BY AD vs T.SANJAY

The learned Counsel for the petitioner has submitted that it was not a fresh appointment but a promotion, and the petitioner’s past services could not be wiped out. Therefore, the re-fixation of pay, treating him as a fresh appointee with effect from 24.08.2009 as Head Constable/Radio Operator, is wholly illegal and unjustified.

3.1 The petitioner was drawing the salary of Rs.42,800/- and it was his last drawn pay. Hence, the gratuity and pension should have been fixed accordingly. Instead of fixing his salary and gratuity on his basic pay of Rs.42,800/-, the petitioner’s pay has been re-fixed to Rs.41,600/- treating him to be a fresh appointee to the post of Head Constable/Radio Operator with effect from 24.08.2009. The petitioner’s WP(C) NO. 43373 OF 2023 5 re-musteration to the post of Head Constable/Radio Operator was all along treated as his promotion from the post of Constable (General Duty), and he was paid accordingly. Now, on the eve of his retirement, treating the petitioner to have been appointed afresh on re-musteration to the post of Head Constable/Radio Operator is arbitrary, illegal, unjust, improper and in violation of Articles 14 and 16 of the Constitution of India.

3.2 The petitioner has further submitted that the issue is also otherwise covered by the judgment in the case of State of Punjab v. Rafiq Masih1.

4. On the other hand, Mr Daya Sindhu Sreehari learned Central Government Counsel has submitted that as per the provisions laid down in paragraph 6.4(b) Chapter VI of CRPF Recruitment Manual-1975, the re-musteration to the rank of Naik/Radio Operator from Constables (General Duty/Bug/Mali and painter) and the communication of DIG 1 (2014) 8 SCC 883 WP(C) NO. 43373 OF 2023 6 (Communication), Directorate General, CRPF dated 25.08.2021 would suggest that on re-musteration, it should be treated as fresh appointment to the post of Head Constable/Naik/Radio Operator and the pay should be fixed accordingly.

4.1 The submission is that the petitioner would not be entitled to one increment while fixing pay on re-musteration as there was no such provision available either in the Fundamental Rules or any other Manuals. On re-musteration, the pay of the Head Constable/Radio Operator is to be fixed as per Fundamental Rules FR-22(B)(1) by protecting his presumptive pay being drawn in the rank of CT(GD). Annual Increment would also be granted on the normal date of increment in the lower pay scale till completion of his probation in the higher rank, so as to fix his pay after completion of the probation period in the higher rank. The pay fixation benefit would be admissible at the time of re-mustering as Head Constable/Naik/Radio Operator as per Chapter VI of the Recruitment Manual of CRPF and the re-musteration WP(C) NO. 43373 OF 2023 7 to the rank of Naik/Radio Operator from Constable (General Duty/Bug/Mali/Painter) is to be treated as fresh appointment.

4.2 Mr Daya Sindhu Sreehari learned Central Government Counsel has further submitted that the CRPF has sought clarification from the Ministry of Home Affairs vide letter dated 23rd/24th January

2023. However, no clarification has been received on this issue. He has also submitted that the Accounts Officer (Audit), Headquarters, New Delhi, has forwarded the case of the petitioner to the Senior Accounts Officer, IAW-19, Ajmer, vide letter dated 13.06.2023 for re-examination and to submit a speaking order for taking further course of action. In the meantime, IG (Comn&IT) vide communication dated 07.11.2023 had issued directions to DIC, Signal Range and all Signal Units not to allow pay fixation benefits under Fundamental Rule-22 to all Head Constable/Naiks/Radio Operators till an appropriate decision is taken in the matter so as to avoid overpayment and unnecessary recovery from the individual concerned. WP(C) NO. 43373 OF 2023 8

4.3 Furthermore, in the light of the above facts, the pay of the petitioner was fixed treating his re-musteration as a fresh appointment to the post of Head Constable/Naik/Radio Operator. Therefore, the overpayment of Rs.1,78,011/- had to be recovered from his DCRG.

5. I have considered the submissions on behalf of the parties and perused the records.

5.1 On the eve of retirement, the petitioner’s promotion to the post of Head Constable/Naik/Radio Operator was treated as a fresh appointment to the said post and his pay has been fixed on that basis with effect from 24.08.2009 without giving him the benefit of Fundamental Rule-22(B)(1) by protecting his pay of the rank of Constable (General Duty). All along, till he took the voluntary retirement, he was given the benefit of Fundamental Rules-22(B)(1), and his pay on the post of Constable (General Duty) was protected, and his appointment to the post of Head Constable/Naik/Radio Operator was treated as promotion.

5.2 This Court fails to understand that after fourteen years from WP(C) NO. 43373 OF 2023 9 the date of his appointment to the post of Head Constable/Naik/Radio Operator, the authorities have taken the U-turn that his appointment on re-musteration as Head Constable/Naik/Radio Operator shall not be treated as promotion but fresh appointment and he would not be entitled to the benefit of Fundamental Rule-22(B)(1).

6. This Court is of the considered view that the authorities cannot take such a view after fourteen years and re-fix the pay of the petitioner to his detriment. Even otherwise, the recovery of a sum of Rs.1,78,011/- from the DCRG of the petitioner is wholly unjustified in view of the judgment of the Supreme Court in Rafiq Masih (supra). Paragraph 18 of the said judgment, which is relevant, is extracted hereunder: “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: WP(C) NO. 43373 OF 2023 10 (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ’C’ and Group ’D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.”

