IMPORTANT POINT
After his repatriation to the parent cadre on selection to a higher post if an employee 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 was erroneous and, therefore, the authorities were within their domain to rectify the same. The employee would not be entitled to get the pension on the basis of the pay drawn by him before his retirement.

JUDGMENT

Dipak Misra, J.

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 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 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 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 scale of Rs.380-560. On completion of the training he came in 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-I 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. 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 had been given excess pay due 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.

4. Being dissatisfied with the said action, the respondent approached the tribunal which, placing reliance on the authorities in Inder Pal Yadav and others v. Union of India and others1 [(2005) 11 SCC 301], Badri Prasad and others v. Union of India and others2 [(2005) 11 SCC 304] and Sayed Abdul Qadir and others v. State of Bihar and others3 [(2009) 3 SCC 475], 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.

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: -

“In our considered opinion, no flaw can be noticed in the 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 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.”

6. On the basis of aforesaid analysis the writ court dismissed the petition.

7. Criticising the orders passed by the tribunal as well as 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 higher pay 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 pa