finance Department of Expenditure North Block, New Delhi 28th September, 2018 Office Memorandum Subject: Central Civil Services (Revised Pay) Rules, 2008- Section II of the Part 'A' of the First Schedule thereto- entry pay for direct recruits appointed on or after 1.1.2006 and pay fixation in the case of persons other than such direct recruits. to 31.12.2015) The undersigned is directed to invite the attention to the provisions contained in Section-2 of Part 'A' of the First Schedule of the Central Civil Services (Revised Pay) Rules, 2008 which provides for entry pay in the revised pay structure (pay structure effective from for direct recruits 1.1.2006 up appointed on or after 1.1.2006 on a post and to say that pay in respect of persons appointed to the same posts before 1.1.2006 is required to be fixed as on 1.1.2006 under Rule 7 (1)(A)(i) and pay in respect persons appointed on the same post on promotion on or after 1.1.2006 is required to be fixed under Rule 13 thereof. Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 W.P.(C) 9037/2019 Page 2 of 12

2. A number of references were received in Ministry of Finance, Department of Expenditure, stating that the pay of seniors of a post was fixed at a stage lower than the entry pay applicable to the persons appointed on direct recruitment basis on that post on or after 1.1.2006. In such cases, stepping of pay was allowed to the senior employee at par with the entry pay of direct recruits of those posts, subject to the conditions, inter- alia, that stepping up of pay of seniors is applicable only in those cases which have an element of direct recruitment and where a directly recruited junior is actually drawing more basic pay than the seniors. Thus, the stepping up of pay of senior employees was admissible from the date a junior direct recruit joined on or after 1.1.2006.

3. The matter was also considered in the meeting of the National Anomaly Committee (NAC) held on 17.7.2012 based on a demand raised by the Staff Side under the JCM. NAC had recommended that in cases where Recruitment Rules provide for direct recruitment then the stepping up of pay of senior may be considered, even if no actual direct recruitment takes place or no direct recruit has actually joined. However. It was decided that stepping up of the pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basic pay than the seniors. Thus stepping up of pay was dependent upon actual joining of a direct recruit. (TGTs) of

4. Trained Graduate Teachers Government of National Capital Territories of Delhi (GNCTD) filed an OA No. 3217/2014 before the Hon'ble Principal Bench of CAT. The 13 petitioners of the post of Trained Graduate Teachers (TGT) comprised those who were appointed as TGT before 1.1.2006 as also those who were promoted to the post of TGT on or after 1.1.2006. The pay of these 13 the relevant employees had been fixed as per Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 W.P.(C) 9037/2019 Page 3 of 12 provisions of the CCS (RP) Rules, 2008 and the same happened to be lower than the entry pay as applicable to direct recruits of the post of TGT appointed on or after 1.1.2006. These petitioners prayed for re-fixing their pay as applicable to direct recruits appointed on or after 1.1.2006.

5. The Hon'ble Principal Bench of CAT in their order dated 4.4.2016 in OA No.3217/2014 allowed the application and directed the Government to ensure that none of the applicant's pay is fixed at a stage lower than the pay which could be drawn by a direct recruit appointed on or after 1.1.2006. The order of Hon'ble CAT doted 4.4.2016 was upheld by the Hon'ble Delhi High Court in terms of their order dated 23.3.2017 in WP(C) No.2634/2017. The Hon'ble Delhi High Court in its order dated 23.3.2017 observed, inter-alia, that the plea of stepping up of pay, as mentioned in para 2 above, means that the direct recruits should have actually joined before any stepping up of pay con be granted and the date of joining would be different as filling up of direct recruit vacancies in the cadre would depend upon vacancy position, selection etc. The Hon'ble Delhi High Court held this was unacceptable.

6. The matter arising out of the aforesaid order of Hon'ble Delhi High Court doted 23.3.2017 was heard by the Hon'ble Supreme Court as part of the SLP and in its order' dated 01.09.2017 (Dy. No. 23663/2017), the Hon'ble Supreme Court has observed that once the question, in principle, has been settled, it is only appropriate on the part of the Government to issue a Circular. The Hon'ble Supreme Court further observed that the present situation is that the stepping up is available 'only to those who have approached the Court, but since the issue otherwise became final the Hon'ble Supreme Court directed Government immediately look into the matter and issue appropriate orders. Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 W.P.(C) 9037/2019 Page 4 of 12