6.1 The authorities themselves have, in one such case, Baiju T B v. Union of India2, restored the pay which was being drawn by similarly placed persons on the date of his retirement by giving him the benefit of Fundamental Rule-22(B)(1). This Court disposed of the case of the said person by the following directions: “3. The Competent Authority has passed the order dated 25.01.2025 2 Judgment dated 11.02.2025 in W.P.(C) No.41234/2024 WP(C) NO. 43373 OF 2023 11 revising the pension of the petitioner as claimed in the Writ Petition. The said order has been communicated to the 5th respondent.

4. Considering the aforesaid facts and the decision taken to revise the pension of the petitioner as prayed in this writ petition, the present writ petition is disposed of with direction to the 5th respondent to pay the arrears of pension to the petitioner, within a period of one month and the regular pension thereafter at the revised date.”

6.2 In view of the aforesaid discussion, the present writ petition is allowed. The respondents are directed to revise the petitioner’s basic pay to Rs.42,800/-, entitling him to a basic pension of Rs.21,400/-, and pay the arrears of pension within one month from today. The amount of Rs.1,78,011/- recovered from the DCRG of the petitioner shall also be refunded to the petitioner within one month. With the aforementioned observation and directions, the present writ petition stands allowed. However, without costs. Sd/- D. K. SINGH JUDGE WP(C) NO. 43373 OF 2023 12 PETITIONER EXHIBITS APPENDIX OF WP(C) 43373/2023 Exhibit -P1 Exhibit -P2 Exhibit -P3 Exhibit -P4 Exhibit -P5 Exhibit -P6 Exhibit -P7 Exhibit -P8 Exhibit -P9 Exhibit -P10 Exhibit -P11 Exhibit -P12 TRUE COPY OF OFFICE ORDER NO.P.III.03/2022-PEN-2 SIG DATED 11.03.2023 ISSUED BY THE 5TH RESPONDENT A TRUE COPY OF THE PAY SLIP SHOWING HIS BASIC PAY IN THE MONTH OF APRIL 2023 @ RS.42,800/- A TRUE COPY OF THE ORDER NO.468/2023-ACCTS-BR-DA1-ACT-2SIG DATED 04.05.2023 ISSUED BY THE 5TH RESPONDENT A TRUE COPY OF THE REPRESENTATION DATED 28.05.2023 SENT BY THE PETITIONER ADDRESSED TO THE 4TH RESPONDENT A TRUE COPY OF THE COMMUNICATION NO. V.II-4/2023-SRC-IV-@ SIG DATED 08.07.2023 RECEIVED FROM THE 5TH RESPONDENT A TRUE COPY OF THE COMMUNICATION NO. P-III_1/2023-EST-I(MISC) DATED 12.07.2023 ISSUED BY THE 4TH RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 27.09.2023 PREFERRED BY THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 27.09.2023 PREFERRED BY THE PETITIONER ADDRESSED TO THE 3RD RESPONDENT A TRUE COPY OF THE COMMUNICATION NO. V.II-4/2023-SRC-IV-2 SIG DATED 16.10.2023 RECEIVED BY THE PETITIONER FROM THE 5TH RESPONDENT . A TRUE COPY OF THE SPECIAL SEAL AUTHORITY APPROVED THE PENSIONARY BENEFITS TO THE PETITIONER DATED 03.08.2023 ISSUED BY THE 6TH RESPONDENT A TRUE COPY OF THE PENSION PAYMENT ORDER BEARING NO.239032324927 DATED 25-07-2023 IN RESPECT OF THE PETITIONER A TRUE COPY OF THE LETTER DATED 18.07.2023 ISSUED BY THE DEPUTY DIRECTOR ACCOUNTS CRPF NEW DELHI SHOWING THE ADMISSIBLE GRATUITY OF THE PETITIONER AT RS.5,90,720/- WP(C) NO. 43373 OF 2023 Exhibit - P13 Exhibit -P14 RESPONDENT EXHIBITS 13 A TRUE COPY OF THE BANK STATEMENT FROM 01.07.2023 TO 18.12.2023 ISSUED BY SBI MANKARA BRANCH A TRUE COPY OF THE OFFICE OFFICE MEMORANDUM NO.F.NO. 1 8/03/20 1 5-ESTT. (PAY-I), DATED 02.03.2016 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING Exhibit R5(a) A true copy of the Chapter-VI of Recruitment Manual dated NIL Exhibit R5(b) A true copy of the 2nd signal Bn order No. P.I-04-2023-SRC-IV dated 17-04-2023 Exhibit R5(c) A true Copy of the signal No. P.I-1-2020-21-C 10 dated 25-08-2021 Exhibit R5(e) A true copy of the No. P.I-1-2022-23-C-10-217470- dated 06-07-2023 Exhibit R5( f) Exhibit R5(h) A true copy of the No. IAW- HQ-MHA-CRPF-PF2023-24 dated 13-06- 2023 A true copy of the Dept. of Pen- P.W. O.M. No. 28-91-2022-P and PW-B- -2- dated 20-10-2023 Exhibit R5(i) A true copy the undertaking by the Petitioner dated Nil Exhibit R5(d) A true copy of the signal No. P.VII-52-2020-DA-1-P- dated 06-09-2021 Exhibit R5(g) A true copy of the signal no. P.I-1-2023-24-C-10-217470 dated 07-11- 2023