Recovery of excess salary is iniquitous if made after five years, violating constitutional principles.

JUDGMENT : 

Madhuresh Prasad, J.:

1. Four applicants before the Tribunal who have filed writ petitions separately raise a common issue of fact and law. The four applicants/petitioners are aggrieved by an order of recovery in respect of their excess salary paid on account of wrong fixation by the authorities at the time of their initial entry in service, after a long period of seven years from the date of the grant of benefit.

2. The four applicants/petitioners do not dispute the rectified fixation of pay after 7 years but are aggrieved by a consequential recovery. They have thus approached Central Administrative Tribunal, Kolkata Bench in OA Nos. 516 of 2024, 571 of 2024, 664 of 2024 and 1665 of 2024 for reliefs in this regard.

3. The Tribunal has allowed only partial reliefs to the four applicants; and allowed some recovery, challenging which the four applicants/petitioners have filed four Writ Petitions, separately. The respondent authorities have also filed four Writ Petitions separately, being aggrieved by the orders of the Tribunal, in so far as the partial relief allowed to the four applicants by the Tribunal. There is no dispute that common issue of fact and law arise and therefore, the cases were considered together.

4. The applicants before the Tribunal are doctors posted as Assistant Professor at the ESI-PGIMSR & ESIC Medical College & ESIC Hospital, Joka. They entered service in the year 2016. At the time of their joining their pay was fixed as Rs. 7,400/-. The said pay earned annual increments and reached the pay of Rs. 91,100/- on 1st January, 2023. It appears from the records and the office order dated 27.09.2023 that some internal audit was done by the regional office from which it was detected that the pay granted to the applicants at the time of their joining should have been Rs. 6,700/-, instead of Rs. 7,400/-. Such an error in their pay fixation at the time of their initial entry in service is not in dispute.

5. The authorities upon discovery of such erroneous fixation have issued the office order dated 27.09.2023 notifying the correct fixation, and thereafter issued an order on 05.03.2024 with a clear intention of making recovery of excess payment made for the period of about 7 years. It is under such circumstances that the applicants have approached the Tribunal by filing an Original Application/s.

6. Keeping in background the fact that the fixation was wrongly done without any suppression, or misrepresentation on their part, the applicants are aggrieved by the decision to make recovery. They have no role to play in the wrong fixation of pay, and therefore, they cannot be made to suffer the consequence of recovery, since the mistake was allowed to perpetuate for a period of 7 years.

7. In support of his submission the learned counsel has relied upon decisions of the Apex Court in the case of Syed Abdul Qadir Vs. State of Bihar reported in 2009 (3) SCC 475, the case of Shyam Babu Verma Vs. Union of India reported in 1999 (2) SCC 521 as also decision of the Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih reported in 2015 (4) SCC 334. Referring to these judgments it is submitted that taking into consideration decision in the case of Syed Abdul Qadir (supra) and Shyam Babu Verma (supra) the Apex Court in Rafiq Masih (supra) held that if payment is made in excess of 5 years, though mistaken, would still be open to rectification but any