7. Accordingly, the matter has been considered in the light of the above background and in the context of the specific orders of Hon'ble Supreme Court dated 01.09.2017 as arising out of the original issue raised by the Trained Graduated Teachers of GNCTD in terms of their OA No. 3217 /2014. As mentioned above, the petitioners in that case were those who were appointed as TGT before 1.1.2006 and also promoted as TGT on or after 1.1.2006 and had occasion for grievance because their pay in the pay structure in vogue from 1.1.2006 had been fixed lower than the entry pay as prescribed for direct recruits appointed as TGT on or after 1.1.2006. Therefore, the principle of the benefit of pay fixation, as flowing from the aforesaid orders of Hon'ble CAT, Hon'ble Delhi High Court and the Hon'ble Supreme. Court is that the pay of those who were appointed to the post prior to 1.1.2006 and those who were appointed to the post on promotion in the pay structure, effective from 1.1.2006 onwards, and where in respect of such posts entry pay for direct recruits appointed on or after 1.1.2006 has been prescribed giving rise to differential pay, may not be lower than the said entry pay. It is the case of differential pay in respect of employees of a post, as caused by the existence of entry pay applicable for direct recruits on that post appointed on or after 1.1.2006, that has been addressed in the aforesaid case of the post of TGTs. In case entry pay as per Section II of Port A of the First Schedule of the CCS (RP) Rules. 2008 is not applicable in case of a post, the same will not give rise to differential pay for holders of the post and, hence, not covered under the ratio of the case of TGT.

8. Accordingly the President is pleased to decide that in respect of those posts where entry pay for direct recruits appointed on or after 1.1.2006, as per Section II of Part A of the First Schedule of CCS (RP) Rules, 2008, becomes applicable by virtue of the provision of Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 W.P.(C) 9037/2019 Page 5 of 12 the element of direct recruitment in the relevant recruitment rules, the pay of Central government employees who were appointed to such posts prior to 1.1.2006 and whose pay as fixed in the revised pay structure under Rule 7 thereof as on 1.1.2006 turns out to be lower than the prescribed entry pay for direct recruits of that post, shall not be less than such entry pay w.e.f. 1.1.2006. Likewise, the pay of Central Government employees who were appointed to such posts by way of promotion on or after 1.1.2006 and whose pay, as fixed under Rule 13 of CCS(RP) Rules, 2008, happens to be lower than the said entry pay, shall else not be less than such entry pay from the date of their promotion taking place on or after 1.1.2006.

9. In their application to the employees of office of Indian Audits and Accounts Deportment these orders issue after consultation with the Comptroller and Auditor General of India.

10. Hindi, version of these orders is attached. " (emphasis supplied)

5. The CISF Directorate intimated that the benefit granted by the said O.M. would be extended to those personnel who were granted ACP/MACP after 01.01.2006 vide Letter No. E-27099/20/2018/Entitlement/H-482 dated

06.12.2018. The Petitioner who was working in the CISF Unit Taj Mahal, Agra was granted the benefit of Entry Pay under the above order. 6. It is the case of the Respondent that the Petitioner, who was not promoted to the rank of Head Constable as on 01.01.2006, but was granted MACP on 28.07.2006, was granted the said benefit vide Part-II No.44/2019 dated 10.02.2019 and an amount of Rs.2,56,000/- was calculated as arrears and was paid to the Petitioner. 7. It is stated that the Respondent/CISF realised the said mistake which W.P.(C) 9037/2019 Page 6 of 12 Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 came to their notice while scrutinizing the bills submitted by the Units under its jurisdiction. It is stated that in view of the same, it was decided to make recovery against the Petitioner for the amount which was paid to him. 8. The contention of the Petitioner is that the recovery proceedings is contrary to law laid down by the Apex Court in State of Punjab and Ors. vs. Rafiq Masih, (2014) 4 SCC 344. 9. During the pendency of the writ petition, the Petitioner has taken voluntary retirement in the year 2020. 10. It is the case of the Petitioner that there was no misrepresentation on his part and he being a Class III employee, such recoveries which have been made without any notice cannot be made. It is also contended that the recoveries have been effected without giving any kind of show cause notice to the Petitioner and therefore the principles of natural justice have been violated. 11. The underlying principle in the judgment of State of Punjab and Ors. vs. Rafiq Masih, (2014) 4 SCC 344, is that an action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous and the action of recovery would be more unfair, more wrongful, improper and more unwarranted, than the corresponding right of the employer, to recover the amount. Paragraph 10 of the said Judgment reads as under: “10. In view of the aforestated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 W.P.(C) 9037/2019 Page 7 of 12 to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.”

12. Paragraph 12 of the said Judgment which summarises the law, is also reproduced as under: “12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar [Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] , wherein this Court recorded the following observation in para 58 : (SCC p. 491) “58. 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, 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 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 [Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 967] , V.Gangaram v. Director [(1997) 6 SCC 139 : 1997 SCC , B.J. Akkara v. Govt. of India [B.J. (L&S) 1652] Akkara v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 1996 SCC 416 : Signature Not Verified Signed By:ASHOK KUMAR CHOUHAN Signing Date:27.10.2025 17:35:02 W.P.(C) 9037/2019 Page 8 of 12